Haryana

Ambala

CC/62/2023

Monti Kumar - Complainant(s)

Versus

Future Generali India Insurance Co. Ltd. - Opp.Party(s)

Vivek Vaid

12 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	62 of 2023
Date of Institution	:	14.02.2023
Date of decision	:	12.09.2024

 

Monti Kumar son of Shri Pawan Kumar, resident of V.P.O. Khudda Kalan, Tehsil Ambala Cantt, Distt.Ambala

          ……. Complainant

                                                Versus

1. Future Generali India Insurance Co. Ltd. 2nd Floor, SCO 4/5, Sector-8C, Madhya Marg, Chandigarh, through its Manager.
2. Future Generali India Insurance Co. Ltd. 303/310, 3rd Floor, Kailash Building, 26 K.G. Marg, Connaught Place, New Delhi, through its Manager.

                                                                                                                                                             ….….Opposite parties

Before:         Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Vivek Vaid, Advocate, counsel for the complainant.

                     Shri Rajeev Sachdeva, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the claim amount of Rs.1.90 lacs alongwith interest.
2. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.  
3. To pay Rs.21,000/- as litigation costs.  
4. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that  the complainant is registered owner of BOLERO, bearing Regn. No.HR-37C-7526, having Engine No.L54749, Chassis No.M63464, which was insured with the OPs for period from 29.02.2020 to 18.12.2020 vide policy No.V6809000-E001. In the night of 03.12.2020, the above said BOLERO which was purchased by the complainant in year 2020 was parked outside his house. The said vehicle was duly locked and the complainant took all necessary precaution of parking the said vehicle. In the morning of 04.12.2020 at about 6.30 A.M. he was shocked that the vehicle in question was missing. The complainant reported the matter to the police of P.S. Mahesh Nagar about the missing of his vehicle and the police registered an FIR No. 0509 dated 04.12.2020, u/s 379 IPC in police of P.S. Mahesh Nagar. The OPs were also informed about the said theft.  The complainant as per the directions of the OPs completed all the formalities and submitted the claim of vehicle along with all required documents at Delhi Office. But till today, neither the claim of the complainant has been passed nor any intimation has been received by the complainant for the delay in passing the claim of complainant, whereas, one and half year has been passed from the date of occurrence. At the time of issuing the insurance policy (package policy) the value of the vehicle of complainant was assessed to the tune of Rs. 1,90,000/- as such as per the terms and conditions of the insurance policy, the complainant is entitled to get the assured amount i.e. Rs. 1,90,000/- from the OPs. The complainant also served the OPs with a legal notice (registered A.D.) dated 05.12.2022 through his counsel for doing the needful but to no avail.  Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version raising preliminary objections to the effect that at the time of issuance of any policy, the policy holder after reading the terms of the policy signs the proposal form and therefore the Policy Holder is bound by the Terms and Conditions of the Policy; the present complaint is not maintainable as the complainant has not approached this Commission with clean hands and has deliberately suppressed / concealed material facts; this  Commission has no Jurisdiction to entertain the present complaint etc.  On merits, it has been stated that an “Motor Secure Insurance Policy” bearing No.V6809000, to the complainant.  The complainant intimated about the theft of vehicle to the OPs on 14.12.2020, yet, in the Claim Form the complainant stated that the vehicle of the complainant got stolen from the front of his house on 04.12.2020 meaning thereby that there is delay of 10 days, as a result of which, the OPs did not get a legitimate opportunity to investigate the incident and resultantly reduced the chances of recovery of vehicle. The above mentioned delay in intimation of the incident is violation of the Condition No. 1 of the Policy. The OPs, upon intimation of the claim, duly deputed the investigation agency to investigate the claim of the Complainant and to initiate the recovery. After initiating the investigation of the claim and in order to process further, the OPs and the investigator required few documents and asked the same from the complainant through letter and emails dated 13.04.2021, 05.05.2021, 04.06.2021, and 18.06.2021 but the complainant failed to respond emails and letters and did not submit the following documents:-

(i) Purchase invoice, if not insured statement regarding the same;

(ii) Service record, if not insured statement regarding the same;

(iii) RTO transferred forms 28, 29, 30 (two copy each) sign by Insured;

(iv) Indemnity bond on Rs.200/- duly notarized non judicial stamp paper;

5. Letter of subrogation on rs.100 duly notarized non judicial stamp paper
6. consent letter on Rs.100 duly notarized non judicial stamp paper
7. original final and court untraced report of the vehicle with hologram mark of MM

(viii) KYC form and AML documents.

The complainant failed to supply the said documents.The company had also sent reminder cum closure letter dated 18.10.2021 wherein it requested the complainant to provide requisite documents and it was also mentioned in the letter that if the complainant failed to response, Company will close the claim as "No Claim". After sending several reminders to the complainant for submission of documents and getting no response from the complainant, the OPs closed the Complainant's claim vide its letter dated 28.10.2021 for want of documents and for inordinate delay in claim intimation. The company has also received legal notice for the claim amount which was duly replied by the Company, wherein it informed to the complainant that since the complainant failed to submit the requisite documents, claim was closed by Company. The insurance being a contract between the Policyholder and the Company, both parties are governed by the terms and conditions mentioned in the policy documents and all the benefits are payable as per the terms and conditions of the policy. In view of the same, the OPs are not liable to make any payment to the complainant. The OPs have duly followed the terms and conditions of the policy and registered the claim but due to the negligence and non-cooperation of the complainant, the claim has been marked closed. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with heavy costs.

4.            Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-10 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavit of Mohini Suryawanshi, D/o Shri Dattu Suryawanshi, Authorized Representative of the OPs-Future Generali India Insurance Co. Ltd., having registered office at 801 and 802, 8^th Floor, Tower C, Embassy 24*7 Park, L.B.S Marg, Vikhroli-West Mumbai, Maharashtra-400083 as Annexure RX alongwith documents as Annexures OPs/1 to OPs/6 and closed evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have carefully gone through the case file and also written arguments filed by the learned counsel for the OPs.
6.           Learned counsel for the complainant submitted that by not paying the claim amount in respect of the vehicle in question despite the fact that theft of the said vehicle took place during currency of the insurance policy in question, the OPs are deficient in providing service and indulged into unfair trade practice. In support of his contention, the learned counsel for the complainant has placed reliance on Gurshinder Singh v. Shriram General Insurance Co. Ltd., [(2020) 11 SCC 612],  decided by the Hon’ble Supreme Court of India, New Delhi.
7.           On the other hand, learned counsel for the OPs submitted that since there was a violation of fundamental terms and conditions of the policy in question on the part of the complainant in intimating the insurance company about theft, after delay of 10 days and also he failed to provide necessary documents, therefore, the claim in question was rightly closed by the OPs. 
8.           Following facts are not in dispute:-
   1. Issuance of insurance policy in  question in respect of the vehicle in question owned by complainant, which was valid for the period from 29.02.2020 to 18.12.2020.
   2. Theft of the vehicle took place on 04.12.2020 i.e. during currency of the policy in question;
   3. FIR qua theft of the vehicle in question was lodged on the very same day i.e. on 04.12.2020.
   4. Intimation qua theft of the vehicle was given to the insurance company after 10 days;
   5. Closure of claim of the complainant by the OPs as intimated vide letter dated 28.12.2022, Annexure C-10, on the ground that there is delay of 10 days in intimation to insurance company and also non supply of various documents.

 

9.           Thus, now the moot question which falls for consideration is, as to whether, the complainant  is entitled to get any relief in the matter or not.  First coming to the objection taken by the OPs qua delay of 10 days in intimating the insurance company regarding theft of the vehicle in question. In the present case, the vehicle in question got stolen on 04.12.2020. It is evident from the copy of FIR, Annexure C-2, that the information qua the theft of the vehicle in question was given to the police station Ambala, on the very same day i.e. 04.12.2020 itself.  In the case of Gurshinder Singh v. Shriram General Insurance Co. Ltd., (Supra), the Hon’ble Supreme Court of India, has held that:-  

“……12. It is argued on behalf of the respondents and rightly so, that the insurance policy is a contract between the insurer and the insured and the parties would be strictly bound by the terms and conditions as provided in the contract between the parties.

13. In our view, applying the aforesaid principles, Condition No. 1 of the Standard Form for Commercial Vehicles Package Policy will have to be divided into two parts. The perusal of the first part of Condition No. 1 would reveal, that it provides that ‘a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage’. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he 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 policy.

14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle.

15. We find, that the second part of Condition No. 1 deals with the ‘theft or criminal act other than the accident’. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co­operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.

16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen.

17. That the term ‘co­operate’ as used under the contract needs to be assessed in facts and circumstances. While assessing the ‘duty to co­operate’ for the insured, inter alia the Court should have regards to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of ‘duty to co­operate’ of the insured.

18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.

19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

20. We, therefore, hold 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….”

10.           Since, the information qua the theft of the vehicle was given to the police station on the same very day, when the vehicle in question was stolen, therefore, in view of the law laid down by the Hon’ble Supreme Court of India, in the above referred case, the OPs cannot be said to be right in not paying the claim to the complainant on the ground of delay in intimation of the claim.
11.           Now coming to the non-supply of documents, referred in letter dated 28.12.2022, Annexure C-10. It may be stated here that  definitely, the policy would not have been issued in the absence of documents like Purchase invoice; Service record; RTO transferred forms no.28,29,30; KYC and AML documents and the OPs have failed to convince this Commission, as to why these documents are required for settling the claim of the complainant. With regard to non-supply of Final Untrace Report, it may be stated here that this report could have been easily obtained by the OPs from the police station concerned directly. Moreover, the complainant has placed on record, the copy of the untrace report dated 12.08.2021, Annexure C-4, issued by the learned JMIC, Ambala. Thus, in our considered view, closing the claim of the complainant for want of these documents cannot be held to be legal.  

With regard to submission of indemnity bond; letter of subrogation and consent letter by the complainant, the learned counsel for the complainant has submitted that the complainant will provide these documents, when the same were sought for by the OPs from him.

12. .               For the reasons recorded above, this complaint stands disposed of, with the direction to the OPs to settle the claim of the complainant within a period of 2 months, after receiving the indemnity bond; letter of subrogation and consent letter from the complainant. However, in case, still after receipt of these documents, the OPs failed to settle the claim of the complainant, within the stipulated period, they shall be liable to pay penalty @Rs.50/- per day till settlement of the said claim to the complainant. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.     

    Announced:- 12.09.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President