Delhi

New Delhi

CC/288/2018

MR. ABDUL RAUF - Complainant(s)

Versus

NATIONAL INSURANCE COMPANY LTD. - Opp.Party(s)

31 Oct 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC.288/2018

In the matter of:

MR. ABDUL RAUF

S/O  MD. ATIK

R/O 1580, GALI NO. 16,

RAJEEV GANDHI NAGAR,

NEW MUSTAFABAD

DELHI-110092                                                                                                     ……..COMPLAINANT      

Versus

 

 1. NATIONAL INSURANCE COMPANY LTD.

DIVISION 7:50, JANPATH

NEW DELHI-11001

 

2. MARUTI INSURANCE BROKING PVT LTD.

1 NELSON MANDELA ROAD

NEW DELHI-110070                                                                          ...........OPPOSITE PARTIES

 

 

Quorum:

Ms. Poonam Chaudhry, President

                Shri Bariq Ahmad , Member

                Ms. Adarsh Nain, Member

                                                                                                          Dated of Institution:21.07.2018                                                                                                                                                                           Date of Order           :31.10.2022

O R D E R

BARIQ AHMAD, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in brief referred as CP Act). Briefly stated the facts of the case are that the complainant was the owner of car Maruti Wagon R color white having registration No.DL1RTB 8266, which was covered by a policy of Insurance issued by the Insurer being policy No. 35101031166339266871 (hereinafter the “Policy”) effective for the period from 30.12.2016 to 29.12.2016. As per the last Insurance Policy issued by OP and bearing policy No. 35101031176341023784 having validity from 30.12.2017 to 29.12.2018, the value of the Car i.e. IDV was Rs.4,40,949/- (Rupees Four Lakh Forty Thousand Nine Hundred Forty Nine only).
2. It is further stated that unfortunately, the car of the complainant got stolen on 29.12.2017 around between 12:30am to 6:30am and after the complainant called the PCR and got the e-FIR  No.041470/2017 P.S. e-Police Station-M.V. Theft U/S 379 IPC District Crime Branch, Delhi, registered for the same and intimation to the OP.
3. It is stated that the police after investigating the case, filed the final report in the Court. A claim was filed with the insurance company for reimbursement of the price of the said vehicle/car as per IDV i.e. Rs.4,40,949/- and all relevant paper were submitted along NCR of lost key of the vehicle to OP.
4. That since complainant's Car was insured with opposite party No. 1 and the policy was bought through the Opposite party no 2, therefore complainant's Car was entitled for theft claim/reimbursement. On 14.03.2018 Opposite Party no. 1 seek certain documents from complainant in order to reimbursement of  the theft claim.
5. Pursuant to that Letter the complainant submitted those documents but to his utter surprise the claim was denied/closed vide letter dated 24.04.2018 and  dated 24.05.2018 on the frivolous and flimsy ground. The OP instead of reimbursing the loss, issued a letter dated 24.04.2018 requiring the complainant to show cause why the claim of the complainant should not be repudiated, on the allegation that, concealment/ misrepresentation of vitals facts, falsification of documents and violation of Insurance Principle “Utmost Good Faith”.
6. That on 24.05.2018, Opposite Party repudiated the claim of complainant stating that the address mentioned on the bill/cash memo is invalid and no shop is available with this name, found fake. On verification of DD records of PS: Bhajanpura, it was found no such information received by them and no entry found recorded in their DD register on 07.07.2017 and as per record available at Police Station: Kamla Market, no entry was recorded in their DD registerer on 11.02.2017, On this account, Opposite Party repudiated claim of complainant as per violation of Private vehicle package policy condition 4 of the policy. The insurance company repudiated the claim of the complainant on the ground that the insured did not take steps to safeguard the insured vehicle.
7. It was also submitted that only the Certificate-cum-Policy Schedule was provided to the complainant by the Opposite Party Insurance Company. Terms and Conditions were not provided to them. Therefore, they were never aware of the Terms and Conditions/Exclusions on the basis of which the Claim has been repudiated.
8. It is stated that the complainant has sent a legal notice dated 14.05.2018 to the Opposite Party through speed post dated 24.05.2018 of the Opposite Party. The same was acknowledged but no action was taken till date. The claim of the complainant is still unpaid.
9. Feeling aggrieved, complainant has filed the present complaint alleging deficiency in service and unfair trade practice on the part of the OP and seeking relief that OP be directed to pay a sum of Rs.4,40,949/- (Rupees Four Lakh Forty Thousand Nine Hundred Forty Nine only) along with compensation amounting to sum of Rs.3,00,000/- (Rupees Three Lakh Only) on account of mental agony, harassment, pains and sufferings and also paid a sum of Rs. 50,000/- (Rupees Fifty Thousand) towards litigation  charges.
10. Notice of the complaint was issued to OP who entered appearance and filed written statement stating that there is no deficiency in service on the part of the Opposite Party. Hence, the present complaint is liable to be dismissed.
11. It is contended that the insurance company repudiated the claim of the complainant on the ground that the insured did not take steps to safeguard the insured vehicle. It is alleged by the OP that there is a violation of condition No. 4 of the terms and conditions. Therefore, the complaint is not maintainable and is liable to be dismissed.  It is stated that on receiving the claim with OP wherein Mr. P.D. Sharma, investigator was appointed by OP and submit investigation report dated 25.01.2018. It is prayed that the complaint be dismissed.
12. Complainant filed evidence reiterating the facts made in the complaint.  Complainant filed the copy of the Certificate-cum-policy schedule of insurance policy. Complainant further stated that he lodged a complaint with the police on which e-FIR was registered and untrace report was filed before Hon`ble Court of Ld. ACMM-01, North-East, District Karkardooma Courts, Delhi on 07.02.2018. Complainant also filed the correspondence with the OP.
13. On the other hand, OP filed evidence of Sh. Krishna Negi, Authorized Signatory of OP company, without filing any authority, copy of the Insurance policy, copy of policy terms & Conditions, copy of investigator report, letters dated 24.04.2018, 24.05.2018 and 29.06.2018 stating that claim was not maintainable.
14. We have heard the counsel of the complainant, vide order dated 23.08.2022 a court notice was issued to OP, despite service of the court notice none had appeared on behalf of OP for final arguments,  perused the record.
15. It is undisputed 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 OP appointed Mr. P.D. Sharma  as investigator and investigator has given finding and he has verified the things and in his opinion theft of the aforesaid vehicle/car appears to be true and genuine as per the enquires and submitted documents ( available on record page No.5 Clause-  Conclusion “Theft is Genuine” of Investigation report), so it is proved from the report of the surveyor/investigator also that the theft has taken place on 29.12.2017. It is also proved on record that immediately after the theft, the complainant has lodged an e-FIR  No.041470/2017 P.S. e-Police Station-M.V. Theft U/S 379 IPC District Crime Branch, Delhi.
16.  It is significant to note that the claim has been repudiated on the ground of violation of condition No.4. that there is a violation of private vehicle package policy condition no. 4 which stipulates as "The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and maintain it in efficient condition and the company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employees of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall entirely at insured's own risk.
17. During the course of arguments this Commission asked the OP to prove that the exclusion clause was duly communicated to the complainant. We have been taken through the record and we find that the OP was supplied only with a cover note/ certificate-cum-schedule of the policy. So, the other terms and conditions containing the above exclusion clause were not communicated. In the reply/WS it was not specifically stated that the exclusion clause was also communicated to the complainant.
18. Ld. counsel for complainant contended that the claim was repudiated arbitrarily. It is stated that investigator has given finding and he has verified the things and in his opinion theft of the aforesaid vehicle/car appears to be true and genuine as per the enquires and submitted documents, so, it is proved from the report of the investigator also that the theft has taken place and both the original ignition key of the insured vehicle got misplaced. The complainant herein stated that the missing of the original key case was reported to the police vide letter to SHO, Bhajanpura, dated 07.10.2017 and letter to the SHO, Kamla Market dated 11.02.2017 and both the duplicate keys prepared from M/s Royal Key Maker. The answering OP got the same verified from its Investigator M/s Allied Technical Service. As per the report of the investigator the documents are not genuine and have no authenticity. There was no record of reporting at police station and the address and mobile number of the key maker was also fake. There is violation of insurance police which says that utmost good faith be shown by both the parties.
19. In view of the unrebutted testimony of complainant, we are of the view the repudiation of the claim of the complaint was unjustified. The complainant had filed his evidence by affidavit and filed and relied upon Registration certificate of the vehicle in question, issuance Policy, untrace report, the missing of the original key case was reported to the police vide letter to SHO, Bhajanpura, dated 07.10.2017 and letter to the SHO, Kamla Market dated 11.02.2017 and both the duplicate keys prepared from M/s Royal Key Maker.
20. It is to be noted that complainant/Insured lodged the FIR immediately after theft of the vehicle occurred. Hon’ble Supreme Court has held in Civil Appeal No. 653/2020 SLP(C) 24370/15 titled Gurshinder Singh Vs. Shriram General Insurance Co. and another
    •  

  

21. We also tend to rely on dicta of the Hon`ble Supreme Court in CIVIL APPEAL NO.  4071 OF 2022 titled Gurmel  Singh  Versus Branch Manager, National Insurance Co. Ltd.  Decided on 20.05.2022, wherein, the Hon`ble Supreme Court has held  that “while settling the claims the Insurance Company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”.
22. The Hon`ble Delhi State Consumer Commission in an Appeal Cholamandalam M S General Insurance Corporation Ltd v/s Ibrahim  has held that an insurance company is liable to pay the full value of a stolen vehicle to a policy holder and cannot reduce the amount on account of depreciation. "In a case of theft of a vehicle which is insured, there is a total loss and the question of depreciation in the insured amount, which is the contractual value under the insurance agreement, would not arise,"
     
23. In the present case the facts remain unrebutted that theft occurred on 29.12.2017 and FIR No.041470 was lodged on the same day i.e. 29.12.2017. A copy of final report has been filed whenever it is stated that vehicle was not traced and investigator has given finding and he has verified the things and in his opinion theft of the aforesaid vehicle/car appears to be true and genuine as per the enquires and submitted documents. In  the  present  case,  the  insurance company has become too   technical   while   settling   the   claim   and   has   acted arbitrarily.

 

24. It is also the case of the Complainant that the Opposite Party had not provided the Terms and Conditions of the Commercial Vehicles Package Policy to the Complainant and, therefore, the Complainant was not at all aware about the Exclusion Clause which has been made the basis of repudiating the Claim.

 

25. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.

 

26. In the above facts and circumstances, we accordingly hold that OP was guilty of deficiency in service as its arbitrarily repudiated the claim. In the said facts and circumstances, we hold OP liable to pay the insured declared value of the vehicle Rs.4,40,949/- (Rupees Four Lakh Forty Thousand Nine Hundred Forty-nine Only) with interest @ 12% per annum since lodging of claim and as well as compensation of Rs.1,00,000/- (Rupees One lakh Only) for mental agony Rs.10,000/- (Rupees Ten Thousand) as cost of litigation from the date of filing of complaint within 4 weeks of the receipt of the order, failing which OP will be liable to pay interest @ 14 % p.a. till realization.

The Copy of order be provided/sent to all parties free of cost.

The order be uploaded on the website of the Commission.

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

Announced in open Forum on 31/10/2022 .

 

   (POONAM CHAUDHRY)

President

 

   (BARIQ AHMAD)                                                            (ADARSH NAIN)     

Member                                                                             Member