Haryana

Karnal

CC/305/2020

Lalit Mohan - Complainant(s)

Versus

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

Sanjeev Kamboj

14 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 305 of 2020

                                                        Date of instt.21.08.2020

                                                        Date of Decision:14.09.2023

 

Lalit Mohan son of Shri Jagdish Chand, resident of house no.12, Adarsh Nagar, Karnal aged about 60 years. Aadhar card no.5530-1168-6424.

 

                                               …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited having its Branch office at Sector-12, near PNB, Karnal through its Managing Director.

 

                                                                        …..Opposite Party.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Sanjeev Kamboj, counsel for the complainant.

                    Shri Mohit Goyal, counsel for the opposite party.

 

                    (Jaswant Singh President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is registered owner of Swiftr Dzire LDI BS-IV car bearing registration no.HR-05AB-6100, which was got insured with the OP, vide insurance policy no.11095998, valid from 20.11.2018 to 19.11.2019. The said vehicle was insured for an amount of Rs.2,02,446/-. Qua which the OP charged Rs.6859/- as insurance premium from the complainant. On 02.04.2019, a friend of the complainant namely Manoj Kumar son of Shri Vasu Ram took the abovesaid car from the complainant for his personal work on 04.04.2020, he went to the house of his relative to Rishi Nagar, Rani Bagh, New Delhi. He reached there 11.00 p.m. On 05.04.2020, at about 11.00 a.m. when he came out from the house of his relative, then he found that said car was not standing there and he tried to trace out the same but could not succeed. The vehicle was stolen by someone and he reported the matter to the police of Police Station, Rani Bagh and an FIR no.012023 dated 05.04.2019 under section 379 was registered by the police. On the same day intimation was given to the OP on the toll free number. OP after getting the intimation got completed certain formalities from the complainant and assured that the insured amount will be given to the complainant very soon but same was not paid. Complainant approached the OP so many times and requested to release the claim of complainant but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other and lastly told that the claimed amount will be paid after untrace report. Complainant waited for untrace report and same was received by him on 22.07.2019 and he submitted the copy of untrace report in the office of OP but despite of that no amount was paid by the OP. On 05.02.2020, the investigator of the OP came to the house of the complainant and got signed some papers from him stating therein that his previous papers are not traceable in the office and now fresh claim would be lodged and claimed amount will be paid to him very soon. The complainant also handed over key of the said car to him and at that time it was disclosed to him that the switch of the car was not working properly and he got changed the keys of said on 15.04.2018 and handed over a copy of the bill of change of keys was given to him. Thereafter, complainant received a letter dated 09.07.2020, vide which claim of complainant has been repudiated by the OP on the false and frivolous ground of delay in giving intimation and duplicate keys. Both the pleas are false and baseless because the keys were replaced as same were not working and bill was already handed over to the OP and further intimation was given due time. The claim of the complainant has been repudiated against the wrong policy no.M4496432 whereas the actual policy number was 11095998 of vehicle in question. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that claim of the complainant was rejected by the OP, vide letter dated 09.07.2020 on the ground of misrepresentation and manipulating in the loss particulars by submissions of forged and manipulated keys and by giving delay intimation of alleged theft about 298 days, in violation of the terms and conditions of the insurance policy. It is further pleaded that complainant intimated a claim on 28.01.2020 regarding alleged theft dated 05.04.2019 of his insured vehicle. On receipt of intimation of the claim, the OP immediately appointed M/s MST Investigation, an independent investigation agency to investigate into the reported loss and connection of necessary documents. The said investigator has submitted their report dated 27.03.2020 to OP alongwith the documents and two physical keys as submitted by the complainant. The investigator in their report highlighted the fact that the keys submitted by the complainant was doubtful, hence recommended the same for forensic investigation. Accordingly, OP hired the services of SIFS India (an independent agency) for forensic examination of the keys submitted by the complainant. The forensic investigation agency examined the keys and submitted their report dated 03.07.2020 to OP whereby a clear fact has emerged that the keys submitted by the complainant are duplicate keys and are totally unused hence do not belong to the stolen vehicle. The confirmed in writing that lockset was changed about two years back. While on the detailed forensic examination of the keys, it is found that both the keys are unused and no striation marks observed on blade part of the keys which forms by inserting the key in ignition lock. Intentionally marks are notice on blade part of one key which are made by sharp object to falsely represent the usage of the key. Scratches shown on the key are found deliberate to show used look to the keys. The act of the complainant submitting forged, unused and manipulated keys raises deep apprehensions about the genuineness of the alleged loss of the insured vehicle. Hence the claim was rightly rejected. It is further pleaded that the theft of the vehicle reportedly occurred on 05.04.2019 whereas the OP as informed only on 28.01.2020 i.e. after inordinate delay of 298 days and the same is violation of condition no.1 of the insurance policy. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of insurance policy Ex.C1, copy of FIR Ex.C2, copy of vehicle particulars Ex.C3, copy of MST investigation report Ex.C4 and Ex.C5, copy of repudiation letter dated 09.07.2020 Ex.C6, copy of letter dated 06.06.2020 by complainant to OP regarding reply of queries of OP Ex.C7, copy of letter of OP to complainant regarding demanding the documents Ex.C8, copy of bill of switch Ex.C9, copy of untrace report Ex.C10, copy of insurance policy Ex.C11, photo of key Ex.C12 and closed the evidence on 19.10.2021 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Sameet Gupta Ex.RW1/A, copy of repudiation  letter dated 09.07.2020 Ex.R1, copy of investigation report Ex.R2, copy of forensic examination report Ex.R3, copy of letter of complainant dated 06.06.2020 Ex.R4, copy of motor claim form Ex.R5, copy of insurance policy Ex.R6 and closed the evidence on 02.03.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his Swift Dzire car with the OP. On 02.04.2019, the said car was stolen and in this regard an FIR no.012023 dated 05.04.2019, under section 379 of IPC was got registered with Police Station, Rani Bagh, New Delhi. The intimation was sent to the OP. On 22.07.2019, the police submitted the untrace report. Complainant approached the OP alongwith relevant documents including the untrace report and requested the OP to settle the claim but OP did not settle the claim till date. He further argued that complainant handed over the keys of the insured car to the investigator of the OP and at that time he disclosed to him that the switch of the car was not working properly and he got changed the keys of the said car on 15.04.2018 and also handed over a copy of the bill of change of keys and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the theft of the vehicle was occurred on 05.04.2019 and intimation was given to the OP on 28.01.2020 i.e. after inordinate delay of 298 days. Upon receiving belated intimation of theft, OP appointed a surveyor to investigate the alleged theft. The investigator submitted their report and highlighted the fact that the key submitted by the complainant was doubtful and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his Swift Dzire car  with the OP. It is also admitted that the said car was stolen during the subsistence of the insurance policy. It is also admitted that the insured declared value of the car in question is Rs.2,02,446/-.

11.           The claim of the complainant has been denied by the OP, vide letter Ex.C6/R1 dated 09.07.2020 on the ground of inordinate delay of about 298 days and submitted the fake keys.

12.           In the present complaint, vehicle in question was stolen on 05.04.2019 and complainant immediately intimated to the police and lodged the First Information Report (FIR) Ex.C2 on the same day. Thus, there is no delay on the part of the complainant in lodging the FIR. OP has alleged that intimation was given to the OP on 28.01.2020 i.e. after inordinate delay of 298 days and there is violation of terms and conditions of the policy. Complainant has submitted that intimation was given to the OP on very next day but the concerned official of the OP advised the complainant to submit the claim on receipt of untrace report. Complainant collected the untrace report on 22.07.2019 and submitted the same to the OP and there is no delay on the part of the complainant. For the sake of arguments, if it is presumed that there is delay to intimate the OP in that eventuality the claim of the complainant cannot be repudiated on the said ground, when the complainant has lodged the FIR on the same day. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, 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. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

13.           The OP has further alleged that the keys submitted by the complainant are duplicate and not belonging to the stolen vehicle. The complainant submitted that switch of the vehicle had been out of order and he got changed the same from Jai Maa Automobiles. To prove his version, complainant has placed on file copy of bill Ex.C9 dated 15.04.2018 issued by Jai Maa Automobiles. Furthermore, complainant replied the queries raised by the OP through letter Ex.C7 dated 06.06.2020, in which complainant clearly stated that the car in question was having model 2010. Near about two years ago, the starting switch of car was damaged and he brought a second hand switch from the shopkeeper and used the same, both the keys were handed to the surveyor of your company. In view of the same, it is clear that the keys of the car were damaged and complainant purchased the duplicate keys. Hence, plea taken by the OP that the keys submitted by the complainant are not belonging to the stolen/insured vehicle has no force.

14.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

15.           Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency, which is otherwise proved as genuine one. 

16.           As per insurance policy Ex.C11/Ex.R6, the insured declared value of the vehicle in question is Rs.2,02,446/-. Hence the complainant is entitled for the said amount alongwith interest, compensation for mental pain and agony and litigation expenses etc.

17.           In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.2,02,446/- (Rs.two lakhs two thousand four hundred forty six only) to the complainant alongwith interest @ 9% per annum from the date of denial of the claim i.e.09.07.2020 till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. However, the complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:14.09.2023     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member