Haryana

Ambala

CC/418/2017

Tersem Kumar - Complainant(s)

Versus

IFFCO Tokio Gen Inss - Opp.Party(s)

Ashish Sharma

25 May 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 418 of 2017

                                                          Date of Institution         : 29.11.2017

                                                          Date of decision   : 25.05.2018

 

 

Tersem Kuamr S/o Sh. Sohan Lal, R/o Village-Kanwala, District Ambala City.

       ……. Complainant.

Vs.

 

1.       IFFCO-TOKIO General Insurance Company Limited, Ist Floor, Minerva Complex, Rai Market, Ambala Cantt-133001- through its Divisional/ Branch Manager.

2.       IFFCO-TOKIO General Insurance Company Limited, Registered Office-IFFCO Sadan, C-1, District Centre, Saket, New Delhi-110017 through its Director/ Managing Director.

 

 ….….Opposite Parties.

 

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

                   Sh. Pushpender  Kumar, Member.            

                   Ms. Anamika Gupta, Member.

 

 

Present:       Ms. Anita Sharma, counsel for complainant.

Sh. R.K.Vig, counsel for Ops.

 

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant has purchased a New Motor Cycle Splendor Plus for Rs.44650/- ChassisNo.MBLHA10AMEHK83425, Engine no.HA10EJEHK- 30474 and was registered vide registration no. HR-01-AK-4234 at registering Authority (MV), Ambala and insured from OP No.1 vide its policy number 95043489 and was running in its second year of policy for the period of 17.11.2015 to 16.11.2016. The said motor cycle was financed by “Shriram City Finance Limited” for which complainant is regularly paying monthly installment of Rs.2,355/-PM. On dated 24.10.2016 wife of complainant got admitted in the Civil Hospital Ambala City for her delivery and gave birth a male child on 24.10.2016. Immediate after the birth of the child the doctors at Civil Hospital Ambala City referred his new born baby boy to PGI, Chandigarh as he  was in a critical condition after his birth, but his wife remained admitted in Civil Hospital Ambala City upto 29.10.2016 and her treatment continued till 11.11.2016. The motor cycle of the complainant remained parked in the civil hospital only because his wife was admitted still in the hospital and he had to move with his new born baby in Ambulance for PGI, Chandigarh. Upto 26.10.2016 his motor cycle was parked in the Civil Hospital Ambala City but on 26.10.2016 his motor cycle was stolen by unknown thieves. The complainant was in a great confusion under these circumstances that on one hand his son had expired on the other hand his wife was in the hospital and his motor cycle was also stolen. So he could not bear this entire situation and keeping in mind the worst situation he first did cremation of his expired son and did the other formalities on 26.10.2016 & 27.10.2016. On the motor cycle  of the complainant  was stolen  from civil hospital  Ambala City on 26.10.2016 and intimation of this theft  was given to ITGI/OP No.1 on 28.10.2016 without any delay which si also admitted by IFFCO-TOKIO in his letter dated 08.11.2018. On 26.10.2016 the complainant also went to Police station to lodge FIR about the theft but the Police authorities did not registered his FIR and directed him to find the motor cycle on his own. After one week of festival of diwali he again went to police station on 07.11.2016 and police authority lodge FIR on 07.11.2016. The complainant also filed claim papers to the OP NBo.1 and kept on submitting all the formalities from 28.11.2016 to 08.11.2017. The Ops did nothing for one year to give the claim money for his motor cycle and vide letter dated 08.11.2017 repudiated the claim of the complainant and closed the file of complainant by saying no claim. 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, OPS appeared through counsel and tendered written statement and stated that the complainant  in his complaint dated 24.11.2017 categorically made a mention of the fact that motorcycle owned by him was stolen on 26.10.2016 from the premises of Civil Hospital, Ambala, but the complaint was lodged on 28.10.2016. The complainant lodged  the FIR in the Police Station Baldev Nagar vide FIR No.0380 dated 07.11.2018  after 13 days of stolen of his motor cycle. They further stated that is the duty of the insured to inform to the insurer in writing immediately  upon the occurrence of  any accidental loss or damage in the even to any claim and the same has duly been incorporated in the policy conditions issued to the public  at large. The most relevant term and condition is set forth below:-

“Notice shall be given in writing to the company immediately upon occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured give all such information and assistance as the company shall require”.

Thus the Ops rightly, legally & validly repudiated the claim of the complainant & the same was duly informed to the complainant vide letter dated 08.11.2017.  Hence, the Ops are not liable to pay any amount and there is no deficiency on the part of the OPs and prayed for dismissal of the present complaint. 

3.               To prove his version complainant tendered his affidavit as Annexure C-A with documents as annexure C-1 to C-10 and close his evidence. On the other hand, Counsel for the OPs tendered two affidavits as Annexure R-A &R-B along with Annexure R-1 to R-18 and close their 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.38,000/- with the OP on the premium of Rs. 2,355/-  having validity w.e.f. 17.11.2015 to 16.11.2016. It is case of the complainant is that the motor cycle of the complainant remained parked in the Civil Hospital because  his wife was admitted  in the Civil Hospital  for her delivery and she was operated there and gave birth to a male child on 24.10.2016 but after immediate the birth of the child the doctors  of the hospital referred his new born male  child to PGI Chandigarh as he was in a critical condition and he had to move with his new born baby in Ambulance for PGI Chandigarh and his wife remained admitted in Civil Hospital, Ambala City upto 29.10.2016. It is proved on the file that the vehicle in question has been stolen by unknown person on 26.10.2016 while the complainant had kept his aforesaid motor cycle parked in the Civil Hospital, Ambala City. On 26.10.2016 the complainant has visited the parking place but motor cycle  in question was not found there and he made search and efforts to trace motor cycle  in question but could not find and  FIR in this regard has been lodged on 07.11.2016  bearing FIR No.380.P.S.Baldev Nagar, Ambala  and complainant has intimated the OP  but the claim was repudiated by the OP on the ground of delay  intimation vide Annexure R-15 wrongly and illegally.

6                 On the other hand counsel for OP has argued that the complainant has intimated to the OPs regarding theft of the vehicle in question on 28.10.2016 after a delay of more than 2 days but due to delay intimation to the company just to keep them away from the proper investigation into alleged theft of vehicle and make an endeavour to recover the same. In support of his contention learned counsel for the OP relied upon the case laws tilted as Guvinder Singh Vs. Future Generali India Insurance Company Ltd. decided on 18.04.2017 by Hon’ble National Commission, New Delhi  in RP No.1241 of 2015, Shimbhu  Singh Shekhawat Vs. Cholamandalam Ms. General Insurance Company Limited decided on 13.09.2017 in revision no. 1356 of 2016, Reliance General Insurance Company Ltd. Vs. Partap Singh decided on 17.011.2017 in revision No.631 of 2016, Gurshinder Singh Vs. Sriram General Insurance Company Ltd. in SLP No.24370/2015(SC)

7.             Therefore, complainant has contravention the terms and condition of the policy which read under:-.

“Notice shall be given in writing to the company immediate upon occurrence of any accident or 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”. 

                   In view of the breach of the above referred condition, the insurer in not liable to reimburse the complainant for the loss suffered by him on account of his own negligence and the judgment of Hon’ble National Commission New Delhi in case titled Caina Construction Company Vs. Oriental Insurance Company Limited & Anr. 2016(4) CLT Page 87 has also observed that Insurance Claim – theft of vehicle- delay in intimation – plea of OP that insurance claim of the complainant was rightly repudiated because of the failure of the complainant to intimate the theft to insurance company in writing within a reasonable time, which amounts to violation of the terms and conditions of the insurance contract. In the event of any accidental loss or damage to the insured vehicle, it was contractual obligation of the insured complainant to immediately inform insurance company. In this way, the complainant has violated the said condition by delaying the intimation of theft to the insurance company for about 2 days. The complainant has violated the above noted stipulation of the insurance contract. Counsel for the OPs has further relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, Delhi case title Devider Kumra Vs. National Insurance company ltd. RP No.3840 of 2011, Surender Vs. National Insurance co. ltd. 1(2013) CPJ 741 (NC) And Shimbhu Singh Shekhawat Vs. Cholamandalam Ms. General Insurance Co. ltd.

8.                Counsel for the complainant has rebutted the arguments of the OPs by explaining the delay in informing the insurance company. It is a matter of  common knowledge when anybody losses his vehicle he will not go to insurance company straightaway  but in the present case  the insurance company has repudiated the claim of the complainant purely on technical ground. Moreover, it  is very well established on the case file that wife of the complainant admitted in Civil hospital on 24.10.2016 and remained admitted upto 29.11.2016 as per Annexure C-4  for delivery and gave birth  to   a male child but when his condition was critical he was referred to PGI Chandigarh but male baby could not survive as per affidavit Annexure C-A filed by the complainant and he specifically mentioned  in affidavit that unfortunately deponent has lost his new born son on 26.10.2016 and motor cycle of the complainant was also stolen on the same day. In the present case the insurance company has dealt the matter purely on technical grounds despite the fact that the delay in lodging the FIR as well as intimate to the insurance company was not intentionally rather the same is bonafidelly as well as due to circumstances and incidents occurred from the date of admission of the wife of the complainant till the death of newly born child and on rituals. The case laws cited by the Ops are distinguishable not applicable in the present case because complainant has duly  explained the delay of lodging the FIR as well as intimating the Ops within 48 hours as admitted by the insurance company. Moreover, as per the surveyor report Annexure R-5 that surveyor has mentioned in this report that he has confirmed the FIR lodged in Police Station Baldev Nagar lodged by the complainant which is still investigation, but OP has admitted in his written statement that police has filed untraced report to the  Additional CJM Ambala and same was accepted by the court on 19.09.2017. Even then the complainant has filed the affidavit and described that he went in the Police Station on the occurrence on the day but authority did not registered the FIR and direct him to find the motor cycle on his own as it was festive time of Diwali  and if he failed to find on his own then come after one week of festival  to lodge FIR. We find that  affidavit filed by the complainant is not false one Usually, it has been seen that the police did not take the immediate action regarding the cases of the theft.

9.                Counsel for the complainant has lastly argued that if it is presumed there was any breach of condition of the policy, complainant is entitled the claim on non-standard basis as per judgment of Hon’ble Supreme Court titled as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), Hon’ble Supreme Court has observed thus:

                   “In the present 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 and another judgment of Hon’ble State Commission, Pandri, Raipur titled as M/s Bhagwati Trading Co. Vs. The Oriental Insurance Co.Appeal NO. FA/13/350. Counsel for complainant has argued that if, this Forum come to this conclusion, there is any breach of the conditions of the policy, this Forum can decide the claim of the complainant on non-standard basis as per the judgment of Hon’ble Supreme Court title as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C).

10.                   From the above said facts and circumstances of the case, it is clear that the complainant has properly explained the delaying of the FIR regarding stolen of the vehicle in question. We observed that it is not a fault of the complainant regarding delaying the registration of the FIR. Counsel for complainant has also relied upon the judgment of Hon’ble Punjab and Haryana High Court case title Bharti AXA General Insurance Company limited Vs. Ms. Monu Yadav Vol. CLXXVI-(2014-4) Page 861 has laid down that Insurance –Theft of car –delay in lodging claim with Insurance Company of 54 days – Instructions dated 20.09.2011, issued by Insurance Regulatory and Development Authority to all the insurance Companies- As per the said instructions, this condition should not prevent the settlement of genuine claims particularly when there is delay in giving intimation or in submission of documents due to unavoidable circumstances – The companies were advised that they must not repudiate such claims on the ground of delay, especially when the policy has been promptly informed in this regard.

11.                   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 which assessed Rs. 5000/- 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 vehicle in question i.e. Rs.38000/- which comes to Rs.28500 /- from the date of complaint along with interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.5,000/- cost of proceedings as assessed above.

                   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:25.05.2018                                       (D.N. ARORA)

                                                                                    PRESIDENT

 

                                                                                    (PUSHPINDER KUMAR)

                                                                                 MEMBER

 

 

                                                                        (ANAMIKA GUPTA)

                                                                                      MEMBER