State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs M/S Orient Resins Ltd. on 20 November, 2023
FA NO./348/2015 D.O.D.:20.11.2023
THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 22.07.2015
Date of hearing: 02.05.2023
Date of Decision: 20.11.2023
FIRST APPEAL NO.- 348/2015
IN THE MATTER OF
THE ORIENTAL INSURANCE CO. LTD.
DIVISIONAL OFFICE NO. 20,
N-39, BOMBAY LIFE BUILDING,
CONNAUGHT PLACE,
NEW DELHI- 110001.
(Through: Mr. Sanjay Kumar, Advocate)
...Appellant
VERSUS
M/S ORIENT RESINS LTD.
F-14 & 20, UNITED INDIA LIFE BUILDING,
CONNAUGHT CIRCUS,
NEW DELHI - 110001.
(Through: Mr. Sunil Goyal, Advocate)
...Respondent
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FA NO./348/2015 D.O.D.:20.11.2023
THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Sanjay Kumar, counsel for the appellant.
Mr. Sunil Goyal, counsel for the respondent.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"The complaint pertains to repudiation of claim by OP on theft of vehicle. The complainant's vehicle Tata Sumo, bearing No. HR-26G 8735 was insured with OP vide policy No. 2002/1863. The vehicie was stolen by two unidentified persons who drugged the driver in the intervening night of 7-8 April, 2002, near Kanpur.
The driver on recovering his senses, returned to Delhi and narrated the incident to complainant's Director and thereafter FIR was lodged on 14.4.2002 in Achhalada Police Station which is duly annexed with complainant. Claim was filed and untraceable report was made on 13.4.2002.
On 25.2.2003, the Magistrate gave a finding that the road between Achhalanda to Phahphund does not exist and thereafter claim was repudiated. Complainant has also annexed photographs revealing Achhalanda Police PARTLY ALLOWED PAGE 2 OF 9 FA NO./348/2015 D.O.D.:20.11.2023 THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
Station, elementary school building, Achhalaanda Distt. and Phuphand Milestone. A revised report was made by concerned magistrate on 14.3.2005 that FIR by police is liable to be accepted."
2. The District Commission after taking into consideration the material available on record passed the order dated 09.04.2015, whereby it held as under:
"We have considered the entire records. Perusal or file reveals that interim Order was passed on 23.12.11 wherein it was stated that delay has been appropriately explained and OP has no evidence to discredi: the statement of complainant. OP was directed to reprocess the claim afresh. The Forum had observed in Order dated 17.5.12, that OP has again relied on old report of surveyor in which there is ambiguity regarding the existence of road itself instead of sending another surveyor/ investigator to file fresh report OP's letter dated 15.2.2003, discloses that theft has not taken place at the reported spot and claim was therefore repudiated. None-the-less, complainant has placel photographic evidence including milestone of phuphnd showing the existence of disputed road.
Further the delay in lodging FIR and claim has been appropriately explained, as the driver was drugged and on coming back to conciseness, he returned to Delhi and narrated the incident to owners who thereafter filed the claim. We, therefore, find OP guilty of deficiency in PARTLY ALLOWED PAGE 3 OF 9 FA NO./348/2015 D.O.D.:20.11.2023 THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
services and direct OP to pay Rs.3, 11,000/- 9% interest from date of claim till realization. We also award Rs.50,000/- as compensation for harassment, mental agony physical inconvenience inclusive of litigation expenses.
The order shall be complied with within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25 / 27 of the Consumer Protection Act."
3. Aggrieved by the aforesaid judgment of the District Commission, the Appellant/Opposite Party has preferred the present appeal contending that the District Commission erred in ignoring the terms and conditions of the insurance policy as the claim of the respondent was repudiated as per the terms and conditions of the policy in question. The counsel for the Appellant further submitted that the District Commission also ignored the fact that the total sum insured for the vehicle in question was Rs.2,00,000/- but the District Commission awarded claim for a sum of Rs. 3,11,000/-. He further submitted that the District Commission erred in holding deficiency on the part of the Appellant as the final report of the concerned police officer also stated that there was no such Achhchalda phaphund road exited, therefore, the Appellant rightly repudiated the claim as there was no such accident. Pressing the aforesaid contentions, the Appellant prayed to set aside the impugned judgment.
4. The Respondents, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned judgment PARTLY ALLOWED PAGE 4 OF 9 FA NO./348/2015 D.O.D.:20.11.2023 THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the material available on record and heard the counsel for both the parties
6. The first question for consideration before us is whether the Insurance Company was right in repudiating the claim on the basis of violation of the policy in question. It would be appropriate to refer to the Condition of the said Insurance Policy, which is reproduced below for ready reference:
"..Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter, claim write, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured.
Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."
7. The aforementioned condition reflects that in case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.
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THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
8. At this stage we deem it appropriate to refer National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259, wherein it has been held that in the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
9. Above law reflects that in the case of theft of vehicle breach of condition is not germane. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. However, in the present case, the appellant even failed to appoint surveyor for the claim of the Respondent.
10. The main question for consideration before us is whether the District Commission erred in establishing deficiency in services on the part of the Appellant in providing their service to the Respondent.
11. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection Act, 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
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THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
12. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
(o)"service" means service of any description which is made avail-
able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
13. It is not disputed by the contesting parties that the vehicle in question, belonging to the Respondent, was covered under policy number 2002/1862 with the Respondent and was valid from 14.08.2001 to 13.08.2002, with a total IDV of Rs. 2,00,000/-.
14. The Appellant contended that the District Commission erred in holding deficiency on the part of the Appellant. The final report of the concerned police officers also stated that there was no Achalda Phaphund road in existence, therefore the Appellant rightly repudiated the claim, as there was no such accident. However, on perusal of the record, it is clear from the District Commission's records that the Respondent had provided photographs, including milestones of Phaphund, showing the existence of the disputed road. Furthermore, the existence of the said road is also evident from Google Maps.
15. Moreover, the District Commission, by its order dated 23.12.2011, directed the Appellant to reprocess the claim fresh. However, instead of reprocessing the Respondent's claim, the Appellant again repudiated the claim while mentioning that there is ambiguity regarding the existence PARTLY ALLOWED PAGE 7 OF 9 FA NO./348/2015 D.O.D.:20.11.2023 THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
of the road. Consequently, we do not hesitate to hold the Appellant at fault.
16. However, it is clear from the insurance policy that the IDV value of the vehicle in question was Rs. 2,00,000/-. Therefore, there was an error on the part of the District Commission by awarding a total loss of Rs.3,11,000/-.
17. Based on the above discussion, the impugned order dated 09.04.2015, passed by the District Commission Disputes Redressal Commission (VI), I.P Estate, 'M' Block, New Delhi-110002, is modified to the extent of the amount payable. The Respondent/Complainant is entitled to 75% of the Insured Declared Value, on a non-standard basis, i.e., an amount of Rs. 1,50,000/- (75% of Rs. 2,00,000/-).
18. The Appellant/Opposite Party is directed to pay the aforementioned amount to the Respondent/Complainant on or before 20.12.2023, along with simple interest at the rate of 9% per annum from the date of repudiation of claim i.e., 05.02.2003 until the actual realization of the amount. Furthermore, if the Appellant fails to refund the said amount on or before 20.12.2023, they shall be liable to pay interest on the aforementioned amount calculated at 12% per annum from the date of filing of the complaint case until the actual realization of the amount. The compensation of Rs. 50,000/-, as allowed by the District Commission, shall also be paid on or before 20.12.2023 to the Respondent/Complainant.
19. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
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THE ORIENTAL INSURANCE CO. LTD. V. M/S ORIENT RESINS LTD.
20. FDR, if any be released in favour of the Respondent alongwith the interest accrued till date upon presentation of the proper application in this regard.
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
22. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding E-mail addresses available on the record i.e., [email protected]. (Respondent).
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (JUDICIAL) Pronounced On:
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