Delhi

West Delhi

CC/16/40

Daljeet Singh Walia - Complainant(s)

Versus

Reliance General Insurance Ltd. - Opp.Party(s)

30 Mar 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   40/2016

In re:-

Daljeet Singh                                                                   ………..Complainant

S/o Sardar Harsharan Singh

R/o WZ-28C, Gali no. 10,

Guru Nanak Nagar, Tilak Nagar

New Delhi – 110018

VERSUS

Reliance General Insurance

Co. Ltd &Anr

C-1, 3^rd Floor, Adjacent to Janakpuri

Metro Station, New Krishna Park

Janakpuri, New Delhi-110058

Through its Branch Manager/Authorized Signatory                   ............Opposite Parties

                                                                            

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution: 13.01.2016

Judgment reserved on: 10.03.2022

Date of Decision: 30.03.2022

 

Order by :Ms Richa Jindal (Member)

 

 

ORDER

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986. He alleged service deficiency on the part of O.P. for non-honouring the genuine insurance claim and claimed compensation accordingly in this consumer complaint. Brief facts of the complaint are as follows:-

 

1. The complainant was the owner of the vehicle known as a Chevrolet Tavera bearing NO. UP86TO178 2011.  Engine No. 3 EL 126781. Chasis No. MASABCE5BAH  125601 and the said vehicle was purchased by the complainant for a sum of Rs. 7,62,977/- from the showroom of Chevrolet Company, known as General  Motor India Pvt. Ltd. The aforesaid vehicle was got financed for a sum of Rs. 5,61,700/-  from Cholamandalam Investment and Finance Co. Ltd on 30/06/2011 and the complainant was directed to pay the said loan amount together with interest in 36 monthly installments of EMI to the tune of Rs. 20,300/- per month and the said vehicle was hypothecated with M/S Cholamandalam Investment and Finance Co. Ltd.

 

The complainant had been plying his vehicle in Delhi. The complainant was earning his livelihood through self-employment by plying the said vehicle. The complainant was having regular income from the said vehicle and from the said income the complainant was supporting his family. The complainant had insured his vehicle/car with the OPs for IDV of Rs. 06 lacs only on 28.06.2013 vide cover note issued by OP No.1 by Agency Code No. 287591 cover w.e.f 30.06.2013 to 29.06.2014 and a sum of Rs. 33,324/- was paid as a premium by the complainant to OP No.1 and a policy was issued by the OPs in respect of the said vehicle to the complainant under the Rules and Regulations of the companyand as such the OPs were providing services to the complainant. The complainant is a consumer as defined u/s 2(d) of the Consumer Protection Act and the complainant is fully covered under the Consumer Protection Act, 1986 being a consumer.  OP No. 1 is a branch office of OP NO.2 having its office at C-1, New Krishan Park Janakpuri, New Delhi-110058 and OP NO. 2 is a part of Reliance Capital doing its business in insurance Sector all over India in business of insurance.

 

 

2. On 05.02.2014, the subjected vehicle was stolen by somebody when it was standing/parked in front of the House of the complainant near Khyala School at 4 AM. The driver of the complainant came to his house and he did not find the aforesaid vehicle there immediately intimated to the complainant and after seeing the position the complainant made a report to the police station, Khyala, Delhi. Based on the said complaint an FIR No.86/14 under section 379 IPC was got registered at Police Station Khyala,Delhi by the complainant. On 07.02.2014, the complainant visited the office of OP No.1 and met with the concerned officials of OP No.1 and brought all the facts to their knowledge regarding the said theft of the said vehicle. The officials of OP No.1 told the complainant to wait for some time to see the situation of the said vehicle and the said vehicle was also not found by the police despite the best efforts as told by the police officials to the complainants.

 

3. On 24.06.2014, the complainant wrote a letter to OPs and the said letter was sent alongwith the photocopy of the FIR, RC and Insurance Cover. The said letter was sent by Registered Post to the OPs. Wherein complainant requested the Respondents/OPS to pay the aforesaid insurance amount of Rs. 6 lacs to the complainant. The complainant had been waiting for the payment of the aforesaid insurance amount since the date of intimating to the OP No.1 Services are deficient on the part of the respondents which is apparent from the acts which have been narrated hereinabove in this complaint. Lastly, on 18.08.2015, the complainant got issued a legal notice to the respondents/OPs calling upon them to pay the insurance amount of the said vehicle within 15 days from the date of receipt of the said legal notice and the said notice was sent by speed post AD and by courier. The said legal notice has been duly served upon the Respondents but despite the said legal notice, the respondents have deliberately failed and willfully neglected to do the needful in the matter.

 

4. On 15.12.2015, the complainant visited the office of OP no. 1 and met the officials of OP no. 1 and brought all the facts to their knowledge again regarding the said theft but the officials of OP no. 1 did not pay any need in this regard. The complainant was not having any other option but to file the present complaint before this Hon’ble Commission for claiming compensation for the grievances as stated herein and above.

 

The complainant attached the following documents with the complaint:

 

CW1/1    A true copy of my Driving License issued by Transport Department, Govt.

        of NCT of Delhi is Ex. CW-1/1.

Ex. CW1/2         A copy of the Registration Certificate issued by the Transport

 Department is Ex. CW – 1/2

Ex. CW1/3         The pollution certificate 01.07.2013 is Ex. CW-1/3

Ex. CW1/4         The cover note bearing no. 200700924840 dated 30.06.2013 issued

by the agency of the OP no. 1 bearing agency code no. 287591 for Rs. 6.00 lacs being the Insurance amount, is Ex. CW-1/4

Ex CW1/4          A copy of the Proposal Form-cum-calculation Sheet is Ex. CW1/4

Ex CW1/5          A copy of Motor Insurance Cover Note dated 30.06.2011 is    ExCW1/5

Ex. CW1/6         No objection Certificate stating therein that they have no objections

to cancelling the Loan Endorsement in the Policy and the said letter is Ex. CW-1/6

Ex. CW1/7         The said company also wrote a letter dated 13.10.2014 to RTO

stating therein that they have received full payment towards the HP Agreement and a copy thereof was sent to me. A copy of the said Letter is Ex. CW-1/7

Ex. CW1/8         The copy of the said FIR is Ex. CW-1/8

Ex. CW1/8A       A copy of the letter dated 14.06.2014 is Ex. CW1/8A

Ex. CW1/8B       Receipt is Ex. CW1/8B.

Ex. CW1/9         A copy of the letter dated 25.07.2014 is Ex. CW-1/9

Ex. CW1/10       A copy of the said legal notice is Ex. CW-1/10

Ex. CW1/11       The original speed post AD receipts are Ex. CW-1/11 & Ex. CW1/12

Ex. CW1/13       The original Courier receipts are Ex.CW-1/13 & Ex.CW1/14

 

2. After hearing the arguments on admission, a court notice was issued to Ops on 14-01-2016 to be returnable on 14/03/2016. On 14/03/2016 counsel for OP appeared and took time for filing a reply. Op filed a reply alongwith an application for production of documents on 27/05/2016. Matter adjourned for filing reply and arguments on the said application. In the WS filed by OP preliminary objections was taken as hereunder :-

 

1. That the cover note attached with the complaint is not reflected in the database of the answering opposite party. As mentioned in para 5 of the complaint, the complainant should have attached a copy of the insurance policy issued by the answering opposite party. In absence of the insurance policy, insurance of the vehicle bearing number UP-86T-0178 is not admitted.

 

2. That without admitting the factum of the insurance, the complainant is admittedly engaged in providing tourist commercial services and has got his vehicle registered as a commercial vehicle with the office of RTO. Hence, the alleged stolen vehicle was used for commercial purposes and to earn profit and not for earning a livelihood. There are several vehicles used by the complainant apart from the vehicle in question. Therefore, the stolen vehicle was being used as a commercial vehicle and hence the complainant is not a consumer under the definition provided under the Consumer Protection Act.

 

3. That complainant has never intimated and reported any claim in the office of answering the OP. There is no claim registered against the insurance cover note nor are the cover note details are available in the company. Thus, the complaint is premature and is liable to be dismissed.

 

4. That without admitting the factum of the insurance it is submitted that the fact of non-information to the answering respondent is also evident from the fact that there is no claim number mentioned in the complaint nor any document, communication, letters attached with the complaint. The only letter regarding intimation to the company is attached and that too is dated 24.07.2014, approximately 5 months after the alleged theft. The authenticity of the said letter is also questionable as there is no proof of delivery and dispatch attached with the said letter. Thus, the mandatory requirement of intimation to the company is not done and the complainant has directly approached the forum without taking the proper route and remedy. Thus, the complaint is not maintainable.

 

5. The mere purpose of filling this complaint directly in the court is to avoid the investigation to be done by answering OP concerning the loss suffered by the complainant. It is evident from the contents of the complaint that there is no information to the insurance company regarding the theft of an insured vehicle. The complainant has mentioned in the complaint that he visited the office of the answering OP after the alleged incident but has not placed on record the claim number or the copy of the claim form. This complaint is entirely a bundle of concocted facts and misrepresentation to the Hon’ble Forum. The complainant has not availed the services of the answering OP and has directly filed this present complaint which is devoid of any cause of action and is liable to be dismissed.

 

6. That there is no cause of action and a deficiency in services on the part of the answering respondent as there is no intimation ever sent by the complainant to the answering respondent. The complainant has directly approached the court with moulded and altered facts to get the compensation amount. Thus, this complaint is devoid of any cause of action and deserves dismissal ab initio.

 

7. That the complainant is full of ambiguities and unexplained circumstances. This matter requires lots of evidence and witnesses for arriving at any conclusion. Hence this case cannot be decided at this stage and in this forum and accordingly may please be referred to the concerned court for proper shreds of evidence and examinations.

 

8. That complainant has not approached the Forum with clean hands and is guilty of concealing the material facts.

 

 

3. The complainant has filed his rejoinder and evidence by way of an affidavit affirming the facts alleged in the complaint on 29/11/206. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has exhibited the documents filed alongwith the complaint as exhibit CW/1 to CW/13.:
4. Thereafter, the complainant filed a reply to the application filed by the opposite party on 3/2/2017, the matter adjourned twice for arguments on an application filed on behalf of opposite parties, but the OPs did not appear, hence proceeded ex-parte vide order dated 27.03.2017. The complainant filed his written submission on 10.08.2017. Finally, oral arguments were heard on 10-03-2022. We have carefully gone through the record of the case and have heard submissions from the complainant.

 

5. Therefore, in view of the facts and surmises mentioned above the first and foremost point to be considered is whether the vehicle in question was duly insured and entitled to claim. A perusal of the record shows that the complainant categorically stated in the pleadings that he had insured his aforesaid vehicle bearing No. UP86TO178 with OP for a sum of Rs. 06 lacs only on 28.06.2013 vide cover note issued by OP No.1 by Agency Code No. 287591 w.e.f 30.06.2013 to 29.06.2014 and a sum of Rs. 33,324/- was paid as a premium by the complainant to OP No.1 and a policy was issued by the OPs in respect of the said vehicle to the complainant under the Rules and Regulations of the company. The complainant categorically stated that he kept the original insurance policy in the car/vehicle in question and the same was stolen alongwith the vehicle and the complainant was only having a cover note which is already on record. Although the complainant was unable to provide the insurance policy. But he provided the cover note and in our opinion, a cover note is a temporary document issued by an insurance company that provides proof of  until a final insurance policy can be issued. Although a cover note is different from a  or an insurance policy document. But the cover note features the name of the insured, the insurer, the coverage, and what is being covered by the insurance.

 

6. The insurance companies must issue a cover note to provide an individual with proof of insurance before all the insurance paperwork has been processed. During this time, the insurer may continue to evaluate the risks associated with ensuring the holder of the cover note, and the cover note will continue to serve as the insured’s proof that coverage has been purchased until the insurer issues the policy documents and certificate of insurance. Generally, the cover note is valid till the issuance of an insurance policy. Hence in the present case, since the insurance policy was already issued, details of the vehicle in question were not available in the database maintained by the OP.

 

7. In general, the cover note provides the same level of coverage as the full insurance policy, though insurers may place some restrictions while they make any final determinations on the risks associated with the insurance policy. It may not be difficult for the insurance company to find out the details of the Insurance Policy. The insurance company also in their reply did not categorically state that they did not receive the premium or that the cover note was fake. Admittedly no witness was examined from OP’s to prove that the cover note was fake. It is not proven that the cover note of the insurance company is fake.

 

8. Another ground was taken by OP that in order to get compensation from the opposite party the complainant had produced a fake cover note. The contention of the appellant has no force because the opposite party has failed to file any evidence to show that the compensation was claimed based on a fake cover note. Admittedly the opposite party issued the cover note/policy after taking the huge amount as a premium from the complainant and in their entire reply OP nowhere stated that they did not receive the premium against the said cover note.

 

9. Reliance is placed on Hon’ble State Consumer Disputes Redressal Commission in the case titled Oriental Insurance Co. Ltd. vs Shri Satbir Singh, decided on 27 September 2006 in Appeal no, FA-828/2006 held that

“According to the respondent he purchased a truck on 20-03-2003 from Pasco Motors, Kundli who was an authorised dealer of Tata Motors and rang up Mr Parvinder Singh, an official of the appellant for insurance of the vehicle. Shri Parvinder Singh deputed his representative Shri Pran Khanna and Rinku with a cover note duly signed by Parvinder Singh to be delivered to the respondent and he paid Rs. 25,186/- in cash as premium. Said truck met with an accident on 14-11-2003 in respect of which a report was lodged with the Police Station Charkhi Dadri and a claim was filed with the appellant. The claim of the respondent was repudiated on the ground that the insurance cover note produced by the respondent was fake and was not issued by the authorised agent of the appellant-Company.

10. Whenever the Insurance Company appoints their agent to issue an insurance cover note against payment, the Insurance Company is liable for its acts of omission and commission. Insurance policies are subsequently signed and despatched by the company but whenever the insurance cover note is issued on filling up the proposal form it is always an agent of the company who receives the premium either by way of cash or by way of cheque.

 

11. In the instant case, the District Forum has come to a finding of fact that the Insurance Cover Note was issued by a duly authorised agent or official of the appellant on payment of Rs. 25,186/-. We do not find any infirmity in the impugned order and dismiss the appeal in-limine.”

 

12. Because of the above, even if it is presumed that the cover note was fake, though it is not so established on the records, whether the insured was himself a victim of fraud or he himself was responsible for producing a fake insurance cover note is not proved. It cannot be ruled out that the insured may have been duped by the agent. In the absence of any such evidence, any conclusion in this regard would be only based on conjectures and surmises.

 

13. The second point of defence raised by the OP needs to be considered is whether the complainant has purchased the vehicle in question for commercial purposes or exclusively to earn their livelihood using self-employment. There cannot be any dispute that the initial burden is on the complainant to prove that they fall within the definition of consumer.

 

14. The relevant provision of the Act defines the word consumer as under:

2(1)(d) consumer means any person who,

 

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods for resale or any commercial purpose; or

 

15.  Reliance is placed on the National Commission judgement in case of "Harsolia Motors vs. National Insurance Co. Ltd., I (2005) CPJ 27 (NC)". 

"Applying the aforesaid test we have to find out two things: (i) whether goods are purchased for resale or for any commercial purpose? Or (ii) whether the services are availed for any commercial purpose? Therefore, the two-fold classification is the commercial purpose and non-commercial purpose. If the goods are purchased for resale or commercial purposes then such consumer would be excluded from the coverage of the Consumer Protection Act, 1986. it is apparent that even taking the wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purposes. But, in a case where goods purchased or services hired in an activity that is not directly intended to generate profit, it would not be a commercial purpose”

 

 

16. M/s. Ritu Gram Udyog Samiti vs. The New India Assurance Company Limited reported in 2009 (1) WBLR 285 was also cited in support of above contention, wherein Hon’ble National Commission held that :-

 

“ It is an admitted position that the insurance policy had been taken by the Complainant from the OP No.1 under the terms and conditions as contained in the policy in question. For all intent and purpose, the Complainant was a 'Consumer' and, the service rendered by the OP No.1 would be covered definition of 'Service' under Section 2(1)(o) of the Consumer Protection Act, 1986.”

 

17. The third point that needs to be considered is whether the complainant claim is liable to be paid by the OP BECAUSE as per the averment made by op in their reply, the complainant never intimated and reported any claim in the office of the answering OP. In this regard the complainant has categorically stated that in Para nos. 8, 9 & 10 of the complaint that on 06.02.2014 an FIR no. 86/2014 u/s 379 IPC was got registered in the Police Station Khyala, Delhi by the complainant and on 07.02.2014, the complainant visited the office of the OP no. 1 and met with the concerned officials of the OP no. 1 and brought all the facts to their knowledge regarding the theft of the said vehicle and it has been stated in para no. 10 that on 24.06.2014, the complainant wrote a letter to the OPs and said a letter was sent along with the FIR, RC and Insurance Cover and lastly on 18.08.2015, the complainant got issued a Legal Notice to the OPs which was sent by the Speed Post A.D. and Courier and said legal Notice has been duly served. The complainant has further stated in Para no. 17 of the complaint that on 15.12.2015, the complainant again visited the office of OP no. 1 and met with the official of OP no. 1 and again brought all the facts to their knowledge but the OPs did not pay any heed.

 

18. The relevance of informing the police "immediately" has been discussed recently by the Hon'ble Apex Court in Gurshinder Singh v. Shriram General Insurance Co. Ltd. &Anr. Reported at AIR 2020 SC 1395 wherein it has been held as under:

"15. We find that the second part of Condition No. 1 deals with the 'theft or criminal act other than the accident. Provides that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police are immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recover the vehicle and return the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, that the insured would be in a position to lodge his compensation claim. As observed by the Bench of two learned Judges in the case of Om Prakash, after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen.

 

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 a 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."

 

19. Thus, in the light of the above discussion, in the present case. The theft occurred between 05.02.2014/06.02.2014. The FIR was lodged at P.S. Khyala, Delhi on the same day i.e. 06.02.2014. The police have admittedly lodged the final report. The only issue left is that the complainant did not file an insurance claim to date, hence we direct that the complainant would supply the documents to the opposite party along with claim form within thirty days from the date to receipt of order and thereafter opposite party would settle the claim within three months as Redressal

 

20. We further ordered that in case the complainant would not be satisfied with the settlement of a claim made by the opposite party then the complainant would be at liberty to approach this Commission in accordance with the law.

 

21. A copy of this order be sent to each of the parties, free of cost, as per Rules.

 

 

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President