Delhi

New Delhi

CC/398/2018

DWIP JYOTI SINGHA ROY - Complainant(s)

Versus

UNITED INDIA INSURANCE COMPANY LTD. - Opp.Party(s)

17 May 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/398/2018

 

IN THE MATTER OF:

 

Sh. Dwip Jyoti Singha Roy

S/o Sh. Ram Dulal Singha Roy

R/o D-199, D-Block, Ganesh Nagar,

Pandav Nagar Complex,

Delhi-110092

Presently Residing At:

H.No.D-210, D –Block, 1^st Floor,

Pandav Nagar Complex,

New Delhi-110092

Through his Authorized Representative.

Sh. MandeepYadav

S/o Sh. R.P. Yadav

R/o Sh. R.P. Yadav

R/o 4/47, Geeta Colony, Delhi-110031                                 COMPLAINANT

 

VERSUS

United Insurance Company Ltd.

Through its CMD

Service Hub D.R.O.-1, 8^th Floor,

Kanchanjanga Building,

18, Barakhamba Road, New Delhi                                         OPPOSITY PARTY                                                        

Quorum:

Ms. PoonamChaudhry, President

          ShriBariqAhmad , Member

          Ms. Adarsh Nain, Member

                                                                    Dated of Institution:09.10.2018

                                                                   Date of Order         :17.05.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 hereinafter referred to as the CP Act. Briefly stated the facts of the case are that the complainant is second owner of vehicle Food Endeavor-4x2 XLT bearing Registration No. DL-3C-AY-9784. The vehicle is registered in name of the complainant. The complainant had got the above said vehicle insured with the Opposite party vide Policy No. 0417003116P113081357 w.e.f. from 05.01.2017 till 04.01.2018 mid night and paid a total premium of Rs. 22,987/- . It is further alleged that at the time of purchasing the above said insurance policy the opposite party’s representatives assured and promised the complainant that the opposite party would clear the insurance claim of whatever nature within a period of not more than 15 days from the date of lodging of claim. On the said assurance and promise the complainant purchased the above said policy.
2. It is also alleged that the above said vehicle was stolen from near Chander Vihar Bus Stand between 12:00 and 14:30 on the intervening night of 03/04.04.2017 by some unknown person from the lawful custody of the complainant. It is further stated that the time of parking, the complainant had taken all safeguards to protect the vehicle from any damages and loss.
3. It is further stated that the theft of the complainant’ above said vehicle was reported to the police, and FIR No. 010119/2017 was registered at P.S. E-Police Station M.V. Theft, District-Crime Branch, Delhi U/s 379 IPC on 04.04.2017. The Opposite party was also apprised of the theft of complainant’s above said vehicle and FIR registered.
4. It is further alleged that the complainant, after obtained all the documents including the untraced report dated 11.05.2017 from the Court, Ld. ACMM-01, Shahdara District, Karkardooma Courts, Delhi, submitted his claim with the Opposite party along with all the documents to the opposite party, as required by the opposite party. The opposite party had registered claim of the complainant vide Claim No. 0417003117C050011001/1.
5. It is also stated that subsequently the opposite party had repudiated the claim of insured declared value of the complainant’s vehicle vide its letter dated 08.11.2017 on the pretext of delivering wrong key, the said act of opposite party is arbitrary, unilateral, unlawful. It is stated that the letter dated 08.11.2017 was first and only correspondence received by complainant which was duly responded by the complainant vide his letter dated 15.12.2017
6. It is also alleged that the complainant made a representation to the opposite party vide letter dated 15.12.2017, which was received by the opposite party on 19.12.2018, explaining how a wrong key was inadvertently supplied to the investigator of the opposite party. The complainant wrote to the opposite party that since the complainant was out of station most of the times so he was unable to check which keys were handed over to the investigator by his representative. The complainant thereafter submitted the actual key of the stolen vehicle through his Financer Pee Jay Finance Co. Ltd. to the satisfaction of the opposite party. Thereafter, the complainant telephonically and physically contacted the representatives/staff of the opposite party at their office at Barakhamba Road time and again and requested them to make the payment of the insured declared value of the stolen vehicle to the complainant; however no head was paid to his request. It is alleged that the said act of OP amounts to deficiency in service and unfair trade practice on the party of the opposite party.
7. It is also stated that the complainant thereafter got sent a legal notice dated 03.05.2018 served on the opposite party to immediately pay a sum of Rs. 8,90,700/- (Rupees Eight Lakh Ninety Thousand Seven Hundred Only) with interest @ 24% p.a. w.e.f. the date of theft of the said vehicle till realization of entire claim amount within 7 working days from the date of receipt of the legal notice. The legal notice was duly served upon the opposite party. However, the opposite party had neither replied to the above said legal notice nor made the payment of the insured declared value amount to the complainant.
8. It is further stated that besides that legal notice the complainant has also lodged written complaint/representation dated 29.08.2018 along with all documents in the Greivance Cell of the Opposite party which was delivered on 31.08.2018. However, the Grievance Cell of opposite party also did not respond, hence the present complaint.
9. It is stated that the complainant did not violate any of the terms of the policy throughout the period the said vehicle remained in his custody.
10. It is stated the cause of action is still subsisting and continuing as the insured declared amount of the above said insured car is still not paid by the opposite party to the complainant.
11.  It is also alleged that the complainant is a consumer as defined under the provisions of the Consumer Protection Act, 1986, who has suffered immensely due to the unfair trade practices and deficiency in service.
12.  It is also alleged that the office of the opposite party is situated at Barakhamba Road, New Delhi within the jurisdiction of the Forum, hence this Forum has territorial jurisdiction to entertain, try and adjudicate upon the complaint. It is also alleged that the present complaint is filed within the limitation period and this Forum has pecuniary jurisdiction.
13. It is prayed that the opposite party be directed to pay the complainant insured declared value of the said vehicle i.e. Rs. 8,90,700/- along with interest  @ 24% p.a. w.e.f. the date of theft of the said vehicle till realization. The opposite party be also directed to pay a sum of Rs. 2,00,000/- as compensation to the complainant on account of losses, damages, mental pain, agony and harassment caused to the complainant by the opposite party and Rs. 50,000/- towards litigation cost to the complainant.
14. OP contested the claim. Written statement was filed taking preliminary objections that OP was not liable to pay any claim because the claim was repudiated under the terms and conditions of policy. It was also alleged that the claim was repudiated on the findings of surveyor and report of the forensic Lab. It was also stated that the complainant had submitted one key of the stolen insured vehicle to the surveyor stating that he had purchased a second hand vehicle and at that time only one key was given to him. It was further stated that the key submitted by insured was a new unused key which was rubbed intentionally to show that it was used. It was also stated that as per the report of the forensic Lab, the key was a fabricated once. It was also alleged on the basis of the report of Forensic lab, the investigator came to the conclusion that the vehicle was stolen due to negligence of complainant as key was left in the ignition of the vehicle and complainant had produced a new fabricated key.
15. On merits, it was denied that the insured vehicle was stolen from near Chander Vihar Bus Stand as alleged. It was also denied that complainant had taken all safeguards to protect the insured vehicle from damage and loss. It was further denied that OP was served with any notice. It was also denied that complainant had not violated the terms of the policy. It was denied that OP played fraud on the complainant or OP indulged in any unfair trade practices. It was also denied that there was any deficiency in service on part of OP. It was denied that complainant was entitled to recover the insured declared value of the vehicle. It was denied that OP was liable to pay any amount as alleged. It was prayed that the complaint be dismissed.
16. The Complainant filed rejoinder reiterating therein the averments made in the complaint and denying all the allegations made in the written statement. Both the parties filed their evidence by affidavit.
17. We have heard the Ld. Counsels for parties and perused the record.
18. It is to be noted that some of the facts which are admitted are that complainant had taken the policy of the vehicle in question from OP and the theft of the vehicle took place during the continuance of the said policy. The theft of vehicle was also not denied neither the claim was repudiated on the ground that theft was not genuine. It was also not denied that complainant had intimated the theft of vehicle to OP after the incident and the particular of FIR.
19. Ld. Counsel for Complainant contended that the claim was repudiated arbitrarily Ld. Counsel for OP however submitted that insurance had repudiated the claim under the terms and condition No. 4 of the Policy, as insured failed to take reasonable steps to safeguard the vehicle from loss or damage as he left the key in ignition of the stolen vehicle. Ld. Counsel for the OP also contended that repudiation is justified and the complaint be dismissed. In this regard OP relied upon the report of surveyor Annexure ‘B’, wherein it was stated that key is fabricated. Ld. Counsel for the Complainant however stated that inadvertently wrong key was given to the OP as complainant was out of station. The complainant thereafter submitted the actual key of stolen vehicle through his Financer. The said fact has not been denied by OP in Para 7 of its reply on merits. It is also not the case of the OP that the vehicle was left without locking. The short question is whether the owner of vehicle had failed to safeguard the vehicle from any loss or damage. It is to be noted it is the case of Complainant that vehicle was stolen on the intervening night of 03/04.04.2017, by unknown permission and FIR was registered on 04.04.2017. Complainant in his evidence stated that he had taken all safeguards at the time of parking. It is to be noted that no prudent person/owner will not leave the key in the ignition at the time of parking.
20. For the foregoing reasons, we are of the view the repudiation of the claim of the complaint was unjustified. In the said facts and circumstances, we are of the view that OP is liable to pay the insured declared value of the vehicle Rs. 8,90,700/- with interest @ 9% per annum from the date of filing of the complaint till payment within 4 weeks from the date of receipt of the order. The interest of 9% is awarded in view of the judgment of Hon’ble Supreme Court, in the matter Jaina Construction Company. Vs. OIC Limited & Another 2022 Online SC 175 wherein the Hon’ble Supreme Court allowed interest of 9% in a matter relating to theft of a vehicle.  In case of delay of payment beyond 4 weeks OP will be liable to pay interest @ 12% per annum. The OP will also pay 15,000/- towards compensation mental agony and 10,000/- as cost of litigation within the 30 days of receipts of the order.

The order be uploaded on the website of the Commission.

Copy of order will provided to all parties free of cost.

File be consigned to record room with a copy of the order.

 

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSH NAIN)           

             Member                                                                                         Member