STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Oriental Insurance Co. Limited, SCO No.109-111, Sector 17-D, Chandigarh, through its Branch Head/Manager.

……Appellant

V E R S U S

Charan Dass son of Sh. Dwarka Dass,  resident of House No.599, Phase IX, Industrial Area, SAS Nagar, Mohali.

             ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh. Nain Kapur, Advocate for the appellant.

              Sh.Vikas Sagar, Advocate for the respondent.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 06.09.2011, rendered by the District Consumer Disputes Redressal Forum- II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint, and directed the Opposite Parties, as under:-

“In view of the above findings, this complaint is allowed with the following direction to OPs (Insurance Company): -

i)     to pay an amount of Rs.5,17,700/-  to the   complainant being the Insured Declared value of        the vehicle;.

ii)    to pay a sum of Rs.50,000/- to the complainant as compensation for harassment and mental       agony.

iii)    to pay a sum of Rs.7,000/- to the complainant    as costs of litigation. 

This order be complied with by OP No.1 within 30 days from the date of receipt of its certified copy, failing which OP No.1 shall be liable to refund Rs.5,67,750/- i.e. (Rs.5,17,750 + Rs.50,000) to the complainant along with penal interest @18% p.a. from the dates of filing the complaint i.e.02.11.2010 till its realization besides payment of Rs.7,000/- as costs of litigation”.

2.             The facts, in brief, are that the complainant (now respondent), being the owner of Bolero LX (LMV) Model 2009 Color Silver Fuel (Diesel) bearing Regd. No.PB-65-H-8910, got the said vehicle insured with Opposite Party No.1(now appellant) vide Cover Note (Annexure C-4) for the period from 03.04.2009 to 02.04.2010, for the Insured Declared Value of  Rs.5,17,750/-.  On 4.12.2009, the complainant had parked his vehicle, in the evening, at his residence. It was stolen on the night intervening 04/05.12.2009.  F.I.R. No.544 was lodged on 05.12.2009 with Police Station, Sector 5, Panchkula.  The complainant supplied the copies of FIR and the untraced report to Opposite Party No.2, from which the vehicle  was purchased, for settlement of claim, by Opposite Party No.1. When nothing was heard, from Opposite Party No.2, the complainant wrote a letter dated 3.9.2010 to Opposite Party No.1 and intimated about the loss. It was stated that the complainant also requested Opposite Party No.1,  to  intimate him, about the documents required from him, for settling his insurance claim.  Alongwith his claim application, he also submitted the copies of FIR, untraced report and Insurance Cover Note. It was further stated that Opposite Party No.1, vide letter dated 24.9.2010, arbitrarily repudiated the claim, on the ground that there was inordinate delay of 10 months, in giving intimation regarding the theft of vehicle.  It was further stated that the complainant never received a copy of the terms and conditions of the insurance policy, but only received the cover note. It was further stated that the repudiation of the claim of the complainant by Opposite Party No.1, was illegal. It was further stated that the aforesaid acts of the Opposite Party No.1, amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed claiming indemnification in the sum of Rs.5,17,750/, being the insured value of the vehicle alongwith interest @18% from the date of loss; Rs.1,00,000/-, as compensation towards physical harassment and mental agony and  Rs.22,000/- as costs of litigation.

3.             Opposite Party No.1, in its written version, admitted that the vehicle, in question, was comprehensively insured with it, for the period from 03.04.2009 to 02.04.2010. It was also not denied that the vehicle was stolen on the night intervening 04/05.12.2009. It was stated that the complete terms and conditions of the policy, were supplied to the complainant, through courier, which were duly received by him. It was further stated that no intimation about the theft of vehicle, was given by the complainant to Opposite Party No.1, prior to 03.09.2010.  It was further stated that, on account of intimation of the theft of  vehicle, after about 10 months of the incident, Opposite Party No.1, was deprived of getting the same (incident) duly investigated. It was further stated that, as such, the claim of the complainant, was repudiated by it, as per Condition No.1 of the terms and  conditions of the insurance policy. It was further stated that there was no  deficiency, in rendering service, on the part of Opposite Party No.1. The remaining averments, were denied, being wrong.

4.             Opposite Party No.2, refused to accept the notice sent through Process Server. Refusal was taken to be a good service. None appeared, on behalf of Opposite Party No.2. Accordingly, it was proceeded against exparte vide order dated 27.12.2010.

5.             The Counsel for the complainant as well as Opposite Party No.1, led evidence, in support of their case.

6.             After hearing the Counsel for the complainant, as well as Opposite Party No.1, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

8.             We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.

9.             The first question, that arises for consideration, is, as to whether, the terms and conditions of the policy, were supplied to the complainant, by Opposite Party No.1, or not. The complainant,  in the complaint, as also, in his affidavit, in clear-cut terms, stated that he purchased the vehicle from Opposite Party No.2, and it was Opposite Party No.2, which insured his vehicle and handed over to him, only the cover note Annexure C-1. He also stated that the terms and conditions of the policy were not  supplied to him. Opposite party No.2, as stated above, remained exparte.  No doubt, Opposite Party No. I, in its written statement, stated that the policy, alongwith complete terms and conditions, was sent to the complainant, through courier, which was duly received by him. However, no proof of delivery, of the  policy, and terms and conditions thereof, to the complainant, was produced by Opposite Party No.1. As such, an adverse inference, could be drawn, against Opposite Party No.1, that the policy alongwith terms and conditions, were not supplied to the complainant. Even otherwise, such a stand taken up by Opposite Party No.1, in its written reply, is belied from Annexure R-1, the policy, placed on record. In this policy, the name of the insured, is written as Kamlesh Kumari, whereas, the complainant in this case, who was the owner of the vehicle, in question, and got insured the same, is Charan Dass. Thus, it was duly proved, from the evidence, on record, that the policy alongwith the terms and conditions thereof, was never supplied to the complainant. In the absence of supply of the policy and  the terms and condition of the same, the complainant could not became aware of the same. In M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., reported as I (2001) (CPJ) I (SC), it was held as under:-

“8.   It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose .ill material facts in their knowledge since obligation of good faith applies to both equally.

In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”

10.           The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. The District Forum, was, thus, right in holding that the insurance policy, alongwith the terms and conditions thereof, were not supplied to the complainant, and, as such, he was not bound by the same. The District Forum, was also right, in holding that, under these circumstances, the question of violation of the terms and conditions of the policy, by the complainant, did not at all arise. The findings of the District Forum, in this regard, being correct, are affirmed.

11.           The Counsel for the appellant, however, placed reliance on Condition No. 1, of the terms and conditions of the policy R-1(at page 117 of the District Forum File), according to which, notice in writing, to the Company, was required to be given immediately, upon the occurrence of any accident, or loss or damage. This Condition could only come into play, had the terms and conditions of the policy, been supplied to the complainant. Since, it has been held above, that the policy and  the terms and conditions thereof, were not supplied to the complainant, he was not bound by the same, including Condition No. 1, referred to above. As stated above, even the policy Annexure R-1, which was statedly supplied, to the complainant, bears the name of Kamlesh Kumari, whereas, in the instant case, the insured is Charan Dass, complainant. So, the said policy, did not relate to the present case. Reliance was placed by the Counsel for the appellant on New India Assurance Company Vs. Trilochan Jane, First Appeal No.321 of 2005 decided by the Hon’ble National Consumer Disputes Redressal Commission on 09.12.2009, wherein, it was  held that,  in case,  the intimation with regard to theft,  had not been given to the Company, by the insured, immediately, i.e. within 24 hours, then the Insurance Company, could legally and validly, repudiate the claim.  There is, no dispute, with the principle of law, laid down, in New India Assurance Company`s case (supra). The Counsel for the appellant, could take an advantage of the principle of law, laid down, in this case, only, if it had been proved, that the policy and  the terms and conditions thereof, were supplied to the complainant, at the time of insurance of the vehicle or immediately thereafter. In the instant case, as held above, the policy and the terms and conditions thereof, were never supplied to the complainant and, as such, no help can be drawn by the Counsel for the appellant, from the principle law, laid down, in the aforesaid authority. In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.

12.           No other point, was urged, by the Counsel for the parties.

13.           The order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.           For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.

15.           Certified Copies of this order be sent to the parties, free of charge.

16.           The file be consigned to Record Room, after completion

Pronounced.

January 18, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg.