DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 24 of 19-01-2010

Decided on : 10-09-2010

Rajan Bansal, aged about 28 years, S/o Kewal Bansal, R/o House No. 120, Street No. 6, Kacha Udekaran Road, Jodhu

Colony, Mukatsar, Tehsil & District Mukatsar.

.... Complainant

Versus

1.  

    

    

    

    

    

   Bajaj Allianz General Insurance Co. Ltd., 3038/A 2^nd Floor, Guru Kanshi Marg, Near HDFC Bank, Bathinda through its Branch Manager

2.  

    

    

    

   Bajaj Allianz General Insurance Co. Ltd. Regional Office SCO 147, Feroze Gandhi Market, Ludhiana through its Regional Manager

3. Mahindra & Mahindra Financial Services Ltd., Kotkapura Road, Near Water Works, Mukatsar through its Manager

    

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. J.R. Baghla, counsel for the complainant

For the Opposite parties : Sh. Sanjay Goyal, counsel for the

opposite party Nos. 1 & 2.

Sh. K K Vinocha, counsel for opposite party No. 3.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. In brief, the case of the complainant is that his Maruti Zen Lx Car No. PB-05J/3966 Model 2003 financed with opposite party No. 3 was got comprehensively insured with opposite party Nos. 1 & 2 and they issued Cover Note No. PC0612214960 for the period from 27-03-2008 to 26-03-2009 for Insured Declared Value of Rs. 2,20,000/-. On 23-04-2008, the complainant came to Bathinda to attend some meeting and parked his car in front of Medical shop in the Fish Market Bathinda. When he came back after attending the meeting at about 9.30 p.m. he did not find the car at the parking place. He searched for the car, but it was not traced out meaning thereby that it was stolen by some unknown person. The complainant reported the matter to police of Police Station Kotwali, Bathinda on 29-04-2008 and FIR No. 333 dated 29-04-2008 was recorded in this regard. The complainant reported the matter to the opposite parties and they got the matter investigated. The complainant alleged that the opposite parties consented to make the payment of the total claim of Rs. 2,20,000/- and got executed Indemnity Bond and Letter of Subrogation on 12-08-2008. The opposite parties obtained his consent for Rs. 1,97,500/- as full and final settlement of the claim whereas he is entitled to get Rs. 2,20,000/- being the Insured Declared Value. The complainant approached the opposite parties many times to pay the claim but they are postponing the matter without any cause.

2. The opposite party Nos. 1 & 2 filed their joint reply and took legal objections that the complainant has not followed the fundamental principle of insurance i.e. “uberrimae fidei” which means utmost good faith. Insurance is a type of contract in which one of the parties needs to disclose all the material facts and surrounding circumstances which could influence the decision of the opposite party to enter the contract. The complainant has concealed the fact that at the material time of theft he was not having any insurable interest as the registered owner of the vehicle was someone else. According to the submissions made by the complainant to the investigator there was an unapproved gas kit fitted in the vehicle. But, as per policy schedule, the complainant has never disclosed the same and has not paid the premium for the same. On merits, it has been pleaded that complainant was not the owner of the car in question at the relevant time i.e. 27-03-2008, rather as per registration certificate issued by registering authority, Abohar, one Smt. Krishna Rani is the owner of the same and as such, the complainant has not insurable interest. It has specifically been denied that the opposite parties ever consented to make payment of Rs. 2,20,000/- or Rs. 1,97,500/-. The claim of the complainant was repudiated as per All India Motor Tariff formulated by IRDA.

3. The opposite party No. 3 filed separate written version and submitted that as per terms and conditions of Insurance policy, IRDA Rules and Agreement between replying opposite party and complainant, all insurance claims are payable to the hypothecator i.e. reply opposite party in this case.

4. Parties have led evidence in support of their pleadings.

5. Arguments heard and written submissions submitted by the parties perused.

6. The learned counsel for the opposite parties has submitted at the very out set that theft of vehicle in question was committed on 23-04-2008 whereas first information report was lodged on 29-04-2008, therefore, the FIR was not lodged promptly, so as to enable the police to recover the stolen vehicle. In support of his contention, he has placed reliance on the precedent laid down by the Hon'ble National Commission, New Delhi, in First Appeal No. 321 of 2005 decided on 09-12-2009 titled New India Assurance Co. Ltd., Vs. Trilochan Jane, wherein it has been held that first information report should be lodged immediately. He has submitted that thus the claim of the complainant is liable to be repudiated on this score only. On the other hand, the learned counsel for the complainant referred to letters written by the Insurance Company to the complainant dated 04-11-2008, 06-12 2008 and 07-02-2009 Ex. R-5 to Ex. R-7 respectively, which contain the following uniform language :-

   “On scrutiny of documents submitted by your goodself, it is observed that at the material time of accident of the car, the ownership of the insurance policy was in your name whereas the registration book of the vehicle was in the name of Smt. Krishna Rani.

   Please note that as per All India Motor Tariff formulated by IRDA there should exist Insurable interest at the time of taking policy as well as at the time of loss, in this particular claim the same was not in position. In the circumstance, we are not liable under the policy terms and condition in respect of the above loss. We therefore, sincerely regret our inability to be of assistance on this occasion.

   This is without prejudice to our right to repudiate our liability on any specific ground/grounds which are available to us for the time being or which may be available to us in future, which please kindly be noted.”

   The learned counsel for the complainant has thus contended that claim of the complainant has not been considered on the sole ground that registration of the car was in the name of Smt. Krishna Rani and not in the name of the complainant on the date of alleged theft i.e. 23-04-2008. He has also contended that language of all these letters does not reveal that claim had been repudiated. The learned counsel for the complainant submitted that Insurance company cannot press into service precedent laid down in New India Assurance Co. Ltd., Vs. Trilochan Jane, (supra). A perusal of aforesaid letters written by the Insurance Company to the complainant shows that claim of the complainant was repudiated on the ground that registration of vehicle in question was not in the name of the complainant but in the name of one Krishana Rani. A further perusal of these letters show that Insurance company has also reserved its right to again repudiate claim on other ground found available in future. Therefore, the Insurance company appeared to be in a quandary as to on what ground the claim should be repudiated. In our view, the insurance company infact wanted to change its stand time and again by using such a language in the repudiation letter. We are therefore, of the opinion that the Insurance company cannot be given such a long row. Therefore, it is concluded that once Insurance company has repudiated the claim on one ground, it must be confined to the same.

   Hence, the fact remains that Insurance company repudiated the claim of car in question on the ground that claimant is not its registered own at the time of theft. Thus the Insurance company is barred from taking a new plea that first information report regarding theft of car in question was lodged late and consequently the claim is not maintainable. Accordingly, the Insurance company cannot take shelter of precedent laid down in New India Assurance Co. Ltd., Vs. Trilochan Jane, (supra).

7. It is admitted fact of the Insurance company that complainant had got the car in question insured w.e.f.27-03-2008 to 26-03-2009 vide Ex. C-2. It contain all the particulars of the car in question. The name of insured is written as Rajan Bansal who is complainant and the name of financer is written Mahindra & Mahindra Financial Services Ltd., A perusal of Ex. C-12 shows that complainant had paid installment of loan amount on 29-03-2008 to the said Mahindra & Mahindra Financial Services Limited. Therefore, when the complainant had got the car in question insured from the Insurance Company on 27-03-2008, latter must have verified the documents regarding ownership of the car. It may also be noted here that a car in question was transferred by the registering authority in the name of the complainant on 09-05-2008 vide Ex. R-8 . That transfer must also be on the basis of some documents executed by Smt. Krishna Rani in favour of the complainant and on the strength of some documents, the Insurance company must have insured the car in the name of complainant. The Insurance company has not explained as to on the basis of which document it had insured the car in favour of the complainant. No Insurance company is expected to insure a car in the name of a person without verifying its ownership. In the instant case also, the Insurance company must have verified while issuing Insurance cover note in the name of complainant that he was its owner. Therefore, it cannot be heard saying that complainant is not its owner.

8. In view of findings recorded, the repudiation of the claim of the complainant is illegal. The complainant alleged that Insurance company has agreed to pay Rs. 1,97,500/- and had also got consent letter for theft claim settlement Ex. C-5 signed from him. This document is not signed by anyone on behalf of the Insurance Company. It is also not on a paper belonging to Insurance Company. Therefore, this document does not advance the case of the complainant in any manner regarding value of stolen car. A perusal of Insurance cover note Ex. C-2 reveals that Insured's Declared Value of car was for a sum of Rs. 2,20,000/-. The consent letter for receiving Rs. 1,97,500/- Ex. C-5 allegedly executed by the complainant under duress is not admitted by the opposite parties. As per Insurance Cover Note of the car in question Ex. R-11, the Insured's Declared Value of the car in question was Rs. 2,20,000/- Therefore, the complainant is entitled to recover Rs. 2,20,000/-.

9. The vehicle was hypothecated with opposite party No. 3. As per account statement Ex. R-14, an amount of Rs. 1,35,960/- is due from the complainant against his loan. The Insurance company will pay the claim directly to the extent of Rs. 1,35,960/- as outstanding loan amount and the balance amount to be paid to the complainant. Hence, this complaint is accepted with Rs. 5,000/- as cost and compensation. The opposite party Nos. 1 & 2 are directed to pay 1,35,960/- to opposite party No. 3 and Rs. 84,040/- with interest @9% P.A. from the date of repudiation of claim till realisation, alongwith Rs. 5,000/- being cost and compensation, to the complainant.

   The compliance of this order be made within 30 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

10-09-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member