Delhi

North

CC/47/2019

MANISH SHARMA - Complainant(s)

Versus

THE ORIENTAL INSURANCE CO. LTD. - Opp.Party(s)

DEEPAK VUTTSYA

22 Sep 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 47/2019

In the matter of

Sh. Manish Sharma

S/o Baru Sharma

A-36, Street No. 1,

Nehru Vihar, Delhi-95                                                                                                                             …Complainant

            Versus

Oriental Insurance Company Ltd.

(Through the Branch Manager)

Oriental House, A 25/27, Asaf Ali Road,

Delhi-02

Also At:-

80, 1^st Floor, Patparganj Industrial Area,

Delhi-11

Also At:-

Service Centre(NRO-2), 4E/14,

Jhandewalan Extension, Ground Floor,

Azad Bhawan, Delhi-55                                                                                                                       …Opposite Party

                                                                       

ORDER

22/09/2023

Harpreet Kaur Charya, Member

1. Jurisdiction of this commission has been invoked by Mr. Manish Sharma, the complainant against the Oriental Insurance Co. Ltd., the OP with the allegations of mental harassment and agony.
2. Briefly stated facts as per complaint are, on 20/06/2018, the complainant purchased a scooter, “Activa 5G DLX”, registration no. DL-5S-BR-6441; engine no. JF50E78044641 and chassis no. ME4JF50BFJ7044599, from Rajendra Honda. The said vehicle was insured with OP by policy no. 271702/31/2019/10222 for a period from 20/06/2018 to 19/06/2019.
3. On the intervening night of 22/07/2018, the said vehicle along with other household articles and documents were stolen from the house of the complainant by some unidentified person(s). It has been stated that the original key of the insured vehicle was taken by those unidentified persons. An FIR bearing no. 0359/2018 was lodged on 23/07/2018 with PS: Khajuri Khas, North East Delhi. An untraced report was accepted by Ld. ACMM, North East, Karkardooma Court, Delhi.
4. The complainant was advised by Rajendra Honda to approach OP at Patparganj Office, New Delhi and on 26/07/2018, the relevant information along with claim was given to Mr. Sanjay Khanna, Head of Insurance, Patparganj Office, where no acknowledgment for the claim was given despite request but was assured that the surveyor will contact the complainant and the claim will be approved within 15 days.
5. On 21/08/2018, the complainant visited OP office to inquire about the status of his claim, where he was asked to fill the claim form again, thereafter the claim was registered vide claim no. 270011/31/2019/036336. On 03/09/2018, Shri CP Sharma was appointed as surveyor, where all the relevant documents were submitted to him. The complainant has alleged that he was forced to mention in his statement that one key was left in the stolen vehicle at the time of incident.
6. The claim of the complainant was repudiated vide letter dated 16/11/2018 on the ground of breach of Condition no. 4. On 27/11/2018, the complainant informed the OP regarding the conduct of the surveyor. Despite, written communications/representations, the claim of the complainant was neither approved nor replied. Legal Notice dated 23/01/2019 was served upon OP which was neither replied nor complied with. It has also been stated by the complainant that again a claim repudiation letter dated 11/02/2019 was issued by OP on the same ground.
7. Feeling aggrieved by the rejection of his claim, the complainant has prayed for directions to OP to reimburse the insurance claim to the tune of Rs.52,140/- with Pendente lite and future interest at the rate of 24% p.a.;    Rs. 50,000/- towards the loss of mental peace, harassment, mental agony and depression and cost of litigation.
8. The complainant has annexed the copy of the I-card as Annexure A, copy of vehicle particulars issued by the Transport Department as Annexure B, copy of insurance policy as Annexure C, copy of FIR bearing no. 0359/2018 as Annexure D, untraced report as Annexure E, copy of intimation regarding registration of claim  as Annexure F, copy of repudiation letter dated 16/11/2018 and clarification dated 30/11/2018 along with original postal receipt and tracking report are as Annexure G to Annexure J, the Legal notice dated 23/01/2019 along with postal receipt and tracking report as Annexure K to Annexure M and the copy of final claim repudiation letter dated 11/02/2019 as Annexure N.
9. Notice of the present complaint was issued to OP, thereafter Written Statement was filed on their behalf. They have raised an objection that the complainant is not a consumer within the meaning of the Consumer Protection Act. It has been stated that the notice was replied by OP vide letter dated 11/02/2019, stating - “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient conditions and the company shall have at the time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured”. The second key of the vehicle was left in the vehicle as per the insured’s statement to the surveyor, which is gross negligence and not covered as per terms and conditions of the policy.
10. It has been stated that the present complaint involved complicated question of facts and law which could not be decided in summary proceedings. Visit of the complainant to the office of OP on 26/07/2018 and the allegation of  surveyor forcing the complainant to give statement that one key was left in the insured vehicle at the time of incident has been denied.  The receipt of representation dated 30/11/2018 has too been denied. It has also been denied that the insured vehicle was parked in a safe place that is the house of the complainant inside the locked doors. Rest of the contents of the complaint have been denied stating to the false and wrong.
11. Rejoinder to the Written Statement was filed by the complainant, where the averments made in the complaint have been reaffirmed and those of the Written Statement have been denied. It has been submitted that the vehicle was parked in the house of the complainant at the time of theft and the ignition was not on at that point of time. It has also been denied that the vehicle was used for commercial purpose at any point of time.
12. Evidence by way of affidavit has been filed by complainant ,where the contents of the complaint have been reaffirmed. The complainant has got exhibited the copy of the I card as Ex.CW-1/1;  copy of the vehicle particulars issued by Transport Department in respect of stolen vehicle and insurance policy as Ex.CW-1/2 and Ex.CW-1/3; copy of FIR bearing no. 0359/2018 as Ex.CW-1/4; copy of un-trace report as Ex.CW-1/5. Copy of intimation regarding registration of claim as Ex.CW-1/6. The complainant has also got exhibited the repudiation letter dated 16/11/2008 as Ex.CW-1/7,  copy of complaint/ clarification dated 30/11/2018 as Ex.CW-1/8 along with postal receipt and tracking report as Ex.CW-1/9 and Ex.CW-1/10, copy of Legal notice dated 23/01/2019 along with postal receipt and tracking report as Ex.CW-1/11 to Ex.CW-1/13 and the copy of final repudiation letter dated 11/02/2019 as Ex.CW-1/14.
13. OP did not file any evidence by way of affidavit despite several opportunities.
14. We have heard the arguments of Ld. Counsel for complainant and Ld. Counsel for OP and have also perused the material placed on record. The existence of insurance cover is not in dispute, the factum of theft is also not disputed. The claim of the complainant is repudiated vide letter dated 16/11/2018 on the ground that :-

“On close scrutiny of the papers submitted by you in support of your claim. We have noticed that as per your statement, one key was kept in the vehicle at the time of theft. It is clear that this is a carelessness/ gross negligence on your part. As per the policy terms and condition no. 4 given below, the claim is not tenable.

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at the time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In event of any accident or breakdown the vehicle shall not left unattended without proper precautions being taken to prevent further damage or lass and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any damage to vehicle to the vehicle shall be entirely at the insured’s risk.”

15. The claim of the complainant has been repudiated based upon the statement allegedly made to the surveyor appointed by OP. on the other hand, the complainant has alleged that the surveyor had asked him to give a statement that one key was left in the insured vehicle, so that his claim could be settled. This has been communicated to OP vide a letter Ex.CW-1/8, sent through speed post dated 30/11/2018 and delivered on 03/12/2018 as per the track report (Ex.CW-1/9 and Ex.CW-1/10 respectively). Receipt of this letter has been denied by OP, however, the complainant has discharged the onus by placing on record the tracking report (Ex. CW-1/9).
16.  OP has not filed their evidence by way of affidavit despite several opportunities, hence, the submissions made by them cannot be said to be proved. OP has neither placed on record the surveyor report nor the statement of the complainant made to the surveyor, relying upon which the claim of the complainant has been repudiated. Thus, an adverse inference is to be drawn against them.
17. As the factum of theft is not in dispute, OP by rejecting the bonafide claim of the complainant has acted in arbitrary manner, which has caused mental agony and harassment to the complainant. Therefore, in the facts and circumstances of the present complaint, we direct OP to:

1. The IDV of Rs. 52,140/-
2. Interest @ 7% p.a. from the date of filing of the claim with OP till realization.
3.  Pay Rs. 15,000/- as compensation on account of mental agony and harassment.
4. The order be complied within 30 days from the date of receipt of the order. In case of non-compliance, OP shall be liable to pay interest @9% per annum on Rs.67,140/-(i+iii) from the date of order till realization. Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya)                Member

(Ashwani Kumar Mehta)                                   Member

                                          (Divya Jyoti Jaipuriar)

                                                                                                  President