Punjab

Moga

CC/15/20

Avtar singh - Complainant(s)

Versus

Bajaj Allianz General Insurance Co. Ltd. - Opp.Party(s)

Shri Munish Majithia

20 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, MOGA.

 

Complaint No.20 of 2015

                                                                 Instituted On: 04.03.2015

Decided On: 20.07.2015

 

Avtar Singh son of Pritam Singh, resident of Village Beer Badhni, Tehsil Nihal Singh Wala, District Moga.

 

Complainant

 

Versus

 

1. Bajaj Allianz General Insurance Co. Ltd, SCO 14, 4^th Floor, Urban Estate, Sector 5, Panchukula.

 

2. Bajaj Allianz, Branch Office at 2^nd Floor, Near ITI, G.T.Road, Moga.

 

 

         

Opposite Parties

 

 

Complaint under section 12 of the

Consumer Protection Act, 1986.

 

 

Coram:      Sh.S.S.Panesar, President

                    Smt Vinod Bala, Member

                    Smt Bhupinder Kaur

Present:      Sh Munish Majithia, Advocate counsel for complainant

                     Sh.Jasvinder Singh , Advocate counsel for Opposite parties

 

 

ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against the Bajaj Allianz General Insurance Co. Ltd, SCO 14, 4^th Floor, Urban Estate, Sector 5, Panchukula & another (herein-after referred to as Insurance Company)-opposite parties directing them to pay Rs.37,000/- on account of the price of Motor Cycle bearing registration no.PB29S-8291, to pay Rs.20,000/-as  compensation for damages, causing mental tension and deficient services or any other relief to which this Forum may deem fit and proper.

2.                Brief facts of the complaint are that the complainant is the owner of Motor Cycle bearing Registration no.PB-29S-8291. The said vehicle of the complainant was insured with opposite parties, vide policy no.OG-15-1213-1802-00000428 valid for the period w.e.f 23.04.2014 to 22.04.2015. The said vehicle of the complainant was stolen on 12.09.14 at PAU, Ludhiana and complainant reported the matter with Police Station, PAU Ludhiana. But police report was lodged on 29.11.2014, as the police has tried its level best to search the said vehicle. The complainant approached the opposite parties to pay Rs.37,000/- i.e. the price of the motor cycle and submitted application 26.12.14 and handed over both the keys of the said vehicle to the opposite parties. But the opposite parties refused to pay anything and repudiated the claim of the complainant on 29.12.14 and 09.01.15 without any sufficient reason. Due to the negligent act of the opposite parties, the complainant is suffering from mental, physical harassment and economic loss.  Hence the present complaint.

3.                On notice of the complaint, opposite parties appeared through their counsel Sh.Jasvinder Singh Advocate and filed written reply contesting the same. They took up certain preliminary objections therein interalia that the complaint is not maintainable; that the complainant has got no locus standi; that there is no deficiency in service on the part of the opposite parties; that the present complaint is false and frivolous; that a complicated question of law and facts are involved in the present complaint; that the complainant has not approached the Forum with clean hands; that allegedly the insured vehicle no.PB-29S-8291 was stolen on 12.09.14 at PAU, Ludhiana, but the police report was lodged on 29.11.14 vide DDR dt. 29.11.14 i.e. after 78 days of the theft and informed the opposite parties regarding the alleged theft of the insured vehicle on 5.12.14 i.e. after 81 days of the occurrence. The matter was got investigated from Detective Central (India) Jalandhar, who submitted its report dt. 10.12.14. The claim was intimated very late firstly to the police secondly to the insurance company. The clarification was sought from the insured i.e. complainant in letter dt.18.12.2014, vide which certain clarification was required. In reply to the abvoesaid letter the complainant wrote a letter dt. 26.12.14. Again a letter dt. 29.12.14 was sent to the complainant which was got replied by the complainant. Further Ld. counsel for opposite parties placed reliance on the judgements passed in cases titled as United India Insurance Company Limited Vs M/s Harchand Rai Chandan Lal passed by Hon'ble Supreme Court of India, wherein has held that the terms and conditions of the policy have to be construed as it is nothing can be added or substracted from the same. The policy provides that in case of theft, the matter should be reported 'immediately'. In the context of a theft of Insured vehicle word 'immediately' has to be constructed strictly and further placed reliance on the judgement The New India Assurance Company Vs Tarlocahan Jane, CPC 2013 Part I. Further submitted that delay in reporting to the opposite party about the theft of the insured vehicle for 81 days would be a violation of condition of the policy as it deprives the insured of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. Hence there is no deficiency in service on the part of the opposite parties. On the above said ground letter dt.09.01.15 was sent to the complainant informing him that his claim has been repudiated. On merits, all other allegations of the complaint have been denied and a prayer for dismissal of the complaint with cost has been made.

4.                In order to prove his case, the complainant tendered in evidence

his affidavit Ex.C-1 and copies of documents Ex.C-2 to Ex.C-10 and closed his evidence.

5.                To rebut the evidence of the complainant, the opposite party Nos.1 & 2 tendered affidavit of Sh.Navjeet Singh, Senior Legal Executive, Authorized Signatory, Bajaj Allianz General Insurance Co. Ltd, Panchkula  Ex.OP1, 2/1 and copies of documents Ex.OP1, 2/2 to OP1, 2/5.

6.                We have heard the learned counsel for the parties and have also carefully gone through the record.

7.                On the basis of evidence on record, learned counsel for complainant has vehemently contended that he was the owner of Motor Cycle bearing Registration no.PB-29S-8291. The vehicle was insured at the instance of Barnala Motor, Bagha Purana Road, Nihal Singh Wala, copy of insurance cover Ex.C-2 is placed on record. The insurance policy was valid w.e.f from 23.04.14 to 22.04.15. However Motor cycle of the complainant was stolen on 12.09.14 at PAU, Ludhiana and complainant reported the matter with Police Station, PAU, Ludhiana. However the police report was lodged on 29.11.14, as the police was tried his level best to search the vehicle in dispute, but could not succeed. Complainant approached the opposite parties to pay the sum of Rs.37,000/- i.e. the price of the motorcycle and submitted application dt. 26.12.14, copy of which is Ex.C-7 on reocrd. Complainant also handed over both the keys of the motorcycle in dispute, but the opposite parties refused to pay anything and also repudiated the claim of the complainant on 29.12.14 and 09.01.15 without assigning any reason.

8.                On the other hand, learned counsel for the opposite parties has vehemently contended that theft of the Motorcycle in dispute had already been admitted by the investigator appointed by the opposite parties, copy of report of investigator Ex.OP1, 2/4 bear witness to the said fact. It is also admitted that matter was reported to Police Station, PAU Ludhiana. But, however, the police report was lodged on 29.11.14  i.e. after 78 days of the theft and FIR was registered vide no.131 dt. 29.11.14 under section 379 IPC. Since opposite parties as well as the investigator appointed by the opposite parties have impliedly admitted the case of the complainant, therefore, there was absolutely no reason to decline the claim of the complainant. Opposite parties are deficient in service. 

9.                It has further been contended by counsel for the complainant that mere delay in lodging the FIR cannot be used as a reason for declining the rightful claim of the complainant. Reliance has been placed on judgement titled as National Insurance Co. Ltd, Appellant Vs Gurbachan Singh and others, Respondents- 2008 ACJ 979 decided by Punjab and Haryana High Court, wherein it has been laid down that "mere delay in lodging the FIR or mention of wrong number in FIR did not affect his veracity of the case atleast". Further reliance are placed on judgements United India Insurance Co. Ltd. Appellant Vs Shibani Santra and other, Respondents- 2008 ACJ 982 decided by Calcutta High Court and Kanhaiyalal Nanuram Prajapat-Petitioner Vs Omprakash Ratanlal Bakliwal and others-MA no.1072 of 2004 D/d. 25.11.2010 passed by Madhya Pradesh High Court went to the extent of holding that Death of a person in motor accident, claim cannot be rejected on the pleas that matter was not reported to the police. Further reliance is placed on judgement Oriental Insurance Co. Ltd- Appellant Vs Mahavir Singh and another- Respondents- I (2000) CPJ 197, wherein it has been held that "As regards nine days delay in lodging the FIR with the Police it has been held by the District Forum that since the driver Bansidhar was a regular employee with the respondent, it was normal on the part of said Sh.Mahavir Singh to wait for the return of the driver fo some days and when said Sh.Bansidhar did not return with the truck, the respondent lodged a report with the police. In our opinion, in the given facts, the order passed by the learned District Forum suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is devoid of substance. The same merits dismissal."

10.              On the basis of the aforesaid contentions learned counsel for complainant has vehemently contended that both the opposite parties are found deficient in service. The complainant is entitled to recover of Rs.37,000/- i.e. the price of the motorcycle in dispute alongwith damages as well as litigation expenses to be assessed by this Forum and complaint may be allowed accordingly.

11.              On the other hand, learned counsel for opposite parties has vehemently contended that there is inordinate delay in reporting the matter to the police. The complainant also did not adhere to condition no.1 of the policy, because he had informed the opposite parties regarding the theft of the vehicle in dispute only on 05.12.14 i.e. after 83 days of the occurrence. DDR of the accident was lodged on 29.11.14 i.e. after expiry of 78 days of the alleged theft. Learned counsel for opposite parties has reported the condition no.1 of the policy, which reads as under:-

          "Notice shall be given in writing to the company immediately upon the occurrence of any accident or 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 required".

                   The perusal of the aforesaid condition no.1 clearly indicate that the complainant was under contractual obligation to intimate the opposite parties immediately regarding the loss of the vehicle in dispute, which he has failed to comply. The cover up has been tried to be made by introducing the copy of application Ex.C9 to contend that theft was immediately reported to the police station PAU, Ludhiana, but the said view stands falsify from the perusal of the DDR, copy of which is Ex.C-10, which nowhere states that any such complaint was lodged with the police station, PAU, Ludhiana on the date of alleged occurrence.

12.              Learned counsel for opposite parties has vehemently contended that the authorities 'Supra' National Insurance Co. Ltd, Appellant Vs Gurbachan Singh and others, United India Insurance Co. Ltd. Appellant Vs Shibani Santra and other, Respondents, Kanhaiyalal Nanuram Prajapat-Petitioner Vs Omprakash Ratanlal Bakliwal and others relate to MACT i.e. accident claim cases, wherein there is no limitation for filing the case besides that even no FIR is required to be lodged. As such, these authorities have no relevance to the facts of the present case. The authority titled as Oriental Insurance Co. Ltd. Vs Mahavir Singh- I (2000) CPJ 197 'Supra' has no binding effect on the present case, because that authority has been handed down by the Hon'ble State Commission, New Delhi, whereas in case Virender Kumar-Petitioner(s) Vs The New India Assurance Co. Ltd-Respondent(s) decided by Hon'ble National Commission, New Delhi on 7.11.2012, lays down law regarding delay otherwise and it has been held that "in the case in hand, the delay in lodging the FIR and giving intimation to the insurance company was about 10 days and 15 days respectively and therefore, applying the ratio of the above noted case, the State Commission was fully justified in taking the view it has taken. In our view, the impugned order passed by the State Commission does not suffer from any illegality, material irregularity, much less any jurisdictional error, which warrants interference of this Commission in exercise of its revisional jurisdiction". In New India Assurance Company Limited Vs Trilochan Jane decided on 09.12.2009, where on taking note of delay of two days, Hon'ble National Commission held as under:

          "Learned counsel for the respondent, relying upon the judgment of Hon'ble Supreme Court in National Insurance Company Limited Versus Nitin Kandelwal reported in (2008) 11 SC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said judgment was in a totally different context. In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The delay in lodging the FIR after two days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to kabadi (scrap dealer).

            In our view, the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time. We are not going into the other question regarding violation of Condition no.5 of the Insurance Policy as we have non-suited the respondent/complainant on the first ground."

13.              In view of the judgement referred Supra, the authority of the New Delhi State Commission on the point of delay has no force as the law laid down by the Hon'ble National Commission, New Delhi is binding upon this Forum. It has further been contended that the complainant was himself negligent in intimating the alleged accident of theft to the opposite parties, which is fatal in the case in hand and the complaint is liable to be dismissed on this score alone.

14.              We have given thoughtful consideration to rival contentions.

15.              There is no denying the fact that the complainant is negligent in intimating the alleged theft of his Motorcycle in dispute to the opposite parties. Alleged accident took place on 12.09.14, while the police report was lodged on 29.11.14 i.e. after the delay of 78 days. Not only that the complainant intimated the theft of his Motorcycle in dispute to the opposite parties only on 5.12.14 i.e. after the delay of 81 days, no reason has been assigned for delay in reporting the matter to the police as well as to the opposite parties, which is violation of policy condition no.1, which has been reproduced in the discussion above.

16.              In view of the authority cited above decided by Hon'ble National Commission in case titled as Virender Kumar-Petitioner(s) Vs The New India Assurance Co. Ltd-Respondent(s) decided by Hon'ble National Commission, New Delhi on 7.11.2012, delay in lodging the FIR as well as intimation given to the opposite parties at the belated stage is fatal to the case of the complainant. The DDR in this case lodged on 29.11.2014, whereas intimation of theft of the vehicle was conveyed to opposite parties only on 5.12.2014 while the theft of the vehicle took place on 12.09.2014. On the other hand, there is absolutely no deficiency in service on the part of the opposite parties, rather the boot is on the other leg. The authorities relied upon by the complainant also have no bearing on the facts of the present case which mainly relates to MACT case, where there is no limitation for filing the petition nor there is any requirement of law for lodging the police report regarding the accident. The authority Virender Kumar-Petitioner(s) Vs The New India Assurance Co. Ltd-Respondent(s) relied upon by the complainant relate to Hon'ble State Commission, New Delhi and in view of the law laid down by the Hon'ble National Commission, the said authority also does not advance the case of the complainant in any manner.

17.              From the aforesaid discussion, the complainant has miserably failed to prove his case. The complainant has failed to abide by condition no.1 of the insurance policy and delay in lodging the FIR as well intimating the matter of theft to the insurer is fatal to the case or the complainant beyond repairs. No explanation has been coming forth to explain the inordinate delay in informing the insurer. The complainant has also violated condition no.1 of the insurance policy which imposes liability upon the complainant to intimate the loss of the vehicle immediately to the insurer. Since terms and conditions of the insurance policy are binding interse parties, therefore, the complainant cannot escape the fall out of violation of condition no.1.Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

                     Member                         Member                   President

 

Announced in Open Forum.

Dated:20.07.2015.