Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 132/ dated 22.12.2021
Praveen Kumar s/o Sri Jagat,
H.N. F-33, Gali No.-9, Jagat Puri,
Delhi-110051 …Complainant
Versus
Cholamandalam MS General Insurance Co. Ltd.
Through its officials Sh. Rajesh Arora (North Head)
Branch Office- Samyak Tower, Plot No.-39, 2nd Floor,
Pusa Road Opposite Pillar No.-120, Karol Bagh,
New Delhi-110005
Also at- 2nd Floor, Dare House, 2NSC Bose Road,
Chennai -600001 ...Opposite Party
Date of filing: 22.12.2021
Date of Order: 02.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant Praveen Kumar/ Insured took insurance policy bearing certificate no. 3379/01302924/000/00 w.e.f. 31.10.2015 to 30.10.2016 in respect of his vehicle DL 1GC 6729 make Eicher from OP/ Insurer. There was theft of vehicle on 25.09.2016, it remained untraced by the police despite FIR and investigation. However, the OP failed to reimburse valid claim of total loss of theft. The complainant is seeking release of insurance amount Rs.13,48,535/-, compensation of Rs. 7,00,000/- for mental harassment and agony, legal fee/ cost of Rs. 10,000/- besides interest. The vehicle was under finance, it was got cleared and NOC was also taken from Financer.
1.2. The claim is opposed by OP that there is no deficiency of services as alleged but the complaint is without cause of action, since the complainant was asked repeatedly by letter dated 04.10.2018, followed by reminders dated 24.10.2018 and 15.11.2018, to furnish required documents but for want of furnishing the documents, the claim was closed as “no claim” by letter dated 15.11.2018 as matter could not be kept open for long. The vehicle was under hypothecation with the Financer/pledgee Cholamandlam Finance Co. and for want of impleading it, the complaint is suffering from non-joinder of necessary party.
2.1. (Case of complainant) –The complainant took insurance policy for his vehicle bearing registration no. DL-1GC-6729 (having engine no. E413CDFK053828 Chasis no.- MC2F8LROFK109283; Eicher Pro 11:10; hereinafter referred the vehicle) for sum insured of Rs. 13,48,535/-. The policy was valid from 31.10.2015 to 30.10.2016.
2.2. On 25.09.2016, during the currency of insurance policy, the vehicle was stolen and formal FIR no. 028255 dated 26.09.2016 P.S.e-Police Station, District Crime Branch was registered under Section 379 IPC, besides OP was also informed of theft of vehicle. The vehicle remained untraced by the police, it filed untraced report, which was accepted by the court of Ld. ACMM, Karkarduma, Delhi. The complainant also lodged claim no. 3379182510 for insured amount with the OP. Moreover, on 08.10.2016 the Financer of the vehicle also filed an application but insurer/ OP failed to respond it.
On 15.11.2018, the OP issued letter that they are closing the claim as “no claim” and also no further request will be entertained and OP also reserves right to repudiate the claim on any other ground, which may come into light at any future time. The letter was fabricated and it is showing intention of the OP to deny the claim. It amounts to deficiency of services.
2.3. The complainant has been continuously in touch with the office of OP by making personal visits, email writing and telephones, however, OP paid no heed. The complainant also responded by his reply dated 11.09.2019 to email dated 06.09.2019 of OP, when OP had asked certain documents for processing the claim, the complainant requested the OP to provide format of the letter of indemnity and letter of subrogation for appropriate compliances but OP failed to provide it. On 12.09.2019, the complainant received mail from customer care office of OP with a new set of plea that claim will be processed on non-standard mode of settlement and on enquiry by the complainant it was clarified that there will be 10% deduction but without explaining on what basis the 10% will be deducted, there was no response to such email of complainant. There was also a criminal complaint u/s 138 of Negotiable Instrument Act between the complainant and the Financer, which remained sub-judiced from 16.05.2017 till 23.07.2019 and because of that reason the complainant could not responded to OP between 25.09.2016 to 27.10.2021.
On 14.10.2019 and 29.10.2019, the complainant had also received same mail again from customer care office of OP to settle the claim on non-standard basis, thence, the complainant met Manager of the OP personally that 10% of total claim will be deducted by the insurance company but it was not given in writing. There was also period of Covid and lockdown, for which OP took the excuse that people are working from him and his claim was not processed. The complainant suffered all kind of trauma and mental agony. The complainant was constrained to send legal notice dated 12.04.2021 by post, however, the OP failed to reply or comply it. That is why the complaint.
2.4. The complaint is accompanied with identity card of complainant, insurance policy cover, copy of FIR, copy of acceptance of untraced report, copy of letter written by the financer to the insurer, legal notice dated 12.04.2021, authorization of the certificate of NP (Goods)/(Form no. 47), particulars of the vehicle (also showing HP detail), other record pertaining to the correspondence and safe custody of file of the vehicle, copies of letter dated 04.10.2018, its reply by complainant by 06.10.2018, no claim settlement letter dated 15.11.2018, letter along with copy of NOC dated 08.07.2019, furnished to OP that financer was paid the amount besides other record inclusive of email exchanged between the parties.
3.1 (Case of OP)- The OP opposed the complaint by way of narrating its own case, preliminary objections as well as reply on merits. Some of the paragraphs of reply on merit are composite paragraphs, which have also been responded generally instead of specific denial.
3.2. The complaint is without cause of action, it is false, vague and speculative litigation to make unwarranted profits and gains. There was policy w.e.f. 31.10.2015 to 30.10.2016 for IDV Rs. 13,48,535/- but it was subject to terms and conditions. The theft took place in 2016 but the complaint was filed in 2021, therefore, complaint is barred by time. The OP had asked to furnish various documents (as detailed in paragraph 4 of the reply) but the complainant failed to comply the same, even reminders dated 04.10.2018 & 24.10.2018 were also not complied with and consequently by letter dated 15.11.2018, it was treated and communicated 'no claim', the claim was closed. The vehicle was left unattended with the ignition key and the key was not furnished to the OP with claim form or in compliance of letter/reminder. The vehicle was hypothecated with Cholamandlam Finance Company but it has not been impleaded party to the complaint, the complaint suffers from non-joinder of necessary party. This case involves complicated question of facts and law, it needs elaborate oral and documentary evidence, examination and cross-examination of witnesses, which cannot be done under summary procedure and the same is to be adjudicated by other jurisdiction/ Civil Court, the consumer Forum lacks the jurisdiction, therefore, the complaint is liable to be dismissed ( reliance is placed on Oriental Insurance Co. Ltd. vs. Muni Mahesh Patel IV (2006) CPJ 1 (SC)). Otherwise, the OP denies, for want of knowledge, about inter-se correspondence between the complainant and the Financer.
3.3. Since the claim was treated as no claim on the basis of want of availability of the record by the complainant, there is no deficiency of services to make out case of reimbursement of any claim or of compensation or other charges. The reply is accompanied with terms and conditions of policy, letters dated 04.10.2018, 24.10.2018 and 15.11.2018 with request to dismiss the complaint.
4. (Replication of complainant) – The complainant filed detailed rejoinder, while dealing with all the paragraphs of preliminary objections and submissions as well as reply on merits, all the allegations therein have been denied, the complaint has been reaffirmed as correct. The original key of the vehicle was taken by the OP with the documents and vehicle was not left unattended in the vehicle. The financer is not a necessary party as the loan has been cleared.
5.1. (Evidence)- The complainant filed his detailed affidavit by reproducing the contents of complaint and also supplementing with all the documents filed with the complaint.
5.2. OP led its evidence by filing affidavit of Sh. Sujeet Kumar Sahu, Deputy Manager- Legal and it is on the line of reply supplemented with letters and terms and conditions of the policy.
6.1 (Final hearing)- The complainant and the OP have filed their written arguments, which are blend of pleadings and evidence.
6.2. Then Sh. Parveen Kumar, Advocate for complainant and Sh. Vikas Shaukeen, Advocate for OP made their respective oral submissions.
7.1 (Findings)- The rival contentions are considered and assessed, there are a few legal issues, they are to be dealt firstly and then other issues will be taken.
7.2. The OP took the objection that there are complicated question of fact and law as well as elaborate oral and documentary evidence by way of examination and cross examination is required, which was opposed by the complainant.
In nutshell, the OP projects that the present Consumer Commission lacks the jurisdiction on the subject matter. However, the plea of OP is misplaced, firstly, no material or record is shown which warrants that the subject matter is to be adjudicated by the Civil Court exclusively. The issue involved can be conveniently dealt by the present Consumer Commission without need of detailed examination or cross examination of the witness. Therefore, this contention is decided against the OP.
7.3. The other objection taken by the OP is that pledgee/Financer is a necessary party but it was not arrayed in the complaint, which was opposed by the complainant that vehicle is no more under hypothecation, since loan was paid and NOC was issued.
On scrutiny of record, there are two aspects firstly in the particulars of vehicle (at page 35 of the paper-book of complainant) the name of Cholamandlam Investment and Finance Co. Ltd. is mentioned with whom the vehicle was hypothecated and on that basis OP may have taken the objection. Simultaneously, the complainant has also proved NOC dated 08.11.2019 along with copy of letter dated 08.07.2019 & Form no. 35 by financer to the RTO that the loan has been cleared by the complainant. The complainant has also written letter to the OP by furnishing same record ( which is at page no. 39, 40-42, that loan has been cleared). The OP has not replied specifically paragraph 12 of the complaint but there is evasive reply that the OP denies it for want of knowledge inter-se matter between the complainant and the financer. Therefore, it is held that the pledgee/ financer is not a necessary party to the complaint. This issue is disposed off.
7.4. The OP contends that the theft took place in the year 2016 but the complaint was filed in the year 2021, therefore, the complaint is barred by prescribed period. Whereas according to complainant, the date for computing the limitation period would not be from the date of theft exclusively since there was registration of FIR, followed by final report vis-à-vis claim was pending with the OP and there was also proposal in September/ October 2019 to settle the matter on non-standard basis. The complaint is within the prescribed period.
It is but natural that period for computing the limitation period will be from the stage when claim was declined, as per letter dated 15.11.2018, it was treated no claim. Simultaneously the complainant was not in possession a few documents asked for inclusive of NOC from the financer, which came into existence on 08.07.2019 and RTA was also informed. It was followed by emails correspondence between the parties, one of the email is of 29, October 2019 that claim could be settled only on non-standard basis by OP, which leads on wards upto 20.02.2020 (pages 58-67 of the paper book of complaint). It infers that further events were resumed in continuation of the previous communication and the claim on non-standard basis was not also not settled for one administrative reasons of OP or other inclusive of transfers and positing of Officers.
Thus, the period of two years will be from 22.01.2020 [being final stand of OP], which ends on 21.01.2022, although it was also not materialized till 20.02.2020. Thus by computing the period of final stand on 22.01.2020, the complaint filed on 22.12.2021 is within the prescribed period of two years. This issue is also decided against the OP.
7.5. After disposal of contentions of the parties on the legal issues, now the other merits of the case are being taken. By taking into account totality of the circumstance and evidence on the record, the following conclusions are drawn:-
(i) The vehicle was stolen during the currency of insurance policy, it remained untraced by the policy despite investigation. There is no fact came on record in the police investigation that the complainant had left ignition key unattended in the vehicle. There is also no evidence by the OP that key was left in the vehicle.
(ii) The complainant clarifies that ignition key was handed over to OP during the claim process.
(iii) The OP has not elaborated whether or not any investigator or surveyor was appointed, therefore, the untraced report of police is to be accepted as un-rebutted.
(iv) The claim was not repudiated by the OP but it was case of “no claim” case and when the complainant had furnished the further record came into existence, the complainant was proposed settlement of claim on non-standard basis, it could not be explained as to why scheme of non-standard basis was proposed, however, this was also not materialized by OP for its own internal administrative reasons or other.
(v) The theft of vehicle is a total loss. The vehicle was insured for Rs. 13,48,535/- being its IDV and complainant is entitled for the same.
(vi) As per correspondence between the parties, the OP had proposed settlement of claim on non-standard basis, but OP had not expressed reasons for such proposal. It infers that complainant was deserving reimbursement of claim.
7.6. In view of the above, the complainant is held that for want of settlement of valid claim timely, it amounts to deficiency of services and he is held entitled for sum insured amount of Rs. 13,48,535/- in lieu of total theft loss of insured vehicle.
7.7. The complainant claims compensation of Rs. 7,00,000/- in lieu of mental agony and harassment besides litigation charges of Rs. 10,000/-. The complainant has not specified and proved method for computing compensation of Rs. 7,00,000/- but as appearing that it is just a lump sum claim of compensation. Considering the tenure of claim as well as other intervening circumstances of pandemic Covid-19, by awarding compensation of Rs. 20,000/- will meet both ends, accordingly, compensation of Rs. 20,000/- is determined in favour of complainant and against OP. Since the complainant was constrained to file the complaint, litigation cost of Rs. 7,000/- is also determined in favour of complainant and against the OP.
8: So the complaint is allowed in favour of complainant and against the OP to pay sum insured amount of Rs. 13,48,535/-, compensation of Rs. 20,000/- and cost of Rs. 7,000/- within 30 days from the date of receipt of this order.
In case the OP does not pay within 30 days from the date of receipt of order, then OP will also be liable to pay interest at the rate of 6 % from the date of complaint till realization, on amount of Rs. 13,48,535/-. It is also directed and clarified that henceforth, the complainant is left with no right or interest in the said vehicle [DL-1GC-6729, having engine no. E413CDFK053828 Chassis no.- MC2F8LROFK109283; Eicher Pro 11:10] and in case it is recovered, in whatsoever condition, it will be property/asset of OP and the OP will also have all legal consequences rights.
9. Announced on this 2nd November 2023 [कार्तिक 11, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
