Punjab

Faridkot

CC/19/139

Jinder Kumar - Complainant(s)

Versus

Farid Service Station - Opp.Party(s)

Vipan Kumar Tayal

17 Feb 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :         139 of 2019

Date of Institution:     28.05.2019

Date of Decision :      17.02.2020

 

Jinder Kumar aged about 48 years s/o Ghisa Ram, now r/o Near Railway Station, Faridkot, Tehsil and District Faridkot.                                                                        

...Complainant

Versus

1. Farid Service Station situated at Ferozepur Road, Opposite New Sabji Mandi, Faridkot through its Manager/Authorized Signatory.
2. Tata AIG General Insurance Company Limited, I/F Dashmesh Complex, SCO-668, Pakhoval Road, Ludhiana 141001 through its Manager/Authorized Signatory.

.......OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

Present: Sh Vipan Tayal, Ld Counsel for complainant,

             Sh Chamkaur Singh on behalf of OP-1,

             Sh Neeraj Maheshwary, Ld Counsel for OP-2.

ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs

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seeking directions to them to make payment of genuine insurance claim for his stolen motorcycle and for further directing them to pay Rs.70,000/-as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.20,000/-to complainant.

2                                              Briefly stated, the case of the complainant is that Hero Moto Corp Splender PRC New C Motorcycle of complainant bearing Registration No PB 35-U-8238 was fully insured with OP-1 vide Insurance Policy bearing no. 0182114886/000001/00 valid for the period from 16.11.2017 to 15.11.2018 against all kinds of risks including theft and amount of Rs.1,276/-was received by Ops in this regard. It is submitted that on 30.01.2018, complainant parked his vehicle near the gate of rest house at Faridkot and when he came back after few minutes, he saw that his vehicle was not there. He tried to search his vehicle but could not find the same. He immediately reported the matter to Police and Police registered FIR No.37 to this effect on 24.02.2018 under section 379 IPC and after that complainant gave intimation regarding this theft incident to OP-1 and thereafter, with the help of OP-1, he registered a claim no.0820828825A on the customer care number of OP-2 and then, employee of OP-2 assured to settle the claim within few days. on 28.08.2018, complainant made called on toll free number of OP-2 and asked about his claim, where he was given mobile number of Ms Sonia Thakur who told him that his claim is lodged and would be processed soon and then OPs appointed Surveyor to verify the loss by theft.

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Complainant furnished all documents as required by Surveyor for processing the claim and said surveyor assured to credit the claim amount within 15 days, but complainant received a letter dated 22.02.2019, vide which Ops sought documents, which complainant provided them again and requested them to process the claim. Complainant requested OPs to pass his genuine claim on account of theft of his motorcycle, but despite repeated requests, Insurance Company has not passed his genuine claim, which amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to him. He has prayed for directions to OPs to pay compensation and litigation expenses besides the main relief. Hence, the  present complaint.

3                                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 03.06.2019, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                        On receipt of the notice, OP-1 filed written statement wherein admitted that OP-1 made the policy of vehicle of complainant on behalf of Op-2. It is also admitted that on receipt of information regarding theft of vehicle from complainant, he immediately took action and helped him in lodging complaint with OP-1 and he did his part of duty of making available the claim number to complainant. OP-1 has completed all formalities on its part and now, it is between complainant and insurance company as claim is to be settled by only

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Insurance Company and answering OP has no role to play in making payment of insurance claim sought by complainant. It is further averred that there is no deficiency in service on the part of OP-1 and prayer for dismissal of complaint alongwith costs is made.

5                                              OP-2 also filed written statement wherein they have denied all the allegations of complainant being wrong and incorrect and took preliminary objections that no cause of action arises against answering OP and there is no deficiency in service on their part. It is averred that he has filed the present complaint only to defame the goodwill of answering OP and it is a false, frivolous and vexatious complaint. Complainant has concealed the material facts from this Forum that he did not submit the claim documents and he gave delayed information to Police as well as OPs, which is a violation of terms and conditions of the Insurance Policy in question. It is admitted that vehicle of complainant was insured with Ops and it is also admitted that theft of said vehicle occurred during the subsistence of present insurance policy, but averred that insurance is subject to terms and conditions of the policy. Further averred that alleged theft occurred on 30.01.2018, but he gave intimation regarding this incident to OPs on 6.06.2018 after long delay of 127 days and even FIR to this effect was also registered on 24.02.2018 after long gap of 25 days. Delay caused by complainant in reporting the matter proved fatal for investigation as insured vehicle might have travelled long distance or might have been sold to a scrap dealer during

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the delayed period. Complainant has committed breach of general condition number 01 and 08 of this Insurance Policy vide which information regarding occurrence of theft was required to be given immediately and terms and conditions were required to be duly complied with by complainant. moreover, vide letter dated 4.03.2019 complainant was asked to provide Original Final Un trace Report under section 173 Cr.P.C, letter to RTO and RC particular and 100 number call detail/DD Entry Report as FIR is lodged after 25 days, but complainant failed to reply the said letter and also did not provide requisite documents. Then, vide letter dated 11.03.2019, OP-2 again requested him to furnish requisite documents within seven days for processing the claim, but complainant failed to do so and then claim of complainant was closed due to non submission of requisite documents and for breach of condition number 1 and 8 of the insurance policy. On merits also, OP-2 has denied all the allegations of complainant being wrong and incorrect and reiterated the same pleadings as taken in preliminary objections. It is reiterated that there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

6                                              Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant Ex C-1 and documents Ex C-2 to C-8 and then, closed the same on behalf of complainant.

 

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7                                              In order to rebut the evidence of the complainant, the ld Counsel for OP-2 tendered in evidence affidavit of Amit Chawla Ex OP-2/1 and documents Ex OP-2/2 to Ex OP-2/6 and then, closed the evidence. Representative appearing on behalf of OP-1 suffered statement before the Forum that his reply earlier filed by him be read as evidence.

8                                              We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the record.

9                                               From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that insured motorcycle of complainant was stolen by someone during the validity of insurance period and as per rules he gave due intimation regarding this incident to OPs as well as Police, who registered FIR no. 0037 to this effect on 24.02.2018 Ex C-3, but OPs have not made a single penny on account of insurance claim. Action of OPs in not making payment of genuine insurance claim on account of theft of his vehicle, amounts to deficiency in service. In reply, OP-1 admitted that it insured the vehicle of complainant on behalf of Op-2 and on receipt of information regarding theft of vehicle from complainant, he helped him in lodging complaint with OP-2. OP-1 completed all formalities on its part. There is no deficiency in service on the part of OP-1 as insurance claim is

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to be settled by Insurance Company and OP-1 has no role to play in making payment of insurance claim sought by complainant. On the other hand plea taken by OP-2 is that complainant did not give intimation regarding said theft to them in time. OP-2 alleged that said alleged theft occurred on 30.01.2018, but he lodged FIR after delay of 25 days on 24.02.2018 and moreover, complainant gave information regarding theft of his vehicle to them after 127 days of occurrence i.e on 6.06.2018. Delay is fatal for investigation as insured vehicle might have travelled long distance sold to a scrap dealer during the delayed period. He has committed breach of general conditions of Insurance Policy. Vide letter dated 4.03.2019 complainant was asked to provide Original Final Un trace Report under section 173 Cr.P.C, letter to RTO and RC particular and 100 number call detail/DD Entry Report as FIR is lodged after 25 days, but complainant failed to furnish requisite documents. Again vide letter dated 11.03.2019, he was requested him to furnish requisite documents within seven days, but complainant failed to provide the same. Therefore, claim of complainant was closed due to non submission of requisite documents. OP-2 stressed that there is no deficiency in service on their part and prayed for dismissal of complaint.

10                                            The main objection raised by OP-2 is that the alleged theft occurred on 30.01.2018, but the complainant did not report the matter with the Police or OPs immediately, rather he first time intimated the Police on 24.02.2018 after a lapse of 25 days, which is a

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violation of terms and conditions of the Insurance Policy. On it, the ld counsel for complainant argued that complainant immediately informed regarding the incident of snatching of his motorcycle to Police and OPs on immediately and there is no reason for complainant to cause delay in giving information regarding theft of his motorcycle to Police. Complainant is not guilty of any breach of terms and conditions of insurance policy in question and there is no fault on his part as he immediately reported the matter to Police, but Police registered the FIR on 24.02.2018 and if Police has registered FIR after 25 days, then, there is no fault on his part as he cannot interfere in Police proceedings. To prove his case, complainant placed on record copy of FIR No.37 dated 24.02.2018, which proves the pleadings of complainant as it is clearly mentioned in it that complainant reported the matter regarding theft of his motorcycle to Police immediately. From bare perusal of column no. 3 (c) General Diary Reference No.28 of FIR clears all the doubts that complainant informed regarding said incident to Police immediately as DDR No. Of report in respect of said theft incident is 028 and FIR No. is 037. Ex C-2 is copy of Policy Detail that further proves the pleadings of complainant that his vehicle was duly insured with them against all kinds of risks including theft. Ld counsel for complainant argued that only duty of complainant is to inform the Police regarding incident and it is on the Police to register the FIR of complainant and complainant has no control on it whether Police registered the FIR on same day or after investigation.

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He has put reliance on citation 2008 (3) CPJ titled as Ridhi Gupta Vs National Insurance Company Ltd wherein State Consumer Disputes Redressal Commission, Delhi has held that in our view FIR is not a requirement for adjudicating the insurance claim. Whenever vehicle or any cash or goods are stolen, insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police only is concerned whether the theft has taken place or not. Once the report is lodged with the Police may in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint Surveyor for the purpose of assessing the loss. If the Police find that a person has lodged a false report, he can be prosecuted for offence punishable under Section 182 IPC but in any way the Insurance Company cannot indulge in such exercise and enter into such and arena that does not belong to it. The similar view is taken by Hon’ble State Commission, Haryana in 1^st Appeal No. 754/2010 decided on 18.10.2012 titled as Branch Manager United India Insurance Company Ltd Vs Smt Sandhya Rani.

11                                         It is observed that complainant immediately gave information to Police as well as Ops and submitted all the documents for processing the claim to them. Ops are now, intentionally denying this fact only to avoid the liability of indemnifying the complainant regarding

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his stolen motorcycle. Moreover, plea taken by OPs that complainant did not inform OPs immediately and deprived them of gathering first hand information has no legs to stand upon as if the complainant can immediately report the matter to Police, then, there is no reason for him to not to inform Ops regarding the incident and to claim his genuine insurance claim. Now, the OPs are intentionally trying to delay the insurance claim regarding theft of his vehicle. He further argued that if in any case, it is presumed that complainant did not inform Ops regarding incident on time, then in that case also, the OPs cannot deny payment of insurance claim to complainant. On this, he put reliance on citation 2016(1) CLT 539 titled as Baja Allianz General Insurance Company Ltd Vs Abdul Sattar and anr wherein our Hon’ble National Commission has observed that in order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition no.1 of insurance policy, which is reproduced as under”1. 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. Every letter claim writ summons and process or copy thereof shall be forwarded to Company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this

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policy. 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 policy and co-operate with the Company in securing the conviction of the offender”. On reading the above, it is clear that in the event of theft of the vehicle, only requirement on the part of insured was to intimate the policy immediately and co-operate in securing the conviction of offender. He submitted that as per the observation of Hon’ble National Commission in case of theft, the only requirement on the part of complainant was to intimate the Police immediately and to cooperate with Police in securing the conviction of the offender and complainant duly complied with this condition and immediately reported the matter with Police. Therefore, Insurance Company cannot repudiate the claim of complainant. Reasons forwarded by Ops for not allowing the claim of complainant are not plausible and their action in denying payment of claim on baseless grounds is not appropriate and genuine, which amounts to deficiency in service on their part.

12                                            From the above discussion and case law produced by the complainant, we are of considered opinion that complainant immediately reported the matter with Police and lodged FIR with Police and also intimated Ops. Ops cannot deny the payment of insurance claim of vehicle of complainant on the ground that there is violation of the terms and conditions of the policy. Act of Ops in denying the payment of claim amounts to deficiency in service and trade mal

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practice on their part. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed against OP-2. OP-2 is directed to pay Rs.28,682/-i.e insured value of lost vehicle subject to transfer of Registration Certificate of the vehicle in question in the name of OP-2 and also to execute other required documents for payment of claim by complainant in favour of OP-2 within 30 days from the date of receipt of these documents in their favour, failing which OP-2 shall be liable to pay interest at the rate of 9% per anum from the date of filing the complaint till final realization. OP-2 is further directed to pay Rs.5,000/- to complainant as consolidated compensation for harassment suffered and litigation expenses incurred by him. Compliance of this order be made within one month of receipt of the copy of the order failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Complaint against OP-1 stands hereby dismissed as it has no role in making payment of insurance claim to complainant. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 17.02.2020       

(Param Pal Kaur)           (Ajit Aggarwal)

                                      Member                         President