DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Satish Kumar Rana s/o Sh. Mahavir Singh Rana, resident of House No.3096, Sector 45-D, Chandigarh.

                                                                                    ---Complainant

V E R S U S

[1]          IFFCO-TOKIO General Insurance Co. Limited, through its Managing Director, IFFCO House, 3^rd Floor, 34, N, Nehru Palace, New Delhi – 110019.

[2]          IFFCO-TOKIO General Insurance Co. Limited, through its Branch Manager, Plot No.2, B&C, 4^th Floor, Sector 28-A, Madhya Marg, Chandigarh.

---Opposite Parties

BEFORE:            MR. LAKSHMAN SHARMA                    PRESIDENT

                        MRS.MADHU MUTNEJA                   MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:      Sh. G.S. Saini, Advocate for the Complainant.

Sh. Raj Karan, Advocate for the OPs.

PER JASWINDER SINGH SIDHU, MEMBER

1.             Complainant has filed the present complaint against the Opposite Parties (hereinafter referred to as OP for short), on the grounds that the Complainant was the owner of a motor cycle [Bajaj Pulsar make] bearing Registration No. CH-03-W-4422, having IDV of Rs.31,800/- and was insured vide Cover Note No. 38704993, dated 15.03.2009.  An insurance policy no. 38526237, valid upto 14.3.2010, was issued by the OPs, which is annexed as Annex.C-1. The said motor cycle in question was stolen on the intervening night of 3/4.10.2009 from in front of the house of the Complainant and the matter was reported to the police vide FIR No. 562, dated 12.10.2009. As the police failed to trace out the vehicle and lastly, issued the untraced report, dated 8.1.2010. The same is annexed at Annex.C-2 & C-3.  Though it is averred in the complaint that the first untraced report was issued mentioning the House No. 436/2, which was got corrected and a fresh untraced report bearing House No.463/2 of the Complainant, was got issued.  

                The Complainant having lodged the complaint with the OPs along with all the requisite documents is aggrieved of the offer of Rs.23,800/- as full and final settlement of his claim; whereas, the Complainant had demanded the total IDV value of Rs.31,800/- from the OPs. The Complainant has also strongly objected to the unexplained deduction in the amount of his rightful claim.

                Aggrieved of the act of the OPs, Complainant has claimed that OPs be directed to:-

[i]     Pay Rs.31,800/- the IDV of the vehicle in question;

[ii]    Rs.40,000/- and Rs.11,000/-  on account of mental, physical harassment and costs of litigation, respectively.  

2.              On notice, OPs have filed their joint version/ written statement and have contested the claim of the Complainant on the following grounds.

                The OPs while raising preliminary objections to the complaint though admitting to the bare facts about the insurance of the vehicle in question as well as the claim having been lodged with them have objected to the fact that though the theft   had happened on the intervening night of 3/4.10.2009 but the matter was reported to the police vide FIR No.562 dated 12.10.2009 i.e. after the lapse of eight days. Furthermore, OPs have also cited the fact that the COMPLAINANT took more than four months from the alleged date of theft in intimating the OPs about the happening of the event. The intimation letter is enclosed as Annexure R-1. Hence, the OPs citing the reason of having breached the terms and conditions of the policy, claim that they have settled the matter and were willing to pay the claim of the COMPLAINANT on non standard basis. As the COMPLAINANT did not inform the OPs promptly and the OPs could not effectively verify and investigate the alleged theft so that the same could be traced out. Hence, the OPs have lost an opportunity to safeguard and secure their assets. The OPs have also annexed the copy of Policy wording which is the copy of a printed document and is annexed as Annexure R-2.

                The OPs while contesting the case on merits has stated that as they have already processed the claim of the Complainant on non standard basis and offered to pay Rs.23,800/- subject to the compliance of certain formalities, were very much within their rights as per law. The OPs have cited a judgment titled New India Assurance Company Limited Vs. Tirlochan Jane in First Appeal No.321 of 2005 decided on 9.12.2009 wherein the term “immediately” has been defined which relates to the intimation of the happening of an event to the Insurer by the Insured. The delay in intimation regarding the theft in the present case is because of the act and conduct of the complainant and hence, the above titled judgment is squarely applicable to the present case.

                The OPs have also explained that as the IDV of the vehicle in question was Rs.31,800/- and hence, applying the yardstick of non standard basis, the OPs were well within their rights to deduct 25% of the IDV while assessing the claim of the complainant. Hence, the offer of Rs.23,800/- is correct.

                The OPs pray for the dismissal of the present complaint with costs as the complainant is himself wrong in brining the present complaint against them.

3.              Parties led their respective evidences.

4.              Having gone through the entire complaint, version of the OP, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions:-

(i) It is evident from the file that the complainant had subscribed for the policy and had got his motorcycle in question insured from the OPs. The IDV of the motorcycle was as per the Cover Note No.38704993 (Annexure C-1) is clearly mentioned as Rs.31,800/-. The copy of the FIR (Annexure C-2) establishes the happening of the theft on the night of 3/4.10.2009 and the FIR was lodged on 12.8.2009 and all the details were duly filled up by the concerned official of the police station. The non traceable reports (Annexure C-3 & 4) are also as per the averments of the complainant. The complainant had also served a legal notice to the OPs and the same is dated 24.11.2010 (Annexure C-5) and the receipts of the registered post are annexed as Annexure C-6 and C-7, thus, proving that the same was conveyed to the OPs.

(ii) It is also clear that the OPs wrote a letter dated 1.3.2011 to the complainant informing him about the settlement of his claim and demanding (a) original registration certificate duly transferred in the name of OPs (b) letter of subrogation (c) discharge voucher duly signed, so that the claim of the complainant could be settled. The said letter was accompanied with a blank discharge voucher to be filled up by the complainant is annexed as Annexure C-10.

(iii) One important aspect which requires to be mentioned here is that though OPs have clearly cited the document (Annexure R-1 dated 19.2.2010), in their reply on Page No.1 and Page No.2 but the OPs failed to tender the said document along with their version/ reply. The only document tendered with their version is Annexure R-2 and the same is numbered from Page No.11 to Page No.16. This fact can also be corroborated from the order dated 5.9.2011 wherein it is squarely mentioned “Written statement and affidavit of Sh. Rajeev Chaudhary along with documents (pages 11 to 16) on behalf of the OPs filed. Now to come up on 03.11.2011 for arguments as well as for placing of evidence, if any, by any of the parties.” Hence, it is clear that the document on which the entire case of the OPs rests is not produced by them, so that a correct inference could be drawn about their conduct. In the present circumstances, we feel that OPs have themselves failed to prove their case as the date of intimation of theft to them cannot be ascertained and as such, their right to settle the claim of the complainant on non standard basis is totally baseless.

(iv) In the present circumstances, even the ratio of the judgment cited by the OPs in the case of New India Assurance Company Limited Vs. Tirlochan Jane (supra) of the Hon’ble National Commission is not attracted as the very basic fact of the delay in intimation was to be proved by the OPs alone, and remains to be established by them.

(v) We also feel that the OPs though have strongly objected to the delay on the part of the complainant but they have left much to be explained about their conduct, of the delay of full one year, in settling the claim of the complainant i.e. the date on which the corrected non traceable report (Annexure C-4) was made available to them, clearly mentions the date as 24.3.2010 and thereafter, a legal notice dated 24.11.2010 was also served upon them and the same was not replied by them. However, their letter dated 1.3.2011 (Annexure C-9) informing about their intention of having settled the claim of the complainant is also an incomplete attempt on their part as they had attached a blank discharge voucher required to be signed on a revenue stamp by the complainant along with the conditions of submitting the original registration certificate transferred in the name of the OPs as well as letter of subrogation. However, we feel that without having paid even a single penny to the complainant, the OPs by demanding the complete documentation in their favour are only holding the complainant to ransom, to sign the discharge voucher on non standard basis even though they have failed to prove their case in totality. The delay of full one year in processing the claim of the complainant has remained unanswered by the OPs. This fact too goes against them.

5.              In the light of above observations, we find a definite deficiency in service as well as an act of unfair trade practice on the part of the OPs. Hence, we allow the present complaint and direct the OPs to :-

(i) pay Rs.31,800/- (IDV of the vehicle) along with interest @9% per annum from 12.10.2009 till actual payment;

(ii) pay a sum of Rs.10,000/- as compensation on account of physical harassment and mental agony along with Rs.7,000/- as costs of litigation;

6.              The above said order shall be complied within 30 days of its receipt; thereafter, OPs shall be liable for an interest @18% per annum on the aforesaid amount, except for litigation expenses.  

7.                 Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

21st November 2011.                                                                   

Sd/-

                    (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER