Chandigarh

DF-I

CC/428/2018

Joginder Singh - Complainant(s)

Versus

IFFCO TOKIO General Insurance Co. Ltd. - Opp.Party(s)

Sunil Kumar

24 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/428/2018
Date of Institution	:	30/08/2018
Date of Decision	:	24/02/2020

 

Joginder Singh son of Sh. Prem Singh, resident of village Nimbri, District Panipat.

… Complainant

V E R S U S

1. IFFCO TOKIO General Insurance Company Ltd., IFFCO Sadan C-1, District Centre, Saket, New Delhi-110017, through its Manager.
2. IFFCO TOKIO General Insurance Company Ltd., Plot No.2, Sector 28-C, 3^rd Floor, Madhya Marg, Chandigarh 160002, through its Manager.
3. IFFCO TOKIO General Insurance Company Ltd., Nicholson Road Cross Road No.1, Above Dena Bank, Ambala Cantt. through its Manager.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Complainant in person
	:	Sh. Gaurav Gupta, Counsel for OPs

 

Per Rattan Singh Thakur, President

1.      The long and short of the allegations are, complainant happened to be owner of a Sonalika tractor bearing registration No.HR-06AA-7403 and it was insured with the OPs. Further case is, on 10.2.2017, complainant had gone to Jalalpur on the poultry farm of one Sh. Anil for loading manure for personal use for his agricultural land. However, due to time over, loading of manure could not be completed and the complainant left the tractor there. On the next morning, the tractor was found missing and after its search FIR No.37 u/s 379 IPC in P.S. Sanoli, District Panipat was lodged. The police had investigated the matter, but, failed to recover the stolen tractor and had submitted final report which was accepted by the concerned Judicial Magistrate. Earlier to it, on claim being lodged, same was repudiated by the OPs vide letter dated 21.2.2018 on false and frivolous grounds. Hence, the complainant filed the present consumer complaint and prayed for directing the OPs to pay Insured Declared Value (IDV) of the tractor i.e. Rs.4,00,000/- alongwith  interest, compensation and cost of litigation.
2.     OPs contested the consumer complaint and, inter alia, raised preliminary objections of complaint being not maintainable; tractor was being used as a commercial vehicle for hire and reward on the date of theft and it was left unattended on 10/11.2.2017. Their further case is, it was hired by Sh. Anil Kumar and Sumit of Jalalpur, therefore, the claim against theft in case of hire and reward falls under the exclusion clause of the policy and the same was rightly repudiated. Their further case is, on investigation being conducted on recording of statement of Sumit it was a case of hire and reward. Hence, it was rightly repudiated.  On these lines the cause is sought to be defended.
3.     Rejoinder was filed and averments made in the consumer complaint were reiterated. It was denied the tractor was being used for commercial purpose and it was hired by Sh. Anil and Sumit of Jalalpur. The tractor was stolen from his possession. 
4.     Parties led evidence by way of affidavits and documents.
5.     We have heard the complainant in person and learned counsel for the OPs and gone through the record of the case. After scanning of record, our findings are as under:-
6.     Per pleadings of the parties, admitted as per own joint written reply filed by the OPs, the tractor in question belonged to the complainant being owner and it was insured with the OPs on receipt of premium from 26.2.2016 to 25.2.2017. There is no dispute with regard to these facts.
7.     The repudiation is being upheld by the OPs firstly on the ground, date of theft is 10/11.2.2017 and date of lodgement of the FIR with the police is 17.2.2017; and secondly complainant had intimated the insurer/insurance company after a delay of 12 days, which is violation of the terms and conditions of the policy and, therefore, the claim was rightly repudiated.
8.     Now we shall scrutinize the line of defence of the OPs in order to ascertain whether repudiation is justified in the eyes of law or not? 
9.     Firstly we shall take up the first ground that date of theft is 10/11.2.2017 and date of lodgement of the FIR is 17.2.2017 i.e. to say after about 5-6 days. It is so deduced from Annexure R-2.  We shall refer here, the recitals contained in the FIR (Annexure R-2) itself shows complainant had searched out the vehicle at his own level and when he failed to locate it, he had lodged the FIR. The complainant, per record or even otherwise during the course of arguments this Forum has also observed, is an illiterate and straightforward person and the immediate lodgement of the FIR from such an illiterate and straightforward person is not expected.
10.     Even otherwise, the police on completion of investigation had submitted the final report and found the case of the complainant regarding theft of the tractor being genuine one. However, the reasons assigned per the police final report placed at page 28 shows police have failed to recover the stolen property and to identify the offender and the reasons assigned for submission of the untraced report was the case had become old and it was difficult or say an uphill task to identify the offenders and recover the stolen tractor. We may refer here, on notice being issued by the concerned Judicial Magistrate to the complainant and after hearing him, the concerned area Judicial Magistrate vide his order dated 7.9.2017 (at page 24) had accepted the police untraced report and ordered to keep the case as untraced and investigation was to be reopened as and when the clue of the offence was found. This version of the investigation i.e. to say police, further endorsed by the judicial system whereby the version of the complainant as well as the police was accepted regarding the theft of the vehicle and there was a failure of the police system i.e. to say they failed to identify the offender and recover the stolen property. Thus, per this record, the inescapable conclusion is, case of the complainant on point of theft of the tractor is genuine one, being endorsed by the police as well as the judicial system i.e. to say concerned area Judicial Magistrate.
11.     The ground put forth for repudiation is the vehicle was hired by one Sh. Anil etc. from where it was stolen. No material say any document produced on record to say it was rented out to said Sh. Anil, a poultry farm owner. Even otherwise this was revealed as such during the investigation conducted by the insurance company. The police in their final report submitted qua keeping the case as untraced nowhere found the theory which was propounded by the insurance company that it was rented out to Sh. Anil and Sumit. The straightforward finding of the police is, it was stolen, but, they had failed to identify the offenders and to recover the stolen property. We may refer here, police people are professionals in their field to detect and recover the stolen property and to identify the offenders and the investigation, if any, conducted by the investigator of the Insurance Company will not get precedence over the investigation finalized by the police. Thus, we believe the police story it was their failure to recover the stolen property which was further endorsed by the judicial order passed by the concerned area learned Judicial Magistrate.
12.     Even otherwise, taking another evidence on record i.e. to say Annexure R-3 whereby the statement of one Sh. Sumit was recorded who had claimed it (tractor) was taken on rent from the complainant. It was simply a statement recorded by the investigator of the insurance company. No affidavit of said Sh. Sumit has been produced on record. Who was this Sumit has not been explained.  Even his name had not figured in the police investigation conducted. In the absence of his affidavit and for want of corroboration, his version is not liable to be believed that it was rented out. What was the rent fixed, not explained? In whose presence it was rented out, not explained? On the other hand version of the complainant, as was reported to the police, is he could not load the manure on the tractor and, therefore, it was kept on the spot and on the next day the tractor was found stolen. Thus, the entire investigation conducted by the Insurance Company does not possess any reliability in comparison to the police investigation who are professionalized in the investigation and had fully endorsed the version of the complainant.
13.     Now we will switch over to another objection taken by the Insurance Company that as per terms and conditions of the policy, intimation was to be sent immediately to it while the complainant delayed the matter for 12 days without any reason and, therefore, as per terms and conditions of the policy, the claim was liable to be repudiated. In the foregoing paragraphs we have already arrived at the conclusion, case of the complainant is genuine and detailed reasons had been assigned supra. In a latest judgment, the  Hon'ble Apex Court in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr., Civil Appeal No.653 of 2020 decided on 24.1.2020, in paragraphs No.18 & 19 held as under :-

“18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held 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. 

19. We find,that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.”

 

14.     In view of the ratio of the judgment of the Hon’ble Apex Court, if the claim is genuine one, it is not liable to be rejected merely on the ground of delay in intimating the Insurance Company about the theft of the vehicle.  We are bound with the ratio of the authoritative precedent of the Hon’ble Apex Court.  The IDV of the vehicle as per the certificate of insurance is mentioned to be Rs.4,00,000/- and the OP/insurance company was bound to settle and pay the claim to the said extent, but, it failed to do so. Hence, the OPs are proved to be deficient in rendering service.
15.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to pay the IDV of the vehicle in question i.e. Rs.4,00,000/- to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 21.2.2018 till realization.
2. to pay an amount of Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

16.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
17.     However, in the event of investigation reopened, in case further clues are found and stolen vehicle is recovered, it will be transferred in the name of OPs. Since the claim of the complainant is being released to him, he is to get the RC of the vehicle cancelled from his name.
18.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
24/02/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President