DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALWAL
CONSUMER COMPLAINT NO. 45 OF 2014
DATE OF INSTITUTION: 21.04.2014
DATE OF DECISION : 17.03.2015
Shameem S/o Abdul Gaffar R/o village Khandawali Tehsil Ballabgarh District Faridabad.
.. Complainant
Versus
HDFC ERGO General Insurance Company Limited Unit No. 502,504, 506. 5th Floor, Mahatta Tower, B-1 Block, Community Centre, Janakpuri, New Delhi-110054 through its manager.
..Respondent/Accused.
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT
BEFORE: JAGBIR SINGH: PRESIDENT
KHUSHWINDER KAUR: MEMBER
R.S.DHARIWAL: MEMBER
PRESENT: Sh.K.D.Bhardwaj Advocate for complainant.
Sh.D.K.Gosain, Adv. for opposite party.
ORDER:
Brief facts of the present case are that the complainant
is the registered owner of the vehicle in question “APE “Three Wheeler” having Engine No. R382292426, Chassis No. 2FPB 663781 and got insured his vehicle from opposite party vide policy no. 2314200485158900000 for the period from19.4.2013 to 18.4.2014.
On 19.7.2013 when Auto Rickshaw was parked on the Bus Stand, Palwal two young boys alongwith Kanhiyalal came to Shajid ( the brother in law of the complainant who used to ply the Auto Rikshaw of the complainant” ) and booked the Auto Rikshaw for Rs.250/- to village Kalwaka.
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At about 9:00PM when the Auto Rickshaw driven by Shajid carrying Kanhiyalal and two unknown young boys reached near Kalwaka, Shajid felt nature’s call and went to the nearby field. When he came back after ease he found the Auto Rickshaw bearing no. HR 38 S 5719 alongwith Registration Certificate book and other documents a mobile make Samsung having no. 9811813557and cash Rs. approximately Rs.1300/- Rs.1400/- missing. He was shocked that Kanhiyalal and two young boys committed the theft of his vehicle and articles.
The then driver Shajid contacted Kanhiyalal in this regard but he made excuses. Despite of making search the vehicle in question could not be traced out and then complainant tried to report the matter to the Police but Police did not lodge the complaint. At last the case was registered on 1.8.2013 by making pressure on police in Police Station Sadar Palwal and this delay was caused by the negligence of police itself.
Untrace report was given on 15.9.2013. The complainant also filed the claim with opposite party vide claim no. C230013044271 which was repudiated illegally and unlawfully and intimated to the complainant vide letter dated 27.12.2013. This repudiation amounts to deficiency in services and indulgence of unfair trade practice on the part of opposite party which caused mental tension, agony and harassment to the complainant. Hence complainant filed the present complaint with a prayer to direct opposite party to reimburse the insured amount of Rs.1,57,600/- with interest @ 18% per annum and Rs.1,00,000/- of compensation for lost articles and Rs.11,000/- for litigation expenses.
Upon registering the complaint, notice was ordered to be issued. Opposite party appeared before this Forum and filed its written statement by taking various preliminary objections such as no locus standi, no cause of action, concealment of true and material facts and
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no deficiency in services. As per surveyor’s report, both the keys were left in the vehicle in question at the time of theft and complaint being false, frivolous, malafide is liable to be dismissed.
On merits also the opposite party submitted that date of theft is 19.7.2013 whereas the intimation regarding the theft was given by the complainant to opposite party on 2.8.2013 i.e after 14 days which amounts to breach of condition no. 1 and terms and conditions of insurance policy on the part of the complainant. Moreover, the FIR has been registered on 1.8.2013 i.e after 13 days from the occurrence of the theft. As such complainant is not entitled for any compensation in violation of terms and conditions of insurance policy. The opposite party submits some authorities in support of his defence and prayed for dismissal of the complaint.
In support of his claim, the complainant placed on record his affidavit Ex.CW1/A wherein he solemnly affirmed the same facts which he enumerated in his complaint and relied upon the documents Ex.C-1 to Ex.C-10.
On the other hand, Sh. Pankaj Kumar, Manager-Claims, HDFC Ergo General Insurance Company Limited of opposite party placed on record his Affidavit Ex. RW1/A wherein he affirmed and declared the same facts as were enumerated in the reply of opposite party and relied upon the documents Ex.R-1 to Ex.R-3
The Forum heard Sh. K.D.Bhardwaj Ld. Counsel for the complainant, and Sh. D.K.Gosain for opposite party at length and have gone through the case file carefully as well as written arguments.
Admittedly the vehicle in question bearing no. HR38-S-5719 was owned by complainant Shameem and was driving by Shajid (brother-in-law of the complainant) at the time of occurrence of theft and insured with opposite party vide policy no. 2314200485158900000 valid for the period from 19.4.2013 to 18.4.2014. which was stolen
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away on 19.7.2013 alongwith some documents, RC, Cash and Mobile Phone. The matter was reported to the police and FIR No. 336 i.e Ex.C-2 was registered on 1.8.2013 in Police Station, Sadar Palwal. Intimation to the opposite party was given on 2.8.2013 as is evident from Ex.R-2.
The submission of the Ld. Counsel of opposite party is that the FIR was lodged with the Police after a period of 13 days and intimation to insurance company/opposite party was given after 14 days. As such the claim was repudiated which is not acceptable by this Forum and the Forum held opposite party guilty of providing deficient and short services as evidence available on record establishes that it is a genuine claim of the complainant. FIR no. 336 dated 1.8.2013 was recorded and intimation to insurance company was also given. Thus it is amply proved that the vehicle was stolen and could not be traced. It is a genuine claim of the complainant in view of law laid down by the Hon’ble State Commission in the case titled as Shri Ram General Insurance Company Ltd. Vs Rajesh Kumar 2014(2) CLT 390 wherein the reference of the circular IRDA(Insurance Regulatory Development Authority) has been given.
It has been specifically mentioned by IRDA as there may be the condition in the policy regarding delay in intimation but that does not mean that the insurer can take shelter in that condition and repudiate the claim which is otherwise proved to be genuine.
However, it is admitted by the complainant and as also evident from the survey report i.e Ex.R-3 which is an important piece of evidence that both the original keys were inside the insured stolen vehicle at the time of theft which is no doubt a gross negligence on the part of the insured.
In the Forum’s view disputes are to be settled on yardstick of reasonableness, probability and principles of natural justice do apply in full force. As such it is a case of contributory negligence and
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complainant is equally responsible for the alleged mishap and is entitled only for half of the claimed amount.
Resultantly, the present complaint is partly allowed and opposite party is directed to pay half of the IDV (Insured Declared Value) i.e Rs.78,800/- with interest @ 9% per annum from the date of alleged theft till its realization alongwith Rs. 5,000/- towards compensation for mental agony and harassment as well as Rs. 2200/- as litigation expenses to the complainant within 45 days from the receipt of the copy of this order failing which opposite party would be liable to pay Rs.5,000/- alognwith above award. Copy of this order be given to the parties free of costs and file be consigned to the record room. This order of the Forum is running into 5 pages and each page of this order have been signed by this Forum.
Announced on:17.03.2015 (JAGBIR SINGH)
President
District Consumer Disputes
Redressal Forum, Palwal.
(KHUSHWINDER KAUR)
Member
District Consumer Disputes Redressal Forum, Palwal
(R.S.DHARIWAL)
Member
District Consumer Disputes Redressal Forum, Palwal.
