ORDERS:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant is owner of one Toyota Etios Liva Car having registration No. PB46-X-7080, Model 2016, Engine No. 1ND1A20057, Chassis No. MBJK49BTX00095734, Silver in Color. The complainant was using the above said car for his personal use. The complainant got the above said vehicle insured from the opposite party ICICI Lombard General Insurance Company from the Toyota Agency situated at village Pidhi, Harike Road, District Tarn Taran who is also working as insurance agent of the opposite parties and the insurance Policy bearing No. TIL/10513427 which was valid from 28.12.2018 to 27.12.2019 was issued to the complainant, which bears the seal and stamp of ANR Motors Pvt. Ltd. which is authorized Toyota Agency at village Pidhi District Tarn Taran. As such the complainant is beneficiary of the services of opposite parties being their consumer. The complainant is Sub Inspector in Punjab Police and he was posted at Punjab Police Intelligence office Mohali. On 7.2.2019 when the complainant went to the intelligence office at Mohali for his official work after parking his above said vehicle outside the office and when he came out of the said office after completing his work to the utter surprise his vehicle was not present there, as the same was got stolen by some unidentified persons, when it was parked in front of the above said office. Thereafter, the opposite parties were intimated regarding the theft of the above said vehicle and an FIR was also lodged at P.S Sohana bearing FIR No.0041 under section 379 IPC on the same day. Thereafter, about 50 days i.e. in the month of April 2019 the accused were caught and he confessed that he has stolen total 29 cars and the same were also recovered from him which includes the above said stolen vehicle of the complainant. The accused also made a confession statement regarding his modus opendi that after the vehicle was stolen by him he used to change the head of the engine which bears the engine number and also replaced the plate on the chassis of the vehicle which bears the chassis Number of the vehicle alongwith other body parts of the vehicle which includes all the glass parts, tyres, ACM, BCM, Steering Lock etc. to change the look of the stolen vehicle. When the complainant was intimated that his stolen vehicle has been recovered from the accused persons then the complainant got applied for Sapurdari of his recovered vehicle from the court of Smt. Harjinder Kaur, JMIC Mohali. Thereafter, the court issued notice to Police and report was submitted by ASI Gurnam Singh of CIA Staff District SAS Nagar, Mohali dated 11.09.2019 whereby which it was also mentioned that the vehicle of the complainant has been recovered from the accused persons alongwith 19 other vehicles and it was also mentioned the said report that the engine number and chassis number of the vehicle of the complainant alongwith other body parts have also been tempered/changed to change the look of the stolen vehicle by the accused. After the vehicle of the complainant was taken on Sapurdari from the police by the order of court Smt. Harjinder Kaur, JMIC Mohali it was taken to Globe Automobiles Pvt. Ltd. Phase-6 Industrial Area, Mohali which is authorized dealership of Toyota for getting the vehicle of the complainant repaired and a job card/estimate bearing No.PBE1902088 was generated after inspection of the above said vehicle. In the said job card the estimate amount to be spent on the repair of the vehicle was Rs.3,67,362/-. Thereafter, the dealer of Toyota Motors sent the intimation to the opposite party ICICI Lombard General Insurance Company Ltd. regarding the amount to be spent on the vehicle but the opposite parties did not reply with any direction to the Toyota Globe Automobiles Mohali to start the repair work and from the office of Opposite party at Mohali, the complainant came to know that a surveyor Bhupesh Sharma of the opposite party insurance company has been given the claim file of the above said vehicle of the complainant. Thereafter, the complainant talk to Bhupesh Sharma that for what reason the directions has not been given to Toyota Automobiles to start the repair work of the complainant, then to utter surprise he stated that the claim file of the complainant cannot be passed as the vehicle number and chassis number of the vehicle is not matching with the insurance policy and the registration certificate of the vehicle. The complainant told the surveyor that the above said vehicle was got stolen and has been recovered due to which the accused persons have tempered the Engine number and Chassis number and FIR has also been registered regarding the same but the surveyor did not put ears to the genuine request of the complainant and finally on 29.10.2019 vide written letter the opposite parties refused the claim of the vehicle of the complainant by stating a reason that "Non Insurable Interest [Vehicle presented for claim is fitted with chassis number and engine number which is not mentioned in the RC and Policy and is different from insured]. The complainant approached the branch office of the opposite party at Mohali as well as at the office of Opposite party No. 2 at Tarn Taran with the request that the claim amount to be reimbursed to the complainant, as per the loss actually incurred by the complainant but the opposite party No. 2 Insurance Company did not put ears to the requests of the complainant. The complainant prayed that the following relieves may be granted in favour of complainant
- The opposite party may kindly be directed to release the insurance claim of Rs. 3,67,362/- to the complainant i.e. the claim amount
- An amount of Rs. 25,000/- as litigation charges and Rs. 50,000/- as compensation on account of mental and physical harassment caused to the complainant at the hands of opposite parties, on account of short come, deficient and negligent service may also be awarded to the complainant, in the interest of justice, equity and fair play
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Registered Copy of vehicle bearing its registration No. PB46-X-7080 Ex. C-2, Copy of Insurance Policy bearing No. TIL/10513427 Ex. C-3, copy of FIR No. 41 registered at P.S. Sohana Ex. C-4, Copy of report dated 11.9.2019 Ex. C-5, Copy of Job Card / Estimate No. BPE1902088 Ex. C-6, Copy of letter dated 29.10.2019.
2 Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by interalia pleadings that the present complaint is not legally maintainable as the same is an abuse of process of law. The complainant has not come to this commission with clean hands and had suppressed the true and material facts from the notice of this commission. The complainant has concealed and has suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and has not only concealed the material facts from this commission but has also twisted and distorted the same to the suit their own convenience and to mislead this commission. The contract of insurance between the opposite party and complainant is governed by its policy terms and conditions. Thus the words in an insurance contract must be given paramount importance and interpreted as express without any addition, deletion or substitute". The complainant has violated the terms and conditions of the policy as such the complaint is liable to be dismissed. The complainant has made up a false and concocted story and is trying to mislead this Commission, therefore, the complainant is not entitled to any relief from this Commission. The complainant had lodged the claim to the opposite party on 12.09.2019 and there is delay of five days in lodging the claim, which is against the terms and conditions of the policy and as such, the present complaint is liable to be dismissed on the ground of delay. In the present case, the complainant has lodged his claim on 12.09.2019 and thereafter, after receiving the claim of the complainant, the opposite party has appointed his surveyor, who has given its report after verifying the facts and even the surveyor has also investigated/surveyed the vehicle and has given his report "the physical inspection of the captioned vehicle revealed that its basic identification i.e. engine number and chassis number mentioned in the registration certificate does not match with the physical number imprinted on the vehicle produced by the insurance for claim". It has been further stated "since it has been found that there is mismatch in the basic identification number of the insured vehicle and the vehicle produced by the insured for claim, the claims stand not admissible". The surveyor/loss assessor Sh. Kiran Kumar has assessed the total loss as Rs.21158/-. After receiving the report from the surveyor, the opposite party has repudiated the claim of the complainant and intimation in this regard was given to the complainant vide letter dated 29.10.2019. During the last few months, the office of the opposite party is lying closed due to COVID-19 Pandemic, due to which the claim file of the complainant is lying in the claim Department and is not with the legal department. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record copy of claim form Ex. OP1, copy of insurance policy Ex. OP-2, copy of report given by the surveyor Ex. OP3, Copy of registration certificate Ex. OP4, letter dated 29.10.2019 Ex. OP-5.
3 We have heard the Ld. counsel for complainant and have also carefully gone through the documents on the file.
4 From the combined and harmonious reading of documents and pleadings on record it transpired that that the complainant is owner of Toyota Etios Liva Car having registration No. PB46-X-7080, Model 2016, Engine No. 1ND1A20057, Chassis No. MBJK49BTX00095734, Silver in Color. The above said car was insured with the opposite parties i.e. ICICI Lombard General Insurance Company which was valid from 28.12.2018 to 27.12.2019 and as per version of the complainant on 7.2.2019 when the complainant went to the intelligence office at Mohali for his official work after parking his above said vehicle outside the office and when he came out of the said office after completing his work to the utter surprise his vehicle was not present there, as the same was got stolen by some unidentified persons, when it was parked in front of the above said office. Thereafter, the opposite parties were intimated regarding the theft and intimation to the concerned Police Station was given and as such an FIR was also lodged at P.S Sohana bearing FIR No.0041 under section 379 IPC on the same day. Thereafter, lapse of about 50 days in the month of April 2019, the accused was caught and confessed that he has stolen total 29 cars and the same were also recovered from him including the above said stolen vehicle of the complainant. Further the accused confessed that after the theft of vehicle he used to change the head of the engine which bears the engine number and also replaced the plate on the chassis of the vehicle which bears the chassis Number of the vehicle alongwith other body parts of the vehicle which includes all the glass parts, tyres, ACM, BCM, Steering Lock etc. to change the look of the stolen vehicle. When the complainant was intimated that his stolen vehicle has been recovered from the accused persons then the complainant got applied for Sapurdari of his recovered vehicle from the court of Smt. Harjinder Kaur, JMIC Mohali. Thereafter, the court issued notice to Police and report was submitted by ASI Gurnam Singh of CIA Staff District SAS Nagar, Mohali dated 11.09.2019 whereby which it was also mentioned that the vehicle of the complainant has been recovered from the accused persons alongwith 19 other vehicles and it was also mentioned the said report that the engine number and chassis number of the vehicle of the complainant alongwith other body parts have also been tempered/changed to change the look of the stolen vehicle by the accused. After the vehicle of the complainant was taken on Sapurdari from the police by the order of court Smt. Harjinder Kaur, JMIC Mohali. After that it was taken to Globe Automobiles Pvt. Ltd. Phase-6 Industrial Area, Mohali and a job card/estimate bearing No.PBE1902088 was generated after inspection of the above said vehicle. The estimated cost to be spent on the repair of the vehicle was Rs.3,67,362/-. An intimation was sent to the opposite party ICICI Lombard General Insurance Company Ltd. By the dealer of Toyota motors regarding the amount to be spent on the vehicle. Thereafter, a surveyor Bhupesh Sharma was appointed to access the claim and the complainant came to know from the surveyor that his claim cannot be processed as the vehicle Number and chassis number of the said vehicle is not matching with the insurance policy and the registration certificate of the vehicle. Finally on 29.10.2019 the opposite parties repudiated the claim of the vehicle by stating a reason that "Non Insurable Interest [Vehicle presented for claim is fitted with chassis number and engine number which is not mentioned in the RC and Policy and is different from insured].
5 Ld. Counsel for the opposite party contended that the complaint has been with malafide and dishonest intention and has not only concealed the material facts from this commission but has also twisted and distorted the same to the suit their own convenience and to mislead this commission. He further contended that the complainant had lodged the claim to the opposite party on 12.09.2019 and there is delay of five days in lodging the claim, which is against the terms and conditions of the policy. He further contended that the opposite party has appointed a surveyor who has given his report after verifying the facts and after physical inspection of the vehicle revealed that its basic identification i.e. Engine Number and Chassis No. mentioned in the registration certificate does not match, as such, the complainant is not entitled for the claim of the said vehicle. The said surveyor /loss assessor i.e. Sh. Kiran Kumar has assessed the total loss as Rs.21158/-.
6 The opposite party has taken the specific objection that the complainant has lodged the claim with the opposite party on 12.9.2019, as such, there is delay of 5 days in lodging the claim. But the complainant has lodged FIR with the Police authorities on the same day as such, we are of the considered opinion that there is no delay in lodging the complaint with the opposite party. This delay in the opinion of this Commission is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-
“Circular
To: All Life Insurers and non-life insurers
Re: Delay in claim intimation/ documents submission with respect to
i) All life insurance contracts and
ii) All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in `submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation 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 holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.
J. Harinarayan
Chairman”:
A bare reading of circular shows that if the claim is otherwise payable then it should not be repudiated or rejected simply on the ground of delay and delay is only to be considered when claim is otherwise not made out and is liable to be rejected even if the matter has been reported in time. In case titled as National Insurance Company Limited Vs. Kulwant Singh 2014(IV) CPJ page 62 (NC) the Hon’ble National Commission observed that the insurance company should not have repudiated the claim merely on account of delay in giving the information to insurance company particularly when there was absolute no delay in lodging the FIR with the police. In the case in hand also, the theft took place on 1.10.2014 and intimation to the police was also given on the same day i.e. 1.10.2014 and as such, there was no delay at all for giving the intimation to the police. Moreover, in similar case titled as Reliance General Insurance Company Limited- Petitioner Vs. Sri Avvn Ganesh-Respondent 2012(1) CPJ page 176 in case under Consumer Protection Act, 1986 the intimation of death was given to the insurer with delay and claim was repudiated on the ground that death of insured was intimated after 4 months as against stipulated period of one month. The complainant filed complaint on the allegation of deficiency in service by insurance company, but the same was dismissed, but appeal filed by the complainant was allowed by Hon’ble State Commission. On revision, the Hon’ble National Commission, New Delhi observed that all the conditions for acceptance of insurance claim except point of reporting loss within one month of its occurrence had been substantially fulfilled and delayed intimation of death of insured due to injuries he suffered on account of accident could not be held to be destructive to insurance claim because the facts and circumstances of death were clearly established on the basis of medical on records as well as deposition of doctor who attended the insured and it was observed that like in case of theft of moveable insured property, delay in intimation was not prejudicial to the insurer because in such cases, Insurance company was not prevented, because of delay, from carrying out any investigation into the facts and circumstances as to whether the accident and consequent loss fell within the substantive condition of insurance policy and no infirmity was found in the order and revision petition was dismissed. In the case in hand also, there is delay of 5 days as claimed by the Opposite Party which is not material in the case in hand for closing or repudiating the claim case of the complainant and as such, the complainant is entitled to claim the insurance amount of the vehicle in question.
7 Further the claim of the complainant was repudiated by the opposite party on the ground that there is mismatch of chassis Number, Engine Number mentioned in the registration certificate. In this regard, there is ample evidence on the file which shows that the vehicle of the complainant was stolen and a FIR was registered in this regard, which is Ex. C-4. In the copy of FIR the modus opendi of the accused was revealed that how they changed the engine number as well as chassis number of the stolen vehicle after the theft. As per Ex. C-5, this document is duly signed by the CIA staff District S.A.S. Nagar dated 11.9.2019 and as per this document, it is clearly mentioned that vehicle Number PB46-X-7080 has been recovered from the accused and a fake number i.e. PB03-M-0015 has been affixed and the accused has tampered with the Engine Number and Chassis Number as well as ACM, BCM and Steering lock have been changed to hide the actual identity of the said vehicle. This document is admissible under Indian Evidence Act, as this has been issued by the public authority. So from the documents placed on record by the complainant it is very much clear that his vehicle was stolen by the accused and the engine Number and chassis Number was also changed as confessed by the accused.
8 The vehicle was received by the complainant on Sapurdari from the competent court and it was taken to the authorised service centre i.e. Globe Automobile Pvt. Ltd. Phase 6 Industrial Area Mohali and an estimate of repair was made to the tune of Rs. 3,67,362/-. However, the surveyor/ loss assessor i.e. Kiran Kumar has assessed the total loss of Rs. 21,158/- but claim of the complainant was repudiated on the ground of identification of the vehicle. The opposite party has assessed the total loss of vehicle to the tune of Rs. 21,158/- on the basis of report of Surveyor Sh. Kiran Kumar but the said report of the surveyor is not supported by his affidavit. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value. The complainant has submitted all the documents for settlement of claim. Moreover, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich.
9 Now question arises that the complainant is entitled for how much amount of loss to the vehicle under the insurance claim. As per Ex. C-6, the loss has been assessed to the tune of 3,67,362/- by the Globe Auto Mobile Pvt. Ltd. Phase 6 Industrial Area Mohali which is authorised service centre of the Toyota Motor. The IDV of the stolen vehicle is Rs. 5,17,020/-, as such, the above said amount of Rs. 3,67,362/- is covered under the insurance policy in question. Hence, the complainant is entitled to Rs. 3,67,362/- as assessed by authorised service centre of Toyota Motors. By withholding the above said insurance amount of the complainant, the opposite party indulged itself in deficiency in service and unfair trade practice.
10 In view of the above discussion, the present complaint is allowed and the opposite parties are directed to make the payment of Rs. 3,67,362/- to the complainant within one month from the date of receipt of copy of this order. The complainant has also been harassed by the opposite parties for a long time, as such the complainant is also entitled to Rs. 25,000/- as compensation on account of harassment and mental agony and 15,000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
10.05.2023
