STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                            ^{UNIONTERRITORY,CHANDIGARH}

Sameer Khanna resident of House No.3020, Ground Floor, Sector 47-D, Chandigarh – 160042.

                                                                            ^Versus

1.      

2.      

3.      

BEFORE:      

MRS. PADMA PANDEY, MEMBER

Argued by:  

Sh. Arun Kumar, Advocate for the complainant.

Sh. Sandeep Suri, Advocate for Opposite Parties No.1 & 2.

Sh. M.S. Yadav, Advocate proxy for Sh. Jagvir

Sharma, Advocate for Opposite Party No.3.

PER DEV RAJ, MEMBER

2.                 

3.                 

4.                 

5.                 

6.                 

7.                  

8.              

9.            

10.          

11.            carefully. 

12.          

13.          to the complainant and he could inform Opposite Party No.1 immediately after the accident. It was further submitted that different versions by the complainant, as narrated to the Surveyor and Loss Assessor and in the DDR, lodged by Sh. Kapil Dev Parshad, amounted to misrepresentation and concealment of facts, on his (complainant) part. It was further submitted that the complainant had vested interest in not giving the correct and complete information and the same was done purposely. It was further submitted that the claim involved was of Rs.30 Lacs and Opposite Parties No.1 and 2 were denied the proper opportunity of investigating the matter properly, due to delayed intimation. It was further submitted that since there was delay in giving intimation and lodging the claim, as also misrepresentation of facts, the claim was not payable.

14.             

15.            ^{Policy bearing No.2311200591017000000 (Annexure C-1) for the period from 25.09.2013 to 24.09.2014; payment of premium of Rs.1,28,098/- and the same (car) meeting with an accident on 11.12.2013 is admitted.}

16.                that for accidental damage to the insured vehicle (own damage claims), ‘call our customer care Toll-free 1800-2-700-700 if the vehicle meets with an accident.’ The complainant himself admitted in Annexure C-3 in para VII that he did not lodge the claim as copy of the RC was not available and he was waiting for the duplicate copy of the same. Lodging of claim and intimation to the insurer are separate and distinct. Even if the RC was not available with the complainant, he could very well inform the 

17.               e are required to see, as to whether, there was breach of any fundamental Condition of the Insurance Policy, and, if so, what were the consequences thereof.  Condition No.1 of the terms and conditions of the said Policy reads as under:-

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.”

18.           ^{The plain reading of Condition No.1, extracted  above, clearly goes to show, that a notice shall be given, in writing, to the Police as also the Company, immediately upon theft or other criminal act, which may be the subject of a claim and the occurrence of any accident, or loss or damage, in the event of any claim, and, thereafter, the insured shall give all such information and assistance as the Company shall require.   There was certainly a breach of the aforesaid fundamental Condition of the Insurance  Policy. It is settled principle of law, that the Consumer Foras are required to construe the terms and conditions of the Policy, as it is, and   nothing can  be added to  or subtracted  therefrom. Similar principle of law, was laid down  in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal, reported as  JT 2004  (8) SC 8.11= IV (2004) CPJ 15 (SC).}

19.               In Silversons Vs Oriental Insurance Company Ltd. & Anr. IV (2011) CPJ 9(SC), the Hon’ble Apex Court, held in Para 6, inter-alia, as under:-

“Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and no strait-jacket formula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MV “Aken” at Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.”

On account of delayed intimation of the accident to Opposite Parties No.1 and 2, there was a breach of the fundamental condition of the Policy. The Opposite Parties No.1 and 2, in Para 10 of their written statement, in clear cut terms, stated that the claim was not payable. It means that they have repudiated the claim.

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“i)     

ii)      

iii)     

iv)     

v)      

vi)     

vii)

The complainant stated that variations in two versions were on account of the reason that 

21.               

“Time 6:18 PM, I, ASI came from H.No. 169, Dadu Majra to Police Station after recording the Report No. 43 and statement. When I reached the spot there Kapil Dev Parshad aged 48 years S/o Ganga Sagar, R/o # 169, Dadu Majra, Chandigarh stated that I am residing on the above said address alongwith my son as tenant and selling the vegetables in Sectors. On 11.12.2013 I was coming from grain market Sector 26, Chandigarh after purchasing the vegetables. When I reached the slip road of irrigation department, Madhya Marg, Sector 18, Chandigarh, a motor cycle was coming from opposite side and a Car bearing No.CH-01 AQ-0130 was coming from my back side. The Car while saving the motorcyclist, suddenly hit my Rickshaw Rehri and due to that I fell down and my Rehri was also damaged. The Car went on the footpath. The PCR vehicle took me to Sector 16 General Hospital. I am under treatment and now, I am alright. This incident took place suddenly, while saving the motorcyclist and there is no fault of anybody. I do not want any police action. I have given this statement in my full senses in the presence of my relatives. The statement has been got recorded and heard and the same is correct.”The fact that car No.CH-01 AQ-0130 was handed over in proper condition, to the owner finds mention in the Hindi version of DDR (C-2). This fact is missing in the English version. Though the accident took place on 11.12.2013, yet now the question, which falls for consideration, is, as to what was the impact of such an accident viz-a-viz damage to the vehicle. As per the DDR lodged by Sh.Kapil Dev Parshad he was taken to the General Hospital by a PCR vehicle. He further stated that after treatment he was alright. In the DDR, Annexure C-2, it was mentioned that the. 

22.               

“Whereas as per claim form and written statement of insured Mr.Sameer Khanna his left tyre of the car bursted and his car went out of control and collided with a tree and there was no third party injury/involvement. He also stated that no police report is lodged regarding this accident. Insured had already applied for the RC before this accident and after receiving the RC claim was notified and date of accident mentioned in the notification is 16.12.2013 which has been done inadvertently whereas in claim form it is correctly mentioned i.e. 11.12.2013. The accident IV was shifted to the workshop of BMW, Chandigarh with the help of recovery van on 12.12.2013, entry of the same is checked and found in order. It is important to mention here that as per DDR the insured vehicle is given to Owner(insurer Mr.Sameer Khanna) in proper condition but the estimate of loss is around Rs.30 lacs. Looking to the documentary evidence it seems that insured has misrepresented the facts of accident”.

23.