Punjab

StateCommission

A/1128/2015

M/s Magma HDI General Insurance Co. Ltd. - Complainant(s)

Versus

Amanpreet Singh - Opp.Party(s)

Rajneesh Malhotra

06 Mar 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1128 of 2015

 

                                                          Date of Institution: 14.10.2015

                                                          Order Reserved on : 03.03.2017

                                                          Date of Decision:   06.03.2017

 

The Manager M/s Magma HDI General Insurance Company Ltd, SCO-75, IInd Floor, Phase IX, Mohali (through Manager (Legal) Department, Magma HDI General Insurance Company Ltd, Magma House, 8 Sant Nagar, East of Kailash, New Delhi 110065).

 

                                                                         Appellant/Opposite party             

                Versus

 

Amanpreet Singh son of Sh. Inderjit Singh, resident of Village Kalyan, Tehsil and District Patiala, Punjab.

 

                                                                  Respondent/Complainant

 

First Appeal against order dated 08.07.2015 passed by the District Consumer Disputes Redressal Forum,  Patiala.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.H.S.Guram, Member

         

Present:-

          For appellant                : Sh. Rajneesh Malhotra, Advocate

          For respondent            : None.

         

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant has directed this appeal against order dated 08.07.2015 of District Forum Patiala, directing the appellant to pay the amount of Rs.5,89,000/- the IDV of the insured vehicle with interest @ 9% p.a from the date of repudiation of claim 27.01.2014 till final payment to respondent of this appeal, besides Rs.5,000/- as costs of litigation. The respondent of this appeal is the complainant in the original complaint before District Forum and appellant of this appeal is OP therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased new Tractor Make Swaraj 855 bearing registration no. PB-11-BF-2853 Engine no. 473030SSL13377 Chassis no. WRCL61929978688 from M/s K.K. Tractors Patiala on 08.10.2013 for insured sum of Rs.5,89,000/-. On 23.01.2014, Nirmal Singh driver of the said tractor went to the factory at Channo (Sangrur) for taking peels of peas in the tractor-trolley. He left Channo for loading the peels of the peas at night and he was coming on the Patiala-Sangrur road, so as to reach his village Kalyan falling in District Patiala. When at about 4.00 pm, he turned towards village Jahlan Dhablan falling on Patiala-Sangrur road and due to speed-breaker on the road, he was driving his tractor quite slowly. In the meantime, two haircut men came from backside and they parked their motorcycle in front of the tractor. They struck the driver on his right ankle and right leg with sticks and pulled him down from the tractor to the land and he was totally scared. Both the miscreants detached the trolley from the tractor and one of them drove away with the tractor, while the other left the spot on his motorcycle.  It was averred that driver informed the complainant about the above said incident and complainant lodged FIR no. 22 dated 24.01.2014 with P.S Pasiana under Section 182/34 IPC. It was further averred that the intimation about the above incident was given to OP and it was also requested to pay the amount of insurance claim to complainant. The surveyor was appointed by OP, who conducted the enquiry having obtained copy of FIR and other documents from the complainant. The OP had assured the complainant to disburse the claim amount after a gap of six months on the condition that if the tractor was not traced out and untraced report thereof was obtained. It was further averred that after enquiry, untraced report dated 29.06.2014 u/s 173 Cr.P.C  was duly handed over to OP, but OP failed to disburse the claim amount despite the requests made by the complainant. The complainant visited  the office of OP and fulfilled all the formalities, as required by Chandigarh office, as well Patiala office, but the OP put off the matter from one pretext to the other. The complainant is doing the agriculture work by taking the tractor on rent @ Rs.20,000/- per month and has to pay the rent amount due to non-payment of insurance cover amount by OP, as such complainant is also entitled to get the rent amount from OP, which has been paid by him to hire another tractor. The complainant also served a legal notice to OP on 23.08.2014 through his counsel, but of no use. The complainant alleged deficiency in service on the part of OPs. The complainant has, thus, filed complaint praying that OP be directed to pay Rs.5,89,000/- as insurance amount along with interest @ 18% per annum and Rs.50,000/- as compensation.

3.      Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in the preliminary objections that complainant has concealed the material facts from the Forum, therefore, the complaint is liable to be dismissed. The complainant is estopped from filing the complaint by his act and conduct. On merits, this fact was admitted by OP that vehicle in question was insured with it. It was averred that there is violation of the policy conditions, in as much as, the vehicle is registered for private purpose i.e. for agricultural use, but at the material time of loss, the same was attached with a trolley and was being used for commercial purposes on a public road and therefore there is violation of the condition of  'Limitation as to use'. There was a gross negligence on the part of the driver, as broken key thereof was submitted only. It was averred that the incident occurred on 24.01.2014, but intimation about the same was given to the insurer on 05.02.2014. Any deficiency in service on the part of OP was vehemently denied and OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.C-A  and affidavit of Nirmal Singh Ex.C-B along with copies of documents Ex.C-1 to Ex.C-6.  As against it; OP tendered in evidence affidavit of Ved Tripathi Manager Magma HDI General Insurance Company Ltd Ex.OP-A,  affidavit of Shreya Thakur Manager (Legal), Magma HDI General Insurance Company Ltd Ex.OP-B along with copies of documents Ex.OP-1 to Ex.OP-9. On conclusion of evidence and arguments, the District Forum Patiala accepted the complaint of the complainant by virtue of order dated 08.07.2015. Dissatisfied with the order of the District Forum Patiala dated 08.07.2015, the opposite party now appellant, carried this appeal against the same.

5.      We have heard learned counsel for the appellant, as none appeared for respondent in this appeal during the arguments  on the date fixed for arguments. We have also examined the record of the case. The counsel for the appellant argued before us that tractor make Sawraj 855 bearing registration no. PB-11-BF-2853 was insured with appellant by the respondent of this appeal for insured amount of Rs.5,89,000/- as per terms and conditions of the policy. The intimation was not given to the appellant/insurance company by the respondent of this appeal, as insured, immediately after the incident of theft of tractor. The investigator was appointed by the appellant in this regard and he wrote the letter to the insured to supply the documents/complete formalities for processing the claim. The insured failed to submit the requisite documents, as desired by appellant and hence insurance claim of the respondent-insured was repudiated, vide letter dated 27.01.2014. The alleged theft took place on 24.01.2014 and FIR was lodged on the same day  and intimation regarding fact of theft of vehicle was given to insurance company on 05.02.2014 after 12 days of the incident of theft. The counsel for appellant argued that there is, thus, violation of terms and conditions of the insurance policy due to delayed intimation of the theft of the vehicle and hence no claim is payable at all in this case. The forceful contention of counsel for appellant is that there is violation of Condition no.1 of the contract of insurance, whereunder insured was under obligation to give notice in writing to the company immediately upon occurrence of any accidental, loss or damage. The violation of the terms and conditions of the policy has rendered the contract of insurance as void, because the terms and conditions of the contract shall prevail and they cannot be overlooked. The reliance of the appellant is on the judgment titled as UII versus Harchand Rai Chandan Lal 2004(8) SCC 644 by Apex Court. The sole contention of counsel for appellant is that non-submission of documents by complainant to appellant and delayed intimation of the fact of theft of the vehicle is fundamental breach of the terms and conditions of the policy rendering the contract of insurance as invalid.

6.      From perusal of record of District Forum, we find that the fact of theft of the vehicle took place on 24.01.2014 and FIR Ex.C-3 was lodged with the police on the same date. The police was informed regarding theft of the insured tractor by the miscreants. There is no delay in intimating the police regarding extortion of the tractor by the miscreants. The cover note for motor package policy is Ex.C-1. The police sent the case as untraced, vide report Ex.C-2 submitted by the police in this regard. The complainant served legal notice Ex.C-4, which is supported by the postal receipt Ex.C-5. Ex.C-6 is the certificate of registration of the vehicle. This evidence has been relied upon by the complainant in this case. The OP now appellant relied upon affidavit of Ved Tripathi Manager Magma HDI General Insurance Company Ltd New Delhi Ex.OP-A, affidavit of Shreyas Thakur Assistant Manger (Legal) Magma HDI General Insurance, cover note for motor package policy Ex.OP-1, motor claim intimation Ex.OP-2, motor insurance claim form Ex.OP-3. We find that there is delay of 12 days in intimating the OP now appellant regarding extortion of the vehicle. We are mainly concerned with this fact, whether there is violation of condition no.1 that insured was under obligation to give notice in writing to the company immediately upon occurrence of any accidental, loss or damage. The business of insurance companies is regulated by IRDA, which is a statutory body. The circular issued by Insurance Regulatory Development Authority (IRDA), vide Ref:- IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 to the insurance companies not to reject the bonafide and genuine claim of the insured on the technical matters alone. We have examined the circular issued by IRDA, which is reproduced as under:-

          "The authority has been receiving several complaints that       claims are being rejected on the ground of delayed submission        of intimation and documents.

          The current contractual obligation imposing the condition that           the claims shall be intimated to the insurer with prescribed      documents within a specified number of days is necessary for   insurers for effecting various post claim activities like           investigation, loss assessment, provisioning, claim settlement          etc. However, this condition should not prevent settlement of        genuine claims, particularly when there is delay in intimation or         in submission of documents due to unavoidable           circumstances.

          The insurer's decision to reject a claim shall be based on        sound logic and valid grounds. It may be noted that such        intimation clause does not work isolation and is not absolute.     One needs to see the merits and good spirit of clause, without           compromising on bad claims. Rejection of claims on purely     technical grounds in a mechanical fashion will result in      policyholders losing confidence in the insurance industry,     giving rise to excessive litigation.

          Therefore, it is advised that all insurers need to develop a        sound mechanism of their own to handle such claims with           utmost care and caution. It is also advised that the insurers           must not repudiate such claims unless and until the reasons of           delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have     otherwise been rejected even if reported in time."

The gist of the circular issued by IRDA is that genuine claims should not be rejected on hyper technical grounds. We are of this opinion that there is no doubt created in the fact of extortion of the vehicle of the complainant. The police report is there to substantiate this fact. The OP has to decide the case in a time bound manner after receipt of insurance claim and it cannot prolong the same. We are of this view that genuineness of the insurance claim is not in doubt  in this case and hence the claim cannot be rejected on the technical point of late intimation of insurance claim by the insurer of a period of twelve days alone.

7.      Keeping in view the above instructions issued by IRDA to the insurance companies not to reject the genuine claim of the insured on technical matter of delayed intimation, when delay is not inordinate. We find twelve days delay has not prejudiced the claim of the insurance company in this case.  As per above circular issued by IRDA, the insurance company should not reject the genuine insurance claim, where there is some delay in intimating the insurance company. We are supported by judgment of Haryana State Commission, Panchkula in case titled as Ramesh Yadav versus The New India Assurance Company Limited,  reported in First Appeal No. 98 of 2014 decided on 03.04.2014. We, thus, find no illegality or material infirmity in the order of the District Forum under challenge in this case. The order passed by the District Forum in this appeal is affirmed.

8.      As a result of our above discussion, finding no merit in the appeal and same is hereby dismissed. 

9.      The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.4,42,619/- in compliance with the order of this Commission, vide receipt dated 10.06.2016. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to respondent /complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, shall be paid to complainant by the appellant of this appeal, as per order of District Forum within 45 days from receipt of certified copy of this order.

10.    Arguments in this appeal were heard on 03.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

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

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                          (H.S GURAM)

                                                                               MEMBER

 

                                                                                                         

March 6, 2017                                                            

(ravi)