Haryana

Karnal

CC/177/2019

Shiv Singla - Complainant(s)

Versus

Cholamandalam MS General Insurance Company Limited - Opp.Party(s)

Sanjeev Manglora

01 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 177 of 2019

                                                          Date of instt.28.03.2019

                                                          Date of Decision 01.03.2021

 

Shiv Singla aged about 25 years son of Neeraj Gupta, resident of house no.10, Subhash Colony, District Karnal, Adhar no.510542576413.

                                                 …….Complainant.

                                              Versus

 

Cholamandalam MS General Insurance Co. Ltd., Sector-12, Karnal, through its Branch Manager.

                                                                        …..Opposite Party.

 

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

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary…….Member

 

 Present: Shri Sanjeev Manglora counsel for complainant.

                Shri Vineet Rathore counsel for opposite party.

                                        

                (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 on the averments that complainant got insured his vehicle Tata 709 bearing Temporary no.HR-99-ABB-2420 with the opposite party (hereinafter referred as to OP), vide policy no.3379/01647399/000/00. On 05.03.2017 the said vehicle was stolen and an FIR bearing no.0081 dated 05.03.2017 was lodged with Police Station Indri, under section 380 IPC.  After lodging the FIR, complainant immediately informed the OP and submitted the required documents alongwith the claim-form. Official of the OP assured to the complainant to settle the claim very shortly.

2.             Further, the vehicle in question was recovered from Fatehabad in total damaged condition and after recovery of said vehicle by police concerned, complainant got the said vehicle released on superdari. Thereafter, complainant contacted the OP and disclosed about the recovery of the said vehicle in damaged condition, then OP directed to the complainant to get the damaged vehicle repaired and after repairing submit necessary documents and then OP will reimbursed the repairing amount to the complainant. Thereafter, the complainant repaired the said damaged vehicle from Mahabalaji Auto Service (P) Ltd. GT. Road, Pipli, District Kurukshetra after spending amount of Rs.2,81,450/-. After repairing the vehicle in question complainant submitted the necessary documents alongwith bill with the OP for reimbursement of the claim amount. Complainant visited the office of OP several times and requested to release the claim but OP failed to release the claim of complainant and lingered the matter on one pretext or the other. Thereafter, complainant sent a legal notice dated 12.03.2019 to the OP but it also did not yield any result. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to cause of action; mis joinder and non-joinder of parties; jurisdiction and concealment of true and material facts. On merits, it is pleaded that as per the version of complainant and fact finding reports of OP the vehicle TATA 709 bearing temporary Registration no.HR-99-ABB-2420 was insured with the OP. The insured vehicle was stolen on 05.03.2017, the intimation of the insurance company was on 10.05.2017 in this regard and FIR no.0081 was lodged on 05.03.2017 under section 380 IPC at Police Station, Indri. As per version of complainant the vehicle was recovered from Fatehbad in total damaged condition and complainant got the vehicle released on superdari. On this Insurance company conducted a detailed survey and investigation and it was found that the vehicle was recovered subsequent of theft. Hence, the claim was repudiated by stating that (a) The survey conducted by the surveyor and it has been revealed that there were no damages and the vehicle is in road worth condition. (b) Since the vehicle has been recovered the theft claim lodged by complainant stand closed. (c) Any damages occurring during the vehicle transit on in custody of police station will not be covered under this policy.

 3.            It is further pleaded that as per version of the complainant and documents submitted by him for processing the claim on the basis of which OP conducted detailed investigation it is transpired that there is inordinate delay in lodging the FIR and imparting information to the OP. There is delay of two months seven days in providing information to the OP. The unexplained delay raises doubts over the genuineness of the claim. The mandatory or providing information to the police and insurance company has been violated and as such the claim is rightly repudiated and same was communicated to complainant, vide letter dated 30.05.2017. The complainant is not entitled to any reimbursement, much less any compensation, as he has been guilty of violation of the mandatory terms and conditions of the insurance policy and hence not entitled to insurance claim. The complainant miserably failed to impart the information qua alleged theft of vehicle in question to the OP as well as to the concerned police instantly under the policy. Moreover, complainant failed to exercise due care and caution in ensuring safety and security of the vehicle as such OP cannot be fastened with any liability. The complainant has also violated the conditions of the insurance policy which explains that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and or to maintain it in efficient condition. There is no deficiency in service on the part of the OP in repudiating the claim. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A, copy of insurance policy Ex.C1, copy of report u/s 173 Cr.P.C. Ex.C2, copy of legal notice Ex.C3, original receipt of speed post Ex.C4, bills of Rs.2,81,450/- Ex.C5, letter dated 30.05.2017 Ex.C6, sale certificate of vehicle Ex.C7, invoice Ex.C8, documents of registration of vehicle Ex.C9, copy of mechanical inspection Ex.C10, copy of  FIR no.84/19 of Police Station Jakhal Ex.C11 and copy of Aadhar card Ex.C12 and closed the evidence on 06.12.2019 by suffering separate statement.

5.             On the other hand, OP tendered into evidence affidavit of Sujeet Kumar Sahu Assistant Manager Ex.OP1/A, policy cover note Ex.OP1, policy wordings of motor package Ex.OP2, copy of repudiation letter dt. 30.5.2017 Ex.OP3 and copy of FIR Ex.OP4 and closed the evidence on 5.2.2021 by suffering separate statement.

6.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel of complainant argued that complainant got insured his vehicle bearing Tempo no.HR-99-ABB-2420 with the OP. On 05.07.2017 the said vehicle was stolen and in this regard an FIR was got registered and intimation was also sent to OP. It is further argued that the said vehicle was recovered from Fatehbad in total damaged condition and complainant got the said vehicle released on superdari and after recovery of the vehicle complainant sent the intimation to OP. On this OP directed the complainant to get repaired the damage vehicle and after repairing submitted the necessary documents with the OP then OP will reimburse the repairing amount to the complainant. Thereafter, complainant repaired the vehicle from Mahabalaji Auto Service (P) Ltd. G.T. Road Pipli, District Kurukshetra and spent Rs.2,81,450/-. After repairing the vehicle, complainant submitted the documents with the OP and requested for reimbursement of the claim but OPs did not pay any heed to the request of complainant and lastly refused to pay the same. Learned counsel of complainant argued that no surveyor report has been placed on record by OP in order to prove his version. Hence, learned counsel for complainant prayed for allowing the complaint.

8.             Per contra, learned counsel of OP argued that the insured vehicle was stolen on 05.03.2017, the intimation was given to the insurance company was on 10.05.2017 and FIR no.0081 was lodged on 05.03.2017. There is delay of two months seven days in providing information to the OP. It is further argued that the vehicle was recovered from Fatehbad. On this Insurance company conducted a detailed survey and investigation and it was found that  there were no damages and the vehicle is in road worthy condition. It is further argued that the complainant has also violated the conditions of the insurance policy which explains that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and or to maintain it in efficient condition. Hence, the claim of the complainant was rightly repudiated by the OP and prayed for dismissal of the complaint.

9.             Admittedly, the vehicle in question was stolen during subsistence of the insurance policy. The claim of the complainant was repudiated by the OP, vide repudiation letter dated 30.05.2017 Ex.C6/Ex.OP3 on the following grounds:-

 “ Moreover, based on the survey conducted by our independent surveyor it has been revealed that there were no damage and the vehicle is in road worthy condition.

Since vehicle has been recovered, the theft claim lodged by you stands closed.”

Please note that any damage occurring during the vehicle transit or in the custody of police station will not be covered under this policy.”

 

10.           The OP has taken a plea that the vehicle in question has been recovered from Fatehbad. After receiving the intimation from complainant, OP had appointed a surveyor for investigation of the vehicle in question and it was found that there were no damage and the vehicle is in roadworthy condition. The onus was upon the OP to prove its stand. The OP has not placed on record surveyor report in order to prove the facts that the vehicle was in a roadworthy condition and no damage was occurred. Further, from this act of the OP it is presumed that no such surveyor was appointed by the OP to investigate the vehicle in question but only in order to deprive the complainant from his genuine claim, the OP has repudiated the claim of the OP after putting an afterthought story.  Hence, this plea taken by the OP has no force.

11.           The another plea taken by the OP is that there is delay of two months seven days for providing intimation to the OP. In the present case vehicle in question was stolen on 05.03.2017 and complainant gave the intimation to the police on the same day and lodged the FIR Ex.C2 on the very same day i.e. 05.03.2017. There is no delay on the part of the complainant for lodging the FIR. It is a common fact that a person who has lost his vehicle may not directly go to the Insurance Company to claim compensation. At first, he will make efforts to trace his vehicle and when he failed then he approaches to the insurance company. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.  The plea taken by the OP that there is delay in intimation regarding theft of the vehicle in question by the complainant, has no force.

12.           The last plea taken by the OP is that the complainant has to take all reasonable steps to safeguard his vehicle from loss or damage. Here OP has completely failed to explain the acts of complainant amounting to negligent behaviour for not safeguarding the vehicle. In this regard, we are of the considered opinion that a common person never wants that his vehicle should occur damages or be stolen. This plea taken by the OP seems to be a concocted one and has been cooked up only in order to deprive the complainant from his genuine claim. Hence, this plea taken by the OP, has also no force.

13.           Keeping in view, the ratio of the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which  otherwise proved genuine one.   

14.           On the other hand, complainant in order to prove his case placed on record copy of report of 173 Cr.P.C. Ex.C2, in which the Investigating Officer specifically mentioned that the vehicle in question was standing in the Police Station Jhakhal, District Fatehbad, in damaged condition. Meaning thereby, the vehicle in question, when recovered was in damaged condition. Further, with regard to repairing of vehicle and spending of Rs.2,81,450/- complainant has placed on record bill EX.C5, which has not been rebutted by the OP by leading evidence. Hence, the complainant is entitled for an amount of Rs.2,81,450/- alongwith compensation amount, litigation expenses and interest.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.2,81,450/- to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:01.03.2021

 

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)              (Dr. Rekha Chaudhary)

                     Member                           Member