Punjab

Moga

CC/16/40

Baj Singh - Complainant(s)

Versus

Cholamandalam MS General Insurance Co. Ltd. - Opp.Party(s)

Sh. Jagannath

05 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                      CC No. 40 of 2016

                                                                                      Instituted on: 19.01.2016

                                                                                      Decided on: 05.07.2016

 

Baj Singh, aged about ____ years son of Boor Singh, resident of Village Toothgrah, Tehsil Dharamkot, District Moga.

                                                                          ……… Complainant

 

Versus

1.       Cholamandalam MS General Insurance Company Limited, 2^nd Floor, Dare

House, 1 NSC Bose Road, Chennai-600001.

 

2.       Cholamandalam MS General Insurance Company Limited, 2^nd Floor, Civil

Lines, Old GT Road, Jalandhar.

 

2 (a)  Cholamandalam MS General Insurance Company, above HDFC Bank, Nr.

District Courts, Ferozepur G.T. Road, Moga, through Branch Manager.

 

                                                                           ……….. Opposite Parties

 

 

Complaint u/S 12/14  of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Vinod Bala, Member,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Sh. Harmeet Singh Bath, Advocate Cl. for complainant. 

                   Sh. Vishal Jain, Advocate Cl. for opposite parties.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.       Complainant has filed the instant complaint under Section 12/14 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against Cholamandalam MS General Insurance Company Limited, 2^nd Floor, Dare House, 1 NSC Bose Road, Chennai and others (hereinafter referred to as the opposite parties) for directing them to pay Rs. 5,93,750/- i.e. equal amount of the price of Tractor in question i.e. insured vehicle. Further opposite parties may be directed to pay Rs. 1,00,000/- on account of physical and mental harassment suffered by complainant and Rs.11,000/- as litigation expenses to the complainant or any other relief which this Forum may deem fit and proper may also be granted.

2.                Briefly stated the facts of the case are that complainant purchased one Sonalika Tractor RX-60, Chassis no. EZDDE43716153, Engine no. 4100FC43G434493F Model 2014 for Rs. 6,25,000/- from Friends Automobiles Goindwal Road, Kapurthala on 05.02.2015. The abovesaid tractor was insured with opposite party no.2 for the period 5.2.2015 to 4.2.2016. The complainant paid Rs. 11,657/- for insurance of the said tractor and proposal no. M20396348 was issued by the Jalandhar Branch in favour of the complainant. On 28.02.2015, the abovesaid tractor was stolen by some unknown persons and complainant immediately reported the matter to the police and FIR no.16 dated 28.02.2015 under section 379 IPC was registered with Police Station Kot Ise Khan, District Moga. Thereafter, report u/s 173 Cr.P.C. submitted by the police as 'untraced'. The said tractor had already been insured by the complainant and as such, complainant is entitled to the insurance amount payable by the complainant to opposite parties. The complainant approached Jalandhar Branch of opposite party many a times and requested them to pay the insurance amount to him, but official of said Branch put off the matter on one pretext or the other and thereafter finally refused to pay the insurance amount to the complainant. The complainant also got issued a registered legal notice dated 15.09.2015 to opposite parties, but opposite parties illegally rejected the claim of the complainant. Claiming the above act as negligence and deficiency in service, the complainant has filed this complaint.

3.                Upon notice, opposite parties appeared through his counsel and filed written reply taking certain preliminary objections inter alia that the intricate question of law and facts are involved in the present complaint, which require voluminous documents and evidence for determination which is not possible in the summary procedure under Consumer Protection Act and appropriate remedy if any lies only in the Civil Court; that the complainant has concealed material facts and documents from this Forum as well as opposite parties, therefore, the complainant is not entitled to any relief. The complainant has concealed the fact that the date of loss in this case has bee intimated as 19.02.2015 whereas the FIR has been lodged with the police on 28.02.2015, hence there is delay of 9 days in intimation to the police authorities. Further there is delay in intimation to the opposite parties by 28 days. Hence there is delay in FIR and intimation to the opposite parties, which has prejudiced possibilities of recovery of the vehicle. This constitutes serious breach of conditions nos. 1 & 2 of the Insurance Policy. As per condition 1 of Motor Insurance Policy wordings the complainant was bound to give immediate notice to the police regarding the alleged theft/criminal act. The complainant has violated the terms and conditions of the policy and therefore, the claim was rightly repudiated vide letter dated 30.10.2015. Further submitted that the complainant was plying the vehicle without registration on the date of alleged theft in violation of section 39 of the Motor Vehicles Act. The complainant has no locus standi or cause of action to file the present complainant against the opposite parties; that the complaint is not maintainable in the present form and is liable to be dismissed; that this Forum has got no territorial jurisdiction to try and decide the present complaint.

On merits, it has been submitted that the insurance was for insured declare value (IDV) of Rs. 5,93,750/- and the insurance was strictly subject to terms and conditions of the policy and provisions of Motor Vehicles Act. Further it is wrong to state that the vehicle was stolen on 28.02.2015, rather as per the contents of FIR itself it is clearly mentioned that the alleged loss took place on the intervening night of 18/19.02.2015, but the complainant remained silent and got registered the FIR only on 28.02.2015 and thus there is delay of 9 days in giving intimation to the police, whereas the terms and conditions of the policy make it mandatory to give immediate intimation to the police. The delay in intimation to the police effects arrest of culprits and recovery of the vehicle rather assists dismantling/disposal of the vehicle. All other allegations made in the complaint have been denied.

4.                In order to prove the case, complainant Baj Singh tendered in evidence his duly sworn affidavit Ex. C-1, affidavit of Sh. Kulwinder Singh s/o Baj Singh s/o Boor Singh Ex. C-2 and copies of documents Ex. C-3 to Ex. C-10  and closed the evidence. 

5.                In rebuttal, the opposite parties tendered in evidence duly sworn affidavit of Sh. Ashutosh Kumar, Assistant Manager Legal, Cholamandalam MS General Insurance Company Limited, Chandigarh Ex. OPs/1, affidavit of Sh.S.S.Bedi, Investigator Ex. OPs/2 and copies of documents Ex. OPs/3 to Ex. OPs/9 and closed the evidence.

6.                We have heard the learned counsel for the parties and have very carefully gone through record placed on file.

7.                Ld. Counsel for the complainant argued that on 05.02.2015 the complainant had purchased a Sonalika Tractor from Friends Automobiles, Kapurthala. Copy of the bill is Ex C-7. The complainant got his said tractor insured from OPs which was valid from 05.02.2015 to 04.02.2016. Copy of the insurance certificate is Ex C-3. The said tractor of the complainant was stolen by some unknown person on 28.02.2015. He immediately reported the matter to the police who record the FIR no.16 dated 28.02.2015 U/s379 IPC in the police station Kot Ise Khan against unknown person. Complainant also give intimation regarding this incident to the OPs. Copy of FIR is Ex C-8. After investigation the police filed untraced report U/s 173 Cr PC. Copy of the same is Ex C-9. The complainant submitted all required documents to OPs for processing his claim as police file untraced report so the complainant is entitled for the insurance amount. He approached to the office of the OPs many times requesting them to pay the insurance claim but officials of the OPs putting up the matter on one pretext or the other and now they finally refused to pay the claim of the complainant. The Ops are liable to pay the insurance claim along with interest. The complainant also issued a legal notice dated 15.09.2015 to the Ops requesting them to pay his claim but to no effect. Copy of the notice is Ex C-10.  All these acts of the OPs amounts to deficiency in service and trade mal practice on their part. The complainant suffered huge financial loss as well as mental harassment and agony. The Complainant is entitled for the insurance claim of his lost tractor. The Ops may be directed to pay the insurance claim of the complainant along with interest, compensation and litigation expenses.

8.                To controvert the arguments of the complainant, the Counsel for the OPs argued that the present complaint is not maintainable. The complainant has no locus standi and cause of action to file the present complaint. However, they admitted that the alleged tractor of the complainant was insured with them. They further admitted that the complainant intimated regarding the theft of his tractor but they denied that the alleged theft took place on 28.02.2015, the Counsel for the Ops argued that complainant has concealed material facts from Hon’ble Forum, in this case the tractor in dispute was stolen in the night of 18/19.02.2015 as intimated by him to the Ops and also stated by him in the FIR lodged by him with the police. Copy of the same is Ex C-8 produced by the complainant himself. From it is clear that the tractor was stolen in the intervening night of 18/19-02-2015 where the FIR was lodged with the police on 28.02.2015 with a delay of 9 days. Further the complainant gave intimation to the OPs on 19.03.2015 i.e. about one month later. There is delay in FIR and intimation to the OPs, which has prejudiced possibilities of recovery of the vehicle. This constitutes serious breach of conditions no.1 and 9 of the Insurance policy, as per condition no.1, the complainant was bound to give immediate notice to the police and OPs regarding the alleged theft/criminal act, but the complainant gave intimation to the police with a delay of 9 days and to OPs with a delay of one month which is clearly violation of the terms and conditions of the policy. The copy of the term and conditions Ex OP-9. Therefore the claim of the complainant was rightly repudiated vide its letter dated 30.10.2015. Copy of the letter is Ex OP-3, as per Ruling of the Hon’ble Apex Court  that the terms and conditions of the policy are binding on both insurer and insured and the further the delay in intimation to the police and insurer clearly debars the right of the insurer to investigate the matter and to make efforts to recover the vehicle/loss. The terms of the policy are not directory rather mandatory in nature. The delay in lodging FIR is gross breach of policy and its effect on recovery of vehicle, arrest of culprit and sale and dismantling of vehicle. The complainant is not entitled to any claim for the loss of his tractor. The Ops rightly repudiate his claim vide letter dated 30.10.2015, the complainant is not entitled for any claim. He filed false and frivolous complaint against the Ops and same may be dismissed with costs.

9.                We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he was owner of tractor which was duly insured with the OPs and during insurance period his tractor was stolen by someone and he gave intimation regarding it to police as well as OPs but the OPs did not give his insurance claim and repudiate the claim of the complainant.

10.              On the other hand, the OPs admitted that the alleged tractor was insured with them and the complainant gave intimation regarding the theft of the alleged tractor to them but they argued that as per FIR and intimation given to the Ops the tractor of the complainant was stolen in the intervening night of 18/19.02.2015 whereas he gave information to the police and lodged FIR with police on 28.02.2015 with delay of 9 days and gave intimation to OPs on 19.03.2015 with a delay of one month which is fundamental breach of the terms and conditions of the policy, as per condition no.1 of the policy, the complainant was required to give immediate information to police and the OPs and by not giving the information regarding it on time, it is violation of the terms and conditions of the policy and they are rightly repudiated the claim of the complainant. The Counsel for the OPs put reliance on the citation 2009 (4) CLT 313 tilted as Vikram Greentech (I) Ltd. Vs New India Assurance Co. Ltd.  decided by Our Hon’ble Apex Court whereas the Hon’ble Court held that Insurance Act 1938 Section 64, Insurance Contract- an Insurance contract is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of Insurance, there is requirement of uberimma fides. He further put reliance on the citation 2016 (2) CPJ 448 titled as Gurlal Singh Vs National Insurance Co. whereas Our Hon’ble National Commission New Delhi held that there was a delay of 7 days in reporting the theft of the vehicle to the policy and 21 days delay in reporting the theft to the insurer. The Ld. Counsel for the complainant/insured submits that the police did not register the FIR, when approached immediately after the theft. We however, cannot accept the contention since there is no evidence of the complainant. It has to be kept in mind that the requirement, of reporting the theft to the insurer immediately it comes to the notice, is not a mere formality, the purpose of the requirement being to enable the insurer to carry out an independent investigation into the matter and the make efforts to trace the vehicle in coordination with the concerned police station. This purpose cannot be sufficiently achieved if the insurer is not informed immediately after the theft, since valuable evidence may be lost due to the delay in reporting the matter to the insurer. Therefore, the insurer was fully justified in repudiating the claim on account of the aforesaid delay in giving intimation to it. He further put reliance on the citation 2015 (2) CLT 6 titled as Saurashtra Chemicals Ltd. Vs National Insurance Co. Ltd.  Whereas Our Hon’ble National Commission, New Delhi held that the purpose of requiring the insured to give immediate intimation of the loss/damage to the insurance company is to give an opportunity to the insurer to investigate the claim without any loss of time and before an unscrupulous insured gets opportunity to temper with the evidence which is available immediately on occurrence of the loss/damage. The possibility of tempering with the evidence cannot be rules out in a case where there is an abnormal delay in intimating the loss/damage to the insurance company and at the same time, there is no plausible explanation for the said delay.  He further put reliance on the decision of Our Hon’ble National Commission, New Delhi  dated 09.12.2009 passed in First Appeal no.321 of 2005 titled as New India Assurance Co. Ltd. Vs Trilochan Jane where Hon’ble National Commission, held that in case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours otherwise valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the Commission of the theft and to trace/help in tracing the vehicle.

                   Whereas in the present case there is a delay of 9 days in lodging the FIR and further a delay of one month in reporting the matter to the Insurance Company, which is fatal and the insurance claim cannot be allowed. He further argued that the present complaint even cannot be allowed on the non-standard basis, to consider it violation of agreement. On it he put reliance on 2016 (1) CLT 163 titled as National Insurance Co. Ltd. Vs Shravan Singh whereas our Hon’ble National Commission, New Delhi held that Consumer Protection Act, 1986 Section 2 (1) (g) Insurance Claim-Delayed intimation to insurance company-State Commission after coming to the conclusion that intimation of the theft was given after one month has erred in allowing the insurance claim to the Respondent on non standard basis-Impugned order is in direct conflict with the law laid down by the Hon’ble Supreme Court- Impugned order set aside.

                   He argued that the present complainant is not entitled for any claim, as he breach of the insurance contract.

11.              We have gone through the file and arguments and case produced by the Counsel for the OPs. From the above discussion and in the light of case law produced by the OPs, we are of considered opinion that by not giving the intimation of the theft to the police and insurance company immediately and by giving the intimation of the incident by delay of 9 days to police and with delay of one month to insurance company. The complainant breaches the conditions of the insurance contract.

13.              We are fully convinced with the evidence, arguments and case law produced by the opposite parties. The insurance company rightly repudiated the claim of the complainant. There is no deficiency in service and trade mal practice on the part of the opposite parties. We find no merit in the present complaint and the present complaint is hereby dismissed. Parties are left to bear their own costs. Copy of the order be supplied to parties free of cost. File be consigned to the record room. 

Announced in Open Forum

Dated: 05.07.2016

 

 

                        (Bupinder Kaur)           (Vinod Bala)                  (Ajit Aggarwal)

                              Member                   Member                         President