State Consumer Disputes Redressal Commission
Ajmer Singh vs Icici Lombard on 20 April, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1223 of 2015
Date of institution : 27.11.2015
Date of decision : 20.04.2016
Ajmer Singh Tarsikka son of Sh. Jaswand Singh, resident of 8693,
Kot Baba Deep Singh, Gali No.3/4, Barsati Nala, Amritsar.
....Appellant/Complainant
Versus
1. ICICI Lombard Motor Insurance Co. Ltd., ICICI Lombard
House 414, Veer Savarkar Marg, near Sidhi Vinayak Temple,
Prabhadevi, Mumbai-400025, through its Principal Officer.
2. Swani Motors Private Limited, 81, Court Road, Amritsar,
through its Director/Principal Officer.
....Respondents/Opposite Parties
First Appeal against the order dated
02.11.2015 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri A.S. Tarsikka, in person For the respondents : Shri Sandeep Suri, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant has preferred this appeal against the order dated 02.11.2015 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986, for directing the respondents/opposite parties First Appeal No.1223 of 2015 2 to pay the insurance claim of Rs.42,500/-, along with interest at the rate of 18% per annum from the date of lodging of the claim till the date of payment and to pay Rs.50,000/-, as compensation and counsel fee, was disposed of with the directions to him to furnish the "Untraced Report", fill in and sign Form Nos.28 and 29 in favour of opposite party No.1, within seven days and that opposite party was directed to settle his claim case, within one month from receipt of those documents.
2. As per the allegations, made in the complaint, the complainant was the registered owner of Maruti Car bearing Registration No.PB-02-AF-2181 (in short, "the vehicle"); which was got insured by him with opposite party No.1, through opposite party No.2, vide Insurance Policy No.3001/MI-01795203/00/000 for the period 15.01.2014 to 14.01.2015 for IDV of Rs.42,500/-, after making the payment of the premium of Rs.2,260/-. He parked the vehicle outside his house, after properly locking the same and at about 5/6.00 A.M. on 29.07.2014, he found that the same was missing and was stolen by someone. He did his best to locate the same, but failed and thereafter reported the matter to the Police of Police Station B-Division, Amritsar, on the same day and FIR No.101 dated 29.07.2014 was recorded under Section 379 IPC. He reported the theft to opposite party No.1 and lodged claim No.MOTO3961444 with it for the disbursement of the insured amount. He submitted all the relevant documents, as required by that opposite party, and after receiving those documents, it assured to settle his claim within the shortest period. He had been visiting the office of that opposite party First Appeal No.1223 of 2015 3 again and again and making requests for payment of the insured amount, but it kept on putting off the matter on one pretext or the other and failed to release the claim amount. It had no legal right to withhold his genuine and legitimate claim and was bound to indemnify the loss suffered by him on account of the theft. This act on its part amounts to deficiency in service and adoption of unfair trade practice; which caused mental pain, agony and harassment to him.
3. The complaint was contested by opposite party No.1, whereas opposite party No.2 did not appear before the District Forum, in-spite of its service and was proceeded against ex parte. Opposite party No.1, in its written reply filed before the District Forum, admitted that the complainant was the owner of the vehicle, which was got insured with it, vide the Policy, mentioned in the complaint and for the period, mentioned therein. It also admitted that the claim regarding the theft of the vehicle was lodged with it and that the same was not settled. It denied the other allegations made in the complaint and averred that it was to adopt a particular procedure, laid down by I.R.D.A., for processing and deciding the claim of the complainant and the necessary formalities were to be completed. The complainant failed to supply the required documents and to complete the required formalities. For assessing the admissibility of the claim, the following documents were required:-
i) Claim Form dully filled and signed;
ii) Address Proof;
First Appeal No.1223 of 2015 4
iii) ID Proof;
iv) Photographs 2 passport size;
v) Currently Policy;
vi) Previous Policy;
vii) RTO Intimation;
viii) Copy of Police Complaint;
ix) FIR Original (if case clubbed in different FIR);
x) Form No.28, 29, 30 (3 copies of each Form, dully
signed);
xi) Purchase Invoice of vehicle;
xii) Indemnity Bond 100/- Affidavit (Attested by Notary)
(Specimen attached);
xiii) Statement of last driver, insured & witness;
xiv) Original R.C. of Form No.26, dully filled and signed;
xv) All keys, with sign of insured on keys;
xvi) Untraced Report;
xvii) Bank Statement, in case financed vehicle;
xviii) NOC letter from Bank;
xix) Photo of insured, while writing statement;
xx) Photo of last driver, while writing statement;
xxi) Photo of insured's residence;
xxii) Photo of loss location;
xxiii) Line Diagram of loss location; and
xxiv) Vehicle Service History.
First Appeal No.1223 of 2015 5
To assess the claim of the complainant, it appointed the surveyor; who, vide his letter dated 13.08.2014, asked for those documents, but the same were never supplied to that surveyor by the complainant. Moreover, there was violation of the terms and conditions of the Policy and that itself is a ground for the dismissal of the complaint. The complainant had not taken care of his car properly; as during the night he parked the same outside his house. He has not come to the District Forum with clean hands and has suppressed the material facts. No cause of action has accrued to him to file this complaint and the amount claimed by him is excessive and exaggerated. There was no such deficiency in service on its part, as the claim of the complainant could not be processed for want of documents. The complaint filed by him is premature and is not legally maintainable. It prayed for the dismissal of the same, with costs; being false and frivolous.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing the complainant, in person, and learned counsel on behalf of opposite party No.1, disposed of the complaint, vide aforesaid order.
5. We have heard the appellant/complainant, in person, learned counsel for respondent No.1/opposite party No.1, as respondent No.2/opposite party No.2 did not appear before this Commission, in-spite of its service and was proceeded against ex parte. We have also carefully gone through the records of the case. First Appeal No.1223 of 2015 6
6. It has been submitted by the complainant, in person, that all the documents, as required by opposite party No.1 and its surveyor, were furnished by him and with a mala fide intention, his claim was not processed and settled, for the reasons best known to opposite party No.1. From the documents proved on record by opposite party No.1, it stands proved that all the documents had already been furnished by him and still before the District Forum, it was represented that those documents have not been furnished and it was only on the asking of the District Forum that he agreed to supply those documents and in case this Commission asks him to supply those documents, he would supply the same. His main grouse is the non-settlement of his claim for all this period, in-spite of furnishing of the requisite documents and the District Forum should have decided his complaint on merits, instead of asking him to produce the documents for settlement of his claim. He further submitted that from the evidence produced on the record by him, it stands proved that the vehicle was duly insured with opposite party No.1 and was stolen. Therefore, opposite party No.1 was to pay the IDV, as mentioned in the Insurance Policy, and for the deficiency in service committed by it in not deciding his claim for all this period, it is liable to pay the compensation, as mentioned in the complaint, for the mental agony and harassment suffered by him.
7. On the other hand, it has been submitted by the learned counsel for opposite party No.1 that the appeal is liable to be dismissed on the sole ground that it was in view of the statement made by the complainant before the District Forum that he was First Appeal No.1223 of 2015 7 ready to furnish the documents, consisting of the "Untraced Report"
and Forms No.28 and 29, that his complaint was disposed of with direction to him to furnish those documents and his claim was to be settled only after the furnishing of those documents. He further submitted that the claim of the complainant could not be processed, as he failed to furnish the requisite documents, as asked for by the surveyor and the investigator of opposite party No.1 and that fact stands proved from the oral and documentary evidence produced before the District Forum. In the absence of those documents, it was not possible to settle the claim and, as such, it cannot be held that there was any deficiency in service on the part of this opposite party. There is no illegality or infirmity in the order passed by the District Forum and the same is to be upheld.
8. A perusal of the impugned order shows that the District Forum, after recording its findings regarding the documents, which, according to it, were required for the processing of the claim of the complainant, recorded that the complainant stated at the bar that he was ready to furnish those documents. Thereafter, the said direction was issued. The complainant stated before us that in case he is asked, then he is ready to furnish those documents to opposite party No.1, but his allegation made in the complaint is that he had furnished all those documents to opposite party No.1 and, as such, it was required to settle and allow the claim and the non-settling thereof amounts to deficiency in service on its part. The question to be decided is, whether the documents, as asked for by opposite party No.1, had been furnished by the complainant or not? First Appeal No.1223 of 2015 8
9. Opposite party No.1 proved on record affidavit of Rohit Kapoor, Investigator, Ex.OP-1/5; in which he deposed that despite repeated requests and demands made to the complainant, he did not supply the relevant documents. According to him, the following documents were still to be received to process his claim:-
i) Address Proof; ii) Untraced Report; iii) Original R.C.; iv) Copy of Driving Licence; v) Purchase Invoice of the vehicle; vi) Form No.28 and 29.
However, Meenu Sharma, Legal Manager, has another story to tell in his affidavit, Ex.OP-1/7. According to him, the following are the documents, which are required for assessing the admissibility of the claim of the complainant and that the same had not been supplied by him:-
i) Claim Form dully filled and signed;
ii) Address Proof;
iii) ID Proof;
iv) Photographs 2 passport size;
v) Currently Policy;
vi) Previous Policy;
vii) RTO Intimation;
viii) Copy of Police Complaint;
First Appeal No.1223 of 2015 9
ix) FIR Original (if case clubbed in different FIR);
x) Form No.28, 29, 30 (3 copies of each Form, dully
signed);
xi) Purchase Invoice of vehicle;
xii) Indemnity Bond 100/- Affidavit (Attested by Notary)
(Specimen attached);
xiii) Statement of last driver, insured & witness;
xiv) Original R.C. of Form No.26, dully filled and signed;
xv) All keys, with sign of insured on keys;
xvi) Untraced Report;
xvii) Bank Statement, in case financed vehicle;
xviii) NOC letter from Bank;
xix) Photo of insured, while writing statement;
xx) Photo of last driver, while writing statement;
xxi) Photo of insured's residence;
xxii) Photo of loss location;
xxiii) Line Diagram of loss location; and
xxiv) Vehicle Service History.
10. The falsity in this oral evidence is very much apparent from the documentary evidence produced by opposite party No.1 itself. It proved on record letter dated 13.08.2014, Ex.OP-1/3. Vide that letter, it demanded the following documents from the complainant:-
✓ Claim Form available with all the relevant column filled and duly signed by the insured, in case of corporate company, First Appeal No.1223 of 2015 10 with corporate seal.
✓ Current photographs, Address Proof, ID Proof.
✓ Policy copy.
✓ Intimation to RTO duly acknowledged by them.
✓ Translated copy of FIR in Hindi or English (if original in
Punjabi).
✓ Form No.28, 29, 30 (3 each) and should be duly signed by
the insured.
✓ If the vehicle is hypothetical to Bank/Financial Institute
Form No.35 in duplicate (all original) duly signed by the insured and the Bank/financer along with the NOC to RTO and ICICI Lombard GIC. NON REPO + LOAN ACCOUNT STATEMENT.
✓ Purchase Invoice of the vehicle. ✓ Indemnity duly signed by the insured and payable amount
match with the IDV-after compulsory deduction-Voluntary deduction (if opted).
✓ Statement of Insured Driver/witness confirming loss of vehicle due to theft.
✓ Original RC, if lost pls provide duplicate RC or if Temp. no.
pls provide Form No.21, 22 & Temp. No. Certificate. ✓ Final Untraced Report (under Sec. 173) with translated copy in Hindi or English (if original in Punjabi). ✓ 1+1 Original Keys, if lost, form declaration from the insured/FIR stating the loss of key.
Second letter dated 06.10.2014 was proved on the record, as Ex.OP-1/4. In fact, the Table, in which the documents are mentioned, is the same in both the letters and tick marks have been placed before the documents, so mentioned therein. In the second letter, those tick marks had been put only before four of those First Appeal No.1223 of 2015 11 documents; which clearly shows that the other documents had been furnished by the complainant and otherwise opposite party No.1 must have ticked the other documents also mentioned in that letter. Forms No.28 and 29 had already been furnished, then how opposite party No.1 was asking for those documents again and again before the District Forum? We fail to understand, how the Purchase Invoice of the vehicle had anything to do with the settlement of the claim of the complainant, when admittedly the vehicle was got insured by the complainant with opposite party No.1 and IDV was mentioned therein. The complainant was not in exclusive possession of the "Untraced Report" and he could not have been asked to produce the same, as opposite party No.1 could have obtained the certified copy thereof from the Magistrate, before whom the challan might have been presented by the Police, on the basis of the FIR, which was got lodged by the complainant. The complainant has categorically stated in his affidavit, Ex.C-1, that he had furnished all the documents etc. to the opposite party and had completed all the formalities. The fact remains that the evidence produced by the complainant is more reliable, as compared to the evidence produced by opposite party No.1 regarding production of the documents and completion of formalities, in view of the fact that in the affidavits of Rohit Kapoor and Meenu Sharma, it has been mentioned that they asked for the documents, vide two letters dated 16.07.2014 and 13.08.2014. It is pertinent to note that the theft of the vehicle was committed on 29.07.2014, as is clear from the FIR proved on the record as Ex.C-4.
It is also an admitted fact that the claim with opposite party No.1 was First Appeal No.1223 of 2015 12 lodged by the complainant only after that date. Then where was the possibility for opposite party No.1 to ask for the documents for settlement of the claim of the complainant before that date, i.e. 16.07.2014? It stands proved on the record that all the necessary documents for settlement of the claim of the complainant had already been furnished by him to opposite party No.1 and he had fulfilled the other formalities also. The furnishing of the documents, except the "Untraced Report", also stands proved from the letter dated 16.07.2014, Ex.C-9, which was written to the complainant by the said Investigator and in which he only asked for the "Untraced Report". When such is the position, opposite party No.1 was required to process and settle the claim of the complainant and by not doing so, it committed deficiency in service.
11. The complainant is entitled to the IDV, as mentioned in the Insurance Policy; which was proved on the record as Ex.OP-1/1. On account of the deficiency in service, he suffered harassment and mental agony; for which he is entitled to receive the compensation. Keeping in view the unfair trade practice adopted by opposite party No.1 in not processing and deciding the claim of the complainant, in- spite of furnishing of the requisite documents and completion of formalities by the complainant, we are of the considered opinion that the punitive damages are to be imposed upon it.
12. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and after allowing of the complaint, the following directions are issued to opposite party No.1:- First Appeal No.1223 of 2015 13
i) to pay the IDV of Rs.42,500/- to the complainant;
ii) to pay Rs.50,000/- as compensation, which includes punitive damages; and
iii) to pay Rs.5,500/-, as costs of litigation.
Opposite party No.1 to comply with this order, within 30 days of the receipt of the copy of this order.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER April 20, 2016.
(Gurmeet S)