Delhi

North East

CC/155/2018

Mst. Farzana Parveen - Complainant(s)

Versus

ICICI Lombard - Opp.Party(s)

29 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 155/18

 

 

 

 

 

In the matter of:

 

 

	Mst. Farzana Parveen W/o Lt. Mohd. Noor Alam   Mohd. Munawwar Alam(DOB 07.11.2001) S/o Lt. Mohd. Noor Alam   Ms. Iqra Farzana (DOB 01.07.2002) D/o Lt. Mohd. Noor Alam   Mohd. Hatif Hasan (DOB 14.10.2003) S/o Lt. Mohd. Noor Alam   Bilal Ahmad (DOB 19.10.2013) S/o Lt. Mohd. Noor Alam ( Minor Through her mother, Mst. Farzana Parveen)   All R/o B-4/163, Ground Floor Yamuna Vihar, Delhi-110053	Complainants
	Versus
	ICICI Lombard General Ins. Co. Ltd. Branch Office:- Space No.315, 3rd Floor Aggarwal City Mall, Plot No.4, Road No.44, Block AD, Dakshini Pitampura, Delhi-110034 (Through its Principal officer)   Also At:- ICICI Lombard General Ins. Co. Ltd. 401 & 402, 4th Floor Interface 11, New Linking Road Malad (W), Mumbai-400064	Opposite Party

 

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                           DATE OF ORDER:

27.07.18 14.10.22 29.03.23

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

ORDER

Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant is that the Complainant is widow of Lt. Mohd. Noor Alam who died on 26.08.17 due to kidney failure and heart attack. The husband of the Complainant (since deceased) had purchased an insurance policy from Opposite Party vide policy no. 3001/132622845/00/B00 from the period 08.06.17 to 07.06.18 and paid Rs. 22,241/- on account of insurance premium in respect of car bearing registration no. DL-7C-M-1663 for IDV of Rs. 6,57,000/-. The Complainant stated that the vehicle in question was financed by HDFC bank for which EMI of Rs. 14,300/- is being paid. The Complainant further stated that on intervening night of 10.02.18 and 11.02.18 the vehicle in question got stolen and immediately FIR bearing no. 004550 dated 11.02.18 was registered at Police Station Bhajanpura thereafter vide order dated 06.04.18, the Hon’ble Court of Ms. Bhawani Sharma, Ld. MM/KKD Court, Shahdara, Delhi had accepted untraced report filed by Police Station Bhajanpura. The Complainant stated that vide letter dated 20.02.18 Opposite Party had intimated that the claim has been generated vide claim no. MOT07351382 and the M/s G R Services has been appointed as the surveyor in this case. The surveyor visited residence of Complainant and collected several documents and information for processing the insurance claim. The relatives and well-wishers of Complainant made several visits to branch office of Opposite Party where they were informed that their claim is under process and shall be disbursed to Complainant very soon and as such kept assuring till mid of July. The Complainant stated that on 20.07.18 the Complainant received a letter dated 01.03.18 from Opposite Party in which Opposite Party had denied/rejected the claim as no claim. The Complainant stated that repudiation letter was prepared by Opposite Party on 01.03.18 and communicated on 18.07.18 and received by Complainant on 20.07.18. Hence, this shows deficiency on the part of Opposite Party. Complainant has prayed for Rs. 6,57,000/- toward the IDV value of the vehicle in question and Rs. 5,00,000/-  compensation for mental harassment. She has also prayed for Rs. 55,000/- as litigation cost.   

Case of the Opposite Party

2. The Opposite Party contested the case and filed written statement. It is stated by the Opposite Party that the husband of the Complainant died on 26.08.17 and the vehicle was stolen on 11.02.18 and the insured vehicle was being used by Md. Zoha, Brother in law of insured, but the Complainant or the successor/legal heir not get transferred the ownership of vehicle bearing no. DL-7CM-1663 after the lapse of more than five months which is violation of Motor Vehicle Act, 1988 and FR 17 of India Motor Tariff therefore the Complainant is not having any insurable interest in the vehicle in question nor the privity of  contract was existing at time of theft not entitled for any relief. The Complainant failed to transfer the ownership of vehicle after the death of insured, whereas it was also clearly provided in the insurance policy that “In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of the Motor Vehicle passes may apply to have this policy transferred to the name(s) of the heir(s) or obtain a new insurance policy for the motor vehicle. Where such legal heir(s) desire(s) to apply for transfer of this policy or obtain a new policy for the vehicle such heir(s) should make an application to the company accordingly within the aforesaid period. All such application should be accompanied by a) Death Certificate in respect of the insured b) Proof of title to the vehicle original policy. The vehicle in question was stolen on 10.02.18 but Opposite Party was intimated on 20.02.18 after delay of 10 days. During investigation by surveyor it is found that the registered owner of vehicle expired on 26.08.17 and the insured vehicle was being used by the brother of Complainant and the policy & ownership of vehicle was not transferred by the legal heir or the last user of the insured vehicle, regarding this the statement of Complainant and the last user of vehicle give in their own handwriting to the surveyor and consequently the surveyor submitted detailed survey report dated 23.02.18. Opposite Party is also relying on judgments of Supreme Court in case of Complete Insulation Pvt. Ltd. vs. New India Assurance Co. Ltd. 1996 1 SSC 221 as also the judgment in the case of G. Govindan vs. New India Assurance Co. Ltd. 1999 3 SCC 754 dealt with the issue and held that “there being no transfer of policy in the name of petitioner/transferee he had no insurable interest in the vehicle and the respondent/Opposite Party had no liability to indemnity the Complainant”. The Complainant had neither produced any evidence to prove that she applied for insurance in writing nor she has produced any evidence to show that the previous owner gave his consent for transfer of insurance policy.  

Rejoinder to the written statement of Opposite Party

3. The Complainant filed rejoinder to the written statement of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint. The Complainant admitted that the vehicle in question was registered in the name of the husband of the Complainant and insured with the Opposite Party for the period from 08.06.17 to 07.06.18 for an IDV of Rs. 6,57,000/-. However it is denied that the said policy was subject to terms and conditions of policy. It is submitted that the certificate of insurance cum policy schedule which was provided by the Opposite Party to the Complainant and placed at page 9 of the written statement is admitted and already annexed by the Complainant along with her complaint. However, the Private Car Package Policy wording which is annexed at Page 10 to 19 of the written statement are denied and hence not admitted being never supplied or provided by the Opposite Party to the Complainant. It is also denied that the true copy of policy certificate with terms and conditions is annexed with the written statement. In fact, annexure A is marked on page no. 20-25 which the report of the surveyor M/s G.R. services, In this regard, Reliance is heavily placed on the judgment of Hon’ble National Commission in Revision Petition No. 3619 of 2012 in case titled “New India Insurance Co. Ltd. Vs. Jagtar Singh” wherein following the opinion of Hon’ble Supreme court in the case of “M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd.” AIR 2000 SC 104, it has been held that if copy of terms and conditions is not supplied to the insured at the time of issuing cover note and they are not explained then those terms and conditions are not binding upon that person and insurance company cannot repudiate any claim on the ground of exclusion clause. Reliance is also placed on a judgment dated 12.01.15 of State Consumer Commission, Panchkula (Haryana) in FA No. 584/2013 where the judgment of Jagtar Singh (supra) has been followed. In view of these pronouncements, therefore, the terms and conditions placed by the Opposite Party along with its written statement at page 10-19 cannot be read in pleadings and do not have any bearing on the dispute involved in the present complaint.

Evidence of the Complainant

4. The Complainant in support of her complaint filed her affidavit wherein she has supported the averments made in the complaint.

Evidence of the Opposite Party

5. In order to prove its case Opposite Party has filed affidavit of Shri Krashanu Pundir, Manager Legal for Opposite Party, wherein the averments made in the written statement of Opposite Party have been supported.

Arguments & Conclusion

6. We have heard the Ld. Counsels for the Complainant and Opposite Party. We have also perused the file and the written arguments filed by parties. The case of the Complainant is that her husband purchased an insurance policy from Opposite Party  for his vehicle by paying requisite premium and said policy was valid from 08.06.17 to 07.06.18 with an IDV value of Rs. 6,57,000/-. The said vehicle was stolen on the intervening night of 10.02.18 and 11.02.18. The Complainant lodged an FIR on 11.02.18 and competent court had accepted untrace report filed by the Police Station. The Complainant filed insurance claim for stolen vehicle with the Opposite Party and Opposite Party appointed a surveyor to investigate the case. Opposite Party repudiated the claim of the Complainant. As per the Complainant repudiation letter was prepared by Opposite Party on 01.03.18 and communicated to her on 18.07.18 but received by Complainant on 20.07.18. Complainant further submitted that the certificate of terms and conditions of the policy never being provided to her husband at the time of insurance.
7. The case of the Opposite Party is that husband of the Complainant having a valid policy on the date of the incident but her husband died on 26.08.17 and vehicle was stolen on 11.02.18 and the insured vehicle was being used by Complainant’s  brother, but the Complainant or the successor/legal heir not get transferred the ownership of vehicle after the lapse of more than 5 months which is violation of Motor Vehicle Act, 1988 and FR (17) of India Motor Tariff therefore the Complainant is not having any insurable interest in the vehicle in question nor the privity of contract was existing at time of theft not entitled for any relief. The Complainant failed to transfer the ownership of vehicle after the death of insured, whereas it was also clearly provided in the insurance policy that “In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of the Motor Vehicle passes may apply to have this policy transferred to the name(s) of the heir(s) or obtain a new insurance policy for the motor vehicle. Where such legal heir(s) desire(s) to apply for transfer of this policy or obtain a new policy for the vehicle such heir(s) should make an application to the company accordingly within the aforesaid period. All such application should be accompanied by a) Death Certificate in respect of the insured b) Proof of title to the vehicle original policy. Opposite Party also relied upon on the judgment of the Hon’ble Supreme Court in case of Complete Insulation Pvt. Ltd. vs. New India Assurance Co. Ltd. 1996 1 SSC 221 as also the judgment in the case of G. Govindan vs. New India Assurance Co. Ltd. 1999 3 SCC 754 dealt with the issue and held that “there being no transfer of policy in the name of petitioner/transferee he had no insurable interest in the vehicle and the respondent/Opposite Party had no liability to indemnity the Complainant”. The Complainant had neither produced any evidence to prove that she applied for insurance in writing nor she has produced any evidence to show that the previous owner gave his consent for transfer of insurance policy.  
8.  It is clear from the above fact that it is admitted by the Opposite Party that vehicle was stolen during the validity period of insurance policy. The only ground of rejection of the claim of the Complainant was that violation of policy terms and conditions-Policy and RC not endorsed in given time after insured demise. Opposite Party failed to provide any documentary evidence for supplying of terms and conditions to the husband of the Complainant at the time of issuance of policy. On this issue, Hon’ble Supreme Court vide its judgment in the case of Modern Insulators Ltd. vs. The Oriental Insurance Co. Ltd. Civil Appeal No. 6895 of 1997 (AIR 2000 SC 1014) held that “It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good fath forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose ill material facts in their knowledge since obligation of good faith applies to both equally.

In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law”.

9.  In view of the above discussion, the complaint is allowed. The Opposite Party is directed to pay the IDV of Rs. 6,57,000/- to the Complainant along with interest @ 6 % p.a. from the date of filing the complaint till recovery. Opposite Party is also directed to pay Rs. 1,00,000/- on account of mental harassment and litigation expenses to the Complainant with interest @ 6 % p.a. from the date of this order till recovery.

 

10. Order announced on 29.03.23.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room. 

(Anil Kumar Bamba)           Member

(Surinder Kumar Sharma) President