Haryana

Ambala

CC/77/2017

Tarsem Lal - Complainant(s)

Versus

ICICI Lomabard Gen Inss - Opp.Party(s)

J.P.Singh Chauhan

24 May 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 77 of 2017

                                                          Date of Institution         : 09.03.2017

                                                          Date of decision   : 24.05.2018

 

 

Tarsem Lal son of Shri Raj Kumar, resident of House No.25, Ward No.05, Near Ravi Dass Mandir, Naraingarh, District Ambala.

      ……. Complainant.

Vs.

 

ICICI Lombard General Insurance Company Limited, Branch office- Ambala Cantt (Haryana), through its Branch Manager/Authorised Signatory.

 

    ….….Opposite Party.

 

 

Before:        Sh. D.N. Arora, President.

                   Sh. Pushpender  Kumar, Member.            

                   Ms. Anamika Gupta, Member.

 

 

Present:       Sh. JPS Chauhan, counsel for the complainant.

                   Sh. Rajesh Kumar, counsel for OP.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant has registered owner in  possession of a motor cycle bearing registration no.HR-04G-2931 bearing Engine No.CFIGF1319545, Chassis No.MD625CF19F3H03708, Model-2015, which is registered  with the Registering Authority(MV). The said motor cycle was got insured for an amount of Rs. 46,930/- by the complainant with the OP on annual payment of Rs.1712/- vide Policy No.3005/A1-10167459/00/000 having validity with effect from 30.10.2015 to 29.10.2016 vide insurance policy issued on 30.10.2015. On 22.04.2016 at about 11.30 p.m. the complainant  kept his aforesaid motor cycle parked in the courtyard of his house and when in the morning  he after getting out saw his motor cycle  missing from his courtyard. The complainant did his best to locate his motor cycle  in his locality  but his motor cycle was not traced and under the constrained circumstances then complainant got a report made to the Police Station-Naraingarh on 23.05.2016, upon which an FIR bearing no.103 dated 13.05.2016  was registered against unknown person. The complainant  also lodged his claim for the loss of his aforesaid motor cycle with the OP and on the asking  of the OP, he submitted all the relevant  documents to the OP but the OP kept  lingering  on the payment of insurance claim of motor cycle to the complainant by making excuses on one pretext or the others. The police  after investigating the matter submitted untraced report to the learned Illaqua Magistrate, upon which the complainant received a notice and on asking by the learned Illaqua Magistrate, the complainant  had given no objection on the untraced report submitted by the Investigating Officer of the case and accordingly the file was consigned to the S.P.Office, Ambala v.o.d. 07.10.2016. Thereafter the complainant number of times visited the OP for settling his claim but they returned him by saying to come again and in this  manner the OP has been also harassing the complainant without any sufficient rhyme or reason. A legal notice served upon the OP on 21.11.2016. Thus, there is deficiency in service and unfair trade practice besides causing mental tension, harassment and agony by the OP to the complainant. Hence, the present complaint.

2.                Upon notice, OP appeared through counsel and tendered written statement and stated that as per the version and documents supplied by the complainant  the vehicle bearing no.HR04G-2931 was stolen on 23.04.2016 but a FIR for the stolen  vehicle is lodged  on 13.05.2016 i.e. after 20 days of the theft  of the vehicle, moreover the intimation to the OP was also made after 26 days of date of alleged loss, which is violation of terms and conditions  of the insurance policy. It is pertinent to mention here that two wheeler package policy  was issued vide policy no. 3005/108885959/00/ 000 for the vehicle  no.HR04G-2931 as per the terms and condition of the insurance policy, the FIR who have been immediately lodged after theft  and the said motor insurance policy issued in respect to the above said vehicle  states  that in case of theft or criminal act which made to the subject of claim under the policy, the insured shall give immediately notice to the policy and cooperated with the company in securing the conviction of the offender.  After following the requisite procedure, the letter bearing Ref. No.MOT/TT/Aug’16 dated 26.9.2016 was issued to the complainant. Hence, the OP is not liable to pay any amount and there is no deficiency on the part of the OP and prayed for dismissal of the present complaint. 

3.               To prove his version complainant tendered his affidavit as Annexure C-X with documents as annexure C-1 to C-9 and close his evidence. On the other hand, Counsel for the OP tendered affidavit as Annexure R-A along with Annexure R-1 to R-3 and close his evidence.

4.                We have heard counsel for the parties and carefully gone through the case file.

5.                Admittedly, the vehicle in question was got insured for amount Rs.46930/- with the OP on the premium of Rs. 1712/-  having validity w.e.f. 30.10.2015 to 29.10.2016. It is proved on the file that the vehicle in question has been stolen by unknown person on 22.04.2016 while the complainant had kept his aforesaid motor cycle parked in the courtyard of his house when he saw his motor cycle was missed but motor cycle in question  could not be  traced. He got a report to the police station Naraingarh on 23.04.2016 upon which an FIR bearing no.103 dated 13.05.2016 was registered against unknown person. Police has investigated the matter and submitted untraced report to the learned Illaqua Magistrate, Naraingarh. The police  after investigating the matter submitted untraced report to the learned Illaqua Magistrate, upon which the complainant received a notice and on asking by the learned Illaqua Magistrate, the complainant  had given no objection on the untraced report submitted by the Investigating Officer of the case and accordingly the file was consigned to the S.P.Office, Ambala v.o.d. 07.10.2016 by the court of Sub Divisional Juridical Magistrate, Naraingarh  and copy of the untraced report as Annexure C-2 is on the file. The OP has got investigated the matter through the surveyor and vide surveyor report Annexure R-3 in which investigator has found genuiness  of the FIR and has not denied the motor cycle in question has not been  stolen. But surveyor has mentioned  in his report that no explanation regarding delay in lodging the FIR as well as reason for delay intimation to the insurance company and OP has repudiated the claim of the complainant vide Annexure R-2 on the ground of late intimation to the insurance company. The Ops admitted that the vehicle in question had not been traced out till date & their only contention is that the complainant had violated the condition No. 1 as mentioned in the repudiation letter says that “Condition 1 of the Motor Insurance Policy wordings  is as follow:-

Notice shall be given in writing to the Policy 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  Inquiry or  Fatal Inquiry in respect of any occurrence which  may give rise to a claim under this policy. In case of theft or criminal act which may be the subject  of a claim under this policy the insured  shall give immediate  notice to the company in securing the conviction of the offender. There has been a delay  of 21 days  in giving  notice to the Policy  and to insurance  company for 27 days, whereas, the aforementioned condition speaks  of immediate  notice to the Police as well as insurance Company”.

6.                We have gone through the above said clause it is not disputed the complainant has lodged the FIR after period of 21 days and also lodged the claim to the insurance company after a period of 26 days. However, the investigator of the company has not denied the factum of the stolen of the vehicle this forum cannot declined the whole claim of the complainant.   Then, lapse on the part of complainant cannot be treated as willful breach of condition No.1 on the part of insured. Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held in one similar case titled as New India Assurance Company ltd & anr. Vs. Girish Gupta reported in Revision Petition No. 590 of 2014  III(2014) CPJ 663 (NC) that Consumer Protection Act, 1986 Section 2(1) (g), 14(1) (d), 21(b)- Insurance-theft of vehicle –driver left key in vehicle-violation of condition of policy alleged-claim repudiated-deficiency in service-District Forum dismissed complaint – State Commission allowed appeal – Hence revision – Driver alighted from vehicle to answer call of nature – leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy. Lapse on part of driver not willful breach- Repudiation not justified.  On the other hand, counsel for OP has relied upon the judgments i.e. Devinder Kumar Vs. NICL  Revision Petition No. 3840 of 2011 of Hon’ble National Commission Disputes Redressal Commission, National Insurance Co. Ltd. Vs. Ram Singh Gurjar 1(2016) CPJ 209 (NC) of Hon’ble National Commission Disputes Redressal Commission and Oriental Insurance Col. Ltd. Vs. Tara Singh (Through Lrs.) Revision Petition No. 2795 of 2008 of Hon’ble National Commission Disputes Redressal Commission the above said judgments are not applicable in the present case.

7.                The counsel for the complainant has drew our attention towards judgment rendered by the Hon’ble Supreme Court in case titled “National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008 CTJ 680 (SC) (CP), the Apex Court was pleased to hold :-

“In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle, breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis.  The Insurance company cannot repudiate the claim in to in case of loss of vehicle due to theft”.

 

8.                Keeping in view of the totality of the fact & circumstances of the present case and law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), it would be appropriate that if we allow the present complaint by giving 75% of the insured amount to the complainant on non-standard basis. Hence,  the present  complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay the 75% of Insured Declared Value of motor cycle which comes to Rs. 35197.50/- from the date of complaint along with interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.3,000/- on account of litigation charge, mental harassment & agony along with cost of litigation.

                   Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on :24.05.2018                                   

 

                                                                                      

 

 

 (PUSHPENDER KUMAR)      (ANAMIKA GUPTA)     (D.N. ARORA)

      Member                                         Member               President