BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.378 of 2016

Date of Instt. 05.09.2016

Date of Decision: 27.02.2018

Kamaljit Singh S/o S. Jarnail Singh R/o H. No.EG-82, Ladowali Road, Jalandhar.

..........Complainant Versus

1. Cholamandlam M.S. General Insurance Co. Ltd. Registered Head Office Dare House, Second Floor, No.2, NSC Bose Road, Chennai-100001.

2. Cholamandlam M.S. General Insurance Co. Ltd. Jalandhar Branch PNB Chowk, Jalandhar.

..….…Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. JS Sandhu, Adv Counsel for the Complainant.

Sh. AK Gandhi, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is filed by the complainant, wherein alleged that the complainant is the owner of Royal Enfield Classic Model 350 CC bearing Registration No.PB08-DB-3113. The complainant has insurance policy through the OPs. Therefore, being as a consumer, he had already paid the insurance amount to the OP at the time of getting insurance of the vehicle. At the time of taking insurance policy, the OPs have assured to the complainant, that whenever the complainant may have lost or damage the insured vehicle, the OPs would pay the claim as per the insurance policy.

2. On 28.10.2015, the complainant went to District Amritsar, Punjab for his domestic purpose and where he parked his motorcycle near at Bus Stand, Amritsar and after few minutes, he came back and saw that his motorcycle was not there and the same was stolen by some unknown person. That he immediately reported the matter to the police officials of P.S. A. Division, Amritsar. Thereafter, the complainant called the officials of the OPs and then the officials of OPs told the complainant that he can file the claim only after the report of police officials and then on 20.01.2016, the complainant contacted through toll free number for the claim of his insured vehicle. The OPs sent a Surveyor at the home of the complainant and gave assurance to him that it is a formal procedure and you would get your claim within 2-3 days and the intimation will be sent by the OPs to the complainant. Then on 01.04.2016, the OPs sent a letter to the complainant, whereby the complainant has been intimated that you have intimated to the Insurance Company after delay of 84 days and therefore, the OPs will not pay the claim amount to the complainant and thereafter, the complainant got shocked and felt mentally harassed due to the act and conduct of OP, which is quite deficient in service and accordingly, a legal notice was also served to the OP, but all in vain and ultimately, the instant complaint filed by the complainant with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation/damages for negligence and deficiency in service on the part of the OP.

3. Notice of the complaint was given to the OPs and accordingly, OPs filed their joint reply and contested the complaint by taking preliminary objections that the present complaint is false, vexatious and has been filed with a malafide intention to harass the OPs and further averred that the present complaint is not maintainable against the answering OPs and same is liable to be dismissed. The claim of the complainant has rightly repudiated by the OPs, vide letter dated 01.04.2016. As per the record, the vehicle was stolen on 28.10.2015 and the intimation regarding the theft was given to the OPs on 20.01.2016 i.e. with the delay of approximately 84 days from the theft, which clearly shows the gross negligence on the part of the complainant and which prejudiced the right of the answering OPs from the possibility of the recovery of the vehicle, which constitute the violation of the condition 1 and 9 of the insurance policy. So, the present complaint is liable to be dismissed in the light of the violation of the terms and conditions of the insurance policy. It is further alleged that the complainant has not come to the Forum with clean hands rather he suppressed the material facts and even the complainant is estopped by his own act and conduct from filing the present complaint and further alleged that the present complaint is bad for mis-joinder and non-joinder of the necessary party and even the complaint contains intricate and complicated questions of facts and law and voluminous evidence is required by the Forum to reach at the just and final conclusion and thus, the complaint should be relegated to its remedy before the Civil Court of competent jurisdiction for redressal of grievances of the complainant. On merits, the factum in regard to purchase of the insurance policy by the complainant is not denied and it is also admitted that the claim has been filed by the complainant in regard to insurance policy of the Royal Enfield motorcycle, but the same was repudiated by the OP. The other contents of the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Mark C-1 to Mark C-10 and closed the evidence.

5. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OPA alongwith some documents Ex.OP-1 to Ex.OP-8 and further tendered another affidavit Ex.OP/B and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. After taking into consideration the over all circumstances as elaborated in the complaint as well as in reply or through the documents, finds that the factum in regard to purchase of insurance policy of Royal Enfield Classic Model 350cc bearing Registration No.PB08-DB-3113 by the complainant from the OP, is not in dispute, even the facts in regard to theft of the aforesaid motorcycle is also not denied by the OP rather the Investigator appointed by the OP also categorically described in his final report Ex.OP-8 that the vehicle was stolen on 28.10.2015 and FIR was registered on the same day and further the insurance claim submitted by the complainant is also admitted by the OP rather the OP produced on the file Questionnaire for Theft Claims Ex.OP-4 and Motor Insurance Claim Form Ex.OP-6, rather the OP has repudiated the claim of the complainant simply on the ground that the intimation of theft of the vehicle was given to the OP after 84 days and there is a violation of condition No.1 and 9 of the insurance policy and due to that reason, the insurance claim of the complainant was repudiated, vide repudiation letter Ex.OP-1.

8. Now, question remains to be adjudicated by this Forum whether the insurance claim of the complainant has been legally repudiated by the OPs, for that purpose, it is required to go through the repudiation letter, wherein conditions No.1 & 9 have been also re-produced, copy of the repudiation letter is proved on the file by the complainant is Mark C-4, whereas by the OP is Ex.OP-1 and in the said repudiation letter, the condition No.1 is disclosed that “ A 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”. In the second part, which relates to Theft Cases, it is described that “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 police and co-operate with the company in securing the conviction of the offender”.

9. We find that the aforesaid condition No.1 as referred by the OP for repudiation of the claim, itself goes in favour of the complainant not giving any favour to the OP, because in case of theft of any vehicle the matter should be referred immediately to the police not to the Insurance Company. So, we find that the Insurance Company has mis-interpreted the aforesaid condition No.1 just to decline the insurance claim of the complainant. So, from all angle, we find that the claim of the complainant has been illegally rejected by the OP and in support of above observation, we like to refer a pronouncement of Hon'ble National Commission, cited in 2017(1) CPR 787, title “Jagjit Singh VS. M/s Cholamandlam, Ms General Insurance Co. Ltd, wherein his Lordship held as under:-

“Insurance Company has not been able to prove as to what prejudice had been caused to them due to delay in intimation of theft”.

Similarly, there is an other pronouncement of the Hon'ble State Commission, Haryana, cited in 2014(2) CLT 390, title “Shriram General Insurance Company Limited Vs. Rajesh Kumar”, wherein his Lordship held as under:-

“A person, who lost his vehicle, which was being used by him for earning livelihood straightway may not go to the Insurance Company to claim compensation, at the first instance, he himself makes efforts to search the vehicle, filing of claim with the Insurance Company is the last resort, it was indeed a deficiency in service on the part of the appellant for repudiating respondents claim on flimsy ground. It would not be fair or reasonable to reject even the genuine claims, which have been verified and found to be correct by the Surveyor, there may be a condition in the policy regarding delay in intimation, but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine, insurance company liable to pay claim”.

Further, we like to refer an other pronouncement of Hon'ble Apex Court, cited in 2018(1) RCR (Civil) 42, title “Om Parkash Vs. Reliance General Insurance and Another”.

In the light of above judgments as well as detailed discussion as elaborated above, we find that the complainant is entitled for the relief claimed i.e. value of the insured motorcycle as well as compensation.

10. In view of the above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to pay the total insurance value of the motorcycle i.e. Rs.1,01,365/-, to the complainant with interest @ 9% per annum from the date of repudiation of letter i.e. 01.04.2016, till realization and further, OPs are directed to pay compensation to the complainant for harassment, to the tune of Rs.25,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

27.02.2018 Member President