Delhi

East Delhi

CC/73/2017

PAWAN - Complainant(s)

Versus

N.I.C. - Opp.Party(s)

08 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 73/2017

 

	PAWAN S/O SH. MAHAVIR SINGH R/O 157, PANDIT CHOWK, MANDAWALI, DELHI - 110092	….Complainant
Versus
	M/S NATIONAL INSURANCE CO. LTD. THROUGH ITS OFFICE INCHARGE, 141, 142, NAVYUG MARKET, GHAZIABAD, UTTAR PRADESH 201001	……OP

 

Date of Institution	:	16.02.2017
Judgment Reserved on	:	02.08.2023
Judgment Passed on	:	08.08.2023

 

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

 

 

 

JUDGMENT

 

The present complaint is filed by the complainant against OP alleging deficiency in service in repudiating the Insurance claim of his stolen vehicle arbitrarily and unjustifiably and claiming for insurance amount along with compensation for mental harassment and agony and litigation cost along with interest.

1. The case of the complainant is that he is Consumer of OP who insured his Vehicle bearing number DL – IVB – 8330, vide insurance policy valid from 23.03.2015 to midnight of 22.03.2016 for the sum assured Of Rs.6,63,388/- and a premium of Rs.25,911/- was paid to the OP. Complainant submits that on 13.12.2015 the aforesaid Vehicle of the  complainant was stolen by some unknown persons for which e-FIR number 022566/2015, P.S. e Police Station was registered. The OP was also informed about the said theft within time and submitted claim form to the OP on 18.02.2016 along with all relevant documents. The untraced report dated 02.02.2016 filed by police was accepted by LD. ACMM Shahdara district, Karkardooma court, Delhi. Thereafter, OP, vide its letter dated 03.06.2016, bearing number DMFL/THEFT/866, has demanded some letters/documents from the complainant which were provided by the complainant immediately and by 24.08.2016 the remaining documents as per demand were also provided by the complainant to the OP. Complainant submits that thereafter, he has approached OP several times for his claim, but the claim of the complainant is not settled.  Complainant also submits that he is lawful consumer of OP and OP is bound to provide its services, but rather to settle his claim, the OP has caused financial loss, harassment, mental tension and physical trouble to him by not passing his legitimate claim. Complainant further submits that OP is liable to pay insured sum of the vehicle for the loss of the said vehicle along with compensation for causing him harassment and mental agony and litigation cost. Legal notice dated 04.01.2017 sent to OP was not answered. The above mentioned conduct of the OP clearly amounts to deficiency in service and they are liable under CPA, 1986. 
2. It is interalia prayed by the complainant that the Hon’ble Commission direct the OP:

• To pay an amount of Rs.663388/- for loss of the aforesaid vehicle of the complainant;
• To pay the sum of Rs.100000/- for mental trauma, pain and agony caused to the complainant;
• To pay the sum of Rs.21,000/- as litigation charges to the complainant. 

3. Upon notice, OP appeared and filed its reply, admitting the above stated policy issued to the complainant. The fact of theft and registration of e-FIR was also admitted. In it’s preliminary objections and submissions, the OP submitted that the claim of the complainant is not repudiated therefore, there is no deficiency of service on its part. OP submitted that the complainant has informed the OP about the said theft of the vehicle via claim form dated 18.12.2015, i.e. after five days whereas as per terms and condition, it should be intimated immediately, that complaint is incomplete as OP had never repudiated the claim of the complainants, since the complainant himself has not completed the requirements to complete the formalities to process the claim, that the complainant was using the said vehicle for commercial purposes and he has also not submitted the Driving License of the driver who was driving the vehicle on the said date of occurrence of the incidents as stated in the claim form and OP further submits that it acts as trustee of public funds such while settling the claim, it is duty-bound to ensure that the claims are paid by it as per terms and conditions of insurance entered between the parties. There is no deficiency of service on the part of OP. Therefore, in view of the above facts and circumstances, that claim lodged by the complainant is not payable. OP has relied upon case Surajmal Ram Niwas oil Mills versus UII , 2011, CTJ 11.
4. Complainant has filed its rejoinder negating the contents of the written statement and reiterated his version in the complaint. Both the parties have filed their evidence along with relevant documents.
5. The Complainant has filed following documents:

1. Copy of Aadhar Card of the complainant as Ex.CW-1/A.
2. Copy of RC of vehicle No.DL- IVB-8330 as Ex.CW-1/B.
3. Copy of insurance policy of vehicle as Ex.CW- 1/C.
4. Copy of FIR No.022566 as Ex.CW-1/D.
5. Copy of order of the Court as Ex.CW-1/E.
6. Copy of supplementary statement of complainant dated 05.06.2016 as Ex.CW-1/F.
7. Copy of retail invoice of said vehicle as Ex.CW-1/G.
8. Copy of claim form as Ex.CW-1/H.
9. Copy of letter No.390600/Claims/TMFL/THEFT/866 dated 03.06.2016 as Ex.CW-1/I.
10. Copy of letter dated 24.08.2016 as Ex.CW- 1.
11. Copy of legal demand notice dated 04.01.2017 as Ex.CW-1/K.
12. Postal Receipts alongwith track consignment reports as Ex.CW-1/L(Colly).
13. Copy of letter dated 16.01.2017 as Ex.CW-1/M.

6. OP has not filed any document.
7. The Commission has perused the documents available on record and heard the arguments of the parties. The written arguments had been filed by both the parties on 21.11.2019 and arguments were heard on 06.07.2022. During the arguments. on 06.07.2022, it has been stated by the counsel for OP that the complainant has not provided the documents i.e. DL of the driver, who was employed by the complainant, the documents with respect to financing the vehicle and the crime bureau report and as such the claim was closed and was never repudiated by it. It was further argued that if these documents are provided, matter can be taken up again.  Commission’s file reveals that on 19.07.2022, the counsel for complainant had filed three documents which had been given to the counsel for OP including DL, Loan Documents and Order of Ld. ACMM. The OP on 07.12.2022 has filed an application under order VI rule 17 CPC for amending it’s reply, which application vide order dated 12.04.2023 was dismissed by this commission stating that application has been filed at belated stage, consequently, original pleadings filed by the OP remains with the case.
8. The policy in issue, theft of the vehicle, filing of the claim form, the untraced report filed by the complainant are not disputed by the OP. The only issue remains, whether complainant is entitled for his ensured amount of the vehicle the preliminary objection of the OP with respect to intimation given to the OP on 18.12.2015 i.e. after five days of the theft is no more tenable in view of the Hon’ble Supreme Court, decision in “Gurshinder Singh V/s Shriram General insurance Co. Ltd and another”, CA.653/2020, order dated 24.01.2020, whereby Hon’ble Supreme Court in para 19 and 20 has stated –

Para 19 “We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.”

Para 20 “We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”

9. The other objection of the OP in not clearing the claim of the complainant is non-providing of the documents by the complainant. This has been noticed that the same have been provided to the OP during the hearing on 19.07.2022 despite that instead of processing the claim of complainant the OP at the final  stage has filed the application for amendment of the reply that too after filing its own evidence  and written arguments. This conduct of OP itself shows that OP was not diligent in defending its own case, nor able to file the documents within time which were in its possession i.e. surveyor report’s and repudiation letter.  Moreover, The Hon’ble Supreme Court in “National Insurance Company Ltd. vs. M/s. Hareshwar Enterprises (P) Ltd. & Ors.” CA 7033/2009 vide order dated 18.08.2021 has held that the assessment of loss by an approved surveyor is a prerequisite for the settlement of insurance claims. A surveyor report is statutorily recognized and is a basic document in determining claims. However, the surveyor report is not the final word and is not conclusive.
10. Considering the facts and circumstances of the case, this commission is of the view that OP is negligent in its duties and deficient in its services in not allowing the claim of the complainant. Therefore, this commission directs OP to pay the claim of the complainant of Rs.6,63,388/- being the insured amount of the vehicle along with a composition of Rs.25,000/-  to words, harassment and mental trauma caused to him due to negligent act of the OP and Rs.10,000 towards the litigation cost.
11. The above stated order be complied with by the OP within 30 days from the date of order, failing which the entire amount shall carry an interest@ 6% pa from the date of filing of the complaint basis, 16.2.2017 till its final realisation by the complainant.  The case relied on by OP is not applicable in the facts and circumstances of present case. 
12. The file be consigned to record room after providing the copy of the order to the parties as per CPA rules.
13. The complaint case could not be decided within a statutory period due to heavy pendency of the cases before the commission.
14. The order contains 09 pages, each bears our signature.
15. Pronounced on 12.04.2023.