Haryana

Karnal

CC/85/2019

Ashok Kumar - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

Shadi Ram Chauhan

25 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 85 of 2019

                                                          Date of instt.15.02.2019

                                                          Date of Decision 25.02.2020

 

Ashok Kumar aged about 34 years son of Shri Om Parkash resident of House no.81, Valmiki Basti village Thal, Tehsil Assandh District Karnal (Aadhaar no.775976961739)

                                                 …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Ltd. having its Branch office at Sector-12, near PNB, Karnal through its Branch Manager.

 

                                                                        …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Shadi Ram Chauhan Advocate for complainant.

                   Shri Atul Mittal Advocate for opposite party.

                                              

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant has purchased a Mahindra 265 DI bearing chasis no.MBNAAACABHJK00226 and Engine no.RHK2BAN0063 from M/s Om Tractors, Karnal Road Assandh on 27.01.2017 for an amount of Rs.5,10,000/-, vide invoice no.448. The complainant purchased the said vehicle after getting financial assistance/loan from the Indusind Bank Ltd. Thereafter, the complainant got the said vehicle registered from the Registering Authority, Assandh which is having registration no.HR-40F-4217. The complainant got the said vehicle insured from the OP, vide policy bearing no.50293241, valid from 27.01.2017 to 26.01.2018. The abovesaid tractor of the complainant was stolen on 03.05.2017 from village Kachhawa tehsil and District Karnal qua which an FIR no.405 was registered under section 379 IPC in Police Station Sadar Karnal. After the theft the said vehicle, complainant lodged the claim with the OP, vide his claim no.37105268 and requested for paying him the compensation amount. The official of the OP got signed certain documents from the complainant and got completed certain formalities from the complainant and assured that the insurance benefit will be given to the complainant within 2 months, but till date same has not been given despite repeated requests made to the OP by the complainant. The complainant has also submitted the untraced report in the office of the OP but despite receipt of untraced report the OP has not paid the claim amount and postponed the matter on one pretext or the other and lastly repudiated the claim of the complainant, vide letter dated 05.12.2017 on the ground of delay of lodging FIR for two days and also intimation was given to the ITGI on 12.05.2017 i.e. after delay of nine days. The excuse taken by the OP is quite illegal, null and void because there was no delay on the part of the complainant as his vehicle was stolen on 03.04.2017 and on the next day the complainant tried to trace out the said vehicle but could not be traced and hence on the very next day the intimation was given to the police as well as to the OP. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability and locus standi. On merits, it is pleaded that the claim of the complainant was thoroughly processed by the OP by way of appointment of R.N. Sharma & Associates as Investigator who thoroughly investigated the claim of the complainant and submitted the detailed report dated 17.06.2017 and also recorded the statements of Shri Ashok Kumar and Shri Sanjeev Kumar and also found that the alleged theft occurred on 03.05.2017 but FIR was lodged on 05.05.2017 and company was intimated on 12.05.2017 after a delay of almost nine days. As per the policy condition no.1, the insured was duty bound to inform the theft of the vehicle immediately to the insurer as well as to the concerned police station after the incident came to his notice. On account of delayed intimation, the OP was deprived of its legitimate right to get an enquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same. Hence, claim lodged by the complainant was repudiated as no claim, vide letter dated 05.12.2017. It is further pleaded that it is obligatory on the part of the insured to take all reasonable steps to safeguard the insured vehicle from any loss or damages. As per the written statement of complainant as well as driver Mr.Sanjiv, it is crystal clear that the vehicle of the complainant was stolen when it was left unattended with the key in the ignition socket and this has helped the thieves in their act of stealing the vehicle. The complainant/driver has not took proper precautions to safeguard the insured vehicle by leaving ignition key in it and it is violation of condition no.5 of the insurance policy. So, on account of violation of condition no.5 of the policy, the claim was not tenable. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CW/A and documents Ex.C1 to Ex.C7 and closed the evidence on 10.07.2019. In additional evidence complainant tendered affidavit of Sanjeev Kumar Ex.CW2/A and affidavit of Ranjit Singh Ex.CW3/A and closed his additional evidence on 24.01.2020.

4.             On the other hand, OP tendered into evidence affidavit of R.N. Sharma Investigator Ex.O1/A, Ex.O1/B and documents Ex.O1 to Ex.O9 and closed the evidence on 27.09.2019.

5.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             The case of the complainant, in brief, is that he got insured his vehicle bearing registration no.HR-40F-4217 with OP, vide policy no.50293241, valid from 27.01.2017 to 26.01.2018. On 03.05.2017 the vehicle of the complainant was stolen from the area of village Kachhawa tehsil and District Karnal qua which an FIR no.405 was registered under section 379 IPC in Police Station Sadar Karnal. Immediately, after the theft of the vehicle, the complainant lodged his claim with the OP and requested the OP so many times to release the claim of the motorcycle but OP did not pay any claim to the complainant.

7.             On the other hand, the case of the OPs, in brief, is that the claim of the complainant was thoroughly processed by the OP by way of appointment of R.N. Sharma & Associates as Investigator who thoroughly investigated the claim of the complainant and submitted the detailed report dated 17.06.2017 and also recorded the statements of Shri Ashok Kumar and Shri Sanjeev Kumar and also found that the alleged theft occurred on 03.05.2017 but FIR was lodged on 05.05.2017 and company was intimated on 12.05.2017 after a delay of almost nine days. As per the policy condition no.1, the insured was duty bound to inform the theft of the vehicle immediately to the insurer as well as to the concerned police station after the incident came to his notice. On account of delayed intimation, the OP was deprived of its legitimate right to get an enquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same. Hence, claim lodged by the complainant was repudiated as no claim, vide letter dated 05.12.2017.

8.             Admittedly, the vehicle in question was stolen during the subsistence of the insurance policy. The complainant moved an application Ex.C5 on 04.05.2017 and an FIR Ex.C3 was lodged in the concerned Police Station. The claim of the complainant has been repudiated by OP, vide letter Ex.C7(Ex.OP9) on the grounds that :-

        “Firstly, the alleged theft occurred on 03.05.2017 but FIR was lodged on 05.05.2017 and company was intimated on 12.05.2017, after delay of nine days. Secondly, that key of vehicle had left in the vehicle which is gross negligence on the part of the complainant.”               

9.             The incident took place on 03.05.2017 at about 10 p.m. The complainant moved application Ex.C5 on the very next day i.e. on 04.05.2017 and police lodged FIR on 05.05.2017. As per complainant, he also had given intimation to the OP on the next day. Thus, there is no delay on the part of the complainant.

10.            OP has relied upon the statement of Sanjeev Kumar driver Ex.O6 and statement of other villagers Ex.O7 with regard to leaving the key with the vehicle, at the time of incident. The said statements have been denied by the complainant and in this regard, Sanjeev Kumar and Ranjit Singh has placed on record their affidavits Ex.CW2/A and Ex.CW3/A respectively.

11.            To wriggle out the contention of the OP, learned counsel for the complainant vehemently argued that the complainant initially tried to search the tractor at his own level and when the same could not be traced out then the matter was reported to the police immediately. In authority Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 by Hon’ble Supreme Court in which Hon’ble Supreme Court in para no.11 of the order has specifically mentioned that it is a common knowledge that a person who has lost his vehicle may not straightway 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 holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay.  In view of above authority, there was no unreasonable delay on the part of the complainant, but the OP refused to settle his claim on false ground of delay for lodging FIR and not submission the claim with OP. In the present case complainant lodged the FIR after two days and gave the intimation to the OP on the very next day. Hence, there is no fault on the part of the complainant in lodging the FIR. No other point argued by the OPs.

12.                 In view of authority of Hon’ble State Consumer Disputes Redressal Commission, Haryana, considered the question regarding delay in intimation of theft of vehicle in United India Insurance Company Limited and others Versus Anshul Bansal First Appeal no.717 of 2016 decided on 6.4.2017.  In that case there was delay of two months and five days in intimation of theft to the insurance company. Under those circumstances it was held that in case of any breach of warranty/condition of the policy including limitation as to use the insurer is liable to pay 75% of admissible claim on non-standard basis. Accordingly the insurance company was directed to pay Rs.3,00,000/- i.e. 75% of the IDV of the vehicle alongwith interest @ 9% per annum from the date of filing the complaint till its realization and Rs.5500/- as litigation expenses to the complainant. Further in case  Amalendu Sahoo Versus Oriental Insurance Co. Ltd. II(2010) CPJ 9 (SC) in which Hon’ble Supreme Court held that Insurance-Non-standard Settlement-Terms of policy violated-Vehicle insured for personal use, used on hire-Claim repudiated by insurer-Complaint dismissed by Consumer Forum-Order upheld in appeal-Revision against order dismissed-Civil appeal filed-Repudiation of claim in toto unjustified-Settlement of claim on non-standard basis directed.

13.            In the present case complainant violated the terms of the policy regarding delay in intimation to the OP and left the key in the vehicle as alleged by the OP. The claim of the complainant has not been repudiated in toto on the said ground. Hence, the claim of the complainant was decided on non-standard basis and he is entitled for 75% of the insured amount.

14.            Thus, as a sequel to abovesaid discussion, we allow the present complaint partly and direct the OP to pay Rs.4,84,560/- i.e. 75% of the insured amount to the complainant with interest @ 9% per annum from the date of filing the claim  of the claim till its realization. We further direct the OP to pay Rs.15,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses. This order shall be complied with within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:25.02.2020

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

(Vineet Kaushik)       (Dr. Rekha Chaudhary)

                     Member                         Member