Haryana

Karnal

CC/276/2021

Kuldeep Singh - Complainant(s)

Versus

HDFC ERGO General Insurance Company Limited - Opp.Party(s)

Sandeep Chauhan

15 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 276 of 2021

                                                        Date of instt.14.06.2021

                                                        Date of Decision:15.03.2023

 

Kuldeep Singh son of Shri Kartar Singh, resident of village Pilni, District Kaithal, now resident of Gali no.33, Karan Vihar colony, Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     HDFC ERGO General Insurance Company Ltd. SCO no.237, 2^nd floor, Sector-12, Karnal, Haryana through its Manager.

 

2.     HDFC ERGO General Insurance Company Ltd. Registered & Corporate office, 1^st floor, HDFC House 165-166, Backbay Reclamation. H.T. Parekh Marg, Church Gate, Mumbai-400078.

 

                                                              …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Sandeep Chauhan, counsel for the complainant.

                    Shri Sanjeev Vohra, counsel for the OPs.

   

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs) on the averments that complainant got insured his motorcycle Hero Splender PRO bearing registration no.HR-08R-7987 with the OPs, vide policy no.2312201897071700000, valid from 07.09.2017 to 06.09.2018 for the insured declared value of Rs.28,000/-. The said vehicle of the complainant has been stolen on 24.02.2018, near Kalpana Chawla Medical College and Hospital Karnal and in this regard complainant intimated the police and got registered FIR no.175 dated 27.02.2018 under section 379 IPC at Civil Lines, Karnal but same has not been traced out and police submitted untraceable report in the court of Ms. Sukriti, learned CJM, Karnal and the same was accepted, vide order dated 25.04.2019. Complainant submitted the claim with the OPs and requested to settle the claim but OPs did not settle the claim and lingered the matter on one pretext or the other and stated that due to Covid-19 the work is restricted in the office. On 24.05.2021, complainant went to the office of OP no.1 and asked about his claim, then officials of the OP no.1 told that his claim has been closed due to non-submission of the documents.  The complainant submitted all the documents as and when demanded by the OPs but till today no claim has been passed by the OPs. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was closed by the OP on the ground of non-submissions of the requisite documents. The complainant even after various repeated requests and reminders letters failed to submit the requisite documents. In absence of the requisite documents the OPs were not able to decide the claim on merits and therefore the same was closed and not repudiated. Therefore, complainant himself is liable for the non-compliance of the present complaint. It is further pleaded that complaint is in regard to the theft claim of vehicle, which allegedly got stolen on 24.02.2018.. The claim was lodged with the OPs on 09.04.2018 whereas the alleged theft took place on 24.02.2018, meaning thereby that the claim intimation was done after the delay of 44 days from the alleged date of theft, and no reasonable justification was given by the insured for delay intimation. Further, the FIR was lodged also after 3 days, i.e. on 27.02.2018 whereas it is alleged in the content of FIR that the theft in question has been taken place on 24.02.2018 thus this act of insured, i.e. delay intimation of theft to the insurer and the police official completely brings the entire alleged incident in doubt. Further, the act of delay intimation of alleged theft is against the terms and conditions of the policy. It is further pleaded that even after the delay intimation, OP processed the claim of the complainant and thereafter, made requests to the complainant for submission of documents, vide letter dated 12.09.2018, for the purpose of verification and processing of the claim of the complainant, however, complainant failed to provide the following documents:

.       Vehicle Particulars, RTO letters to keep the file in safe custody.

.       100 number call report/DD report/First intimation letter to police.

.       Previous insurance policy.

.       Original keys.

.       Original NOC and form 35.

.       Financial documents (copy of bank statement/ITR/salary certificate.

.       Cancelled cheque.

.       AML doc. (current photographs, address proof, ID proof and copy of PAN card).

.       RTO forms 26,28,29 and 30 (4 each post approval)

.       Court certified untrace report.

.       Reason for delay in intimation to insurer.

 

The abovesaid documents were important, in order to reach any decision and further settlement of the claim of the complainant. Further, as the complainant failed to submit the requisite documents to OPs, therefore, OPs again vide letter dated 22.10.2018 and 08.12.2018 requested the complainant to submit the requisite document but complainant has failed to submit the documents and thus OPs were constrained to close the claim for want of documents. OPs closed the claim, vide letter dated 15.01.2019, which was duly served upon the complainant.  There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1, copy of insurance policy Ex.C2, copy of RC Ex.C3, copy of FIR Ex.C4, copy of vehicle enquiry report Ex.C5, copy of court order of untrace report Ex.C6, copy of untrace report Ex.C7, copy of application to Sureksha Enterprises Ex.C8, copy of application to Registration Authority Ex.C9, copy of vehicle particulars Ex.C10, copy of No Objection Certificate Ex.C11, postal receipt Ex.C12, copy of application to Sureksha Enterprises Ex.C13, copy of cancelled cheque Ex.C14 and closed the evidence on 05.01.2022 by suffering separate statement.

5.             On the other hand, learned counsel or the OPs has tendered into evidence affidavit of Manoj Kumar Prajapati, Manager Ex.RW1/A, copies of letters dated 12.09.2018, 22.10.2018, 08.12.2018, 15.01.2019 Ex.R1 to Ex.R4, copy of insurance policy Ex.R5, copy of proposal form cum transcript letter Ex.R6 and closed the evidence on 22.11.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his motorcycle with the OPs. On 24.02.2018, the said vehicle of the complainant was stolen. In this regard, complainant got lodged the FIR no.175 dated 27.02.2018, under section 379 of IPC in Civil Lines, Karnal. Complainant also intimated the OPs and submitted his claim and completed all the formalities. Complainant requested the OPs several times to settle the claim but OPs did not do so and closed the claim of the complainant, vide letter dated 15.01.2019 on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the theft occurred on 24.02.2018 but FIR was lodged on 27.02.2018 and company was intimated on 09.04.2018 after a delay of 44 days. On receiving the intimation regarding the alleged incident, OPs had sent letters and their reminders to the complainant requesting him to submit the documents but complainant failed to submit the same and the claim of the complainant had been closed due to non-submission of the documents, vide letter dated 15.01.2019 and lastly prayed for dismissal of the complaint.

9.               We have duly considered the rival contentions of the parties. 

10.           Admittedly, the vehicle in question was stolen during the subsistence of insurance policy. It is also admitted that the insured declared value of the vehicle is Rs.28,000/-.

11.           The claim of the complainant has been closed by the OPs, vide letter Ex.R4 dated 15.01.2019 on the ground for non-submission of required documents. Documents sought by the OPs, vide letter Ex.R1 dated 12.09.2018, reminder Ex.R2 dated 22.10.2018 and reminder II Ex.R3 dated 08.12.2018, reproduced as under:-

.      (Vehicle Particulars, RTO letters to keep the file in safe custody.

.       100 number call report/DD report/First intimation letter to police.

.       Previous insurance policy.

.       Original keys.

.       Original NOC and form 35.

.       Financial documents (copy of bank statement/ITR/salary certificate.

.       Cancelled cheque.

.       AML doc. (current photographs, address proof, ID proof and copy of PAN card).

.       RTO forms 26,28,29 and 30 (4 each post approval)

.       Court certified untrace report.

.       Reason for delay in intimation to insurer.

 

12.           OPs have taken a plea that complainant has failed to submit the required documents.  Complainant has placed on record copy of FIR Ex.C4, copy of vehicle enquiry report Ex.C5, copy of untrace report Ex.C7, copy of application to Registration Authority Ex.C9, copy of vehicle particulars Ex.C10, copy of No Objection Certificate Ex.C11, copy of cancelled cheque Ex.C14. Further, as per the version of the complainant, one original key has already been given to the surveyor of the OP and second key was already misplaced. When the complainant has placed on file, the copy of abovesaid documents, there is no reason for not supplying the same to the OPs. It is also unbelievable that an insured whose personal interest is involved for claim amount, will not supply the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigations. Hence, in view of the above, we found no substance in this contention of the OPs and OPs have taken the baseless pleas only in order to reject the claim of the complainant.

13.           The next plea taken by the OPs is that there is three days delay in lodging the FIR and 44 days delay in intimation regarding the accident of the vehicle in question by the complainant to the OPs. Admittedly, the vehicle in question was stolen on 24.02.2018 but FIR (First Information Report) (Ex.C4) was registered on 27.02.2018 in Police Station Civil Lines Karnal and company was intimated after the delay of 44 days.  Generally, the owner/Driver of the vehicle firstly tries to search the vehicle at his own level, but when he fails to trace out the same, the matter is reported to the police. But in the present case, complainant specifically stated that he had informed the police immediately but police recorded the FIR on 27.02.2018.  It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR. Thus, said plea taken by the OPs, has no force. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held 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. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

14.           If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can rely upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

15.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice while closing the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

17.           As per insurance policy Ex.C2, the insured declared value of the vehicle is Rs.28,000/-. Hence, complainant is entitled for 75% of the said amount i.e. Rs.21,000/- alongwith interest, compensation for mental agony and harassment and litigation expenses.

18.           In view of the above discussion, we partly allow the present complaint and direct the OPs to pay Rs.21,000/- (Rs. twenty one thousand only) i.e.75% of the insured amount to the complainant alongwith interest @ 9% per annum from the date of closing of the claim till its realization. We further direct the OPs to pay Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.3300/- towards  the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The complainant is also directed to get all the formalities completed with regard to transfer of vehicle/cancellation of the RC as and when the OPs desire.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 15.03.2023                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

                (Vineet Kaushik)                (Dr. Rekha Chaudhary)

                        Member                             Member