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

                               Complaint Case No.CC-12/15.01.2020

Sabiya Begum widow of Late Mohd. Kalil

2681, Ga Tashwai, Baradari  Balimaran,

Chandni Chowk, Delhi-110006                                               ...Complainant

                                      Versus

The New India Assurance Company Ltd. (BO 310103)

7E Ist Floor, Pandit Deen Dayal Upadhayay Building

Jhandwalan Extension, Delhi 10005                                   ...Opposite Party

                                                                                                                Senior Citizen Case

                                                                   Order Reserved on:     04.01.2023

                                                                   Date of Order:            30.01.2023

Coram: Shri Inder Jeet Singh, President

             Ms. Shahina, Member -Female

Inder Jeet Singh

                                             ORDER

1.1. ( Gist of consumer dispute) :  What happened, complainant had purchased E-rickshaw. It was insured with opposite party/Insurer. The IDV value of E-rickshaw was Rs.1,02,144/-. The E-rickshaw was stolen while parked, it was even not recovered by police. The complainant had availed and received subsidy of Rs.30,000/-  under scheme from Government of Delhi, after purchase of E-rickshaw vehicle. The complainant lodged theft claim with the Insurer but her claim was considered and allowed partly for Rs.71,644/- after deducting Rs.30,500- (which includes subsidy amount of Rs.30,000/-). The complainant claims this amount of Rs.30,500/-;  damages of Rs.50,000/- for harassment & mental agony and litigation charges of Rs.11,000/-

          Whereas the complaint is opposed by the OP that on the principle of indemnity, the complainant's claim of actual loss was considered, assessed and settled. Out of IDV of Rs.1,02,400/- an amount of  Rs.500/- (on a/c of compulsory excess) and another amount of Rs.30,000/- (  being subsidy amount) was reduced, then actual loss amount of Rs.71,644/- was paid to complainant. The complaint is baseless, since the complainant cannot enrich herself for amount beyond actual loss paid to her.

2.1 (Matrix of cases of the parties) :  The features of the case, as set-up by the complainant (which are not disputed by the OP) are  that on 23.3.2018 she purchased E-rickshaw [Model Yatri, motor no.YCM8347, chassis no.M22YCEYD18C006282, battery no.Y18CDO91106120363022, controller no.YC18C14466; briefly E-rickshaw], which was insured from the OP for period 23.3.2018 to 22.03.2018 (vide policy no.31010331170100008258). The Government of Delhi granted her subsidy of Rs.30,000/- after one month of purchase of E-rickshaw. However, on 10.06.2018 it was stolen from Khanna Market, Delhi between 20:00hrs to 20:30hrs, for which e-FIR no.21428/2018 u/s 379 IPC against unknown person was lodged with e-PS Subzi Mandi on 20.6.2018. The complainant and the police could not traced and recovered the E-rickshaw, then police had filed untraced theft report and  on 10.12.2018  untraced report was accepted by the court of ACMM-01, Central District, Delhi. The complainant applied for insurance claim to OP and also furnished requisite papers,  her total claim was not approved for R.1,02,144/- but for Rs.71,644/- after deducting of Rs.30,500/-. The complaint is accompanying copies of tax invoice of buying E-rickshaw, insurance policy, e-FIR,  bank a/c passbook showing receipt of Rs.71,644/, copy of letter of OP &  request to policy for necessary action. The complainant is widow lady and she bought E-rickshaw to earn livelihood.

2.2:  The other features of the complainant (which were denied by the OP) are that amount of Rs.30,500/- was deducted by OP  illegally & unlawfully. The complainant is facing starvation because of theft of vehicle and she has no other source of income. Complainant had approached OP but she was mis-behaved and her grievances were not addressed.  There is mala-fide intention OP to grab her insurance amount, which is also deficiency of services on the part of OP. That is why complaint was filed.

2.3:   The allegations of complaint denied by OP are already stated in the para 2.2 above. Moreover, the OP also filed copy of insurance policy of subject E-rickshaw that it was commercial vehicle package, circular dated 14.6.2016 by Delhi Government, copy of its surveyor report, data detective report and report by zeal investigation agency to fortify its stand that vehicle was insured, however, complainant was granted subsidy of Rs.30,000/-, which was also credited in her bank account.  The complainant was paid Rs.71,644/- (i.e. IDV R.1,02,144/-less compulsory excess Rs.500/- less subsidy Rs.30,000/-), which was her actual loss suffered and under no circumstances, she can be allowed to earn profits out of claim. The OP refers principle of indemnity  that contract of insurance are contract of indemnity and insured is liable to be compensated only to the extent of loss suffered (while referring United India Assurance co Ltd Vs Kantika Colour Lab & ors 2010 6 SCC 449). Further,  Mohd. Naim was paid driver of complaint and she failed to furnish copy of his driving licence. Thus, claim deserves dismissal.

2.4 : The complainant supplemented (by replication) that terms and conditions of  the insurance policy taken by the complainant does not put-forth any clause that in case any subsidy is taken, then subsidy amount will be deducted. The Delhi Government envisage the subsidy for those who belonging to poor strata of the society and the complainant was eligible for the said scheme of subsidy of the Delhi Government, it is not the scheme of subsidy that complainant receives the subsidy at the first instance and subsequently the same subsidy amount is deducted by the opposite party.

3:       At the juncture of evidence, the complainant filed her affidavit with the support of documents filed with the complaint.  On the other side Shri H S Bharti, authorized signatory of OP filed affidavit,  while relying upon the documents filed with the reply by its Deputy Manager Shri Santosh K.

4.       Both the parties have also filed their respective written arguments, which are on the lines of pleading & evidence of parties, apart from oral submissions by Ms. Shweta Saini, Advocate (DLSA) for complainant and Ms Diksha Madan, Advocate, an Associate of Ms. Gitanjali Kapur, Advocate for OP. OP has also relied upon  United India Insurance Co Ltd. Vs. Levis Strauss (India) Pvt Ltd [civil appeal no.2955/2022 dod 2.5.2022), Castettion Vs Perston 833 11 OCD 380, Harsoli Motors Vs. National Insurance co. Ltd I 2005 CPJ 27 (NC) to further emphasize that insured shall never be entitled for more than actual loss and contract of insurance is always of indemnity of the defined loss and of no more or no less. Their contentions will be dealt appropriately.

5.1   (Findings) :  The rival contentions are considered  keeping in view their cases, evidence, nature of dispute apart from the precedent and case law presented.  At the out, the disputed question is 'whether or not the OP/Insurer was entitled to deduct amount of Rs.30,000/- (which was subsidy granted to complainant)', since OP construes that the amount of claim allowed is actual loss, which stand indemnified, whereas the complainant vehemently claims the actual loss was Rs. 1,02,144/- and OP was under legal obligation not to deduct amount of subsidy of Rs.30,000/-?. The answer to this issue, will resolve the entire controversy. 

5.2:    On plain reading of insurance cover, there is no clause or covenant to deal with the situation of subsidy. Secondly, the case law presented on behalf of OP deals with the concept and extent of indemnity but in none of such cases, issue was of facts and situation of subsidy, thus the features of this case are distinguishable from the case law referred.  Therefore, it needs further discussion and to explore the circumstances.

6.1:  The circular referred and filed by OP is Office Order dated 14/June/2016 by Department of Environment, Government of NCT of Delhi and it also refers previous order and in continuation thereof  the impugned Office Order was issued.  By said Office Order, the competent authority was conveyed for one time fixed subsidy of Rs.30,000/- will be given to battery operated E-rickshaw owner, authorized by Transport Department. There was also a rider that an individual can claim subsidy on one E-rickshaw.  On subsequent purchase by the individual, no subsidy will be allowed. The subsidy will be given by DPCC from 'Air Ambience Fund (AAF)'.  

6.2:  What is Air Ambience Fund? This Air Ambience Fund (AAF) was set-up in 2008 and collected through trade & taxes department and this funds is collected as 0.25p by sale of each liter of diesel in Delhi. The Corpus AAF is maintained by Delhi Pollution Control Committee (DPCC). The AAF is to be applied to boost green projects and to be utilized for development and use of clean air technology, waste management and such other related activities, which promote  clean air policies such as to reduce air pollution, especially vehicular pollution in Delhi. In 2020, the Delhi Electric Vehicle Rules 2020 were notified and its rule no.4.3.2 is in respect of grant of  incentive/subsidy of Rs.30,000/- (for E-rickshaw/E-cart) per vehicle per individual to the registered owner. It is on the same pattern as of Office Order dated 14.06.2016.

6.3:  It is apparent from the aforementioned discussions, as from which Fund subsidy is flowing from, how and when an individual would be entitled for subsidy there-from under the Scheme and it is one time subsidy to an individual, who bought the E-rickshaw and it is not available for buying the second E-rickshaw.  It is also crystal clear 'what is Corpus (AAF), the sources of funds for it and who maintains it.

7.1:  With this discussion, it is clear that complainant was allowed subsidy under the Office Order dated 14.06.2016, she had qualified the condition for entitlement for subsidy after buying battery operated E-rickshaw and then she was given one time subsidy of Rs.30,000/-. On plain reading of conditions for entitlement of subsidy is that it was given to  the complainant  (being an individual) only once, since she bought battery operated E-rickshaw, being condition to boost green project scheme.  If she buys another E-rickshaw, then she will not be entitled for subsidy.  In other words, it can be said that as per said Office Order ' this subsidy was meant for an individual (person) once in its life time, when battery E-rickshaw was bought & registered by such person'.  Since the complainant's E-rickshaw was stolen and it was not recovered, she had suffered loss of Rs.1,02,441/-, which is also IDV for which premium was also accepted by OP. Thus, as per insurance cover, the liability of OP/Insurer was to the extent of Rs.1,02,441/-. After grant of subsidy to the complainant, the insurance cover/or IDV  was  not reduced by amount equivalent to the amount of subsidy received by the complainant.

          The OP's stand, that  since complainant had also received subsidy of Rs.30,000/- in her account from Government of Delhi, that is why there was no loss to the complainant by adding the amount of claim received from OP and subsidy received from Government. It was opposed by the Complainant that amount of subsidy is like a revenue receipt, it is not income nor it can be label as receipt of claim amount. When the rival submission  were in progress on this point, a situation was put to OP by the Bench, had there been an identical situation of theft claim of similar E-rickshaw (but not case of grant of subsidy), then for what amount claim would have been settled by the OP, the response given was for actually loss as IDV less compulsory excess, since in that case there was total loss to be indemnified by OP.

7.2  Thus, what emerged is what surveyor had specifically highlighted in his report and OP had also considered it, when claim was settled, which is still maintained that as complainant had received the subsidy amount of Rs.30,000/-, it is no loss to her and it was rightly deducted.  Whereas, by making arithmetical calculations it may be appearing that total sum figure may be arrived of IDV but the logics and reasons are misplaced as it is against the insurance contract and scheme of subsidy.

          Firstly, the said subsidy granted to the complainant was under the Scheme framed by Government of Delhi to achieve certain objective, one of them was to reduce air vehicular pollution, it was in a way to give incentive for buying battery operated E-rickshaw.  Secondly, funds for AAF are collected by certain specified taxes, the OP is not contributory to such funds. Thirdly, there is no covenant in the insurance policy on terms of 'subsidy' to deduct the amount from the claim of complainant.  Fourthly, the grant of subsidy is between the Government of Delhi through DPCC on one side and the complainant on the other side, under that scheme,  the OP is not a party to such arrangement between them.  Fifthly, the OP had deducted the amount equivalent to amount of subsidy as if it has lien on such amount, the OP had no such right of lien or alike the first charge. Sixthly, subsidy was granted to complainant being 'an individual'  on buying battery operated E-rickshaw and after availing one time such subsidy, the complainant was barred from subsidy on subsequent buying e-rickshaw as per that Office Order, thus subsidy is related with 'a person/an individual';   Is not loss to her? Yes, it is loss to her, however, OP is perceiving,  it was just against subject stolen vehicle only and not to a person/individual. Seventhly, the complainant had received the subsidy amount after purchase of vehicle, which was prior to event of theft.  The insurance cover continued for IDV value of Rs.1,02,144/-. Lastly, by looking at the circumstances as they are appearing to have happened to the complainant & stolen of her vehicle as well as  the claim considered by the OP, in fact OP deemed to have admitted (in paragraph 9 of its reply, paragraph 8 of affidavit and paragraph 7 of written arguments) that the complainant's claim was settled after deducting Rs.30,500/- [i.e. Rs.500/- as compulsory excess and Rs.30.000/- of subsidy] from amount of Rs.1,02,144/-.  To say amount of claim was determined as Rs.1,02,144/- by OP, then only other amount (of Rs.30,500/-)  could be deducted, which were also deducted, whereas the OP had no contractual right or otherwise to make deduction of such Rs.30,000/- from  the claim amount of complainant.   

7.3: In view of above, it is held that complainant had succeeded to establish her complaint that OP had arbitrarily deducted amount Rs.30,000/-, (under garb of amount of subsidy granted to her) which is not only in violation of terms of insurance policy but also against Scheme of Government of Delhi.  In fact, OP has been emphasizing that it has to indemnify to the extent of  actual losses but this principle has not been applied in this complaint case, since actual loss is of R.1,02,144/-.

          Accordingly, the complainant is held entitled for amount of Rs.30,000/- to that extent, complaint is allowed in favour of complainant and against the OP.

7.4:  The OP has also  objection that driving licence of driver was not produced, however, vehicle was stolen in stationary condition while parked at the spot. This stand of OP is just an objection for the sake of objection, just to deny valid claim of the complainant, it has caused extreme harassment to the complainant, it is also unfair practice on the part of OP as well as deficiency in services.

7.5:  The gravity of situation is abundantly clear to what extent sufferings,  trauma and inconvenience had been faced by the complainant for seeking relief of her valid claim, which was with-held by OP, thus the complainant deserves damages, which are quantified as Rs. 20,000/- in her favour and against the OP, apart from costs of  Rs.5,000/-in favour of the complainant against the OP.

7.6: Hence, the complaint is allowed in favour of complainant and against the OP, to pay a sum of Rs. 55,000 /- (viz. Rs.30,000/-+Rs.20,000/-+Rs. 5000/-) within 30 days from the date of receipt of this order. 

          In case, OP does not pay the amount within the period prescribed, then complainant will be liable to pay interest @ 07% pa from the date of order till its realization of amount.  

8: Copy of this Order be sent/provided forthwith to the parties free of cost as per Regulations within 4 days. Complainant's counsel's request (DLSA) extra copy is allowed since it is to be furnished in the Office DLSA.

9:  Announced on this 30th day of  January, 2023 [माघ 10, साका 1944].