Punjab

Faridkot

CC/18/153

Nishan Singh - Complainant(s)

Versus

Chief Manager Tata AIG General Insurance Co. Ltd. - Opp.Party(s)

Charanjit Sidana

21 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :        153 of 2018

Date of Institution:     26.09.2018

Date of Decision :      21.10.2019

 

Nishan Singh aged about 26 years s/o Tarsem Singh r/o Village Bhana, District Faridkot.                                                                        

...Complainant

Versus

1. Chief Manager, Tata AIG General Insurance Company Limited, 301-308, Third Floor, Aggarwal Prestige Mall, Plot No. 2, Road No.44, Near M2K Cinema Rani Bagh, Pitampura, New Delhi-110034.
2. M/s Farid Service Station (Hero Agency), Ferozepur Road, Faridkot 151203.
3. Manager, Indusind Finance Company, c/o Indusind Bank, Faridkot. PIN Code 1512.03.
4. SHO, P.S. Sadar Kotkapura, District Faridkot-151203.

.......OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

Present: Sh Charanjit Sidana, Ld Counsel for complainant,

             Sh Neeraj Maheshwary, Ld Counsel for OP-1,

   Sh Sukhjinder Singh on behalf of OP-2,

   Sh Gurpreet Chauhan, Ld Counsel for OP-3,

   OP-4 Exparte.

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ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to them to make payment of genuine insurance claim for his stolen motorcycle and for further directing them to pay Rs.1,00,000/-as compensation for harassment, inconvenience, mental agony besides litigation expenses to complainant.

2                                Briefly stated, the case of the complainant is that Splendor Plus Motorcycle of complainant bearing Registration No PB 04-Z-1123 was fully insured with OP-1 vide Insurance Policy bearing no. 0182650371 for the period from 19.06.2017 to 18.06.2018 against all kinds of risks including theft. It is submitted that complainant purchased his motorcycle from OP-2 vide bill dated 19.06.2017 with financial assistance of OP-3, which was to be recovered by OP-3 in 30 equal monthly instalments worth Rs.2110/-each and motorcycle of complainant was hypothecated with OP-3. Complainant got insured the said vehicle from OP-1 and paid Rs.1594/-for insurance cover. It is submitted that on 9.04.2018 at about 9.00 p.m. when complainant was coming to his village, in the way, some unidentified persons snatched his motorcycle from him regarding which he immediately reported the matter to Police and Police registered FIR No.34 to this effect on 12.04.2018 and after that complainant gave intimation regarding this theft incident to OP-1 and thereafter, OP-1 visited the house of complainant and spot of occurence

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after 15 days of theft and on his asking, complainant completed all the formalities. Complainant received letter from OP-1 vide which they demanded challan/report under Section 173 Cr.P.C. of FIR No.34, NOC from OP-3. Complainant approached OP-4 and requested them to provide copy of challan, which they refused to give saying investigation is going on and under process and during pendency of investigation, they cannot prepare challan under section 173 of Cr.P.C. Thereafter, complainant approached OP-3 and requested to provide NOC, but OP-3 refused to give NOC till the closure of loan account. Complainant requested OP-1 to pass his genuine claim on account of theft of his motorcycle, but it disclosed that his claim was closed without assigning any reason. Despite repeated requests, Insurance Company has not passed his genuine claim, which amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to him. He has prayed for directions to OPs to pay compensation and litigation expenses besides the main relief. Hence, the  present complaint.

3                                    The counsel for complainant was heard with regard to admission of the complaint and vide order dated 26.09.2018, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                               On receipt of the notice, OP-1 filed written statement taking preliminary objections that no cause of action arises against answering OP and there is no deficiency in service on their part. It

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is averred that he has filed the present complaint only to defame the goodwill of answering OP and it is a false, frivolous and vexatious complaint. Moreover, present complaint is premature as complainant himself did not provide the necessary documents to them for processing the claim. He has concealed the material fact from this Forum that he caused delay of 13 days in giving information to answering OP regarding theft of his vehicle and moreover, FIR to this effect has also been lodged after delay of 4 days. Intimation of claim was required to be given to answering OP immediately for further investigation, but in present case, complainant has committed a gross mistake and is guilty of breach of policy terms and conditions by not intimating the claim in time. As per condition no.1 of insurance policy intimation regarding any accidental loss or damage is required to be given to company immediately, but complainant failed to give information regarding alleged theft to them immediately and has caused huge delay and is liable for violation of terms and conditions of the policy and therefore, he cannot take the benefit of his own wrong act and conduct. However, on merits OP-1 has denied all the allegations of complainant being wrong and incorrect but admitted before the Forum that vehicle of complainant was insured with them for the period from 19.06.2017 to 18.06.2018 under policy in question and claim under the policy is payable subject to fulfilment of its terms and conditions. it is further averred that vide letter dated 26.07.2018, OP-1 asked complainant to provide original final untraced report under section

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173 CRPC, service record of vehicle, on repossession letter from Financer alongwith current loan account statement and NOC and DD Entry regarding delay in lodging FIR from the date of occurrence of theft, but complainant failed to supply these documents to them and therefore, claim of complainant was closed and it can be processed on receipt of requisite documents from complainant. There is no deficiency in service on their part. All the other allegations and allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                              OP-2 also filed written statement wherein they have denied all the allegations of complainant being wrong and incorrect but admitted before the Forum that complainant purchased the said motorcycle from them. It is averred that they have no information regarding alleged incident of snatching of said motorcycle of complainant as complainant never informed them regarding this incident. No cause of action arises against them and no claim is sought by complainant from them. There is no deficiency in service on their part and prayed for dismissal of complaint with costs.

6                                               As per office report, notice regarding complaint was served to OP-3, but on date fixed despite repeated calls, no body appeared in the Forum on behalf of OP-3 either in person or through counsel, and therefore, vide order dated 6.11.2018, OP-3 was proceeded against exparte. On 9.01.2019 OP-3 appeared in the Forum alongwith

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advocate Sh Gurpreet Chauhan and moved application for setting aside the exparte order passed against them. As the case was on initial stage and in the light of consent given by counsel for complainant vide separate statement that he has no objection if exparte order against OP-3 is set aside, exparte order passed against OP-3 was set aside vide order dated 15.01.2019 and OP-3 was allowed to file reply, but despite availing sufficient opportunities, OP-3 did not file written statement and therefore, vide order dated 6.02.2019, defence of OP-3 was struck off.

7                                               Registered cover containing notice and copy of complaint alongwith relevant documents was sent to OP-4, but it did not receive back undelivered and was deemed to be served. No body appeared on behalf of OP-4 in the Forum on date fixed either in person or through counsel, therefore, vide order dated 21.11.2018, OP-4 was proceeded against exparte.     

8                                                        Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant Ex C-W/A, and documents Ex C-1 to C-10 and then, closed the same on behalf of complainant.

9                                              In order to rebut the evidence of the complainant, the ld Counsel for OP-1 tendered in evidence affidavit of Sanjay Bhagat Ex OP-1/1 and documents Ex OP-1/2 to Ex OP-1/4 and then, closed the evidence.  Despite availing several opportunities, OP-2

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did not tender any evidence and therefore, evidence of OP-2 was closed by order of this Forum.

10                                            We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the record.

11                                             From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that insured motorcycle of complainant was snatched by someone during the validity of insurance period and as per rules he gave due intimation regarding this incident to OPs as well as Police, who registered FIR no. 0034 to this effect on 12.04.2018 Ex C-5, but OPs have not made a single penny on account of insurance claim. Action of OPs in not making payment of genuine insurance claim on account of theft of his vehicle, amounts to deficiency in service. In reply, OP-1 stressed mainly on the point that complainant did not give intimation to them regarding said theft in time. OP-1 alleged that said alleged theft occurred on 9.04.2018, but he lodged FIR after delay of 4 days on 12.04.2018 and moreover, complainant neither approached them on time nor submitted any documents with them for processing the claim and thus, complaint filed by him is premature. There is no deficiency in service on their part and prayed for dismissal of complaint with costs.

 

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12                                            The main objection raised by OP-1 is that the alleged theft occurred on 9.04.2018, but the complainant did not report the matter with the Police or OPs immediately, rather he first time intimated the Police on 12.04.2018 after a lapse of 4 days, which is a violation of terms and conditions of the Insurance Policy. On it, the ld counsel for complainant argued that complainant immediately informed regarding the incident of snatching of his motorcycle to Police and OPs on 9.04.2018. There is no reason for complainant to cause delay in giving information regarding theft of his motorcycle to Police. Complainant is not guilty of any breach of terms and conditions of insurance policy in question and there is no fault on his part as he immediately reported the matter to Police, but Police registered the FIR on 12.04.2018 and if Police has registered FIR after four days, then, there is no fault on his part as he cannot interfere in Police proceedings. To prove his case, complainant placed on record copy of FIR No.34 dated 12.04.2018, which proves the pleadings of complainant as it is clearly mentioned in it that complainant reported the matter regarding theft of his motorcycle to Police immediately. Ex C-9 is copy of Policy Detail that further proves the pleadings of complainant that his vehicle was duly insured with them against all kinds of risks including theft. Ld counsel for complainant argued that only duty of complainant is to inform the Police regarding incident and it is on the Police to register the FIR of complainant and complainant has no control on it whether Police registered the FIR on

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same day or after investigation. He has put reliance on citation 2008 (3) CPJ titled as Ridhi Gupta Vs National Insurance Company Ltd wherein State Consumer Disputes Redressal Commission, Delhi has held that in our view FIR is not a requirement for adjudicating the insurance claim. Whenever vehicle or any cash or goods are stolen, insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police only is concerned whether the theft has taken place or not. Once the report is lodged with the Police may in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint Surveyor for the purpose of assessing the loss. If the Police find that a person has lodged a false report, he can be prosecuted for offence punishable under Section 182 IPC but in any way the Insurance Company cannot indulge in such exercise and enter into such and arena that does not belong to it. The similar view is taken by Hon’ble State Commission, Haryana in 1^st Appeal No. 754/2010 decided on 18.10.2012 titled as Branch Manager United India Insurance Company Ltd Vs Smt Sandhya Rani.

13                                         It is observed that complainant immediately gave information to Police as well as Ops and submitted all the documents for processing the claim to them. Ops are now, intentionally denying this fact only to avoid the liability of indemnifying the complainant regarding

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his snatched motorcycle. Moreover, plea taken by OPs that complainant did not inform OPs immediately and deprived them of gathering first hand information has no legs to stand upon as if the complainant can immediately report the matter to Police, then, there is no reason for him to not to inform Ops regarding the incident and to claim his genuine insurance claim. Now, the OPs are intentionally trying to delay the insurance claim regarding theft of his vehicle. He further argued that if in any case, it is presumed that complainant did not inform Ops regarding incident on time, then in that case also, the OPs cannot deny payment of insurance claim to complainant. On this, he put reliance on citation 2016(1) CLT 539 titled as Baja Allianz General Insurance Company Ltd Vs Abdul Sattar and anr wherein our Hon’ble National Commission has observed that in order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition no.1 of insurance policy, which is reproduced as under”1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and process or copy thereof shall be forwarded to Company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this

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policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the policy and co-operate with the Company in securing the conviction of the offender”. On reading the above, it is clear that in the event of theft of the vehicle, only requirement on the part of insured was to intimate the policy immediately and co-operate in securing the conviction of offender. He submitted that as per the observation of Hon’ble National Commission in case of theft, the only requirement on the part of complainant was to intimate the Police immediately and to cooperate with Police in securing the conviction of the offender and complainant duly complied with this condition and immediately reported the matter with Police. Therefore, Insurance Company cannot repudiate the claim of complainant. Reasons forwarded by Ops for not allowing the claim of complainant are not plausible and their action in denying payment of claim on baseless grounds is not appropriate and genuine, which amounts to deficiency in service on their part.

14                                            From the above discussion and case law produced by the complainant, we are of considered opinion that complainant immediately reported the matter with Police and lodged FIR with Police and also intimated Ops. Ops cannot deny the payment of insurance claim of vehicle of complainant on the ground that there is violation of the terms and conditions of the policy. Act of Ops in denying the payment of claim amounts to deficiency in service and trade mal

 

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practice on their part. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed against OP-1. OP-1 is directed to pay Rs.40,850/-i.e insured value of lost vehicle subject to transfer of Registration Certificate of the vehicle in question in the name of OP-1 and also to execute other required documents for payment of claim by complainant in favour of OP-1 within 30 days from the date of receipt of these documents in their favour, failing which OP-1 shall be liable to pay interest at the rate of 9% per anum from the date of filing the complaint till final realization. OP-1 is further directed to pay Rs.5,000/- to complainant as consolidated compensation for harassment suffered and litigation expenses incurred by him. Compliance of this order be made within one month of receipt of the copy of the order failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Complaint against OP-2 to OP-4 stands hereby dismissed. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 21.10.2019       

(Param Pal Kaur)           (Ajit Aggarwal)

                                      Member                         President