Haryana

StateCommission

A/1135/2015

The New India Assurance Company Limite - Complainant(s)

Versus

Ashok Kumar - Opp.Party(s)

08 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    1135 of 2015

Date of Institution:      31.12.2015

                                                     Date of Decision:       08.08.2016

 

The  New India Assurance Company Limited Gurudwara Road, Opposite Kamla Nehru Park, Gurgaon through its Manager, now through its authorised signatory Tarsem Chand, Manager, Regional Office, SCO No.36-37, Sector 17-A, Chandigarh.

                                      Appellant-Opposite Party

Versus

 

Ashok Kumar s/o Sh. Ajit Singh, Resident of 592/18, Om Nagar, Gurgaon, Haryana.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri J.P. Nahar, Advocate for appellant.

Shri Ravi Kant, Advocate proxy for Shri Ravi Malik, counsel for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

           The New India Assurance Company Limited (for short ‘the Insurance Company’)-Opposite Party, is in appeal against the order dated  September 22^nd, 2015 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’), whereby complaint filed by Ashok Kumar-complainant (respondent herein), seeking compensation with respect to his truck (Tata Dumper), which was stolen during the subsistence of the Insurance Policy, was allowed.  The Insurance Company was directed to pay 75% of the sum insured alongwith interest at the rate of 9% per annum from the date of filing of complaint till realization and Rs.3100/- litigation expenses to the complainant.

2.                Truck bearing registration No.HR-55C-5385 owned by the complainant was insured with the Insurance Company for the period February 20^th, 2008 to February 19^th, 2009, vide Insurance Cover Note Exhibit OP-1. The Insured Declared Value (IDV) of the truck was Rs.8,40,000/-.  The truck was stolen on June 26^th, 2008 in the area of Village Binola-Shankar Ki Dhani. First Information Report (FIR) No.77 dated 27.06.2008, was lodged in Police Station, Bilaspur, District Gurgaon. The Insurance Company was informed. Claim being filed, the Insurance Company repudiated claim. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

3.                Earlier, the complainant filed Consumer Complaint No.515 of 2009 before the District Forum which was got dismissed as withdrawn vide order dated 22.11.2010. Thereafter, the complainant filed application bearing No.1024 of 2011 before Permanent Lok Adalat (Public Utility Services), Gurgaon, which was dismissed vide order dated 19.01.2012. The operative part of the order is reproduced as under:-

“….It has transpired from a perusal of the copy of the statement which is marked as A by us today and from the copy of the order dated 22.11.2010 which is marked as B by us today that earlier complaint was instituted by the present applicant before District Consumer Disputes Redressal Forum and   the same was dismissed as withdrawn. Ld. Counsel for the complainant had made statement for dismissal of that case before the Consumer Forum. It is submitted by ld. Counsel for the applicant that when once the litigation was started between the parties and matter was agitated, now this application is not maintainable before this court and our attention has been drawn to the provisions of Section 22-C of the Legal Services Authority Act, 1987. This submission made by ld. Counsel for the respondent has sufficient force. The application can be made only at pre-litigation stage. No permission to file fresh application or complaint on same cause of action was sought when earlier complaint was withdrawn. In our considered opinion the same is not maintainable before this Court.

5.       As a result of above discussion, present application or complaint filed by the applicant is dismissed.”

4.                The Opposite Party-Insurance Company/appellant, contested complaint by filing written version. It was stated that the truck was stolen on 26^th June, 2008 and intimation to the insurance company was given on 2^nd July, 2008, that is, after six days. Besides, the driver of the truck left it un-attended by leaving the ignition key in the truck. Thus, there was violation of condition No.1 and 5 of the policy. It was prayed that the complaint be dismissed.

5.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order allowed complaint and issued direction to the Insurance Company as detailed in paragraph No.1 of this order.

6.                Learned counsel for the appellant-Insurance Company has assailed the order of the District Forum by raising two fold arguments. Firstly, that there was delay of 6 days in giving intimation to the Insurance Company and secondly that the ignition key was left in the truck by driver and the truck was left unattended on the road.

7.                So far as the first plea that there was delay of 6 days in giving intimation to the Insurance Company, before adverting to the facts of the case, it would be appropriate to refer to Circular Ref: IRDA/ HLTH/ MISC/ CIR/ 216/ 09/ 2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority (for short ‘IRDA’). It has been specifically mentioned in the above said circular by IRDA that there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim of the claimant, which is otherwise proved to be genuine.  The operative part of the circular reads 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.”

 

8.                Indisputably, the truck was stolen on June 26^th, 2008 for which FIR was lodged with the Police on 27^th June, 2008 and the Insurance Company was informed. The Police submitted untraced report. No cogent evidence has been produced by the Insurance Company to prove that there was delay of 6 days in giving intimation by the complainant.  Even otherwise, Condition No.1 of the Insurance Policy applies only to the occurrence of an accident and not to the theft cases.  Support to this view can be had from the judgment rendered by Hon’ble National Commission in New India Assurance Company Limited versus Gurmeet Kaur & others, 2015(3)CLT 476, wherein it was held as under:-

“(i)     Consumer Protection Act, 1986 Section 2(1)(g) – Insurance claim – Theft of vehicle – Delay in intimation to Insurance company – The clause in the Insurance Policy require to give immediate intimation of accident, but did not require the Insured to give immediate intimation of any loss of the vehicle to the Insurance Company – Held –That it applied only to the occurrence of an accident where a claim is to be lodged with the Insurance Company – The above referred clause does not require the Insured to give immediate intimation to the Insurance Company in case of theft of the vehicle – It is settled law that the terms of an Insurance Policy have to be strictly construed and the Court can neither add to nor subtract anything from the terms and conditions contained in the policy – A theft being a deliberate dishonest act, cannot be said to be an accident – Therefore, the complainant was not required, in this case, to give immediate intimation of the theft to the Insurance Company.”

 

 

9.                In view of the above, the first ground on which the impugned order was assailed, is repelled.

10.              Coming now to the submission raised on behalf of the Insurance Company that the ignition key was left in the truck and the truck was left unattended. Hon’ble Supreme Court in National Insurance Company Limited versus Nitin Khandelwal, IV (2008) CPJ 1 (SC), held as under:-

“12.  In the case in hand, the vehicle has been snatched or stolen.  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.” 

11.              In Amalendu Sahoo Versus Oriental Insurance Company Limited, 2010 CTJ 485 (Supreme Court), Hon’ble Apex Court held that the insurance company cannot repudiate the insurance claim in toto and the insurer is liable to pay 75% of the admissible claim.

12.              The above being the legal position, the Insurance Company is liable to indemnify the complainant on non-standard basis, that is, to the extent of 75% of the IDV which the District Forum has awarded to the complainant.

13.              In view of the above, the order under appeal requires no interference. The appeal consequently fails and is hereby dismissed.

14.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 08.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL