Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 263 dt.18.12.2018
Mohammad Atik son of Shri Vahid,
H. No 52, Village Bhimsikka, Tehsil Hatin,
District Palwal, Haryana. …Complainant
Versus
OP1. Branch Manager, the Oriental Insurance Co. Limited,
CBO - 8,1576, Church Road,
Kashmiri Gate, Delhi-10006.
OP2. Claim Hub, the Oriental Insurance Co. Limited,
Service Centre (DRO 2), 4E/14, Azad Bhawan,
Jhandewalan Extension,
Delhi - 110 055 …Opposite Party
Date of filing 18.12.2018
Date of Order: 04.09.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1.(Introduction to consumer dispute of the parties) – The complainant/Insured filed the complaint with allegations of deficiency in services that his insured vehicle no. HR 73 6331 was stolen, police report was lodged but the vehicle remained untraceable. The complainant always cooperated the Opposite Party (OP) and its appointed surveyor by furnishing all records and complying with the instructions given, despite it OP, being Insurer, firstly failed to reimburse the total theft loss of sum insured/ agreed IDV of Rs.17,73,000/- and later-on despite constant efforts, correspondence, visits as well as by facing all trauma, claim of Rs. 12,76,000/- was partly reimbursed (without any reasons) by directly releasing the amount to Financer, without informing to complainant and it was at the back of complainant. The complainant suffered harassment and mental agony. The complainant seeks directions to OPs and he claims (i) for balance sum insured amount of Rs. 4,97,000/- payable as claim by the OPs, (ii) interest at the rate of 12% p.a. as from three months after the occurrence of loss until its payment in respect of amount released, (iii) interest on the balance/deficient amount not released for the period from three months after the claim until filing of complaint at the rate of 12% p.a. (iv) pendente-lite interest at the rate of 12% pa, (v) Rs. 1,00,000/- towards harassment, inconvenience and mental pain and agony suffered by the complainant (vi) Rs. 25,000/- being cost of litigation and (vii) any other appropriate relief to the circumstances of the present complaint.
1.2. The Opposite Party opposed the complaint on various grounds either on the basis of terms and conditions of the policy or facts of the case but in nutshell the complainant tried to play fraud and forgery to secure the claim amount vis-à-vis the amount of Rs. 12,76,000/- was settled on non-standard basis, inclusive of salvage etc. with the consent of complainant. There was no deficiency of service nor further claim is made out, since the amount was settled as full and final settlement for which discharge voucher was executed by the complainant.
1.3. It is relevant to mention that the tenure of policy was from 17.12.2015 to 16.12.2016 and incident of theft loss of vehicle took place on 06.12.2016, however, in the detail pleadings of the parties there is reference of previous episode of accident happened to the same vehicle in the year 2014, for which there is reference/response in correspondence dated 29.03.2017 and 31.03.2017 clarifying the earlier issue. Secondly, the Opposite Party had appointed its surveyor, the surveyor had furnished his conclusive report dated 19.01.2017 while recommending case of total loss of genuine theft of vehicle, which took place on 06.12.2016, however, the same surveyor had also furnished another report dated 21.03.2017 in respect of keys of the stolen vehicle, with regard to that there was correspondence of 29.03.2017 and 31.03.2017. To say, the present complaint is confining to the issue of claim in respect of theft took place on 06.12.2016, but there is reference of episode of accident of 2014 because of rival plea on the point of genuine of the keys of the vehicle. Fourthly, initially the complaint was filed against OP (i.e. now OP2) and name of OP1(Branch Manager of OP) was introduced by filing amending memo of parties that too prior to notice to the OPs. Hence, it was a complaint against OP1 and OP2.
2.1. (Case of complainant) –The complainant is self-employed citizen, he got his vehicle financed from M/s Pratap Shree Finance Company Ltd. and he also got the vehicle insured from the OPs. The complainant is registered owner of vehicle bearing registration no. HR 73 6331, it was being used for carrying goods as part of self-employment. The vehicle was insured under comprehensive insurance policy package/ risks vide policy no. 271601/31/2015/3568 valid from 17.12.2015 to 16.12.2016 on agreed IDV of Rs. 17,73,000/-.
On 06.12.2016 the vehicle was parked near metro pillar no. 716 Uttam Nagar, Delhi at about 03:00am however, the vehicle was found missing after short while, therefore, an FIR under crime reference no. 35738 of crime branch, e-police station, was registered. The vehicle remained untraced and untraced report was filed by the police.
2.2. Immediately after theft, the OP was informed, it had appointed its investigator, whom the complainant cooperated by providing all information, documents and response to the queries raised that too within time. However, the investigation was delayed beyond reasonable time, the documents asked were in piecemeal but they were provided immediately on demand.
2.3. OP in its letter dated 27.03.2017 asked an explanation from the complainant about morphological appearance of the keys, which complainant explained that the keys of the vehicle were changed after accident and it was also clarified that there was claim lodged with the OPs after that accident, the record of change of keys was available in the files of OPs. However, despite such clarification, the OPs did not release the claim amount, it appears OPs had dishonest intentions to release the claim.
2.4. The complainant visited office of OPs around May 2017, OP proposed to accept 75% of the claim amount and then only claim would be paid by OP but there was no logic for deduction of 25% of the claim amount by way of such offer. The financial condition of complainant was already deteriorating, since the vehicle was under finance, installments were pending and complainant had no revenue to meet the eventualities vis-à-vis interest from the finance was incurring every month, consequently overall liability on complainant was hugely pinching.
Since the complainant was being unemployed facing with constraints to pay the installments, therefore, initially he gave consent for accepting 75% under coercion. Even then the amount was not released by the OPs and complainant was requesting like begging the OP to release the claim amount to enable him to pay his liability to the financer towards principal and interest amount. Even then the OP failed to release the amount despite personal visits, letters etc. Therefore, the complainant wrote letter dated 27.09.2017 by withdrawing his consent for 75% claim and he demanded full/100% claim since OPs failed to make the payment of claim despite initial concurrence to accept 75% of the claim amount.
2.5. Now OPs' attitude became arm-twisting and manipulative after letter dated 27.09.2017. OPs did not settle the claim for nearly more than one year after even withdrawal of the consent. The OPs again asked the complainant to accept 75% claim and also threatened the complainant that claim would not be settled unless he accepts 75% of the claim amount. The complainant had no option under such pressing and extreme difficult situation but to concede to the OPs, he signed undertaking and letter of indemnity provided by the OPs. But OPs' conduct was fraudulent, coercive, unreasonable and manipulative. The OPs had exercised undue influence on the complainant.
2.6. On 12.10.2018 the complainant came to know that OPs had released amount of Rs. 12,76,000/- on 08.10.2018 as settlement of claim to the financer, which is short of Rs. 4,97,000/- as the agreed IDV was of Rs. 17,73,000/-. The release of short payment was unfair, coercive and by exercise of undue influence on the complainant, since OPs had collected full premium of insurance against agreed IDV of Rs. 13,73,000/-, which complainant is entitled being risk covered.
Thus, complainant (immediately after coming to know about the release of short payment} sent notice dated 14.10.2018 through his counsel for release of balance amount from the OP, however, the same was not complied. That is why, the present complaint. OPs are liable to pay interest at the rate of 12% pa for the delayed period, it comes to Rs. 2,43,733/- on the amount released and further interest of Rs. 97,712/- is made out on unreleased amount, which have been computed three months after the claim. The complainant also claims other relief already detailed.
2.7. The complaint is accompanied with photocopy of particular of registration, DL of complainant, Form 47, certificate of fitness of vehicle, photocopy of insurance policy, photocopy of RC of insured vehicle and its particulars, authorization certificate dated 08.07.2016 of NP (goods), photocopies of bills and cash memos, copy of information of theft claim dated 06.12.2016, web-net copy of FIR no. 035738 dated 06.12.2016, photocopies of various letters issued by financer M/s Pratap Shree Finance Company, photocopy of letter dated 03.01.2016 by surveyor seeking documents, copy of letter dated 24.12.2016 regarding receipt of documents and pending documents, photocopy of letter dated 02.01.2017 sent to SHO and copy of letter dated 30.01.2017 issued by OP, statements of account for period 17.12.2013 to 13.02.2017 & 17.12.2013 to 31.01.2018 issued by M/s Pratap Shree Finance Company, letter dated 27.03.2017 of repudiation of claim by OP, copy of its reply dated 29.03.2017, along with addendum dated 31.03.2017 and various other letters being correspondence from time to time inclusive of correspondence discovered between OPs and RTA Palwal or letters/ correspondences inter-se of office of OPs and RTA or M/s Pratap Shree Finance that complainant’s claim was settled for Rs. 12,76,000/-.
3.1 (Case of OPs)- OPs filed their written statement, its author/signatories name is not cleared, the vakalatnama filed in its support also does not depict the name of author, despite there are same signature on vakalatnama and on written statement. Later, affidavit of evidence was filed by Sh. Satish Kumar Sharma, Sr. Divisional Manger of OPs having office at Daryaganj, Delhi, his signature on affidavit of evidence are tallying with the signature of written statement and vakalatnama.
3.2. The OPs do not dispute that policy was issued by OP1 but its complete description is “motor insurance certificate cum policy schedule GCCV-public carriers other than three wheeler package policy ZONE-C” and the risk covered were strictly as per terms and conditions of the policy, proposal form and declaration.
3.3. However, the complaint is opposed that it is without cause of action, it is frivolous and vexatious complaint. The complainant is not a consumer in terms of Act 1986 as complainant is engaged in commercial activities. The complainant is doing Forum shopping and he is taking judicial process for a ride. The complainant has intention to make wrongful gain out of the present claim, since, he is trying to mislead and misrepresent the Consumer Forum.
3.4. On 27.03.2017, a pre-repudiation letter was issued to the complainant that as per investigation report in respect of forensic investigation of the keys submitted by the complainant, the investigator M/s Innovative Surveyor has opined that the both keys are fabricated and the use of the keys as per the age of the vehicle is not in-line. Therefore, the keys were found to be duplicate, which were made by a local key maker and complainant tried to mislead the OPs and thereby claiming the amount out of forgery. The complainant was given opportunity to substantiate his claim in view of repudiation before a final decision is taken at the end of OP. However, the complainant failed to make any representation but sent a reply dated 29.03.2017 through counsel.
The experts examined the keys provided, the keys were found fabricated & duplicate, they were not original keys considering use of keys as per age of vehicle, consequent wear and tear on those keys; there was no natural striation mark on both the keys, which proves that the keys were unused as well as chemical tests were also found no special lubricant material deposit in the grooves of the keys. The complainant tried to defraud the OPs by submitting duplicate keys in place of original.
3.5. The complainant furnished claim form and OPs had considered it was assess by the surveyor, it was scrutinized by the department of OPs. The competent authority with the consent of complainant, has approved claim for a sum of Rs. 12,76,000/- on non-standard basis, which includes depreciation, salvage value, excess clauses and this claim has been received by the complainant by executing and signing discharge voucher vide acknowledgement, signature on discharge voucher, letter of undertaking dated 10.08.2018.
3.6. There is violation of clause no. 5 of the condition of the insurance policy as complainant failed to take reasonable steps to safeguard the vehicle as it was left unattended without proper precautions to avoid risk and losses to the vehicle. There is no deficiency of any services. The complaint deserves dismissal.
3.7. OPs have mentioned that documents were annexed as annexures R1 to R12, with the written statement, however, no such documents were annexed.
4.1 (Replication of complainant) –The complainant filed detailed replication and the allegations of reply are opposed one by one vis-à-vis the complaint is affirmed as correct. The complainant came before the Consumer Forum with clean hands, since there is cause of action in his favour but deficiency of services on the part of OPs. The complainant is a consumer and the complaint was filed properly.
4.2. The complainant had not received any letter dated 27.03.2017 from the OPs. The key verification report has been gathered by the OPs but the circumstances are showing suspicious about its correctness and credibility. The expertise of the so-called key verifier has not been disclosed and the verification, if so done, is at the back of complainant, as no opportunity was given to the complainant to verify that the keys given were actually verified or there was no tempering with the keys given by the complainant. There is foul play in this regard. Moreover, key verification report was never supplied to the complainant and it seems to be an afterthought by the OPs to carry such examination of keys, after the complainant had filed the complaint.
4.3. The complainant had not seen any copy of surveyor report. The discharge voucher and undertaking were obtained initially under coercion from the complainant but the amount was not released for one year, the consent for such settlement was withdrawn. The OPs’ plea is not tenable in respect of discharge voucher as the OPs failed to settle the claim for above a year, when it was initially consented to. There is also violation of section 64 UM of the Insurance Act as the claim was settled without obtaining surveyor report from his surveyor vis-à-vis two sets of investigators, whose reports was used, are not the surveyors; the reports are suspicion and partisan. The complaint is correct.
5.1 (Evidence)- Then case came for evidence. Complainant Mohammad Atik led his evidence by filing detailed affidavit of evidence with the support of documents filed with the complaint.
5.2 The OPs led their evidence by filing affidavit of Sh. Satish Kumar Sharma, Senior Divisional Manager, Oriental Insurance Company having office at Daryaganj Delhi, It is relevant to mention that documents were introduced first time with the affidavit that too without the formal permission of the Consumer Forum. When the documents were not filed with the written statement, it would have been fair on the part of OPs to seek formal permission but it was not applied for.
6.1 (Final hearing)- The complainant filed its written arguments followed by oral submission by Sh. Amit Kumar, Advocate for complainant.
6.2. The OPs also filed their written arguments followed by oral submission by Sh. Surjeet Kesari, Advocate for OPs. The complaint is not maintainable under the terms and conditions of the policy of insurance. Moreover, complainant has already received the agreed payment for a sum of Rs. 12,76,000/- from the OPs as full and final payment under acknowledgment and discharge voucher. Hence, the present complaint is false and frivolous and the same is liable to be dismissed with heavy costs. The OPs rely upon-
(i) "Oriental Insurance Co. Ltd. vs.
Sony Cherian II (1999) CPJ 13 (SC) has held that "the insurance policy
between the insurer and the insured represents a contract between the parties Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.
(ii) Shree Balaji Woolen Mills vs. Oriental Insurance Company Limited" II(2013) CPJ 366 (NC) held that once insured had received the amount in full and final settlement of his claim and signed the discharge voucher, insured claimant can not permitted to re-agitate his claim.
(iii) A. P. Jos vs. ICICI Lombard General Insurance Company Limited" II (2013) CPJ 386 (NC) held that once petitioner/claimant has received the amount unconditionally and has also got the cheque encased, the complaint was not maintainable and it ceases to be consumer.
(iv) M L Spinners Pvt Ltd United India Insurance Complainant Ltd. II 2014 CPJ 692 (NC) - held that once petitioner/claimant has received the amount unconditionally and has also got the cheque encased, the complaint was not maintainable and it ceases to be consumer.
(v) M/s Arihant Industries Vs United India Insurance Co Ltd. FA decided on 4.1.2021, held the only evidence provided were letter of protest after signing of discharge voucher, which do not prove undue influence and it cannot be accepted.
6.3. On the other side, the complainant reiterates his contentions that the totality of circumstances are in favour of complainant, since it is matter of record that the complainant was put under coercion and threat that 75% of the claim amount is to be accepted by him, he had to sign the documents, however, for more than one year the claim was not released. It is also matter of evidence that the complainant had withdrawn his earlier so-called consent and he had specifically requested that he will accept full 100% claim amount and none-else. The OPs have used those initial papers. The complainant came to know on 12.10.2018 about such release of amount, immediately he sent a notice dated 14.10.2018 by reiterating demand of balance claim amount; the discharge voucher were not out of free consent of the complainant as full and final settlement vis-à-vis it is unilateral forms by the OPs while releasing the amount. The complainant relies upon - IDRA circular dated 24.09.2015 in respect of discharge voucher in settlement of the claim, its operating parts reads “accordingly insurers are hereby advised as under-where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it should be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial for a or any other for a established by law. All insurers are directed to comply with the above instructions.” . The complainant also derives reasons by relying upon Worldfa Exports Pvt Ltd. Vs United India Insurance Company Ltd (2015) 225 DLT 722- wherein it was held “in cases where such discharge voucher has been already been taken, the insurance companies shall not raise any objection to the maintainability of the claim on the basis of the discharge voucher
7.1 (Findings)-The contentions of both the sides are considered, analyzed and assessed. While making rival contentions, it is found that the OPs have used very strong words for imputing allegations against the complainant such as forum shopping, attempt to make forgery, to defraud the OPs, to make misrepresentation, to make wrongful gain and forged keys were furnished to the OPs. Similarly, the complainant had also used an expression ‘arm twisting and manipulative’ at one instance. The parties were in possession of their respective records, they were knowing well about their case and circumstances, therefore, this type of expression could have been avoided.
7.2. Since there are certain objections, while making such expression, therefore, those issues are being taken one by one.
7.3.1. The complainant filed the case for allegations of deficiency of services as part claim was considered and remaining amount was not allowed without any reason but according to OPs, the admissible amount with consent on non-standard basis was allowed. When the complaint is filed, the disclosure of cause of action is considered. The OPs have used loosely expression ‘Forum shopping’, but OPs failed to discharge their obligation as to how it was a Forum shopping?, Therefore, this point is decided against the OPs. In fact, the expression Forum shopping is expunged from the record. The OPs shall remain cautious while making such expression.
7.3.2. The complainant has explained in the complaint itself that vehicle was being used for commercial purposes for self-employment and livelihood. Whereas, the OPs contend that complainant is not a consumer, since the policy was issued for vehicle being used commercial purposes as public carrier insurance cover and complainant is involved in commercial activities.
Section 2(d) of the Consumer Protection Act, 1986 defines ‘consumer’ and in the eventuality of availing of services for commercial purposes, it is not covered under the definition of consumer but in case the services are being availed for the earning of his livelihood by means of self-employment. then it would not be construed commercial purposes, consequently, the case of complainant falls in the definition of ‘consumer’. Further, the said vehicle was insured against risks & perils and it not the business of complainant to earn profits out of settlement of claims. Reliance can be placed on New India Assurance Co. Ltd Vs Harsolia Motors & others [Civil Appeal nos.5352-5353/2007 dod 13.4.2023 (SC)].
7.3.3. Now the issue of furnishing of keys sets is being considered, on the one side OPs make allegations that duplicate keys were furnished as original keys, however, on its examination by the experts, the keys provided were discovered forged keys/duplicate keys. On the other side, complainant has reservations that the matter was explained to the OPs that when there was an accident in the year 2014, the driver side cabin was damaged in the accident, the parts including complete lock kit was replaced the complainant had lodged own damage claim including lock kit part, which was paid by the OPs. That is why, the keys available of lock and in actual use at the time of theft were submitted to the OPs/Investigator. Now, in view of this, it needs to relook into the evidence on record.
The OPs had issued letter dated 27.03.2017 regarding that both the keys were found fabricated as per keys verification report dated 21.03.2017 and in response, through counsel to that letter, the complainant had given response dated 29.03.2017 read with addendum dated 31.03.2017, reiterating its stand narrated in the aforementioned paragraph. Thereafter, the OPs issued letter dated 05.06.2017 in response to letter dated 29.03.2017, reiterating the stand took in letter dated 27.03.2017 and explaining about the status of keys. The OPs have not made any comment in respect of the contents of letter sent on behalf of complainant that while making own damage claim in respect of accident in the year 2014, the keys were the lock kit was replaced in place of damaged lock kit. The OPs kept silent on this material fact. The OPs have all record. It amounts of admissions to the plea of complainant. Therefore, the complainant has succeeded to establish the circumstances that there was accident in the year 2014, own damage claim was lodged, which includes replacement of lock kit, therefore, it does not leave any question of forgery.
It would not be out of context to mention that OPs have appointed its Surveyor/ Investigator who has furnished detailed report dated 19.01.2017 and the report specifically declares that report is concluded, which means nothing is to be left for further enquiry or investigation. The Surveyor clearly mentions that he was entrusted the subject matter on 16.12.2016. The same investigator furnished another report dated 21.03.2017 in respect of key verification, however, the report does not describe as to why the same report is being furnished, when there is already concluded report of 19.01.2017 and the keys were already with the investigator; the report dated 21.03.2017 also does not specify under whose instructions, the further investigations was assigned or reopened or when assigned so, therefore, the report dated 21.03.2017 appears to be a motivated report. This second report dated 31.3.2017 also does not give any reference of previous report dated 19.01.2017. The OPs in a very convenient mode put the imputation of forgery against the complainant, without looking at its own action that it kept silent about the facts narrated in complainant’s letter dated 29.03.2017, about facts of accident of 2014 on the aspect of keys as well as procuring report dated 21.03.2017 from the investigator, without further assigning justification for such investigation, after concluded report dated 19.01.2017.
7.4. With regard to other remaining issues/disputes, all of them are being taken together and the following conclusions are drawn:-
(i) There are overlapping in the plea of OPs, firstly, the claim was repudiated being not held tenable on the ground of misleading facts and misrepresentation about the keys of the vehicle but on the other side the claim was settled for amount of Rs. 12,76,000/- by the competent authority of OPs with the consent of complainant and on execution of discharge voucher. Another defence taken in the written statement was of clause 5 of insurance policy that complainant failed to safeguard the vehicle as it was left unattended.
(ii) The investigator in its report dated 19.01.2017, mentions all the circumstances from different angles and then it came to the conclusion that theft of vehicle is genuine and insured suffered losses due to theft, his claim is admissible. During that investigation by the surveyor/investigator, nothing was discovered or surfaced that vehicle was left unattended by the complainant, therefore, clause no. 5 of the policy is not applicable. It is introduced by the OP2 out of its own imagination, as a device to decline the claim. It is not fair on the part of OPs, since the OPs cannot travel beyond the repudiation letter, which just confines to the keys. In J&K Industries Pvt Ltd. Vs Oriential Insurance Co. Ltd Civil Appeal No.7930/2022 dod 18.10.2022, it is held that repudiation letter is an important document in case of insurance claim. The wordings of repudiation letter should be clear and include all possible valid ground of repudiation. Since in later stages or in court of law, an insurance company cannot take stand other than what is mentioned in the repudiation letter.
(iii) It has already been discussed in paragraph 7.3.3. about the keys. Moreover, the investigator in his first report dated 19.01.2017 clearly mentions about verification of the keys, which were seen by him but not collected. The plea of keys is also not proved by the OPs to be treated as forged and fabricated.
(iv) The complainant had wrote letters dated 04.09.2017, 27.09.2017, 09.06.2018 and 11.06.2018, that initially the complainant had agreed for 75% claim, but it was not released, immediately he withdrew that proposal of 75% and specifically mention in these letters that let he be released full 100% claim amount. The OPs could not establish that there was other requests after these letters to release the amount as Rs. 12,76,000/-, which was released on 8.10.2018 . Moreover, in these letters/correspondence it was never an issue with regard to the keys, it also demonstrate that the plea of forgery of key was introduced as an afterthought subsequently.
(v) The OPs have not established any letter or assessment that the competent authority assessed the compensation of Rs. 12,76,000/-. The OPs are playing hide and seek, which is emerging from the record. Firstly, as per surveyor report dated 19.01.2017, the investigator/surveyor has assessed that the theft of the vehicle is genuine, the insured suffered theft loss, his claim is admissible and surveyor recommended for finalizing the claim. The OPs in its letter dated 21.08.2018 under the signature of Ms. Garima Mahajan, writes to Motor Department, Palwal, settlement of claim on total loss basis/theft. To say, the IDV of vehicle was Rs. 17,73,000/-, the surveyor has also recommended the claim and from the correspondence of OPs, the matter is being treated as total loss, however, the amount was partly released for Rs. 12,76,000/- by narrating that it was assessed by competent authority with the consent of complainant, whereas, that order of competent authority has not been proved nor the consent of the complainant to that effect.
(vi) By taking into account all the documents of the parties, there is not a single document proved by the OPs that complainant was ever since informed of settlement of claim Rs. 12,76,000/-, the complainant came to know about such claim on 12.10.2018 that part amount was released to the financer on 08.10.2018. The complainant concedes to the effect that he had requested that claim amount may be released to the financer directly but claim amount was never agreed nor informed to him.
(vii) The complainant sent legal notice on 14.10.2018 immediately knowing that part amount was released to the financer directly instead of releasing the total claim amount of theft loss of Rs. 17,73,000/- being agreed IDV while seeking insurance policy, consequently, the documents got executed of discharge voucher etc were under protest because of withdrawal of consent for 75% claim by various letter from 4.9.2018 onwards, that too prior to release of amount in October 2018 as well as discharge voucher were got signed unilaterally being standard documents prepared by the insurer. Therefore, the circular dated 24.09.2015 by IRDA and the ratio of case law Worldfa Exports Pvt Ltd. Vs United India Insurance Company Ltd (2015) applies to the situation in hand in favour of complainant and against OPs.
(viii) The complainant has also cited case law that the terms and conditions of policy applies to the complainant, however, those terms & conditions equally applies to the insurer/OPs, there is nothing established by the OPs that terms & conditions of policy were violated by the complainant, even the surveyor report does not support the plea of OPs.
7.5. In view of the above conclusion, it stand establish that complainant lodged total theft loss claim of his vehicle, however, part amount of Rs. 12,76,000/- was released on 08.10.2018 despite proving of total theft loss of sum insured of Rs. 17,73,000/-, which is also agreed IDV. The declining valid claim amounts of deficiency of services. Therefore, the complainant is held entitled for reimbursement of remaining/balance claim amount of Rs. 4,97,000/-.
Since, the amount was already paid to the financer, therefore, the aforementioned remaining amount of Rs.4,97,000/- would be payable to the complainant (subject to inter-se rights of the financer and the complainant for any amount, if any, as nothings has been brought on the record about further financial implications).
7.6. Complainant claims interest at the rate of 12% pa for three durations from period after three months of loss and claim lodged, which has also been quantified in the complaint. The theft took place on 06.12.2016 and part amount of Rs.12,76,000/-was released to financer on 08.10.2018 (but complainant came to know of such payment on 12.10.2018). Thus, complainant claims interest viz (a) interest at the rate of 12% p.a. three months after the occurrence of loss until its payment in respect of amount released of Rs. 12,76,000/- i.e. w.e.f. 06.03.2017 to 08.10.2017, (b) interest on the balance/deficient amount not released (i.e. Rs.4,97,000/-) for the period from three months after the claim until filing of complaint at the rate of 12% p.a. (iv) pendente-lite interest at the rate of 12% pa.
The facts and features of the case are speaking themselves that case remained like a rolling stone, then halt and thence it was rolled again and partly allowed. Under these circumstances the complainant deserves interest since he was not paid the amount, the vehicle was also under hypothecation attracting EMI with interest and OPs was knowing well since it had released that part amount of sum insured to Financer directly (although the complainant had consented that admissible amount may be released to Financer) but it was delayed by OPs. The interest at the rate of 8% pa would meet both ends. Further, the OPs had surveyor report dated 19.01.2017 from the inception but part payment was made on 8.10.2018, therefore, in terms of law laid down in Karmavati Vemeers P Ltd. Vs. New India Assurance Co. Ltd. AIR 2023 SC 987 [para 10], the interest may be allowed from surveyor's report dated 19.01.2017. But the complainant had claimed interest after three months from date of loss (date of loss is 06.12.2016) , therefore, interest will be w.e.f. 06.03.2017 to 8.10.2018 (date of part payment) [period of 19 months] on amount of Rs.12,76,000/. The interest for 19 months at the rate of 8%pa on such amount of Rs.12,76,000/- comes to Rs.1,61,627/-. Further, interest is also allowed on balance unpaid amount of Rs.4.97.000/- w.e.f. 06.03.2017 to 04.09.2023 being date of decision on complaint.
7.7. The complainant also claims Rs. 1,00,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim but succeed partly. The OPs had its surveyor report, who had conducted all inquiry and investigation and then report was furnished but claim was not settled and complainant was put to all trauma, especially vehicle under hypothecation under EMIs as well source of income. The aforementioned circumstances discussed are speaking themselves and considering them, compensation of Rs. 20,000/- is quantified in favour of complainant and against OPs in lieu of trauma and agony faced.
7.8. The complainant prays for other appropriate relief and cost of Rs. 25,000/-; since complainant has to file complaint preceded with legal notice, therefore, costs of Rs.10,000/-is also allowed in favour of complainant and against OPs.
7.9. Accordingly, the complaint is allowed in favour of complainant/registered owner/insured and against the OPs/insurer to pay jointly and/or severally the balance amount of claim of Rs.4.97.000/- w.e.f - along-with interest at the rate of 8% pa from 06.03.2017 till the date of this order (i.e. 04.09.2023), damages/compensation of Rs.20,000/- & costs of Rs. 10,000/-, besides other interest amount of Rs.1,61,627/- (as computed in sub-paragraph no. 7.6 above).
The OPs are required to pay the amount within 30 days of receipt of this order, failing which OPs will be liable to pay interest at the rate of 8% pa on amount of Rs. Rs.4.97.000/- till realisation of amount.
8. Announced on this 04th September 2023 [भाद्र 13, साका 1945].
9. 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
