Haryana

Karnal

CC/370/2020

Sandeep Kumar - Complainant(s)

Versus

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

S.S. Moonak

07 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 370 of 2020

                                                        Date of instt.16.09.2020

                                                        Date of Decision:07.07.2022

 

Sandeep Kumar, aged 39 years, son of Shri Satbir Singh, resident of village Khanpur Kalan, District Sonepat. Aadhar card no.9006 0891 4453. Phone No.9992171384.

                                               …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited, through its Branch Manager, SCO no.19-20, Ground floor, Part-1, Sector 12, opposite Mini Secretariat, Karnal.

                                                                      …..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 S.S.Moonak, counsel for the complainant.

                    Shri Rohit Gupta, 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 got insured his truck (22 tyres) bearing registration no.HR-69-C-3932 with the OP, vide policy no.1-SMC3CZ-P-400-M2008193, valid from 10.07.2018 to 09.07.2019. The Insured Declared Value of the truck was of Rs.23,50,000/-. The policy was comprehensive/package. On 26.03.2019, complainant had stopped his truck near Peer Baba on Service Lane on G.T. Road of village Sivah, District Panipat as the complainant wanted to change the two front tyres of the truck as the tyres were damaged, for that purpose, after parking the vehicle, the complainant had gone to Truck Union, Sector-25 Market, Panipat and after getting two tyres from there and after finishing some personal work, the complainant came back to the spot, where the truck was parked. The complainant was shocked to see that the truck was not there, it was stolen by somebody. Then complainant enquired whereabouts of the truck from the various quarters but truck could not be traced, complainant also made several personal enquiries from the people and places but the tuck could not be traced. Then complainant informed the police through 100 number and also informed the local police. The FIR no.343 dated 02.04.2019 Under Section 379 IPC was lodged with the Police Station Chandni Bagh, District Panipat. The complainant also informed the OPs on toll free number and same was duly acknowledged. It is further averred that the truck was being plied by the complainant himself for earning his livelihood. The complainant was/is having valid driving licence. The truck was purchased by the complainant after selling his property. Thereafter, the surveyor of the OP visited the spot and conducted the necessary investigations and completed other formalities. It is further averred that all the original documents i.e. R.C., permit, Insurance etc. of the vehicle were in the cabin of the truck, which were also stolen alongwith the said truck. The truck was unloaded at the time of theft. The complainant submitted the claim form and all the other relevant documents/papers as demanded by the official of the OP including the untrace report. After that complainant visited the office of the OP several times and requested to settle the claim of the 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 vide letter dated 10.01.2020 declined the claim of the complainant on the false and flimsy grounds and the OP has treated the claim of the truck as “No Claim”. Meaning thereby, the claim was declined without explaining the appropriate reasons. In this way there is deficiency in service 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; jurisdiction; locus standi; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the vehicle of the complainant was a commercial vehicle was being used for commercial activities and commercial policy was availed for the same. The insured in his statement was given to the investigator stated that he owns two trucks, the content of the FIR lodged in this case also suggest that the insured is a transporter. Hence, the complaint is beyond the scope of C.P. Act and complainant is not entitled to any relief. It is further pleaded that truck bearing registration no.HR69C3932 was insured with the OP and on receipt of intimation regarding the theft of said truck, the claim of the complainant has been duly processed by OP by  way of appointment of an independent investigator M/s Karnal Associates to investigate into the claim on seeing the complexity of claim who has investigate the claim and submitted investigated report. The clam of the complainant stands closed as “No Claim” by the OP, vide letter dated 10.1.2020 since the complainant has failed to respond and submit any reply/documents to the letters dated 18.07.2019, 29.08.2019, 09.09.2019 and 07.10.2019 send by M/s Karnal Associates and letters dated 15.11.2019, 21.11.2019, 17.12.2019 and 10.10.2020 by OP by which complainant has been requested to reply the queries and submit the requirements as mentioned therein. It is further pleaded that complainant failed to submit all original keys of the stolen vehicle despite of various request. The keys of stolen vehicle plays major role in settlement of the motor theft claim. The act of insured by not submitting the original keys of the stolen vehicle raises deep suspicion regarding genuineness of the alleged theft or any negligence on the part of the insured/driver by leaving the keys in the vehicle itself which facilitate theft of the vehicle.  It is further pleaded that the complaint of the complainant is premature as the claim is not repudiated rather the same is pending due to want of requisite documents/clarification from the complainant. 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.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC Ex.C1, copy of insurance policy Ex.C2, copy  of FIR Ex.C3, copy of driving licence of complainant Ex.C4, copy of letter dated 10.01.2020 Ex.C5, copy of Aadhar card of Rishi Ex.C6 and closed the evidence on 26.08.2021 by suffering separate statement.

5.             In additional evidence, learned counsel for complainant has tendered copy of report of call number 100 Ex.C7, copy of untrace report Ex.C8 and closed the additional evidence on 15.06.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Devendra Kumar authorized signatory Ex.OPW1/A, affidavit of Shri Dutt of M/s Karnal Associates, Investing and Defective Agency Ex.OPW1/B, copies of letters dated 03.04.2019, 15.11.2019, 21.11.2019, 17.12.2019, 10.01.2020, 17.01.2020, 05.02.2020 Ex.OP1, Ex.OP3 to Ex.OP8, investigation report dated 15.10.2019 Ex.OP2, copy of insurance policy Ex.OP9 and closed the evidence on 25.4.2022 by suffering separate statement.

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

8.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that that complainant got insured his vehicle from the OP. On 26.03.2019, the vehicle of the complainant was stolen in the area of village Sivah, District Panipat. The complainant had intimated to the concerned police on the same day through 100 number, but police lodged the FIR on 02.04.2019 Under Section 379 of IPC. The police has investigated the matter but vehicle could not be traced out and finally the concerned police station has submitted the untrace report to the concerned court and same was accepted by the learned ACJM, Panipat on 10.12.2019. Complainant also informed the OP regarding the abovesaid theft of vehicle in question and completed all the formalities for getting the claim, but OP did not pay the claim and closed the same, vide letter dated 10.01.2020 on the false and flimsy ground and lastly prayed for allowing the complaint. Learned counsel for complainant relied upon the judgments in case titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission; Kiran Joshi Versus S.M.V. Agencies Pvt. Limited II (2019) CPJ 461 (NC);  M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 and Amalendu Sahoo Versus Oriental Insurance Co. Ltd. in civil appeal no.2703 of 2010 decided on 25.03.2010 of Hon’ble Supreme Court.

9.             Per contra, learned counsel of the OP, while reiterating the contents of written version, has vehemently argued that the vehicle of the complainant is a commercial vehicle was being used for commercial activities and commercial policy was availed for the same On receipt of intimation regarding the theft of vehicle in question, the claim of the complainant has been duly processed.  The claim of the complainant stands closed as “No Claim”, vide letter dated 10.01.2020, since the complainant has failed to respond the letters and reminders sent by OP and lastly prayed for dismissal of the complaint.

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

11.           Admittedly, complainant was the registered owner of vehicle (truck) bearing no.HR-69-C-3932 and same was insured with the OP for the period from 10.07.2018 to 09.07.2019. It is also admitted that the insured declared value of the vehicle is Rs.23,50,000/-. It is also admitted the vehicle in question was stolen during the subsistence of the insurance policy.

12.           OP has taken a plea that complainant is having two trucks and same are using for commercial purpose, thus this Commission has no jurisdiction to try and entertain the present complaint.

 13.          The onus to prove its version was lied upon the OP, but  OP has miserably failed to prove on record that the vehicle in question was used for commercial purpose, by leading any cogent and convincing evidence on record. OP has not disclosed the registration number etc. of the other truck of the complainant as alleged by the OP.  Rather, complainant in his complaint has specifically mentioned that the vehicle in question was being plied by him for earning his livelihood. In Prabhu Dayal Trilok Chand’ case (supra) the Hon’ble National Commission held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable. Further in M/s Paramount Digital Color Lab’s case (supra) the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OP has no force

14.           The claim of the complainant was closed by the OP, vide final letter Ex.C5/Ex.OP6 dated 10.01.2020, on the ground that there was delay of 7 days in lodging the FIR of the alleged theft, complainant neither cooperated the police nor the insurance company and also failed to supply the required documents.

15.           As per specific pleadings taken in the written version by the OP, it has been mentioned that the vehicle in question was insured for the period from 10.07.2018 to 09.07.2019 in the name of the complainant and the complainant had intimated a claim on 26.03.2019 with the OP on account of alleged theft of the vehicle. When the complainant had intimated the OP on the very same day, as to why he would not informed the police on the very same day. It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR and intimation to OP. 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 has also 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.

16.           OP has also taken a plea that complainant failed to get recorded the statement of his friend Sandeep Dahiya. The statement of the complainant was recorded by the OP on 23.04.2019 and in the said statement the mobile number of Sandeep Dahiya has been mentioned by the complainant. If the OP wants to conduct the fair investigation, the investigator/surveyor of the OP should have contacted the said Sandeep Dahiya for recording his statement in the absence of complainant. On perusal of the letters dated 18.07.2019, reminder dated 29.08.2019 and reminder dated 09.09.2019 of the OP, the investigator of the OP has informed the complainant to get record the statement of his friend Sandeep Dahiya and no other query has been raised by the said investigator. Meaning thereby, complainant has fulfilled all the formalities of the OPs that’s why the investigator did not demand any documents in the said letters.

17.           As per the reminder dated 07.10.2019, the investigator has alleged that the complainant has failed to supply the NCRB Report, RTO Information Report, Untrace report, 100 number detail, last 3 GR’s and keys of the vehicle. On the other hand, as per the version of the complainant, he had supplied the possible documents to the OP within time. It is evident from the report of 100 number Ex.C7 dated 26.12.2019 whereby complainant has informed the police on the very same day. It is also evident from untrace report Ex.C8, the vehicle in question has not been traced out and concerned court has accepted the untraced report on 10.12.2019 submitted by the police. When the complainant has placed on file the abovesaid documents then there is no reason for not supplying the same to the OP. Hence, in view of the above, we found no substance in this contention of the OP and OP has taken the baseless pleas only in order to reject the claim of the complainant.

18.           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”.

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

20.          As per insurance policy Ex.C2/Ex.OP9, the Insured Declared Value (IDV) of the vehicle in question is Rs.23,50,000/-. Hence the complainant is entitled for the same alongwith interest, compensation and litigation expenses etc.

21.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.23,50,000/- as insured declared value (IDV) to the complainant alongwith interest @ 9% per annum from the date of repudiation/closing of the claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. However, the complainant is also directed to get all the formalities completed with regard to cancellation of the Registration Certificate 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:07.07.2022.

                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

     

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member