Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 256.
Instituted on : 06.08.2013.
Decided on : 20.05.2016.
M/s Kundu Construction Co. Sector-14, Rohtak through Sh. Surender Kumar s/o Sh. Dalip Singh R/o H.No.295 Housing Board Colony, Jind as Power of Attorney holder.
………..Complainant.
Vs.
Future Generali India Insurance Company Ltd. Shahnai Banquet Hall, Civil Road, Rohtak(Through its Manager/Incharge).
……….Opposite party.
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.Ashok Sehgal, Advocate for the complainant.
Sh.N.K.Singhal, Advocate for the opposite party.
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 Tata Dumper No.HR-46C-0714 and the said vehicle was insured with the opposite party for the period 11.06.2011 to 10.06.2012 for IDV of Rs.1300000/-. It is averred that unfortunately the theft of vehicle had held on 16.06.2011 and the matter was reported to the police and FIR No.208/11 was registered against unknown person and immediately after the theft opposite party was also informed by the complainant. It is averred that untraceable report of the above said vehicle was issued by the SP Office Rohtak and after receiving the untraceable report complainant informed the opposite party, completed all the required formalities and requested to pay the amount of claim but the opposite party has been avoiding the same on one pretext or the other. It is averred that finally on 10.12.2012 the opposite party refused to pay the amount of claim to the complainant. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that opposite party may kindly be directed to make the payment of Rs.1300000/- alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, the opposite party appeared and filed its written reply submitting therein that no such alleged theft had taken place. It is averred that the complainant has neither lodged any claim nor given any intimation of the alleged theft to the answering opposite party and the question of completion of formalities does not arise. It is averred that as the complainant has not lodged any claim with the answering opposite party. Hence nothing can be paid to the complainant. It is denied that there was any refusal for payment of claim. All the other contents of the complaint were stated to be wrong and denied. It is prayed that the complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C7 and has closed his evidence. On the other hand, ld. Counsel for the opposite party in his evidence has tendered affidavit Ex.RW1/A and has closed his evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per cover note Ex.C4 the vehicle of the complainant was insured with the opposite party and the IDV of the vehicle is Rs.1300000/-. It is also not disputed that as per FIR Ex.C5 the theft of vehicle had taken place on 16-17.06.2011 and the FIR was lodged on 20.06.2011. As per copy of untrace report Ex.C6 the police has submitted the untraced report on dated 31.10.2011.
7. The contention of ld. counsel for the complainant is that the complainant informed the opposite party immediately after the theft and after receiving the untraced report on dated 01.11.2011 completed all the formalities but the opposite party has not paid the claim amount till date. On the other hand contention of ld. counsel for the opposite party is that complainant was using the vehicle for commercial construction work, there is delay of 4 days in lodging the FIR, complainant has not given intimation to the company and has not lodged any claim. It is further contended that the claim is time barred as the theft had taken place on 16.06.2011 and the present complaint has been filed on 06.08.2013.
8. After going through the file and hearing the parties it is observed that opposite party has not placed on record any document to prove that the vehicle was being used for commercial purpose. Regarding the delayed intimation to the police, it is observed that the theft had taken place in the intervening night of 16/17.06.2011 and the FIR was lodged on 20.06.2011 i.e. after 3 days and as per law cited in 2014(3)CLT447 titled as Shriram General Insurance Company Ltd. Vs. Manoj Hon’ble Haryana State Commission, Panchkula has held that: “Repudiation- On the ground that there was delay of eleven days in lodging the F.I.R. and delay of 33 days in giving intimation to the Insurance Company-Whether violation of terms and conditions of the Insurance Policy?-Held-No-FIR lodged and intimation was also given to the Insurance Company-Thus, it is amply proved that the vehicle was stolen and could not be traced-it was a genuine claim of the complainant-Appeal dismissed”. Regarding the plea taken by the opposite party that the claim is time barred, it is observed that the theft had taken place on 16.06.2011, police submitted the untraced report on 31.10.2011 and the present complaint has been filed on 06.08.2013 i.e. within two years from the date of filing the untraced report by the police. Moreover opposite party has not yet settled the claim of the complainant. It is also on record that as per the statement dated 11.03.2014 ld. counsel for the opposite party has received the document i.e. copy of insurance policy and intimation letter from the counsel for the complainant but till date the claim has not been settled by the opposite party. As such the complaint is not time barred. In this regard reliance has been placed upon the law cited in 1(2007) CPJ 458 titled as Bhagwanti Devi Vs. State of Himachal Pradesh & Anr. whereby Hon’ble Himachal Pradesh State Commission, Shimla has held that: “Mere letter of reminder asking from party, to provide certain documents and on failure to do needful, insurer to treat claim as ‘no cliam’ does not amount to repudiation” and as per 2008(3)CLT 377 titled Dharmendra Goel Vs. Oriental Insurance Co. Ltd., Hon’ble Supreme Court of India has held that: “If a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas that claim was limited by complainant to a lower amount”.
9. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that opposite party is liable to pay the claim as per IDV of the vehicle. As such it is directed that opposite party shall pay the amount of Rs.1300000/-(Rupees thirteen lacs only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 06.08.2013 till its realisation and shall also pay a sum of Rs.3500/-(Rupees three 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 party failing which the opposite party shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is disposed of accordingly.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
20.05.2016..
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
