Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 348.
Instituted on : 04.09.2013.
Decided on : 10.08.2015.
Ajit s/o Sh. Surat Singh r/o Village-Gillour Tehsil & District Rohtak.
………..Complainant.
Vs.
- Cholamandalam MS General Insurance Co. Ltd. Rohtak through its Branch Manager.
- Cholamandalam MS General Insurance Co. Ltd. Regd. Head Office “Dare House” 2nd Floor No.2, N.S.C.Bose Road, Chennai through its Director/Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh. Rishi Deswal, Advocate for the complainant.
Sh.Yogesh Sharma, Advocate for the opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is registered owner of vehicle bearing no.HR-12R-6298 and got insured the same with the opposite parties for the period from 28.04.2011 to 27.04.2012 vide cover note no.8320048 for a sum of Rs.490000/-. It is averred that on 26.11.2011 the complainant parked his vehicle in his house and the same was stolen by some unknown culprit. It is averred that the complainant lodged FIR No.440 dated 27.11.2011. The complainant also intimated to the opposite party immediately after the theft of said vehicle. It is averred that complainant after submitting all the relevant documents, requested the opposite parties to disburse the claim in his favour but any heed was not paid to his genuine requests. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to pay Rs.490000/- alongwith interest, compensation and litigation expenses.
2. On notice, the opposite parties appeared and filed their separate written reply. Opposite party no. 1 in its reply has submitted that no intimation regarding the alleged loss has ever being made to the answering opposite party. That the present complaint is premature in nature as no intimation/no claim has been lodged with the answering opposite party. All the other contents of the complaint were stated to be wrong and denied and dismissal of complaint has been sought.
3. Opposite partyno.2 in its reply has submitted that the complaint is liable to be dismissed on the ground that complainant failed to provide the necessary intimation and so the present complaint is premature and no claim has been lodged regarding the alleged theft with the answering opposite party. The complainant is not entitled to get any claim from the answering opposite party and dismissal of complaint has been sought.
4. Both the parties led evidence in support of their case.
5. Complainant in his evidence tendered affidavit Ex.C1, documents Ex.C2 to Ex.C10 and has closed his evidence. On the other hand, ld. Counsel for the opposite parties tendered documents Ex.R1 and has closed his evidence.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case it is not disputed that as per cover note Ex.C3, the vehicle of the complainant was insured with the opposite party and IDV of the vehicle is Rs.465500/-. It is also not disputed that as per FIR the alleged vehicle had been stolen on 26.11.11 and the FIR was lodged on 27.11.2011. The untrace report has also been placed on record as Ex.C5. After the theft the complainant lodged the claim with the opposite party but the same was not settled and the complainant sent a legal notice Ex.C2 vide registered receipt Ex.C8 but the same was also not replied.
8. After going through the file and hearing the parties it is observed that the complaint of the complainant has not been settled on the ground that the complainant has not given any intimation about the alleged loss to the opposite party. In this regard it is observed that the legal notice was served upon by the complainant to the opposite party but the same was not replied and all the documents have also been placed on file by the complainant but since the filing of the complaint w.e.f. 04.09.2013, the opposite party has not settled the claim till today. In this regard reliance has been placed upon the law cited in 2013(3) CLT 541 titled as M/s Poongodhai Textiles(P) Ltd. Vs. UIIC whereby Hon’ble Tamilnadu State Commission, Chennai has held that: “The opposite party though was in possession of all the materials, failed to reply to the claim petition and legal notice of the complainant-only when the complaint was filed before Commission, chosen to reply-This itself will constitute deficiency in service and negligence”, as per 2014(1)CLT 567 titled Upper India Carriers Vs. M/s New India Assurance Co. Ltd. & Ors. Hon’ble Chandigarh State Commission, Chandigarh has held that: “Despite submission of report by the Surveyor, the opposite parties have not taken decision for 1½ years, which by no stretch of imagination, can be said to be justified and the complaint, on this ground, cannot be said to be premature”.. Moreover Hon’ble National Commission in 2014(2)CLT 604 titled Shriram General Insurance Company Limitted & Others Vs. Joginder Singh has held that:-Insurance Claim-Vehicle theft-FIR lodged and untraced report filed by police-Held-FIR is the best place of evidence to prove the theft of complainant’s vehicle-On the other hand, the Insurance Company has failed to produce any evidence worth the name that the vehicle in question was not stolen-Insurance company cannot wriggle out from the responsibility to pay the loss of the complainant on flimsy grounds” and as per 2014(2)CLT 390 titled Shriram General Insurance Company Ltd. Vs. Rajesh Kumar Hon’ble Haryana State Commission, Panchkula has held that: “Delay of 12 days in intimation to insurance company-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”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that opposite parties are liable to pay the IDV of the vehicle. It is also on record that the vehicle in question was insured with Mahindra & Mahindra Financial Services and as per documents Ex.C9 and Ex.C10, the matter was settled between the parties and the Mahindra & Mahindra Financial Services has received the payment towards the vehicle. Hence the opposite parties are liable to pay the claim amount to the complainant.
9. In view of the facts and circumstances of the case, it is directed that opposite parties shall pay the amount of Rs.465500/-(Rupees four lac sixty five thousand five hundred only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 04.09.2013 till its actual realization and shall also pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant within one month from the date of completion of formalities by the complainant e.g. Form No.26, 28, 29, 30, 35, Original R.C., Subrogation letter, Indemnity Bond and Affidavit of transferee etc. to the opposite parties failing which the opposite parties shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
10. Copy of this order be supplied to both the parties free of costs.
11. File be consigned to the record room after due compliance.
Announced in open court:
10.08.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
