Haryana

Karnal

480/2013

Parveen Kumar Aggarwal S/o Hari Parkash - Complainant(s)

Versus

HDFC EGRO Gernal Insurance Company Limited - Opp.Party(s)

Sh. S.L. Chabra

02 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.480 of 2013

                                                             Date of instt.: 20.12.2013

                                                                Date of decision:02.08.2017

 

Parveen Kumar Aggarwal son of Shri Hari Parkash, resident of 14, Shakti Colony, Karnal.

 

                                                                    ……..Complainant.

                                      Vs.

1. HDFC ERGO General Insurance Company Limited, Plot no.C-9, 3^rd Floor, Pearl Best Heights-II, Netaji Subhash Palace, Pitampura, New Delhi-110034, through its Regional Claims Manager North, Shri Naveen Tandon.

2. HDFC ERGO General Insurance Company Limited, Karnal Branch, SCO no.237, Second Floor, Sector-12, Urban Estate, Karnal-132001, through its Branch Manager, Karnal.

                                                                            ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Ms. Veena Rani………Member

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Gaurav Chhabra Advocate for the complainant.

                    Sh. Sanjeev Vohra Advocate for the Opposite parties.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he got insured his tractor bearing registration no.HR-08-H-9029 with the opposite parties, vide insurance policy no.2316200058621600000 for the period of 13.1.2011 to 12.1.2012. The said tractor was stolen by some unknown person from the business premises i.e. M/s Parkash Bhatta Company, Gianpura, Gharaunda, while the same was lying parked in a Verandah of the house. First Information Report no.26 dated 16.1.2011 was got registered in Police Station Gharuanda, regarding the said theft. The tractor could not be traced out and the police ultimately submitted a Cancellation Report, which was accepted by Learned Judicial Magistrate 1^st Class, Karnal on 4.4.2012. He informed the insurance company regarding the theft and claim was lodged, but the opposite parties repudiated his claim on false and fictitious grounds, vide letter dated 11.3.2013. Such act and conduct of the opposite parties amounted to deficiency in service on their part, due to which he suffered mental pain and agony apart from financial loss.

2.                Notice of the complaint was given to the opposite parties, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that  the complaint is not maintainable in the present form; that the complaint is estopped from filing the  complaint by his own acts and conduct; that the complainant has not approached this Forum with clean hands; that the complicated questions of law and facts are involved, which cannot be decided by this Forum under summary jurisdiction and that there was no deficiency in service on the part of the opposite parties.

                   On merits, it has been submitted that at the time of purchasing of insurance policy, the complainant had produced policy/cover note no.74959925 issued Iffco Tokio General Insurance Co. Ltd. for the period of 13.1.2010 to 12.1.2011, therefore, no physical inspection of the tractor in question was carried out, but during verification of the previous policy/cover note it was revealed that no such policy/cover note was issued by the previous insurer and the document produced by the complainant was forged and fabricated. Such act of complainant amounted to suppression of material fact, which was fundamental breach of the contract of insurance. It has further been pleaded that the complainant intimated the opposite parties about the alleged theft on 3.5.2012 i.e. after delay of 15 months 18 days from the date of the theft, whereas as per condition of the policy he was required to give written intimation to the company immediately upon the occurrence of the loss. It has also been averred that at the time of alleged theft, the vehicle was left unattended with original key and as such there was gross negligence on the part of the complainant, therefore, he was not entitled to the claim as per terms and conditions of the insurance policy. It has lastly been submitted that the complainant was not entitled to any claim as he violated the terms and conditions of the policy, therefore, his claim was rightly repudiated by the opposite parties and there was no deficiency in service on their part. Other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit EX.C1 and documents Ex.C2 to Ex.C6 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Pankaj Kumar Manager Claim Ex.O1/A and documents Ex.O1 to O6 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                Admittedly, the tractor of the complainant bearing Registration no. HR-08-H-9029 was insured with the opposite parties and the same was stolen during subsistence of the insurance policy. First Information Report no.26 dated 16.1.2011, the copy of which is Ex.C2, was got registered in Police Station Gharuanda, regarding the said theft. The tractor could not be traced out, therefore, the police submitted untraced report, which was accepted by the learned Judicial Magistrate 1^st Class, Karnal, vide order dated 4.4.2012, the copy of which is Ex.C3. The claim of the complainant was repudiated by the opposite parties, vide letter dated 11.3.2013, the copy of which is Ex.C6.

7.                Learned counsel for the opposite parties put a great thrust upon the contention that the theft of the tractor had taken place on the intervening night of 15/16.1.2011, but the intimation of the theft was given to the opposite parties on 3.5.2012 i.e. after delay of 15 months 18 days, whereas according to condition no.1 of the policy he was required to give written intimation of the theft immediately after the theft. Thus, the complainant violated condition no.1 of the policy. It has further been argued that as per the evidence collected during investigation the tractor was left unattended by the complainant as the ignition keys of the same were also left. Thus, there was gross negligence on the part of the complainant regarding safety and security of the tractor which was also violation of the condition of the policy. It has further been canvassed that the complainant had provided the previous policy of the tractor purportedly issued by M/s Iffco Tokio General Insurance Company Ltd. for the period of 13.1.2010 to 12.1.2011 and on verification the same was found to be fake. Thus, the complainant mis-represented the opposite parties, concealed the material fact and gave false declaration whereas the contract of insurance is based on the principle of “Uberrima Fides” i.e. utmost good faith. It has been lastly contended that the complainant violated the terms and conditions of the policy and mis-represented/concealed material fact from the opposite parties for obtaining the policy, therefore, his claim was rightly repudiated, vide letter dated 11.3.2013.

8.                It is worth pointing out at the very outset that the opposite parties have not produced the policy or the cover note purportedly issued by Iffco Tokio General Insurance Company Ltd. which was allegedly produced by the complainant for obtaining policy from the opposite parties. Even no report of verification regarding the said policy issued by Iffco Tokio General Insurance Company Ltd. has been produced to establish that the policy/cover note, allegedly produced by the complainant, was fake and never issued by Iffco Tokio General Insurance Company Ltd. Mere allegation in the written statement cannot take the place of proof. In the absence of any documentary evidence the affidavit Ex.O2/1 in this regard cannot be taken to be the gospel truth and the same is not sufficient to arrive at the conclusion that the complainant had produced some fake/forged insurance policy/cover note for obtaining policy from the opposite parties. Thus, the opposite parties have failed to substantiate their plea regarding producing fake previous policy by the complainant.

9.                As per the case of the opposite parties, during investigation by the investigator, the complainant and his driver Sandeep Kumar had stated that both the ignition keys were left in the tractor while parking the same in the Verandah. The copies of their statements have been produced as Ex.O3 and Ex.O4. The complainant has also led no evidence to dispute correctness of the statements Ex.C3 and C4. Therefore, it is to be accepted that both the ignition keys were left in the tractor while parking the same in the Verandah. The tractor was parked in the Verandah of the premises of the Bhatta Company and in such a situation one could not effect that the tractor only would be stolen from such place where other material/articles were also lying. Thereafter, it cannot be said that there was gross negligence on the part of the complainant, but leaving the keys in the tractor was a violation of policy condition.

10.              The opposite parties have alleged that there was delay of 15 months and 18 days in giving intimation of theft by the complainant. The complainant has not produced any evidence to rebut such allegation. In the complaint he has not mentioned the date of giving intimation of theft to the opposite parties. In this affidavit Ex.C1 also, he did not disclose the date of giving intimation of theft to the opposite parties. Therefore, there is no reason to disbelieve the evidence of the opposite parties by way of affidavit Ex.O1/A that there was delay of 15 months and 18 days in giving intimation of theft to the opposite parties. However, the claim of the complainant cannot be rejected in toto on such ground of delay in intimation. Insurance Regulatory and Development Authority issued circular dated 20.9.2011. It is clear from the said circular that Insurance Company cannot repudiate the theft claim on technical ground like delay in intimation and submission of some required some documents. The decision of the insurer to reject should be based upon the sound logic and valid reasons. The limitation clause does not work in  isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holder losing confidence in the insurance industry, giving rise to excessive litigation.

11.              Hon’ble State Consumer Disputes Redressal Commission, Haryana, considered the question regarding delay in intimation of theft of vehicle in United India Insurance Company Limited and others Versus Anshul Bansal First Appeal no.717 of 2016 decided on 6.4.2017.  In that case, there was delay of two months and five days in intimation of theft to the insurance company. Hon’ble State Commission relied upon the judgments of the Hon’ble Supreme Court in National Insurnace Company Limited Versus Nitin Khandelwal, IV (2008) CPJ 1 (SC) and judgment Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. II(2010) CPJ 9 (SC)  and guidelines issued by Insurance Company about granting claim on non-standard basis. It was held that case of any other breach of warranty/condition of policy including limitation as to use the insurer is liable to pay 75% of admissible claim on non-standard basis.

12.              In the instant case, the complainant violated the condition no.1 of the policy and gave intimation of theft of a tractor after delay of 15 months and 18 days. He also violated the condition regarding safety of the vehicle by leaving ignition keys in the tractor while parking the same in the Verandah Bhatta Company. Therefore, in view of the proposition of law laid down by the Hon’ble State Commission Haryana in the aforecited authority, he is entitled to get 75% only of the admissible claim.

13.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to pay 75% of the insured amount i.e. Rs.2,25,000/-  to the complainant  alongwith interest thereon @ 9% per annum from the date of filing of complaint till its realization. We further direct the opposite parties to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 02.08.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Veena Rani)      (Anil Sharma)

                               Member               Member