Haryana

StateCommission

A/483/2016

BHIM SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ GEN.INSURANCE CO. - Opp.Party(s)

ROHIT RANA

13 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :     483 of 2016

Date of Institution:     30.05.2016

Date of Decision :     13.09.2017

 

Bhim Singh son of Shri Talwar Singh, Resident of Uncha Gaon Yhadav Colony, Ballabgarh, Tehsil and District Faridabad, Haryana.

 

                                      Appellant-Complainant

Versus

 

Bajaj Allianz General Insurance Company Limited, 2^nd Floor, SCF 73, Main Market, Sector-15, Near Anumap Sweets House, Faridabad.

 

                             Respondent-Complainant

 

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

                             Shri Balbir Singh, Judicial Member.

                                     

 

Argued by:          Shri Rohit Rana, Advocate for appellant.

                             Shri Sachin Ohri, Advocate for respondent. 

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated May 05^th, 2016 passed by District Consumer Disputes Redressal Forum, Faridabad (for short ‘the District Forum’) whereby Consumer Complaint No.577 of 2010 filed by complainant-Bhim Singh (appellant was dismissed.

2.                Complainant-Bhim Singh registered owner of truck vehicle bearing registration No.HR-51-AD-2496 got his truck vehicle insured from Bajaj Allianz General Insurance Company Limited (for short ‘the Insurance Company)-Opposite Party (respondent herein) regarding the period from October 22^nd, 2008 to October 21^st, 2009 mentioning the total Insured Declared Value (IDV) as Rs.3,61,000/-. The above mentioned vehicle was purchased by the complainant with the help of Mahindra and Mahindra Financial Services Limited through M/s Dev Tractors, Delhi Mathura Bye-pass road, Palwal, an authorized dealer of the manufacturing company. The above mentioned truck vehicle was stolen by some unknown person on January 31^st, 2009 at about 5:30 A.M. when the same was parked near Peer Ballabgarh, Sohna Road. A criminal case was got registered under Section 379 of the Indian Penal Code on the same date under First Information Report (FIR) No.48 at Police Station, City Ballabgarh. Intimation was sent to the Insurance Company. The insurance claim was submitted by the complainant but the same was repudiated by the Insurance Company. Prior to it letter dated August 19^th, 2010 was received from the Insurance Company. It is prayed that the opposite party-Insurance Company be directed to pay an amount of Rs.3,61,000/- to the complainant as compensation being IDV of the stolen vehicle with interest from the date of filing of the complaint by the complainant and litigation expenses.

3.                The Opposite Party-Insurance Company in its written version has taken plea that the complainant has not appeared before the District Forum with clean hands and that the complaint is not maintainable in the present form. The opposite party has taken plea that the truck vehicle bearing registration No.HR-51-AD-2496 was insured with the Insurance Company regarding the period from October 22^nd, 2008 to October 21^st, 2009 mentioning total IDV of the vehicle as Rs.3,61,000/- but the Chassis number of the truck vehicle in the insurance policy has been mentioned as NGH-35040 and engine No.35040. As per invoice dated October 20^th, 2008, the complainant purchased truck bearing chassis No.RAR-35040 and engine No.RAR-35040 but not Chassis No.NGH-35040 and engine No.35040, as mentioned in the insurance policy. In this way, the complainant has misrepresented the facts to the Insurance Company at the time of obtaining the insurance policy. The Insurance Company is not liable to pay any amount to the complainant as compensation as the complainant has violated the terms and conditions of the insurance policy by causing un-necessarily delay in submitting information regarding theft of the vehicle. Information was received in the complaint centre of the Insurance Company regarding this incident on December 04^th, 2009. Thereafter, an independent investigator was appointed by the Insurance Company.

4.                The complainant submitted claim form dated February 26^th, 2010 along with copy of F.I.R. No.48 dated 31.01.2009 in respect of his claim. It is admitted fact that the theft of the vehicle took place on January 31^st, 2009 at about 5:30 A.M. at Nangla Enclave Pan-II, Gazipur, Faridabad. The surveyor submitted his report stating that wrong Chassis number has been mentioned in the insurance policy and that there is delay of 199 days in submitting information to the Insurance Company. Moreover, ignition key also remained in the vehicle which made commitment of theft of the vehicle easier. Due to the above mentioned reasons, considering report of the surveyor, the insurance claim of the complainant was repudiated vide letter dated October 19^th, 2010. In this way, the insured has violated the terms and conditions of the insurance policy. It is prayed that the complaint filed by the complainant be dismissed.

5.                Both the parties adduced evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated May 05^th, 2016 passed by the learned District Forum, the complaint filed by the complainant was dismissed.

7.                Aggrieved with the impugned order dated May 05^th, 2016, the complainant has filed the present appeal bearing No.483 of 2016 with a prayer to set aside the impugned order and to grant relief to the complainant as prayed in the complaint.

8.                We have heard learned counsel for the parties and perused the case file.

9.                During the course of arguments, there was no controversy of any type in between both the parties that the complainant Bhim Singh, being registered owner of the truck vehicle bearing No.HR-51-AD-2496 got insured his vehicle with the Insurance Company vide insurance policy Exhibit C-1 regarding the period from October 22^nd, 2008 to October 21^st, 2009 mentioning the IDV of the vehicle as Rs.3,61,000/-. From the pleadings and evidence on the file, it is clear that the above mentioned truck vehicle was insured with the Insurance Company vide insurance policy Exhibit C-1. The mistake, if any, mentioned regarding chassis number of the truck vehicle in the insurance policy is not very much material for the decision of this complaint. The Insurance Company has not taken plea that the above mentioned truck vehicle was not got insured from the opposite party- Insurance Company.

10.              There was also no controversy during the course of arguments that the truck vehicle was stolen by some unknown person, as per plea taken by the complainant in his complaint, on January 31^st, 2009 at about 5:30 A.M. when the same was parked near Peer Ballabgarh on Sohna Road, and the complainant lodged FIR regarding this occurrence on the same date under FIR No.48 (Exhibit C-2) under Section 379 I.P.C. at Police Station City Ballabgarh. The complainant caused no delay in lodging F.I.R.

11.              Insurance claim was submitted in the office of the Insurance Company by the complainant on August 18^th, 2009. The mistake, if any, regarding mentioning wrong chassis number was also of the opposite party/Insurance Company. The agent as well as concerned officer of the Insurance Company should have been careful and should have mentioned engine number and chassis number of the vehicle to be insured correctly after inspection of the vehicle as well as invoice or registration certificate. On the basis of such type technicalities, relief claimed by the complainant cannot be declined. The opposite party cannot take benefit of its own mistakes.

12.              As per version of the opposite party, there was delay of 199 days on the part of the complainant to inform the Insurance Company regarding theft of the vehicle. In this way, insured has violated the terms and conditions of the insurance policy. During the course of arguments, learned counsel for the respondent-complainant has argued that information was given to the Insurance Company orally soon after the accident and ultimately the insurance claim in writing was submitted on August 18^th, 2009. In the beginning, the complainant remained busy to trace out the vehicle with the help of the Police but the vehicle could not be traced. Regarding oral intimation to the Insurance Company, nothing is mentioned specifically in the complaint or affidavit of the complainant. We want to make it clear that in the complaint it is mentioned that the insurance claim was submitted on August 30^th, 2010 which was wrongly mentioned as the version of the opposite party-Insurance Company also is that the insurance claim was submitted by the complainant on August 18^th, 2009.   It is so mentioned in paragraph No.4 of the written version as well as letter dated August 19^th, 2010 (Annexure R-17) and letter dated August 30^th, 2010 (Annexure R-19). In this way, delay in submitting insurance claim by the complainant regarding theft of the above mentioned vehicle was 199 days.

13.              During the course of arguments, learned counsel for the opposite party argued that as the terms and conditions of the insurance policy have been violated, the insurance claim has been correctly and validly repudiated by the Insurance Company and the complainant is not entitled to receive any amount. In support of his contention, learned counsel for the opposite party placed his reliance upon two decisions of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Gopinath versus United India Insurance Company Limited, 2017(1) CLT 521 and Radha Mohan Sharma versus National Company Limited, 2016(1) CLT 363.

14.              We have closely perused the above cited case laws. As per facts of case law referred above Gopinath versus United India Insurance Company Limited (Supra), delay in submitting information to the Insurance Company was three months and as per facts of case law referred above Radha Mohan Sharma versus National Company Limited (Supra), the delay in submitting intimation to the Insurance Company was of 39 days.

15.              During the course of arguments, learned counsel for the complainant has argued that it was a case of theft of the vehicle and no useful purpose would have been served even if the intimation regarding theft of the vehicle would have been sent at the earliest to the Insurance Company. Regarding theft of a vehicle, the real job is of the Police for investigation and to recover the stolen vehicle. Learned counsel for the complainant has argued that after receiving intimation also, the Insurance Company did not take any step to effect recovery of the stolen vehicle or to help the Police to get the offender arrested and convicted. On this point of controversy, learned counsel for the complainant placed his reliance upon a decision of the Hon’ble Punjab and Haryana High Court, Chandigarh while deciding Civil Writ Petition No.9716 of 2011 titled as “National Insurance Company, Gurgaon Versus Ravi Dutt Sharma and another” decided on May 30^th, 2011.  Findings of the Hon’ble High Court in case law referred above are as under:-

“I have my doubts whether the Insurance Company can act as a super investigator once the complaint was lodged with the police about the theft. The responsibility to investigate or to ascertain the cause of theft or whether it was there or not would really be that of the police. Merely because there was a delay on the part of the insured to inform the petitioner-company would not be a reason enough to decline or repudiate the claim. Lok Adalat has rightly appreciated this aspect and has negated the plea raised by the petitioner Insurance Company on the ground that the respondent-insured had immediately informed the police about the theft and hence the delay would be immaterial in such cases. The Insurance Companies, in my view, are not acting fairly in all such matters after charging huge premium. Intention is always to repudiate the claim on one ground or the other. The conditions of the Insurance agreements are so minutely printed that a person gets hardly any time to go through such conditions to make it legally binding in any appropriate manner.”

16.              Legally and technically as per terms and conditions of the insurance policy, the complainant was required to inform the Insurance Company as soon as possible regarding theft of the vehicle insured. At the same time it does not appear that intimation is required to be given to the Insurance Company for investigation work making efforts for recovery of the stolen vehicle etc. We feel that intimation is required to be given to the Insurance Company regarding theft of the vehicle also so that the Insurance Company may get sufficient time to assess the total loss caused to the vehicle and to complete process and to take a decision as to whether the insurance claim is to be accepted or repudiated. In this case, as per version of the complainant, intimation was given to the Insurance Company orally and thereafter information was given to the Insurance Company in writing on August 18^th, 2009 after more than a period of 119 days. We cannot overlook this fact also that after receiving intimation by the Insurance Company in writing, the Insurance Company did not take any step to effect recovery of the stolen vehicle or to get the offenders arrested and convicted. In those cases also when intimation is given to the Insurance Company on the date of theft of the vehicle, it is generally found that the Insurance Company does not take any effective step to effect recovery of the stolen vehicle or to get the offenders arrested. We mean to say, the Insurance Company only wants to take benefit of technicalities to rebut the insurance claim of the complainant. Cited case law above National Insurance Company, Gurgaon Versus Ravi Dutt Sharma and another (Supra) up to some extent supports the version of the complainant.

17.              Another important aspect of the case is that the Insurance Regulatory Development Authority (IRDA), which control and regulates the Insurance Companies, issued direction not to reject the genuine claims simply because of delay in registration of FIR and intimation to the Insurance Company. In the instructions of the IRDA it was mentioned that 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.  Support to this view can be taken from the case law cited as Bharti Axa General Insurance Company Limited vs. Ms. Monu Yadav and another, 2014(4) PLR 861, decided by Hon’ble Punjab and Haryana High Court, Chandigarh.  As per facts of that case, the delay in lodging claim with the Insurance Company was of 54 days. The findings in that case were also given in favour of the claimants on the basis of the guidelines issued by IRDA.  The Insurance Companies were advised that they must not repudiate such claims on the ground of delay especially when the Police have been promptly informed in this regard.

18.              It is very clear from the circular that the insurance company cannot repudiate the bonafide claims on technical grounds like delay in intimation and submission of some required documents. The decision of insurers’ to reject a claim of the claimant should be based on sound logic and valid grounds. The limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely procedural grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation. It has been further advised in the above said letter that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded.     What is the spirit of Insurance Policy should be kept in mind by the officials dealing with the genuine claims of the sufferers and the same should not be rejected on methodological grounds in a mechanical manner. The tendency of Insurance Companies in rejecting genuine claims is the reason of increasing litigation between the insurers and the insured/their legal heirs.  In this case the repudiation of complainants’ claim was contrary to the instructions issued by the IRDA, mentioned above.

19.              The Insurance Company repudiated the insurance claim of the complainant on this ground also that the vehicle was left un-attended by driver of the complainant leaving the ignition key in the vehicle. Surveyor of the Insurance Company in his report has mentioned that ignition key was left in the vehicle on the basis of statement of Gajender Singh-driver of the vehicle. In this regard, two letters dated August 19^th, 2010 (Annexure R-17) and October 30^th, 2010 (Annexure R-19) were also written to the complainant. In the statement of Gajender Singh-driver (Annexure R-12) placed on the file recorded by surveyor of the Insurance Company namely Shri Vikaas Kumar & Associates, it is mentioned that when after unloading sand from the tractor-trolley vehicle, he went inside the house to receive payment; at that time he left the ignition key in the vehicle. When he came out of the house after ten minutes, by that time the tractor-trolley vehicle had been stolen. It will be pertinent to mention here that the complainant in his complaint or in his affidavit adduced in evidence in this case, has not mentioned that the ignition key was left in the tractor-trolley. When FIR was lodged, at that time also, it was not mentioned in the statement of the complainant or the driver that the ignition key was in the vehicle when Gajender Singh-driver went inside the building.

20.              During the course of arguments, learned counsel for the opposite party has contended that the vehicle was left un-attended inserting ignition key by driver of the complainant which made theft of the vehicle very easy and in this way the complainant has violated condition No.1 of the insurance policy. In support of his this contention, learned counsel for the opposite party-Insurance Company placed his reliance upon case law Jagdish Parshad versus ICICI Lombard General Insurance Company Limited, 2013(2) C.P.J. 578 (N.C.) and Ramadhar Singh versus Universal Shampi General Insurance Company Limited and others, 2015(2) C.P.J. 398 (N.C.).

21.              We have closely perused the above cited case laws. As per facts of case law referred above Jagdish Parshad versus ICICI Lombard General Insurance Company Limited (Supra), the driver of the stolen vehicle had to park the vehicle on one side of the road as he was to go to answer the call of nature. In the mean time, all of a sudden a marshal Jeep appeared there; 4-5 persons came out of the said jeep, opened the window of the truck and took away the truck vehicle forcibly. As per facts of case law referred above Ramadhar Singh versus Universal Shampi General Insurance Company Limited and others (Supra), the tractor vehicle was taken by the driver and son of the complainant on September 23^rd, 2009 to plough the fields. After finishing plough work, it became dark and they parked the tractor vehicle in front of a hotel and went to have dinner about 50 ft. away. When they returned back, the tractor vehicle had been stolen.

22.              We have closely perused the above cited case laws. Facts and circumstances of the case in hand are somewhat different from the facts and circumstances of the above cited case laws. As per facts of the case in hand, the tractor-trolley vehicle was loaded with sand by Gajender Singh driver of the complainant. After unloading, the tractor-trolley vehicle was parked by Gajender Singh driver on January 31^st, 2009 at about 5:30 A.M. near Peer Ballabgarh, Sohna Road at Nagla Enclave Part-2, Gajipur, Faridabad. Thereafter Gajender Singh driver had to enter a room in a nearby house to receive payment being sale price of the sand sold. Gajender Singh started talking the persons present there and after ten minutes when he returned back, by that time the tractor-trolley vehicle had been stolen by some unknown person. In this situation, we feel observations cannot be made that Gajender Singh left the tractor-trolley vehicle un-attended or had shown carelessness and negligence. Gajender Singh all of a sudden had to take decision to enter a room in a nearby house to receive payment of the amount. Gajender Singh had entered that room only to receive payment but he could not avoid some delay to return back as few persons present there started talking to him.

23.              In these circumstances, we feel driver of the complainant had not shown so much carelessness and negligence. Apart from it, we can expect carefulness from a person which can be expected from a man of ordinary prudent. It cannot be always possible to keep a person watching the insured vehicle around the clock with open eyes. We feel merely because Gajender Singh-driver had to remain inside a nearby house for few minutes for receiving payment, findings cannot be given that the complainant or his driver had shown carelessness and negligence and left the vehicle un-attended. We feel that on this ground, the claim of the complainant should not be declined. The situation in the case in hand is somewhat different from the facts and circumstances of the case laws cited by the learned counsel for the opposite party, as referred above.

24.              As a result, as per discussions above in detail, we feel it was a wrong decision of the Insurance Company to repudiate insurance claim of the complainant. We also feel that due to the reasons mentioned in earlier part of this order, learned District Forum also should not have declined claim of the complainant. Learned District Forum has committed an error while passing the impugned order dated May 05^th, 2016 whereby complaint filed by the complainant was dismissed.

25.              Resultantly, the appeal is accepted, the impugned order dated May 05^th, 2016 passed by the learned District Forum is hereby held to be illegal and set aside and the complaint filed by the complainant is allowed directing the Opposite Party-Insurance Company to pay the total Insured Declare Value Rs.3,61,000/- of the vehicle to the complainant along with interest at the rate of 9% per annum from the date of filing of the complaint till its realisation and an amount of Rs.11,000/- as costs of litigation.

 

 

Announced: 13.09.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL