Haryana

Ambala

CC/211/2017

Istak Khan - Complainant(s)

Versus

Iffco Tokio Gen Insurance Co Ltd. - Opp.Party(s)

P.S.Sharma

07 May 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 211 of 2017

                                                          Date of Institution         : 22.06.2017

                                                          Date of decision   : 07.05.2018

 

 

Istak Khan aged 30 years s/o Sh. Ramjun r/o village Raumajra, Tehsil Naraingarh, District Ambala.

……. Complainant.

Vs.

 

1.       IFFCO TOKIO, General Insurance Co. Ltd, Minerva Complex, Rai Market, Ambala Cant through its Branch Head.

2.       IFFOC TOKIO General Insurance Co. Ltd. 5C/1, Sheetal Complex, Ground Gloor, Rajbaha Road, Patiala (PB) through its Branch Manager. 

 

 ….….Opposite Parties.

 

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

                   Sh. Pushpender Kumar, Member.             

                   Ms. Anamika Gupta, Member.

 

 

Present:       Sh. P.S.Sharma, couunsel for the complainant.

                   Sh. Mohinder Bindal, counsel for the Ops.

 

 

ORDER:

In nutshell, brief facts of the present complaint is that the chasis of Tata Tipper bearing no.B591803101L62957131 and Engine no. MAT448085A3N22979 was purchased by Sh. Matlub Hasan s/o Sh. Fazal Din r/o Rao Majra, Tehsil Naraingarh District Ambala for a sum of Rs. 18,28,138/- from DADA Motors Pvt. Ltd. Ludhiana vide Invoice dated 05.01.2011 and spent Rs. 6,50,000/- on  getting it completed in Tipper alongwith Hydraulic Jack and was assigned  registration No.HR-37-C-5360. Lateron complainant purchased it from Sh. Matlub Hasan  and registration record was also got corrected/transferred in the name of the complainant. The tipper in question was insured with the OP IFFCO TOKIO vide policy no.13HRKN5Y-92128109 having cover note no.74326324 for a period from 22.4.2015 to 21.4.2016 for a sum of Rs. 12,50,000/-. On 29.09.2015 Sh. Kursheed, driver of the tipper in question parked the tipper road, Naraingarh in the evening. But when on 30.09.2015 the complainant visited the tipper in question was not found there. Thereafter, the complainant immediately made  a  compliant in writing to the Police Station, Naraingarh and to Satish Kumar agent  of OP who insured the vehicle and Sh. Suresh Kumar agent of OP who insured the vehicle and Sh. Suresh Pal, SHO had visited the site on 01.10.2015, having its office  about 250 meters from the site of occurrence. Thereafter the complainant  made search and efforts to trace the tipper in question,  but could not find it and accordingly lodged the complaint again with the police to this effect and police registered the FIR No.278 dated 10-10-2015 u/s 379 of IPC with PS Naraingarh, District Ambala. The complainant as per advice of the agent of OP Sh. Satish Kumar lodged the claim with the OP which was registered by the OP as claim no.11133. The OP engaged the Investigator, in the matter who also after investigation, submitted its report. Thereafter vide letter dated 3.3.2016 the Ops, desired the documents and record in respect of the tipper in question from the court were also duly supplied to the OP. Vide reference dated 01.04.2017, the OP wrongly, illegally and unfairly repudiated the claim of the complainant on the ground that there is delay of 8 days in FIR and the intimation of this effect was given on 06.10.2015 after a delay of about 6 days. The complainant met the Ops and requested for release of his claim of theft of tipper as per the insurance policy, but the Ops flatly refused to do the needful. Thus, the complainant has been harassed mentally  and physically and has been put t a great loss. Hence, the present complaint.

2.                Upon notice, OPs appeared through counsel and tendered written statement raising preliminary objections qua complaint is not maintainable, no cause of action, no jurisdiction and not come to the court with clean hands. On merits, OPs stated that as a matter of fact the reported claim no.36386761 of the complainant  on receipt of the intimation on 06.10.2015 was duly entertained in due course without going into the aspect  of its maintainability  due to late intimation to the OP inspite of the fact that the present claim was out rightly liable to be discarded due to late intimation  of claim by the insured i.e. after 6 crucial days of the alleged loss to the insurance company  against law and in violation of the condition no.1 of the Insurance policy but even than the said claim was entertained without discrimination  and the complainant was asked to give explanation about late intimation. One investigator namely Sh. Jagjit Singh Sethi was appointed  to investigate the matter and to give his fact finding report  about the loss and other factors  related to his case. After going through  the papers submitted by the insured  and after scrutinizing and elaborating the whole facts,  records and the evidence, it was also found that established that the complainant intimated the loss in question to police on 08.10.2015 as per DDR lodged by the complainant on 17.11.2015 vide DDR No.020 for the correction of FIR No.278 meaning  thereby that the complainant crucial delay of 8 days and thereafter  finding  the complainant unable to explain the delay  in both lodging  of the FIR and intimation to the Ops, the said reported claim was rightly and legally held not maintainable and payable due to late intimation to both police  and insurance co. and was accordingly, repudiated  by the competent authority. The complainant was duly informed about the fate of his claim vide letter dated 01.04.2017. Therefore, there is no deficiency in service on the part of the Ops and prayed for dismissal the present complaint.

3.               To prove his version complainant tendered his affidavit as Annexure C-A with documents as annexure C-1 to C-8 and close his evidence. On the other hand, Counsel for the OPs tendered affaidavit as Annexure R/A with documents as Annexure R-1 to R-10 and  closed their evidence.

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

5.                Admittedly, the Truck Tipper is insured with the OPs vide policy no. 13HRKN5Y -92128109 having cover note no.74326324 for a period from 22.04.2015 to 21.04.2016 for s sum of Rs. 12,50,000/- It is case of the complainant is that driver of   the above said truck had parked near Shiv Mandhir, Near Diary, Nabipur Road, Naraingarh and on 30.09.2015 the complainant has visited the parking place but tipper in question was not found there and he made search and efforts to trace tipper in question but could not find and   FIR in this regard has been lodged on 10.10.2014 bearing FIR No.278.

6                 Counsel for OP has argued that the complainant has intimated to the OPs regarding theft of the vehicle in question on 06.10.2015 after a delay of more than 8 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. The counsel for OP has further argued that complainant has also failed to provide the required documents enabling the insurance company to crack this mischief and manipulations on the part of the complainant. Only untraceable report dated 13.07.2016 has been submitted by the complainant on 06.09.2016.

7.             Therefore, complainant has contravention clause 1 of the terms and condition of the policy which read under:- c-8.

                   The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

                   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 – held – 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 8 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 and argued that the vehicle in question has been stolen by unknown person on 29.09.2015 while the complainant had parked the said vehicle in question and on the next date i.e. 30.09.2015 he could not found the vehicle on the parking spot.  On 01.10.2015, the complainant has intimated the police station Naraingarh. The police have told to the complainant that they will conduct the investigation and police has suggested to the complainant to search the said vehicle on his own level if the said vehicle was not found then the police will register the FIR. When the complainant has not found his vehicle after pursue of the complainant then police has registered the FIR bearing No.278 dated 10.10.2015. Counsel for complainant has further argued that there is no fault on the part of the complainant regarding delay in lodging the FIR. Even then, the Ops have failed to depute any surveyor to investigate the matter whenever he had intimated the company, for the reasons best known to them. Admittedly, the vehicle in question had not been traced out till date. The contention of the OPs is that the complainant had violated the condition No. 1 of Insurance Policy is not sustainable so as to disentitle the insured from seeking claim under the insurance policy. In the present case the complainant had got registered the FIR after theft of the vehicle to the concerned Police Station and the untraced report has already been accepted by the Court which shows that the Ops/insurance company was very much in the knowledge of non tracing of vehicle as well as of submitting of traced report before the court which was duly accepted by the court as mentioned in Annexure R-10. The Ops have repudiation the claim of the complainant on the ground there is violation of the terms and conditions clause no.1 of the policy only no other ground has been specified or taken by the Ops in their written statement or in the repudiation letter. Then, lapse on the part of the complainant cannot be treated as willful breach of condition No.1 on the part of insured. Counsel for complainant had relied upon the judgment of 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).

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 toto 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.              We have gone through circular Ref: IRDA/HLTH/MISC/ CIR/216/09/2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority, it is clearly mentioned that genuine claims should not be rejected on account of delay in intimation and that the insurer’s decision to reject a claim must be based on sound logic and valid grounds. It is proved from the file that the vehicle in question was stolen on 30.09.2015 and has not been traced out and untraced report of the police has also been submitted before Illaqua Magistrate, Naraingarh as per (Annexure C-7) and same was accepted by the IIIaqua Magistrate as mentioned in Annexure R-10. The question of breach of trust will not affect the right of the complainant, who lost his vehicle in question. 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. Usually, it has been seen that the police did not take the immediate action regarding the cases of the theft. 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 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.12,50,000/- which comes to Rs.9,37,500 /- from the date of complaint along with interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.5,000/- 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:07.05.2018                                       (D.N. ARORA)

                                                                                    PRESIDENT

 

                                                                                    (PUSHPINDER KUMAR)

                                                                                 MEMBER

 

 

                                                                        (ANAMIKA GUPTA)

                                                                                      MEMBER