Delhi

North East

CC/214/2017

Nishant - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

31 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 214/17

 

In the matter of:

 

	Nishant S/o Shri Narendra Malik F/6/387, Gali no. 6, Raj Nagar Loni Border, Near Dhama Vatika, Ghaziabad U.P. Pin Code-201102	Complainant
	Versus
1	The Oriental Insurance Co. Ltd D.O.-14 80, F.I.E. Patpar Ganj Indl. Area, Delhi-110092   Also at:- Oriental House P.B. No. 7037, A-25/27 Asaf Ali Road, New Delhi-110002   The Oriental Insurance Co. Ltd. Through its Branch Manager 9, Raj Block, Navin Shahdara Delhi-110032	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

04.07.2017 31.10.2019 31.10.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts relevant for disposal of the present complaint are that the complainant had got his Motor Cycle (bike) Bajaj Pulsar 220 SF bearing registration no. DL 05S BV 1160 (purchased in 2013) insured with the OP vide Two Wheeler Package Policy bearing no. 271702/31/2016/15247 w.e.f. 01.11.2015 to 31.10.2016 for a total IDV of Rs. 64,679/- on payment of premium of Rs. 1,680/- to OP. The lock-set of the said bike became defective in 2016 and the complainant got the same changed on 07.09.2016 from Vijay Auto Mobile, authorized service centre of Bajaj Auto located at Wazirabad Delhi on payment of Rs. 706/- vide cash memo no. 1529. On 27.06.2016, when the complainant had gone to West Gate Mall, Rajouri Garden Delhi and parked his bike outside the said mall, on return at 5:05PM, the complainant did not find the bike at the park location and on realizing that the same has been stolen, immediately contacted the PCR and thereafter got FIR no. 031925 u/s 379 IPC with Crime Branch Delhi pertaining to Motor Vehicle Theft. The complainant intimated the OP about the theft on 02.11.2016 vide claim intimation sheet and thereafter informed by OP of appointment of investigator Mr. Mohd. Uwesh for further investigation of the theft claim. The complainant submitted the requisite documents as asked for by the investigator in its letter dated 19.11.2016 on 22.11.2016 including both old as well as the new keys of the bike alongwith the copy of invoice no. 1529 dated 07.09.2016 for new lock-set made. In the interim the complainant received the untraced report and final report from the concerned Police Station and the court of ACMM Tis Hazari dated 28.11.2016 declaring the subject bike as untraced as report received on 17.11.2016. However, the OP, vide letter dated 08.05.2017 found the claim untenable on the ground that the keys were fabricated and use of the keys as per age of the vehicle was not in line and unused though the keys marked were found similar in their morphological appearance being locally made of company Bajaj Pulsar 230 SF ES. The complainant vide representation / response dated 22.05.2017 to OP opposed the stand taken by the OP in its letter dated 08.05.2017 and explained that over a period of time and with usage of bike lock, the same had become less effective and therefore he had to get the same changed by authorize service centre of Bajaj and the key is not fabricated as OP has itself acknowledged that it is found to be similar in morphological appearance and locally made for Bajaj Pulsar and therefore requested to OP to reconsider and pass his claim. However, OP vide repudiation letter dated 29.05.2017,  rejected the theft claim of complainant on grounds that the keys are fabricated and use of the keys as per age of the vehicle was not in line and unused though the keys marked were found similar in their morphological appearance being locally made of company Bajaj Pulsar 230 SF ES. Therefore, the complainant, feeling aggrieved and harassed at the unlawful rejection of his insurance claim on frivolous ground by OP, alleging deficiency of service and unfair trade practice on its part for having not considered that the new key which got changed on 07.09.2016 was only used till 27.10.2016 was constrained to file the present complaint against the OP before this Forum praying for issuance of direction against the OP to pay the IDV of Rs. 64,679/- with respect to the subject bike alongwith compensation of Rs. 50,000/- for harassment and mental agony, Rs. 50,000/- towards loss suffered and Rs. 50,000/- towards cost of litigation.
2. Complainant has attached copy of Two Wheeler Package Policy Motor Insurance Certificate cum Policy schedule, copy of lock-set change invoice dated 07.09.2016, copy of PCR complaint of theft of subject bike dated 27.10.2016 with call received at 17:27PM, copy of FIR dated 27.10.2016, copy of theft claim intimation form dated 02.11.2016 submitted by complainant with OP, letter dated 19.11.2016 by the investigator of OP to complainant for furnishing requisite documents alongwith acknowledgement of documents already received, copy of untraced report issued by SHO e-PS motor vehicle theft, copy of untraced report / order dated 28.11.2016 issued by court of ACMM Tis Hazari Delhi, copy of first repudiation letter dated 08.05.2017 by OP to complainant, copy of response thereto dated 22.05.2017 by complainant to OP and final repudiation letter dated 29.05.2017 by OP to complainant.
3. Notice was issued to the OP on 21.07.2017. OP entered appearance and filed its written statement on 08.11.2017 in which while admitting the factum of having extended vehicle insurance coverage to the complainant, the OP justified the repudiation of theft claim with respect to the said vehicle on grounds that as per forensic report received from its investigating agency, the key in question of the subject bike was found to be fabricated and its use as per the age of the vehicle was not in line and seemed unused notwithstanding that the keys are marked was found to be of similar morphological appearance and was locally made of Bajaj Pulsar 230 SF ES model bike. Therefore the claim was rejected as per the terms and conditions of the policy. In line of the defence thus taken, OP urged for dismissal of the complaint.
4. Complainant filed evidence by way of affidavit exhibiting the documents filed / relied upon as Ex CW1/A to CW1/J.
5. OP filed evidence by way of affidavit sworn by its Sr. Divisional Manager exhibiting the key verification report no. 2017-26/IV/197 dated 28.04.2017 submitted by its investigator namely Innovative Valuers and Engineer Consultant Pvt Ltd., Terms and Conditions of the policy and repudiation letters.
6. Written arguments were filed by both the parties in reassertion / reiteration of their respective grievance / defence taken in their respective pleadings filed before us.
7. We have heard the rival contentions of both parties and have scrutinized the documents placed on record by both sides and given our anxious consideration thereto. The factum of insurance coverage with respect to the bike in question, theft of the insured bike and intimation of the theft and submission of requisite documents pertaining to and required by investigator of the OP as having been handed over by the complainant are all undisputed. The only bone of contention / dispute and ground for rejection of theft claim is OP’s reliance on the key verification report filed by its investigator. On examining the said forensic report we have observed that the investigator, after examining the new lock-set key (got made by the complainant on 07.09.2016) with the aid of lens, microscope, IR Ray, magnifier and other geometrical appliances, concluded that the physical condition of the key is unused, made by a local key maker and is duplicate in nature. Further the investigator opined that the date of registration of the subject bike was 21.11.2013 and the date of theft is 27.10.2016 but the use of the key of the bike is not as per the age of the bike and looks unused even though both keys are found to be similar in their morphological appearance and locally made by Bajaj Pulsar 230 SF ES company. But the investigator recommended repudiation of claim by claiming that the complainant / insured had forged the keys. The OP, in our view lost sight of an important issue that the new lock-set having been made in early September 2016 and used only till end of October 2016 would definitely be under used and seemingly new without scratches and having sharp grooves. The complainant had at the time of submission of all requisite documents handed over both keys, old and new of the subject bike to the investigator of OP alongwith the bill dated 07.09.2016 of new key / lock-set made which the complainant had got made from authorize service dealer of Bajaj Auto. The investigator of OP in its report has admitted that the subject key had morphological similarity to Bajaj Pulsar key and therefore we find its conclusion to be in contradiction to its observation of claiming the key in question to be a forged one and in so far as the defence of it being unused and not in line with the age of the bike is concerned, the same gets refuted / rejected by the factum of new key / lock-set having been made with respect to the subject bike in September 2016 and bike having got stolen the very next month i.e. October 2016 which explains both. Vide circular dated IRDA/HLTH/MISC.CIR/216.9.2011 dated 20.09.2011 issued by IRDA which is applicable not only to life insurance contract but also to all non-life insurance and group insurance contract including General Insurance such as insurance of motor vehicle, IRDA directed the insurer that the insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation. Therefore it is advised that all insurer need to develop a sound mechanism of their own to handle such claim with utmost care and caution. The said circular was made binding on the insurers vide circular no. IRDA/NL/CIR/MISC/149.6.2017 dated 28.06.2016 whereby IRDA directed all insurers to scrupulously comply with the aforesaid circular followed by direction u/s 34(1) of Insurance Act 1938. The said position has been taken by Hon'ble National Commission too in National Insurance Co. Ltd. Vs. Kulwant Singh IV (2014) CPJ 62(NC) in RP. No. 2719/2014 decided on 18.07.2014.
8. In light of the aforementioned circular and settled proposition of law which directs insurance companies not to repudiate claims in mechanical manner on hyper technical ground, we are of the considered opinion that repudiation of theft claim in the present case by OP on grounds taken is unjustified and unsubstantiated / untenable in as much as it was always in the knowledge of OP that the lock-set was changed in September 2016 i.e. a month before the theft of the bike and therefore the new key would be relatively unused but to hold it as forged / fabricated was erroneous since it was made by an authorize dealer of Bajaj and had morphological similarity to the original key of Bajaj Pulsar Bike i.e. the stolen bike / insured vehicle. We therefore allow the present complaint on merits and direct the OP to pay a sum of Rs. 64,679/- i.e. the IDV of the subject bike to the complainant on total loss basis, we further direct the OP to pay a sum of Rs. 4,000/- as compensation for harassment , mental agony and loss suffered by the complainant due to wrongful repudiation and Rs. 3,000/- cost of litigation. Let the order be complied by the OP within the 30 days from the date of receipt of copy of this order.
9.  Let a copy of this order be sent to each party free of cost per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  31.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member