Punjab

StateCommission

A/641/2017

Cholamandalam MS General Insurance Co. Ltd. - Complainant(s)

Versus

Ajit Singh - Opp.Party(s)

Rajneesh Malhotra

05 Feb 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                  

                             First Appeal No.641 of 2017

 

                                                          Date of Institution   : 06.09.2017

                                                          Order Reserved on: 25.01.2018  

                                                          Date of Decision    :  05.02.2018

 

Cholamandalam M/s General Insurance Co. Ltd, through its Branch Manager/Divisional Manager, 2nd Floor, SCO No. 14-15, Leela Bhawan Market, Patiala 147001.

 

                                                             ..Appellant/Opposite party no.1

                                                Versus

 

1.      Ajit Singh aged about 60 years s/o S. Sardara Singh, R/o VPO         Paind Kua Dary, Tehsil Patran, District Patiala, Punjab.

 

                                                          …Respondent no.1/Complainant

 

2.      L&T Finance Ltd., through its Branch Manager, Sandhu Tower,       2nd Floor, SCO No. 131, Chhoti Baradari, Patiala, Punjab.

 

                                                …Respondent no.2/Opposite party no.2

 

                                                                   

First Appeal against order dated 31.05.2017 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

                   Smt.Surinder Pal Kaur, Member.

Present:-

          For the appellant                :  Sh.Rajneesh Malhotra, Advocate

          For respondent no.1  :  Sh. Sukhtej Singh Sandhu, Advocate

          For respondent no.2  :  Ms. Jaspreet Kaur, Advocate     

………………………………………………………………………………

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

         

                    Challenge in this appeal by appellant is to order dated 31.05.2017 of District Consumer Disputes Redressal Forum, Patiala, directing the appellant to pay the amount of Rs.2,94,500/- as insured declared value of the vehicle with interest @ 7% p.a from the date of repudiation i.e. 01.04.2016 till realization of the final payment to respondent no.1/Ajit Singh of this appeal, subject to transfer of R.C and subrogation letter in the name of appellant by respondent/Ajit Singh. The District Forum further directed the appellant to pay compensation of Rs.10,000/- as compensation for mental harassment inclusive cost of litigation to respondent  no.1 of this appeal. Respondent no.1 Ajit Singh of this appeal is complainant in the complaint and appellant of this appeal is OPs no.1 and respondent no.2 of this appeal is opposite party no.2 in the  complaint and they be they be referred as such, hereinafter for the sake of convenience.

2.                The complainant  Ajit Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he purchased tractor make EICHER bearing registration no. PB11BT-4845 registered at Patiala Model 2015 financed through OP no.2, vide loan agreement no. OKG829200F1500988121 and it was insured with OP no.1, vide policy no. 3380/00854543/000/00  for the period from 10.07.2015 to 09.07.2016. The tractor bore engine no. 523029154004 Chassis No. 923111126926. He paid  sum of Rs.7829/- as premium for sum insured of Rs.2,94,500/- to OP no.1 after its due inspection by representative of OP no.1. He took some land on rent in Bijnor in U.P . After completing his work on 07.12.2015, he along with his helper Rattan Singh were coming back to Punjab for their native village. When they reached at Mujaffar Nagar Bypass at about 7.30 PM, they stopped the insured tractor for a cup of tea and after about 10 minutes, when they reached the spot of parking of tractor, they found it to have been stolen. The inaction of the police caused undue harassment to them to register the information on account of lack of territorial jurisdiction of that area. There is lot of difference between the State of U.P and their native residence and they continued searching the stolen vehicle, but to no effect. They gave intimation to OP no.1 about this theft of insured tractor and lodged insurance claim, but it was repudiated by OPs, which has been termed as illegal by the complainant. The complainant has, thus, filed this complaint praying that OPs be directed to pay the insurance claim of Rs.2,94,500/- and compensation of Rs.2 lac for mental harassment with interest @ 18% p.a.

3.                Upon notice, OP no.1 filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that he has not come to the Forum with clean hands. The complaint is false , frivolous and vexatious and is liable to be dismissed. The vehicle was used for commercial purposes by complainant,  as such the present complaint is liable to be dismissed on this ground alone. On merits, it was averred that the complainant has intimated with regard to theft of the said tractor to OP no.1 on 19.12.2015, whereas tractor was actually stolen on 07.12.2015 and police report was also lodged with police on the side of complainant on  10.12.2015. As per condition no.1 of the insurance policy: notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance, as the company shall require. The said policy condition has not been complied with by complainant in this case.  OP no.1 also deputed Sh. Shobh Nath Investigator, who submitted his investigation report. It was further averred that repudiation of insurance claim of complainant is justified and it prayed for dismissal of the complaint.

4.                OP no.2 filed its separate written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is not maintainable. The complainant has no cause of action  and locus standi to file the  complaint. There is no relief against OP no.2, so complaint against it is liable to be dismissed. On merits, it was admitted by OP no.2 that complainant got financed the above said vehicle from it.  Rest of the averments were denied by it and it prayed for dismissal of the complaint. 

5.                The complainant tendered in evidence, his affidavit   Ex.C-A, affidavit of Rattan Singh son of Sardara Singh as Ex.C-B along with copies of documents Ex.C-1 to Ex.C-3 and closed evidence. As against it; OPs no.1  tendered in evidence affidavit of Ashutosh Manager of Cholamandlam General Insurance Company Ltd Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-11 and closed the evidence. OP no.2 has not tendered in evidence any document  in support of its case. On conclusion of evidence and arguments, the District Forum Patiala, accepted the complaint of the complainant by virtue of order dated 31.05.2017. Dissatisfied with the above order of the District Forum Patiala, OP no.1 now appellant has carried this appeal against the same.

6.                We have heard learned Counsel for the parties at considerable length and have also examined the record of the case.

7.                The repudiation of the insurance claim has been done by OP no.1 now appellant primarily on the  ground that insured had not given intimation immediately of theft of vehicle/tractor to the insurance company from the date of loss of insured tractor. This is the sole ground to repudiate the contract of insurance by OP no.1/Insurance Company in this case. We have carefully gone through the evidence on the record, besides pleadings of the parties. The complainant Ajit Singh tendered in evidence his affidavit Ex.C-A on the record. He testified that when they returned from UP, they parked the tractor to have a cup of tea and when they came back at the spot of parking, they found the tractor to have been stolen. OPs have not opted to cross-examine the complainant in this case and evidence of the complainant has to be accepted as correct by us. It has received due corroboration from the statement of Rattan Singh embodied in his affidavit Ex.C-B on the record. Ex.C-4 is policy document proving that basic insured value of the tractor was Rs.2,94,500/-and insurance policy was valid on the date of theft of the tractor. FIR was lodged by complainant's side with the police and reference be made to Ex.C-2 on the record. Ex.C-3 is letter dated 01.04.2016 written by OP no.1 to complainant regarding repudiation of contract of insurance on account of lack of immediate intimation by complainant to insurance company regarding the loss of tractor by means of theft. Affidavit furnished by Ashutosh Manager of OP no.1 is Ex.OP-A on the record. He has only testified that complainant violated the terms and conditions of the insurance policy by not giving immediate intimation of theft of the vehicle/tractor to OPs. This witness has stated that complainant violated the condition no.1 of the insurance policy. 

8.                The only point falling for adjudication in this case is, as to what is effect of late intimation of the fact of theft of the tractor by the complainant to OP no.1. It is proved fact that complainant is native resident of Punjab and tractor was stolen in the State of U.P. The complainant searched for tracing out the tractor for some time, but remained futile in this pursuit. Some time was consumed in the search of the stolen vehicle and some time  was consumed by complainant because he was native resident of Punjab and was not familiar with the geographical location of the area, where  vehicle was stolen in the State of U.P. The police also showed inability to take prompt action in the matter, because it shirked its duty on the point of want of territorial jurisdiction.  All these points cumulatively led to some delay in giving intimation by complainant to OPs, as complainant is a farmer and is not expected to  be much literate person. Now, the effect of late intimation of few days has been discussed at length by District Forum and has been found to be no ground to repudiate the contract of insurance. We are in agreement with the findings of the District Forum on this point. The matter has been settled authoritatively by Apex Court recently in "Om Parkash  versus Reliance General Insurance and another" reported in AIR (SC) 4836, wherein it has been held in para no.11 of the judgment, as under :-

          11."It is common knowledge that a person who lost his vehicle         may not straightway go to the insurance company to claim compensation. At first, he will make efforts to trace the  vehicle. It is true that the owner has to intimate the insurer immediately        after the theft of the vehicle. However, this condition should not        bar settlement of genuine claims particularly when the delay in      intimation or submission of documents is due to unavoidable      circumstances. The decision of the insurer to reject the claim   has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in   loss of confidence of policyholder in the insurance industry. If         the reason for delay in making a claim is satisfactorily        explained, such a claim cannot be rejected on the ground of   delay. It is also necessary to state here that it would not be fair    and reasonable to reject genuine claims, which had already        been verified and found to be correct by the Investigator. The          condition regarding the delay shall not be a shelter to repudiate           the insurance claims which have been otherwise proved to be         genuine. It needs no emphasis that the Consumer Protection           Act aims at providing better protection of the interest of   consumers. It is a beneficial legislation that deserves liberal           construction. This laudable object should not be forgotten while       considering the claims made under the Act."

It is, thus, evident from perusal of law laid down by Apex Court in "Om Parkash's case (supra) that decision of the insurer to reject the claim has to be based on solid and valid grounds. Rejection of the  claim on purely technical  grounds in a mechanical manner will result in loss of confidence of policyholder. The claim should not be rejected on the technical matter, where it is genuine. Herein, the investigator appointed by OPs in this matter found the claim of the complainant to be genuine one.  There is nothing on the record  led by OPs that claim propounded by complainant with OPs was a fake and fabricated one. Since the investigating agency of OPs found this claim to be genuine and as such as per dictum of Apex Court in Om Parkash's case (supra) , we find no ground to reject this claim by OPs on the technical ground of late intimation of theft to OP no.1. Findings of the District Forum calls for no interference in this appeal and they are affirmed in this appeal.

9.                As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of District Forum Patiala dated 31.05.2017 under challenge in this appeal.

10.              The appellant had deposited the amount of Rs.25,000/-with this Commission at the time of filing the appeal and further deposited Rs.3,00,000/- and Rs.7000/- as per compliance of the order of this Commission. These amounts with interest, which accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque / demand draft after the expiry of 45 days, subject to stay order if any.

11.              Arguments in this appeal were heard on 25.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

12.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                             MEMBER

February 5,  2018                                                                

(ravi)