DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.416 of 29-08-2012
Decided on 18-12-2012
Anuj Pathak aged about 40 years s/o Vashisht Pathak r/o H.No.20030, Street No.11, Jujhar Singh Nagar, Near Phase-III, Bathinda.
........Complainant
Versus
1.ICICI Lombard General Insurance Company Ltd., Guru Kanshi Marg, Sharma Complex, First Floor, 3039-A, Bathinda, through its Manager.
2.ICICI Lombard General Insurance Company Ltd., Interface Building No.11, 401/402, 4th Floor, New Link Road Malad (W) Mumbai, through its M.D/Chairman.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt. Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Rohit Khattar, counsel for complainant.
For Opposite parties: Sh.Vinod Garg, counsel for opposite parties.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is owner of Hero Honda Motorcycle bearing registration No.PB-03S-5828 Model 2008. The abovesaid vehicle is comprehensively insured with the opposite parties vide cover note No.3005/11986862/10005/000 dated 15.10.2010 w.e.f 15.10.2010 to 14.10.2011. The said motorcycle was stolen by some unknown person on 27.8.2011 from Deepak Dhaba near Railway Station. The complainant immediately informed the police by moving an application but the police did not entertain the said application and directed him to trace out the motorcycle at his own. The complainant also informed the opposite party No.1 about the theft of the motorcycle immediately through telephone and the opposite parties obtained the claim form No.MOT02182703 by completing all the formalities from him. The complainant tried his best to search the said motorcycle but could not find it anywhere and ultimately the police registered FIR No.190 dated 9.9.2011 under section 379 IPC of PS Kotwali, Bathinda. On receiving the intimation of theft the opposite party No.1 has appointed the surveyor Naresh Sharma and requested the complainant to co-operate with the surveyor and fill up the attached claim form and provided the documents as mentioned in the claim vide Reference No.ACK/2182703 dated 12.9.2011. The untraced report of the said vehicle was issued vide order dated 15.6.2012 by the Court of Hon'ble Chief Judicial Magistrate Bathinda. The said surveyor has obtained the signatures of the complainant on the blank papers, forms, vouchers and consent letter with the understanding that the total loss will be paid to him at the earliest. The surveyor also took away the keys of the motorcycle as well as the duplicate R.C from the complainant but he has not issued any receipt about the receipt of the said documents and keys. The complainant also submitted the necessary documents i.e. photocopies of Insurance Cover Note, Registration Certificate of the said vehicle to the opposite parties through surveyor. The opposite parties have not issued any terms & conditions to the complainant at the time of issuance of the Insurance Cover Note. The claim of the complainant was repudiated vide letter dated 31.5.2012 on the ground 'that there is delay of 24 days in lodging the FIR to the Police and delay of 16 days in lodging intimation with the opposite parties. Hence the complainant has filed the present complaint seeking the directions to the opposite parties to pay his claim alongwith interest, cost and compensation.
2. Notice was sent to the opposite parties. The opposite parties after appearing before this Forum have filed their joint written statement and pleaded that the complainant has concealed the material facts and documents from this Forum as well as the opposite parties. The complainant has concealed the fact that the date of loss in this present case has been intimated as 27.8.2011 whereas the intimation to the police was given on dated 20.9.2011 and intimation to the opposite parties was given on 12.9.2011 thus there is delay of 24 days in giving the intimation to the police authorities and delay of 16 days in giving the intimation to the insurer. As per condition-1 of Insurance Policy, the complainant was bound to give immediate notice to the police regarding the alleged theft/criminal act as such he has violated the terms & conditions of the policy and the claim was repudiated vide letter dated 31.5.2012. The complainant has given the references of law laid down by the Hon'ble Supreme Court in the cases reported as 2009 (4) CLT 313 (SC), 2009 (2) CLT 15 (SC) and 2007 (2) CLT 186 (SC). The delay in intimation to the police and insurer clearly debars the right of the insurer to investigate the matter and make efforts to recover the vehicle/loss. The complainant has concocted a false story to cover up his own wrongs and the delay on his part in giving the intimation to the police and insurer. The complainant has not completed all the formalities. The complainant has not placed on file any representation made to the police or its higher authorities regarding the allegations. The opposite parties or any surveyor have not taken the signatures of the complainant on any blank papers, forms, vouchers or consent letters etc. with the understanding that the total loss will be paid to him.
3. The parties have led their evidence in support of their respective pleadings.
4. Arguments heard. The record alongwith written submissions submitted by the parties perused.
5. The vehicle of the complainant bearing registration No.PB-03S-5828 Model 2008 comprehensively insured vide cover note No.3005/11986862/10005/000 dated 15.10.2010, effective from 15.10.2010 to 14.10.2011, was stolen from Deepak Dhaba near Railway Station on dated 27.8.2011.
6. The submissions of the complainant are that he had informed the police by moving an application about the theft of the said motorcycle but the police did not entertain the said application and directed him to trace out the same at his own and he also immediately informed the opposite party No.1 through telephone and the opposite parties obtained the claim form No.MOT02182703 by completing all the formalities from the complainant. The complainant tried his best to search the said motorcycle but could not find it anywhere and ultimately on 9.9.2011 the police registered FIR No.190 dated 9.9.2011 under section 379 IPC at PS Kotwali, Bathinda. On receiving the intimation of theft the opposite party No.1 has deputed the surveyor Naresh Sharma, he obtained the keys of the said motorcycle, duplicate RC and the other documents such as photocopies of Insurance Cover Note, Registration Certificate of the said vehicle from the complainant and took his signatures on various blank papers, forms, vouchers and consent letter with the understanding that the total loss will be paid to him at the earliest. The opposite parties did not honour the claim of the complainant and repudiated the same vide letter dated 31.5.2012 on the ground that there is delay of 24 days in lodging the FIR to the Police and delay of 16 days in lodging intimation with the opposite parties
7. On the other hand the submissions of the opposite parties are that the complainant has concealed the material facts and documents from the opposite parties and the Forum. As per complaint, the complainant has intimated the police on 27.8.2011 whereas the intimation was given on 20.9.2011 and the intimation to the opposite parties was given on 12.9.2011, thus there is delay of 24 days in giving the intimation to the police authorities and delay of 16 days in giving the intimation to the insurer. As per condition-1 of the Insurance Policy, the complainant was bound to give immediate notice to the police regarding the alleged theft/criminal act as such he has violated the terms & conditions of the policy and the claim was repudiated vide letter dated 31.5.2012. The opposite parties have taken the support of various authorities. The letter dated 12.9.2011 was sent to the complainant for assisting him to complete and submit all the required documents. The surveyor of the opposite parties has not taken the signatures of the complainant on any blank papers, forms, vouchers or consent letters etc. with the understanding that the total loss will be paid to him. The claim of the complainant is rightly repudiated vide letter dated 31.5.2012 as there is delay in intimating the police as well as the insurer.
8. Vide Ex.C2 dated 12.9.2011 a letter was sent to the complainant by the opposite parties. The relevant portion of this letter is reproduced as under:-
“This is to acknowledge that we have received your claim lodged by you via claim No.MOT02182703 for the theft of your motor vehicle under the captioned policy number.
We wish to inform you that surveyor's Naresh Sharma, contact No.97795-73039 has been appointed to assist you in your claim procedure.
Requesting you to please co-operate with the surveyors & fill up the attached claim form & provide the documents as mentioned in the claim form.”
Thereafter on 31.5.2012 vide Ex.C3 the claim of the complainant was repudiated. The relevant portion of the repudiation letter is reproduced as under:-
“With reference to your claim NO.MOT02182703 under Two Wheeler Package Policy number 3005/61596333/00/B00 we wish to inform you that we have received the papers submitted by you for processing of your claim. On the basis of our examination of the submitted documents, we regret our inability to honour the claim for further process due to the below mentioned reason;
The date of loss as informed by you is 27th August 2011 and the notice/intimation to the police authorities is dated 20th September, 2011 whereas the intimation to the insurance company is dated 12th September, 2011.
Condition 1 of the Motor Insurance policy wordings is as follows:-
Notice shall be given in writing to the Company immediately upon the occurrence of any accident 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 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 police and co-operate with the company in securing the conviction of the offender.
There has been a delay in intimation of 24 days to the police authorities and delay of 16 days in intimation to the insurance company whereas; the aforementioned condition speaks of immediate notice to the police authorities and the insurance company.
This is violation of policy condition. The claim should have been immediately lodged with the police and the insurance company.”
A letter has also been issued by the police station Kotwali Ex.C4 in which it has been specifically mentioned:-
'That the vehicle bearing No.PB-03S-5828 Hero Honda CD Delux has been stolen from railway station, Bathinda on 27.8.2011. The FIR No.190 was registered on 9.9.2011 under section 379 IPC'.
This report has been given by the official concerned PS Kotwali on 20.9.2011. In the untraced report it has also mentioned:-
'That the vehicle of the complainant has stolen on 27.8.2011 from Deepak Dhaba near Railway Station. The investigation of that theft was conducted by the police in case FIR No.190 dated 24.8.2011 U/s 379 IPC, PS Kotwali Bathinda.
This untraced report was issued on 15.6.2012. In FIR Ex.C6 the date of loss is mentioned as 24.8.2011. In Ex.C7 it has specifically revealed that Anuj Pathak, the complainant has lodged a complaint in PS Kotwali regarding the motorcycle Hero Honda CD Delux that has been parked at the railway station. The complainant went to take the ticket from the railway station and he came back and saw his vehicle bearing registration No.PB-03S-5828, black colour was stolen from the place. These facts have been recorded by the PS Kotwali, Bathinda on dated 27.8.2011 at 10:00 pm and the copy of the register has been duly placed on file vide Ex.C1. This document has been received by the complainant under RTI Information
As per the version of the complainant the opposite parties were informed immediately on the phone. A perusal of documents placed on file also shows that the complainant has immediately informed the police and to this effect Ex.C7 is produced on file, it has been duly entered by the PS Kotwali in their record that he has informed the theft of the said vehicle bearing registration No. PB-03S-5828 Hero Honda CD Delux on 100 number. The relevant portion of Ex. C-7 is reproduced as under :-
“98888-04068 – Somebody informed at 100 number that he parked his Motorcycle CD Honda Delux outside Railway Station and went to purchase the tickets from Station Master. When he came back after purchasing the tickets, he found that his motor cycle bearing No. PB-03S-5828, black colour was stolen.”
The opposite parties have repudiated the claim of the complainant on the single ground that there is delay of 24 days in intimating the police and 16 days delay in intimating to the insurance company whereas it has been proved on file the intimation regarding the theft of the said vehicle to the police was given on the same day on 27.8.2011 as such this plea of the opposite parties is not tenable regarding the information to them with delay of 16 days, the complainant has specifically submitted that he has intimated the insurance company on telephone and the opposite parties obtained his signatures on blank papers, forms, vouchers and consent letter by completing all the formalities from him and he has given all the documents mentioned in the claim vide Reference No.ACK/2182703 dated 12.9.2011. The key and duplicate R.C alongwith other documents were also submitted to the insurance company by the complainant. The insurance company cannot repudiate the claim on the hypothetical ground.
Moreover it has been proved on file that the complainant has immediately informed the police and untraced report has also been issued by the Court of learned Chief Judicial Magistrate.
With utmost regard and humility to the authorities relied upon by the learned counsel for the opposite parties, they are distinguishable on facts and circumstances.
Therefore in view of what has been discussed above this complaint is accepted with Rs.5000/- as cost and compensation and the opposite parties are directed to pay the (IDV) of Rs.28,800/- of the said vehicle, as the theft is the case of total loss. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
In case of non-compliance the interest @ 9% per annum will yield on the amount of Rs.28,800/- since the institution of this complaint i.e. 29.8.2012 till realization.
11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum:-
18-12-2012
Vikramjit Kaur Soni
President
( Amarjeet Paul ) (Sukhwinder Kaur)
Member Member
