Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 184.
Instituted on : 12.07.2013.
Decided on : 07.02.2017.
Sher Singh son of Tek Ram, resident of village Bhawar, Tehsil and Distt. Sonepat, at present C/o Surender, H. No. 1089, Sector 3, Rohtak.
………..Complainant.
Vs.
- Cholamandlam MS General Insurance Co. Ltd. Ist Floor, Indus Bank, Minni Appu Ghar, Rohtak, through its Manager.
- Cholamandlam MS General Insurance Co. Ltd. Hari Niwas Towers, Ist Floor, 163, Thambu Chetty Street, Parry Scorner, Chennai 6000001, through its Manager.
- Cholamandlam MS General Insurance Co. Ltd. First Floor plot No. 6, Pusa Road, Metro Piller No. 81 Karolbagh (New Delhi) through its Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VEDPAL, MEMBER.
Present: Sh. D.S. Attri, Counsel for the complainant.
Sh.Gulshan Chawla, Counsel for the opposite party no.2 & 3.
OP No. 1 given up VOD 16-12-2015.
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 Mahindra Bollero bearing registration no.HR-11D-2144 which was insured with the opposite parties for the period from 11-08-2012 to 10-08-2013 and as per the insurance documents, the insured value of the vehicle was Rs. 4,50,000/-. It is averred that the vehicle was got stolen on 11-08-2012 and complainant intimated to the concerned police station Sunglight Colony, South East District, New Delhi and registered FIR No. 317 dated 12-08-2012 under Section 379 IPC. The complainant made best effort to trace out the vehicle but could not be traced out. Complainant intimated the respondents about the theft of said vehicle and lodged his claim for the said vehicle and submitted all the required documents and completed all formalities for getting the insured amount under the Policy No. 3362/00763578/000/00 and official of the respondents acknowledged the same and treated the claim of the complainant vide No. 3362181398 and assured complainant that the claim amount will be disbursed within short period. The untraced report of the said vehicle also issued by the Metropolitan Magistrate, South East, Saket Court, New Delhi regarding said vehicle and complainant submitted the same to the respondents. It is averred that the complainant suffered a huge mental shock and agony as a letter dated 22-02-2013 was received vide which the respondents shown their inability to pass the claim of the complainant. It is further averred that the complainant intimated the respondents immediately when the police showed their inability to trace out the vehicle in question, hence, there is no delay on the part of the complainant. It is averred that the claim was not settled by the opposite party despite his repeated 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 a sum of Rs.4,50,000/- alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, the opposite party no.2 and 3 appeared and filed written reply submitting therein that the vehicle was stolen on 11-08-2012, whereas the complainant has intimated the answering respondents on 18-09-2012 i.e. after delay of 38 days. It is averred that as per terms and conditions of the policy, the complainant should have informed with a day of two, so that the respondents can verify, as to whether any theft has taken place and also to take the immediate step to get the vehicle traced. It is further averred that by making a delay of intimation of 38 days in intimating answering respondent, the complainant had violated the terms and conditions of the policy. It is further submitted that as per admitted case of the complainant, the vehicle was stolen on 11-08-2012 and it is also admitted that the vehicle in question being insured from answering respondents for the period 11-08-2012 to 10-08-2013. It is averred that no act and conduct on the part of answering respondents amount to deficiency in service or has harassed the complainant in any manner. No act of the answering respondents is illegal and arbitrary and has not put the complainant under mental, agony and harassment or amounts to any deficiency in service on the part of the respondents. It is averred that the cover note in question bearing No. 9221176, placed on record filed by the complainant has been issued at Panipat and the policy in question has been issued from the office of the answering respondent at karnal. Furthermore, the factum regarding the theft of the vehicle has taken place within the territorial jurisdiction at New Delhi, thus, no cause of action has been rising within the territorial jurisdiction of Hon’ble Forum. As such there is no deficiency in service on the part of respondents and dismissal of complaint has been sought.
4. Both the parties led evidence in support of their case.
5. Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A, Ex.CW1/B, documents Ex.C1 to Ex.C11 and has closed his evidence. On the other hand, ld. Counsel for the opposite parties No. 2 and 3 in his evidence tendered affidavit Ex.RW1/A, Ex.RW2/A and documents Ex.R1 to Ex.R7 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 insurance and theft of the vehicle is not disputed. As per policy Ex.C2, the vehicle of the complainant was insured with the opposite parties and the same was stolen on 11.08.2012. As per copy of FIR Ex.C6, the theft had taken place on 11.08.2012 and the FIR was got lodged without any delay. The contention of ld. Counsel for the complainant is that the complainant informed the police immediately who lodged the FIR and when the vehicle could not be traced out then he filed the untraced report. As per letter Ex. C3, the respondents refused to pass the claim by stating that on independent investigation it was found that the cover note of other insurance company shown at the time of availing the insurance cover from our company is found to be fake and delay in intimation. As per Ex. C9, registered notice was served to the respondent No. 1. Document Ex. C10 is the untraced report. As per documents Ex. C11 and affidavit Ex.CW1/B, the respondent Cholamandlam M.S. GIC, is having its office at Rohtak. On the other hand ld. counsel for the OP No. 2 and 3 has filed document Ex. R1 i.e. copy of insurance policy issued at branch office Karnal. Document Ex.R2 is the copy of name and addresses of branch office of the respondent company. Document Ex.R3 is the copy of e-mail, communication between the branch offices of company regarding the one digit missing in cover note number. As per affidavit Ex. RW2/A, it is observed that the deponent was appointed by respondent MS General Insurance Company for verification of covernote, on which he submitted his report dated 19-12-2012 vide office reference No. RS-187A-2012 as per which cover note of Royal Sundaram Alliance Insurance Co. was stolen one and they reported matter to PS Solan Sadar. Ex. R4 is the verification of cover note.
8. After going through the file and hearing the parties it is observed that claim of the complainant has been repudiated by the opposite parties on the ground that this Forum has no jurisdiction to entertain the case as the covernote was issued at Karnal and the theft had taken place at New Delhi. The other plea taken by the opposite party is that there is delay of 38 days in giving intimation to the company and that the cover note of the other insurance company, shown at the time of availing of the insurance cover from answering opposite party was found to be fake. Regarding the territorial jurisdiction of this Forum, it is observed that the office of opposite party no.1 is at Rohtak and a legal notice Ex.C1 was sent by counsel for the complainant to the opposite party No.1 and the same was duly received by the opposite party no.1 as is proved from the copy of Acknowledgment Ex.C9. Hence it is proved that office of opposite party is at Rohtak. Hence this Forum has territorial jurisdiction to entertain the case under section 11(2)(a) of C.P.Act. In this regard we have placed reliance upon the law cited in 2012(2)CLT 332 titled as Lovely Autos Vs. Mrs. Renu Vashisth and Anr. whereby Hon’ble Punjab State Commission, Chandigarh has held that: “Territorial jurisdiction-Plea that the car was purchased from Jalandhar, the fire incident had taken place at Ludhiana while the respondent is residing in Chandigarh hence the District Forum SBS Nagar(Nawanshahr) did not have the territorial jurisdiction to decide the complaint repelled-One of the appellants, appellant no.2 was residing in SBS Nagar(Nawashahar)-U/s 11(2)(a) of the CP Act, the District Forum, SBS Nagar(Nawanshahr) had the territorial jurisdiction to decide the complaint”. Regarding the delayed intimation to the opposite party, it is observed that the theft had taken place in the intervening night of 11/12.08.2012 and the FIR was lodged on 12.08.2012 i.e. without any delay. In this regard we have placed reliance upon the law cited in III(2008) CPJ 459 titled Ridhi Gupta vs. NIC whereby Hon’ble Delhi State Commission, New Delhi has held that: “Insurance-Theft-Information to police in any form, including DD report, sufficient requirement-Once report lodged with police in any form, Insurance Company barred from appointing investigator to investigate, whether theft took place or not”, 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”. Regarding the plea taken by the opposite party that the cover note produced by the complainant at the time of availing insurance cover was found to be fake, it is observed that there is no such credible evidence to prove the fact as the opposite party has only placed on record copy of correspondence Ex.R3 and report of investigator Ex.R4. But as per this report Ex.R4 no cover note number has been mentioned. Ex.R5 i.e. copy of cover note of Royal Sundaram which is not visible. Moreover as per the Motor Tariff Rules, the documents are to be verified within 21 days and if the same are not verified within the prescribed time limit, the defence cannot be taken. In the present case also the cover note was issued on 10.08.2012 and the report of investigator Ex.R4 is dated 19.12.2012. Hence has no credible value. If the cover note issued by the previous insurer was found to be fake then the present policy should have been cancelled by the opposite party but the same has not been done by the opposite party till date and still exists in the name of complainant. Hence the opposite party has failed to prove the fact that the cover note shown by the complainant at the time of issuance of present policy was found to be fake. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of the claim by the opposite parties is illegal and amounts to deficiency in service and opposite parties are liable to pay the claim amount as per IDV of the policy and as per policy schedule Ex.R1, the IDV is Rs.450000/-.
9. In view of the facts and circumstances of the case, it is directed that opposite party no.2 & 3 shall pay the insured declared value of vehicle i.e. Rs.450000/-(Rupees four lac fifty thousand only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 12.07.2013 till its actual realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of completion of formalities 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 party No.2 & 3 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:
07.02.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
