Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No.33/13.02.2018

Niranjan Kumar s/o Sh. Suresh Ram

R/o House No. 169, Gali No. 12, (Old Gali No. 6),

near Pump House, West Kamal Vihar, Burari,

Delhi-110084                                                                                   …Complainant

                                                Versus

The New India Assurance Co. Ltd.

7E, Ist Floor, Pandit Deen Dayal Upadhyaya Bldg.

Jhandewalan Extension, Delhi-110005                                        ...Opposite Party

                                                                                    Date of filing:              13.02.2018

Coram:                                                                       Date of Order:             05.06.2024

Shri Inder Jeet Singh, President

Ms Rashmi Bansal, Member -Female

                                                       ORDER

Inder Jeet Singh, President

This case is scheduled today for Final Order (item no.13).

1. (Consumer dispute of the parties) - The complainant/Insured has grievances of deficiency of services against OP/Insurer that he got his vehicle insured but episode of theft happened to his vehicle at public place. The police was informed, eFIR was also registered. The OP was also informed of theft and claim was lodged but claim was not settled by OP. That is why this complaint. But this complaint is opposed by the OP; that neither the complainant informed the OP about episode of theft nor any claim was lodged, thus complaint is wrong and false. The OP is not liable for any amount.  

2.1. (case of complainant) - The complainant is owner of E-rickshaw having temp. no. DL-1ER 0838, Make Shiv-Om, IN/E-Rikshaw chassis/Engine no. M7GBVERCDBD000001/SAM000332 (hereinafter referred as 'vehicle' or 'e-rickshaw'). The complainant had purchased the vehicle on 08.07.2017 by availing finance facility from M/s Pooja Finlease Ltd. The vehicle was purchased by the complainant  to earn his livelihood.

2.2. The vehicle was insured from Insurer/OP vide policy no. 31010331170100001490 valid from 08.07.2017 to 07.07.2018by paying insurance premium of Rs.5576/- against IDV of Rs. 92,150/- (briefly "insurance policy").

2.3.   On 13.12.2017, the vehicle was parked near Signature Apartment, Mukherjee Nagar as complainant went to have lunch in nearby eatery house but after finishing his lunch, he came out but he did not find the vehicle,  where it was parked. He started searching the vehicle in the vicinity but no success.  He called the police  by dialing 100. The police visited him, but instructed to make on-line FIR. Since the complaint is not knowing how to use computer and internet, thus with the help of someone, he reported police and e-FIR no. 039698 dated 14.12.2017 u/s 379 IPC was registered.

2.4.  On 16.12.2017 the complainant also informed OP on telephone about the theft of vehicle. Again on 03.01.2018 the complainant called at 9560652029 (claim Hub) but complainant was advised to send copies of insurance policy and FIR by e-mail, immediately on 04.01.2017 the complainant complied it by sending the scanned copies of FIR and insurance policy by e-mail to OP. The OP did not processed and settled the claim, whereas, the complainant has been suffering for such inaction on the part of OP vis-à-vis the financer was pressing hard to pay the loan amount. The complainant was unable to arrange installments because of theft of vehicle and loss of earnings. Simultaneously, the complainant is suffering a lot of harassment, mental agony and other financial losses because of omissions and negligence of OP to settle the claim. Thus by looking  at the rigid and indifferent attitude of OP, the complainant served legal notice dated 29.01.2018 by registered post to OP through counsel of complainant, which was neither complied to settle the claim nor replied by OP. That is why the complaint is filed against OP for claim of Rs.1,30,000/- with interest at  the rate of 18%pa and compensation of Rs.40,000/- towards mental agony and cost of Rs. 25,000/-.

2.5 The complaint is accompanied with copies of – insurance cover, e-FIR, e-mail reminder of documents and legal notice dated 29.01.2018 [with postal receipt and track report for service of notice] besides identity of complainant.

3.1. (Case of OP) -The OP, in its written statement, does not deny the insurance policy issued for period from 08.07.2017 to 07.07.2018 in respect of subject e-rickshaw/vehicle. But the complaint was filed without first lodging any claim with OP. The complaint is not maintainable and it deserves dismissal.

3.2.  As per the terms and conditions of policy the complainant was required to notify the loss immediately after occurrence but complainant never notified the loss and rushed to file the complaint. The complainant is neither a consumer and he has suppressed the material facts besides non-joinder of necessary party/financer, since the vehicle was hypothecated with the financer. There is complex question of law and fact involved, it cannot be determined in a summary way.

3.3  The alleged facts of 13.12.2017 that the vehicle was parked near Signature Apartment, Mukharjee Nagar at about 12:30 pm or arrival of the police or advises to lodge online complaint, are a false story having no substance. The telephone number  claim Hub or the e-mail Id. do not pertain to claim Hub of OP nor any claim was lodged. The OP also denies other allegations of negligence, deficiency of services or of rigid attitude, the same are being uncalled. The legal notice was also frivolous and there being apparent breach by the complainant, reply to notice was not sent. The complainant is not entitled for any amount or compensation or costs. The complaint is liable to be dismissed. The written statement is not supported with any document.  

4.1 (Evidence of parties) - Complainant filed his detailed affidavit of evidence with the support of documents annexed with the complaint, besides copy of invoice of purchase of vehicle.

4.2. The OP also led evidence by filing very brief affidavit of evidence of Sh. Dharamvir, Divisional Manager, just confining to the insurance policy issued in favour of complainant; insurance policy cover is also filed. The contents of affidavit mentions that terms and conditions of policy are also annexed, however, no such terms and conditions of policy was annexed but annexed document is Tariff for commercial  vehicle Regulations.

5. (Final hearing) -  Then at the stage of arguments, the complainant and the OP were given opportunities to file written arguments and also make oral submissions. The written arguments were filed by both the sides but oral submissions were  exclusively addressed by Shri Navdeep Singh, Advocate for OP.  However, the case of complainant as stated in pleadings, evidence and written arguments will be considered with the case of OP. The OP had also mentioned the case law in the written arguments, the same will be referred appropriately.  

6.1. (Findings): The contentions of both the sides are considered by keeping in view evidence of parties inclusive of documentary record and provisions of law. The OP has raised a few points of law, the same are being considered one by one.

6.2.1 The OP contends that the present Consumer Forum/Commissions lacks the jurisdiction on the subject matter as there are complicated questions of law and fact, which cannot be determined under the summary procedure.

6.2.2 However, the OP could not highlight, at any stage of the case, as to what are those questions of fact or law which needs adjudication by the civil court exclusively or how the same could not be determined by the present Commission. Since there is no complicated question of fact and/or law, which needs adjudication other than by the present Commission. Therefore, the present Commission is competent to decide the issues.

6.3.1  The OP has another objection that the complaint suffers from non-joinder of Pooja Finlease Ltd., who had financed the vehicle and for want of the financer as a party to the complaint, the complaint is liable to be dismissed.

6.3.2  The complainant was not present at the time of argument, however, the complainant in his case as well as in the written arguments clearly mentions that the vehicle was financed by Pooja Finlease Ltd. but it is not a party to the present complaint.

          It is settled law that either of the parties to the case or otherwise, a necessary party may be impleaded to the complaint. To say, had the Pooja Finlease Ltd. as a necessary party and  in its absence, the issues could not be determined, the OP could have also filed the appropriate application to implead it to the complaint but no such application was filed by and on behalf of OP. Although the relevant point is that Pooja Finlease Ltd. has insurable interest in the subject vehicle since it was financed by it. The Financer has first right or charge on the vehicle, from that point of view the OP has rightly pointed out but complaint does not suffer from non -joinder of Pooja Finlease Ltd. Therefore, this contention is also disposed off,  with observation that in case the complainant succeeds in the complainant, the preferred right of financer will be taken into account, so that OP may not face inter-pleader situation.

6.4.1  The third point raised by OP is that the complainant is not a consumer to be covered under the Consumer Protection Act 1986. There is no further elucidation.

6.4.2  The OP had taken this objection without substantiating as to how the complainant is not a consumer, when complainant has led evidence that the subject vehicle was purchased to earn his livelihood and it was insured from OP vis a vis, section 2(o) of Consumer Protection Act, 1986 defining 'service' includes 'insurance services' therefore, it is held that complainant is a consumer and he is covered under the Consumer Protection Act 1986.

7.1  After determination of law points, now the other facts and features are being taken. On the one side, the complainant case is that the vehicle was stolen, when it was parked road side restaurant and it was stolen by someone, which could not be located by him despite efforts in the vicinity and eFIR was lodged but remained untraced. The OP was also informed of this incident.

          But on the other side, the OP denies all such allegations that there was delay in reporting the matter to the police and for late intimation, repudiation of the claim is proper. The OP relies upon New India Assurance Co. Ltd. Vs. Sharif Ahmad 99 2018 CPJ 190, wherein there was delay of 10 days to report the matter to police and 15 days delay to notify it to the insurer, the claim was held not made out. Further reliance is also placed on other similar cases namely Davindra Singh Vs. New India Assurance Co. Ltd. III (2003) CPJ 77 (NC) & Mohd. Mustafa Vs. The New India Assurance Co. Ltd. IV (2003) CPJ 12 (NC); Mitthoolal Prajapati Vs. National Insurance Co. Ltd. II (20212) 38; Siraj Khan Vs. Mahindra Finance Ltd.; Suresh Kumar Vs. National Insurance Co. I (2013)38 and so on that delay in intimation to insurer;  repudiation of the claims was upheld proper.

7.2  Since the case of both the parties have already been detailed. Further, it is relevant to mention about a few important aspect. Firstly, the OP had not filed any documents with written statement (but mentioned otherwise in written statement). The OP filed documents (insurance cover and Tariff Regulations) with affidavit of evidence; it was not proper for OP since evidence cannot be led beyond pleading; OP was  supposed  to take prior permission from the Forum for filing documents,  since the document was not filed earlier. Secondly, the affidavit of the evidence of OP is very brief just confining to the insurance policy and its terms and conditions. The terms and conditions of insurance policy were mentioned to be annexed with the affidavit but the same were actually not annexed; another document tariff for Commercial Vehicle Regulation was annexed. Lastly, what facts, circumstances and defence was pleaded in the written statement, the same have not been mentioned/clothed in the affidavit for evidence. To say, the OP has not led evidence what it had pleaded in written statement.

7.3  In view of the above, the following conclusions are drawn:-

(i)  The date of theft of vehicle is 13.12.2017 but formal e-FIR was got registered on 14.12.2017, the complainant also explained the reason that for want of knowledge how to operate computer and internet, he had taken the assistance of someone else, that is why the e-FIR could not be get registered then and there on 13.12.2017 itself.

(ii)  The complainant has proved that not only he informed the OP about the theft episode but also lodge the claim and there was query and accordingly documents were also sent, this fact remained unchallenged for want of any contrary evidence by the OP.

(iii)   The complainant has proved legal notice dated 29.01.2018 served upon OP before filing the complaint and this notice was not responded by the OP. However, the OP explains in the written statement that the legal notice was false or frivolous and that is why it was not responded.

          However, this legal notice gives an exhaustive detail and the complaint filed  narrates facts mentioned in that legal notice, it also specifies about telephonic information to OP on 16.12.2017 of episode of theft and then on requisition scanned copy of insurance policy and FIR was also sent. Had the OP reservations to these facts, it was required to be responded to the complainant. In Kalu Ram vs Sita Ram (1980 RLR Note 44) it was held that when plaintiff before filing the suit, makes serious assertions in notice to the defendant, then defendant must not remain silent by ignoring to reply. If he does so, then adverse inference may be raised against him. It applies to situation in hand, that  OP failed to reply the legal notice that despite explaining the circumstances and applying for claim, it was not settled but OP came with counter-plea that there no claim lodged. But complaint proved the record of email, while furnishing documents for settlement of claim. The OP also failed to lead rebuttal evidence regarding those email and calls to claim Hub for settlement of claim.

(iv)  The OP is appearing to be in dilemma as on the one side it states that no claim was lodged by the complainant or there is no deficiency of services and the e-mail was not of claim Hub and there was no occasion for repudiation of claim. Therefore, the cases relied upon on behalf of OP are not applicable to the situation in hand. But it is certainly a case of denial of claim by the OP.

          However, simultaneously the case is projected at final stage by OP as if there was repudiation of the claim of complainant, by making reference of various cases. Is it  the case that complainant was declined the claim without issuing repudiation letter?

(v) The complainant has proved that his vehicle was stolen when it was parked nearby road side restaurant. The State machinery was put into motion by lodging eFIR and it remained untraced. Since the theft took place within the currency of insurance period and  it is total theft loss and complainant had declared IDV of Rs. 92,150/-.

7.4.  In view of the above, it stand establish from the evidence and circumstances that there was theft loss to the complainant in respect of theft of his vehicle during the currency of insurance policy. The complainant is held entitled for reimbursement of sum insured/ IDV of Rs. 92,150/-, on which premium was paid.

7.5.  The complainant also claims interest at the rate of 18% pa, however, there is no proof this rate of interest by the complainant. However, the complainant took loan to finance the vehicle therefore, interest at the rate of 7% pa from the date of complaint till realization would meet both ends of justice. The  complainant also claims Rs. 40,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim besides costs of litigation of Rs.25,000/-.

       In the aforementioned circumstances, that complainant had lodged the claim as well as served legal notice before invoking the jurisdiction of this Commission, the compensation of Rs. 12,000/- is determined and allowed in favour of complainant and against OP besides cost of Rs. 8,000/- in favour of complainant and against OP.

8.1 Accordingly, the complaint is allowed in favour of complainant/insured and against the OP/insurer, while directing OP to pay sum insured amount of Rs. 92,150/- along-with interest @7% pa from the date of complaint till realisation of amount, damages/compensation of Rs.12,000/- and cost of Rs. 8,000/- but it is subject to further directions.

8.2 As per complainant's  own case Pooja Finlease Ltd  is financer of vehicle, thus vehicle was under hypothecation;  Pooja Finlease Ltd. has also first right to receive the amount against hypothecated vehicle, since stolen. Their rights are to be protected. Thus, the complainant, the OP & the Pooja Finlease Ltd will cooperate each other by furnishing within 45 days from the date of this order requisite documents to OP and of balance amount, if any, payable to Pooja Finlease Ltd, since the vehicle was under hypothecation with Pooja Finlease Ltd.

8.3 Further directions are given that OP will release the amount to Pooja Finlease Ltd, which it deserves to receive as outstanding amount, subject to furnishing further details of balance amount and requisite documents, which Pooja Finlease Ltd will also cooperate in this regard. The excess amount, if any left with OP, shall be paid by the OP to the complainant.

8.4 OP is also directed to pay the amount within 45 days from the date of receipt of documents from the other side (the complainant and Pooja Finlease Ltd) under acknowledgment.  In case amount is not paid within 45 days from the date of such documents, the OP will be liable to pay interest at the rate of 9% per annum (in place of 7%pa) on amount of Rs. 92,150/- from the date of filing of complaint till its realization.

8.5 In case complainant and the Pooja Finlease Ltd do not furnish further details required of amount and other requisite documents to OP within 45 days from this order, then such period of 45 days or other longer period will be excluded, while computing interest @ 7% pa, or 9% pa as the case may be.

9.  Announced on this 5th day of June 2024 [ज्येष्ठ 15, साका 1946]..  Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.      

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