Haryana

StateCommission

A/193/2017

FUTURE GENERALI INDIA INSURANCE CO. - Complainant(s)

Versus

GOKUL DEVI - Opp.Party(s)

VISHAL AGGARWAL

27 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      193 of 2017

Date of Institution:      22.02.2017

Date of Decision :       27.07.2018

1.     Future Generali India Insurance Company Limited, Office 98-100, Saini Banquet Hall, Opposite Man Sarowar Park, Rohtak, District Rohtak having its registered office at 3^rd Floor, Kailash Building, Kasturba Gandhi Marg, New Delhi-110001 through its Legal Executive Sandeep Kapoor.

2.     Manager/Agent, Future Generali India Insurance Company Limited, Singhana Road, Narnaul, District Mahendergarh having its registered office at 3^rd Floor, Kailash Building, Kasturba Gandhi Marg, New Delhi-110001 through its Legal Executive Sandeep Kapoor.

                                      Appellants-Opposite Parties

Versus

1.      Gokul Devi w/o Sh. Bhagwan Sahai

2.      Amarjeet Jakhar s/o Sh. Bhagwan Sahai Jakhar

3.      Om Parkash Jakhar s/o Sh. Bhagwan Sahai Jakhar

4.      Arvind Jakhar s/o Sh. Bhagwan Sahai Jakhar

5.      Anil Jakhar s/o Sh. Bhagwan Sahai Jakhar

6.      Raju Devi d/o Sh. Bhagwan Sahai Jakhar

7.      Santosh Devi d/o Sh. Bhagwan Sahai Jakhar

8.      Suman Devi d/o Sh. Bhagwan Sahai Jakhar

9.      Ashok Kumar Jakhar s/o Sh. Bhagwan Sahai Jakhar

All Residents of Jakhar Krishi Farm near Baba Brahmanchari Ashram, Khandela Road, Ward No.25, Shrimandhopur, District Sikar, Rajasthan.

                                      Respondents-Complainants

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Vishal Aggarwal, Advocate for appellants.

                             Shri Mukesh Yadav, Advocate for respondents.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated November 25^th, 2016 passed by District Consumer Disputes Redressal Forum, Narnaul (for short ‘the District Forum’).

2.                Bhagwan Sahai (since deceased) registered owner of tractor vehicle bearing registration No.RJ-23-RA-5036, during his life time was provided an insurance policy bearing cover note No.C0783008 by Future Generali India Insurance Company Limited-opposite parties (for short ‘the Insurance Company’) regarding the period from March 05^th, 2011 up to March 04^th, 2012 mentioning the total Insured Declared Value (IDV) of the vehicle as Rs.2,60,000/-.  During the insurance period, the insured vehicle mentioned above was stolen on November 19^th, 2011 from Narnaul and First Information Report (FIR) No.244 dated September 16^th, 2011 was lodged in Police Station Sadar Narnaul on the same date under Section 379 of the Indian Penal Code. The Insurance Company was also informed by the complainant on the same date. Stolen vehicle could not be recovered and untraced report submitted by S.H.O. Police Station Sadar Narnaul was accepted by the learned Ilaqa Magistrate vide order dated November 05^th, 2012. After theft of the vehicle, insurance claim was submitted in the office of the Insurance Company alongwith untraced report and other needed documents. The opposite parties assured the complainants to make payment of the insurance claim amount at the earliest. The opposite parties did not make payment of the amount despite time and again requests in this regard. The market price of the tractor vehicle at that time was Rs.3,00,000/-.  The insurance claim was not paid despite service of legal notice dated April 07^th, 2015. 

3.                Bhagwan Sahai died on January 09^th, 2012 and after his death complainant No.1 - Gokul Devi, his widow and complainants No.2 to 9, sons and daughters of Bhagwan Sahai filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the Insurance Company-opposite parties to make payment of Rs.3,00,000/- on account of total loss caused to the vehicle; to pay an amount of Rs.1,00,000/- on account of unnecessary harassment, mental agony and litigation expenses.

4.                The Insurance Company filed its written version on the plea that the complaint is not maintainable in the present form; that the complainants have no cause of action to file the present complaint and that the complaint is barred by limitation. It is admitted fact that Bhagwan Sahai deceased was the registered owner of the insured tractor vehicle. It is denied that the complainants became owners of the tractor vehicle after death of Bhagwan Sahai. No information in this regard was given to the Insurance Company. It is denied that the insured vehicle was stolen on September 19^th, 2011 or any First Information report was lodged in this regard. Information regarding alleged theft of the tractor vehicle was given to the Insurance Company very late. It is prayed that the complaint be dismissed with cost.

5.                Parties led evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated November 25^th, 2016, the complaint filed by the complainant was allowed directing the opposite party No.1 to pay total insured amount to the complainants with interest at the rate of 10% per annum from the date of filing of the complaint and to pay Rs.5500/- as litigation expenses. Directions were given to make compliance of the order within 45 days from the date of receipt of certified copy of the order.

7.                Aggrieved with the impugned order dated November 25^th, 2016 passed by the learned District Forum, the appellants-opposite parties have filed the present First Appeal No.193 of 2017 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainants.

8.                We have heard learned counsel for the parties and perused the case file.

9.                During the course of arguments it was common case of both the parties that Bhagwan Sahai registered owner of the tractor vehicle bearing registration No.RJ-23-RA-5036 was provided insurance policy regarding the period from March 05^th, 2011 to March 04^th, 2012 mentioning the total Insured Declared Value as Rs.2,60,000/-.  On the basis of pleadings and evidence on the file, findings can be safely given that the above mentioned tractor vehicle was stolen by some unknown person during night hours on September 19^th, 2011 when the tractor vehicle was parked inside the brick kiln owned by Bhagwan Sahai in his Village. First Information Report No.244 (Annexure C-6) in this regard was lodged by Police of Police Station, Narnaul. Vide order Annexure C-7 passed by learned Additional Chief Judicial Magistrate, Narnaul, untraced report was accepted as the vehicle could not be traced. Copy of the insurance policy is Annexure C-5.  Annexure C-9 is the photostat copy of the registration certificate of the vehicle in the name of Bhagwan Sahai.  It is evident from the letter dated May 12^th, 2015, Annexure C-8, that the purchase of the tractor vehicle was financed by Sikar Kendriya Sahakari Bank Limited and the total loan amount was paid back by Bhagwan Sahai on October 14^th, 2011. Admittedly, Bhagwan Sahai died on January 09^th, 2012 at his house due to heart attack. In the letter addressed to District Transport Officer, Sikar, Annexure C-11, also it is mentioned that the tractor vehicle was stolen on September 19^th, 2011 and Bhagwan Sahai died on January 09^th, 2012.

10.              Present complaint has been filed by claimants Smt. Gokal Devi widow of late Bhagwan Sahai and eight other persons being sons and daughters of Bhagwan Sahai, taking plea that the claimants/complainants have become owners of the tractor vehicle after death of Bhagwan Sahai being legal heirs. The Insurance Company also did not dispute the relationship of the claimants with Bhagwan Sahai and in these circumstances, findings can be safely given that through succession claimants have become owners of the tractor vehicle after death of Bhagwan Sahai.  It stands proved that Bhagwan Sahai during his life time made payment of the total loan amount used for purchase of the tractor vehicle.

11.              The Insurance Company had written letters Annexure R-3 dated June 06^th, 2012; Annexure R-4 dated June 30^th, 2012 and Annexure R-5 dated November 23^rd, 2012 directing Ashok Kumar one of the claimants to produce certain documents needed for consideration of the insurance claim. Detail of the documents is mentioned in the above mentioned letters. Ultimately, vide letter dated January 23^rd, 2013 Annexure R-6 the insurance claim of the claimants was closed mentioning it as ‘Nil Claim’, keeping in view situation of no response from the claimants and as the claim cannot be left open for indefinite period. It is mentioned in Annexure R-6 that certain documents, legal heirs certificate, last user statement, Police and Court final report etc. were not produced by the claimants.

12.              Learned counsel for the opposite parties/Insurance Company argued that the complaint filed by the complainants is liable to be dismissed on the point of limitation as the complaint has been filed after more than a period of three years and eight months from the date of theft and after more than a period of two years and four months from January 23^rd, 2013 the day letter Annexure R-6 was issued by the Insurance Company mentioning that “claim is being closed as Nil Claim”. The complaint was filed by the complainants on May 21^st, 2015. Vide Special Power of Attorney, Annexure C-12, Ashok Kumar Jakhar complainant was authorised to take part in the proceedings of this complaint on behalf of remaining complainants also.  

13.              In case findings are given that cause of action arose on January 23^rd, 2013 the date of issuance of letter Annexure R-6, certainly there was delay of 118 days in filing of the complaint by the complainants. Learned counsel for the opposite parties argued that the period of limitation should start from January 23^rd, 2013 when letter Annexure R-6 was issued and claim was closed. Learned counsel for the opposite parties further argued that in fact the closure letter Annexure R-6 should be considered as a repudiation letter.

14.              On the other side learned counsel for the complainants-respondents argued that cause of action in this case was continuous as the insurance claim of the complainants was never repudiated by the opposite parties by issuance of letter mentioning specifically that the insurance claim stands repudiated. In fact, literal meaning of the words used in last lines of the closure letter Annexure R-6 regarding insurance claim proceedings is that subject claim was closed as the insured was not giving proper response and did not produce the documents which were needed for assessment of the insurance claim. On this point of controversy a decision of State Consumer Disputes Redressal Commission, Haryana, Chandigarh in case BUNDURAM VERSUS THE MANAGER, THE PRIMARY COOPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED AND ANOTHER, III(1993) CPJ 1232 also supports the version of the complainants.  In case law referred above, in the same circumstances findings were given by the Hon’ble State Commission as under:-

“6. In view of the above, it is somewhat plain that the identical rule would apply in cases of insurance other than that of life insurance as well. The langugage of Clause (b) of Article 44 is virtually in pari-materia with Clause (a) thereof. Consequently, it has to be held that Article 44(b) also expressly provides two alternative starting points for limitation. These are either the date of the occurrence causing the loss or the date of the denial either wholly or partly by the Insurance Company. The insured is entitled to take advantage of the alternative date as well. His right to sue is not barred by mere delay of the insurer to finalise the claim or filing the same without any express repudiation or denial thereof.

7. Once it is found as above, it is plain that the dismissal of the complaint by the District Forum on the threshold ground of limitation cannot be sustained. Herein it is now conceded that the appellant's claim was at no stage in terms denied or repudiated by the respondent Insurance Company. Therefore, limitation would have to now run from the date when the Insurance Company denied its liability to pay the claim before the District Forum. In that situation the plea of the appellant would be plainly within limitation.”

 

15.              As per facts of case law referred above also under similar circumstances, repudiation letter was not issued specifically mentioning that the insurance claim stands repudiated. In fact, in that case also it was mentioned that claim of the claimant had been filed by the Insurance Company as ‘No Claim’. It was not even pleaded that there had been a formal repudiation communicated either to the bank or to the complainant. It was conceded that the Insurance Company had never expressly denied or repudiated the claim of the insurer earlier.  In this way cited case law fully supports the version of the complainant. From the language used in the closure letter Annexure R-6 it appears that the insurance claim was not repudiated vide letter Annexure R-6, rather it is mentioned that the claim is being closed as ‘Nil Claim’. Keeping in view the situation of no response and also considering that a claim cannot be left open for an indefinite period. Moreover, it is not uncommon that as and when the Insurance Company does not take decision to accept the insurance claim submitted by the claimant, a letter is issued specifically mentioning that the insurance claim stands repudiated.

16.              Apart from it, another decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Devender Singh versus Oriental Insurance Company Limited, IV(2013) CPJ 607 (NC) also supports the version of the complainants that considering it a case of insurance claim which was still under consideration of the Insurance Company till the Insurance Company had taken decision on a complaint cause of action for filing complaint continued. In case law referred above, findings were given that the complaint filed by the complainant was not barred by limitation.  

17.              As per discussion above in detail, we have no hesitation in giving findings that the complaint was filed by the complainant within prescribed period of limitation as cause of action in this case was continuous and the Insurance Company never issued a letter mentioning specifically that the insurance claim of the complainants was repudiated. Language used in the letter dated January 23^rd, 2013 Annexure R-6 is not enough to give findings that the Insurance Company had taken a final decision regarding repudiation of the insurance claim.

18.              No other point was raised during the course of arguments. There was no controversy of any type that information was given to the Police as well as the Insurance Company immediately after the occurrence.

19.              As per discussions above in detail, we find no illegality in the impugned order dated November 25^th, 2016 passed by the learned District Forum. Hence, findings of the learned District Forum stand affirmed and the appeal stands dismissed.

20.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 27.07.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL