Haryana

Ambala

CC/347/2017

Manjit Singh - Complainant(s)

Versus

IFFCO TOKIO Gen Inss. - Opp.Party(s)

Abhishek Kathuria

12 Sep 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No.   347 of 2017

                                                        Date of instt:      10.10.2017

                                                        Date of decision: 17.09.2018

 

Manjit Singh s/o Gurbachan Singh aged 34 years resident of H.no.1, village Sultanpur District Ambala.

                                                                           ...Complainant.

  Versus

IFFCO TOKIO General Insurance Company Limited,6330 Second Floor, Near about Dena Bank, Punjabi Mohalla District Ambala.

                                                                         …Opposite party.

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.                                           SH.PUSHPENDER KUMAR, MEMBER.   

                 

Present: -    Sh.Abhishek Kathuria, counsel for complainant.

                   Sh. Mohinder  Bindal, counsel for Op.

 

Order

 

                        In nutshell, the facts of the complaint are that the complainant had purchased a truck on hire purchase basis and had also obtained NOC from HDFC Bank as per requirement of OP as the entire installments have been made. The truck bearing No.HR37C-3250 was insured with the OP. Unfortunately said vehicle was got stolen on 15.09.2015 at Ambala and regarding this FIR No.0260 dated 15.09.2015 was registered under Section 379 IPC. The complainant intimated the OP immediately which obtained many documents from the complainant but to no avail. The complainant had made all possible efforts to get his claim settled and even approached to Permanent Lok Adalat for settlement but his genuine claim was no settled. The OP deliberately avoided the genuine claim of the complainant despite the fact that it was bound to indemnify the loss as per policy and finally refused to pay the same on 04.04.2016. The act and conduct of the OP clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C8.

2.                          On notice OP appeared and filed its reply wherein preliminary objections such as cause of action, concealment of material facts and jurisdiction etc. have been taken.  The complainant himself is responsible for non-payment of his claim because the claim was lodged on 14.09.2015 and theft had occurred on 10.09.2015. There is crucial delay of 4 days in violation of condition No.1 but even then investigator was appointed who had submitted his report dated 06.08.2016. The complainant was asked to explain about the delay besides submitting documents and even reminders were sent but to no avail, therefore, the claim of the complainant was rightly repudiated and duly intimated to him. There is no deficiency in service on the part of OP. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OP has tendered affidavit Annexure RA and documents Annexure R1 to Annexure R9.

3.                We have heard learned counsels for the parties and carefully gone through the case file.

4.                In the present case, truck of the complainant was insured with the opposite party for the period from 18.03.2015 to 17.03.2016 as per Annexure C-3 having IDV of Rs.8,75,000/- and the truck of the complainant in question was stolen on 10.09.2015 at Ambala and the FIR was registered regarding the theft of vehicle on 15.09.2015  as per Annexure C- 4.  The vehicle in question could not be traced out and police has filed the untraced report to Illaqa Magistrate which was accepted by the court on 12.04.2016. Complainant alleged that he informed the OP about the theft of the truck and also sent the documents, untraced report and registration certificate and FIR etc. but OP has sent the Annexure C5 for giving the documents i.e.  NOC from the bank, original purchased invoice and original court acceptance of untraced report and explanation for reason of delay in FIR and explanation for reason for delay in ITGI. Complainant alleged that he has sent the all documents to the insurance company but OP has not settled the claim of the complainant and finally declined the claim on 04.04.2016- Annexure R1 and no claim due to non-compliance of documents required as per Annexure C5 to Annexure C7. The OP has taken the objection that the company has received the intimation of theft on 14.09.2015 after delay of the four day which was duly entertained in due course without going into the aspect of the maintainability due to late intimation to the OP inspite of the fact that present complaint was out rightly liable to be discard due to late intimation and it is a violation of condition No.1 of the policy.  It is the sole fault on the part of the complainant and thus as per terms and conditions of the policy the complainant deserves “NO CLAIM” on his ground. On the above said ground, the claim of the complainant has been repudiated. Therefore, there is no deficiency in service on the part of the opposite party.  In support of his contentions learned counsel for the OP drew the attention of this Forum towards the judgment titled as OIC Vs. Parvesh Chander Chadha  CA No.6739 of 2010 decided by Hon’ble Supreme Court of India decided on 17.08.2010 and held that  no information to the insurance company immediacy after theft deprived the insurance company of its legitimate right to get any enquiry conducted into the matter, such a delay is fatal to the claim.  Similar view has been taken in case titled as New India Insurance Company Vs. Trilochan Jain FA No.321 of 2005.  The OP also argued that complainant is seeking the relief on the strength of judgment Om Parkash Vs.RGICL, Civil Appeal No.15611 of 2017.  In the above said judgment Hon’ble  Supreme Court has held as under:

11. It is common knowledge that a person who lost his vehicle may not straightaway 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-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.

 

The both judgment of the Supreme Court has been questioned before Supreme Court of India in case Gurshinder  Singh Vs. SGICL SLP No.24370 of 2015 wherein matter has been forwarded to Chief Justice for referring the matter to larger bench for a proper decision due to conflicting view in all decided judgment of Supreme Court in case of equal strength base bench in case OIC Vs. Pravesh Chander Chadha i.e. later decided case i.e. Om parkash Vs. RGICL. The counsel for the OP has argued that till the view taken in case law Pravesh Chandra and other similar cases is set aside or modified by a bench of larger strength it will hold a good law in binding precedent for the court, so that he prayed for dismissal of the complaint keeping in view the above citation i.e. OIC Vs. Pravesh Chander Chadha.

                   The verdict made in the citation relied upon by the learned counsel for the OP cannot be taken into consideration keeping in view verdict made by the Hon’ble Supreme Court in case titled as NATIONAL INSRUANCE COMPANY LIMITED VS. NITIN KHANDELWAL 2008 (ACJ) 2035 (SC) wherein it has been held as under:

“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 toto in case of loss of vehicle due to theft.

14. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.

15. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission.

16. The State Commission has allowed only 75% claim of the respondent on non-standard basis. We are not deciding whether the State Commission was justified in allowing the claim of the respondent on non-standard basis because the respondent has not filed any appeal against the said order. The said order of the State Commission was upheld by the National Commission.”

5.                In the present case the vehicle of the complainant was stolen by some unknown persons and regarding this untraced report submitted by the police before the court has already been accepted and consigned to the record room vide order dated 12.04.2016. The sole ground of the OP is that there is   inordinate delay of 5 days in lodging the FIR besides 4 days of delayed intimation to the OP which is violation of condition No.1 of the policy. The vehicle in question is said to have been stolen when the same was parked in front of the office of the complainant and this fact has also been mentioned in the report lodged with the police. It is common knowledge that a person who got lost his vehicle may not straightaway go to the Insurance Company to claim compensation.  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. It is a settled principle of law that 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-holders in the insurance industry. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act. Hon’ble National Commission, New Delhi in case titled as SHRIRAM GENERAL INSURANCE CO. LTD vs. RAMCHARAN DHOBI decided on 19.01.2017 in REVISION PETITION NO. 964 OF 2015 has held as under:

16.    On the other hand, there is also some weight in the assertion of the petitioner insurance company that the condition no.1 of the policy provides that the notice/information should be given immediately to the insurance company in writing, whereas no notice has been given to the insurance company within the reasonable period of time. However, all the insurance company are bound to observe the guidelines issued by  IRDA. As per IRDA Circular dated 20.9.2011 which has already been mentioned above, no genuine claim should be  rejected on the technical ground of delay. However, we must distinguish between those informing the damage/loss in time to the insurance company as per the terms and conditions and those who do not comply completely with the terms and conditions of the policy. Prima facie, the claims of those who do not comply with the terms and conditions of the policy may be rejected as violation of terms and conditions of the policy, however, directions of IRDA vide Circular No.IRDA/HLTH/MIS/CIR/216/09/2011 dated 20.9.2011 provide for non-rejection of genuine cases even though there is some violation in complying with the terms and conditions of the policy in certain cases, like delay in informing the insurance company etc. Hence, taking the spirit of the IRDA Circular into account, we are of the view that the insurance claim of the complainant for theft of his vehicle may be allowed but not to the tune of 100%, because there has been deficiency on the part of the complainant in informing the insurance company in writing and in time as per the terms and conditions of the policy.  Hon’ble Supreme Court in the case of Amalendu Sahoo  vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC) has observed that the insurance claim may be allowed upto 75% in cases of breach of warranty/condition of policy.

In the present case theft has not been denied by the OP and even then the vehicle also could not traced out by the police and police has submitted the untraced report duly accepted by Illaqa Magistrate.

6.                The authority cited (supra) by the complainant squarely covered case of the complainant. In view of above discussion, we have opinion that the present  complaint is 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 Op is directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay 75% of Insured Declared Value of Truck which comes to Rs.6,56,250/- from the date of complaint alongwith interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.10,000/- on account of litigation charge, mental harassment & agony alongwith 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: 17.09.2018                                 

                            

 

(PUSHPENDER KUMAR)                                            (D.N. ARORA)

          Member                                                                     President