Haryana

Yamunanagar

CC/748/2013

Mahi Pal S/o Kashmira - Complainant(s)

Versus

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

S.S.Saini

27 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

                                                        Complaint Case No.748 of 2013.

                                                        Date of institution: 08.10.2013.

                                                        Date of decision: 27.11.2017.

 

Mahi Pal, age 51 years, son of Sh. Kashmira, resident of Village Tapu Majri, Tehsil Jagadhri, Distt. Yamuna Nagar. 

                                                                           

                                                                                              …Complainant.

                              Versus.

1. IFFCO-TOKIO General Insurance Company Limited, Corporate Office: 4^th & 5^th Floor IFFCO Tower, Plot No.3, Sector-29, Gurgaon-122001, Haryana, through its General Manager.
2. IFFCO-TOKIO General Insurance Company Limited, 6330, 2^nd Floor, above Dena Bank, Panjabi Mohalla, Ambala Cantt.-133001, District Ambala through its Manager.
3. Arvind Rana, Authorized agent of the IFFCO-TOKIO General Insurance Company Limited, C/o Mahindra & Mahindra Financial Services Limited, Buria Chowk, Amadalpur Road, Jagadhri, District Yamuna Nagar.
4. Mahindra & Mahindra Financial Services Limited, Buria Chowk, Amadalpur Road, Jagadhri, District Yamuna Nagar, through its Branch Manager.

 

….Respondents.

BEFORE     SH. SATPAL, PRESIDENT

                    SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:     Sh. S.S.Saini, Advocate, for complainant.   

                 Sh. Rajiv Gupta, Advocate for the OPs.No.1 & 2.

                 Sh. Balraj Rana, Adv. for Ops No.3 & 4.

                

ORDER: (SATPAL, PRESIDENT)

 

1.              The complainant-Mahi Pal has filed this complaint under section 12 of the Consumer Protection Act 1986, as amended up to date (hereinafter respondents will be referred as OPs). 

2.              Brief facts of the complaint, as alleged by the complainant, are that he got insured his tractor-trolley Mahindra & Mahindra bearing registration No.HR02Y/0564 with the Ops No.1 & 2 through Op No.3 vide cover note No.71992635 dt. 26.04.2011 valid up to 25.04.2012 for a sum assured of Rs.4,90,750/-.  It is alleged that in the month of October, 2011, the above-said tractor-trolley was stolen from Village Nagal, Distt. Saharanpur (U.P.) and an FIR No.151 dt. 11.10.2011 under Section 379 IPC was got registered in P.S. Mirzapur, Distt. Saharanpur.  Information regarding theft of vehicle was given to the Ops.  It is further alleged that the complainant lodged the claim with the Ops No.1 & 2 and submitted all the required documents alongwith untraced report but the Ops No.1 & 2 did not settle the claim of complainant.  So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint with the direction to Ops to pay the amount of Rs.4,0,750/- alongwith interest @ 2% per month from December, 2011 and further to pay Rs.1,00,000/- as compensation for harassment and mental agony as-well-as Rs.5,000/- as litigation charges.  Hence, this complaint.

3.            Upon notice, the OPs appeared and filed their written statements.  Ops No.1 & 2 filed their joint written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that on receipt of intimation regarding theft of vehicle, the answering Ops company deputed Sh. Sachin Gulati, an independent investigator to submit a fact finding report to Ops company, who submitted his report dt. 06.02.2012.  During the investigation, the said investigator recorded the statement of insured and collected relevant documents.  The said investigator mentioned in his report  that the cause of theft mentioned in the FIR and reported by the insured while giving his statement to the investigator are different and two different stories were given by the insured at two different points of time.  As per FIR, the tractor-trolley in question was in possession of one Maha Singh and Nanu Ram on 9^th of October, 2011 and while they were taking lunch at 2.30 p.m., the tractor trolley in question was not found outside Sita Ram Ashram, where it was parked at the time of taking lunch.  But as per the statement given by the insured to the investigator, Nanu Ram had given lift to two unknown persons and on the way, they snuffed something to Maha Singh and Nanu Ram and threw them from the tractor near Sita Ram Ashram and took away the tractor trolley in question and thereafter, on receiving the information, the insured arrived at the spot; that the alleged date of theft is 9^th of October, 2011, whereas the police was intimated belatedly on 11^th of October, 2011; that there is no deficiency in service on the part of Ops.  On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.              Ops No.3 & 4 filed the joint written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that there is no relationship between the complainant and the answering Ops because the complainant in the entire complaint has nowhere contended or averred that the answering Ops have in any manner breached or violated any of the previous provisions and conditions of the contract; that the complainant had availed loan from the company and signed the agreement after understanding all the terms and conditions of the agreement and an amount of Rs.3,80,000/- was lend to the complainant to be repaid in 48 monthly installments of Rs.10,800/-.  There is no deficiency in service on the part of Ops.  On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

5.              Ld. Counsel for the complainant tendered in evidence affidavit as Annexure-CA and documents Annexure-C1 to Annexure-C5 and closed evidence on behalf of complainant. 

6.              On the other hand, ld. Counsel for the Ops No.1 & 2 tendered in evidence affidavits Annexure-RA & Annexure-RB alongwith documents Annexure-R1 to Annexure-R6 and closed evidence on behalf of Ops.No.1 & 2.  Ld. Counsel for the Ops No.3 & 4 tendered in evidence affidavit Annexure R3/A alongwith document Annexure R3/1 and closed evidence on behalf of Op No.3.       

7.              We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.

8.              The controversy between the parties is whether the repudiation of the claim of the complainant is valid and legally justifiable or not?  The OPs No.1 & 2 have repudiated the claim on the ground that the vehicle in question which was insured with them was being used for the purposes of hire and reward at the time of incident.  Further, it has also been contended on the part of the Ops No.1 & 2 that there has been delay of two days on the part of the complainant while lodging the FIR with the police.  Further it has also been alleged by the Ops No.1 & 2 that the complainant has given two different versions about the incident.  As per FIR it has been alleged that the insured Tractor Trolley was stolen whereas it has been stated during investigation before the surveyor Sh.Sachin Gulati, that the tractor trolley had been snatched by two unknown persons who had been allowed to travel with Maha Singh and Nanu Ram and thus it has been alleged by the OP No.1 & 2 that the complainant had violated the terms and conditions of the policy by permitting two unauthorized persons to travel in the tractor in addition to the driver of the tractor Shri Maha Singh.  Ld. Counsel for the Ops No.1 & 2 has relied upon the case law decided by Hon’ble Supreme Court of India reported in 2013(1) ALT page 56 (SC) tilted as Export Credit Guarantee Corpn. of India Ltd. Vs. Garg Sons International, wherein the Hon’ble Supreme Court has held that “Terms of insurance policy have to be strictly construed in order to determine extent of liability of Insurer.”  Similarly, ld. Counsel also relied upon the case law decided by Hon’ble Supreme Court in Special Leave Petition (C) No.31406/2017 titled as M.S.Middle High School Vs. HDFC ERGO General Insurance Co. Ltd. & others decided on 22.11.2017 and case law decided by Hon’ble State Commission, Maharashtra, Mumbai in FA No.A/04/64 titled as The Manager, UII Vs. Sh. Sayyed Abhinanad Sayeed Sirajuddin decided on 30.11.2012, wherein it has been held that “Once there is a breach of condition of policy, the liability cannot be fastened on the insurer”.     

9.              Regarding, the allegation of use of vehicle for hire and reward the version of the complainant is that his nephew namely Maha Singh alongwith his servant namely Nanu Ram were going from Village Garh to Shakumra Devi, Distt. Saharanpur by insured tractor bearing No.HR02Y/0564 and in the way, when they were taking lunch, the said tractor-trolley was stolen by some unknown persons for which, an FIR was registered under Section 379 of IPC.  The police despite of their best efforts, could not trace out the tractor-trolley and ultimately, the court of Additional Chief Judicial Magistrate, Saharanpur issued the untraced report. Learned counsel for complainant vehemently argued that tractor trolley in question was not used for hire and reward at the time of incident and it is just the figment of imagination on the part of surveyor to conclude that vehicle in question was used at the time of incident for the purpose of hire and reward. 

10.            Regarding delay in lodging the FIR, the learned counsel for the complainant contended that the delay in the matter was not intentional and it was reasonable and justifiable in the facts and circumstance of the present case, the learned counsel placed reliance in this regard towards authority reported in 2017(2) CLT 183 titled as Reliance General Insurance Company Limited vs. Rajender wherein it has been held that, “theft of vehicle-Delay in FIR-Held-No evidence has been led by the Insurance Company to prove that there was delay in giving information to it-So far as the delay of 7 days in lodging FIR, in the circular Ref:IRDA/HLTH/MISC/CIR/216/09/2011, dated September 20^th, 2011 issued by Insurance Regulatory Development Authority (for short IRDA), it has been mentioned that genuine claims should not be rejected on account of delay in intimation, and that, the insurer’s decision to reject a claim must be based on “sound Logic” and “valid ground”-It is unfortunate that the insurer takes such a plea to defeat the genuine claim of the insured-The insurer should not rely upon technical pleas for the purpose of defeating legitimate claims of claimants-The Insurance Company is liable to indemnify the loss suffered by the complainant”.

11.            Regarding the different versions of complainant regarding the incident as alleged by the Ops, it has been contended by the learned counsel for the complainant that the said tractor trolley was stolen by some unknown persons for which an FIR was registered under section 379 of IPC the insured tractor could not be traced by the Police despite its best efforts and ultimately the learned court of ACJM Saharanpur sent the case untraced vide its order dated 17.12.2011.  The ld. Counsel for the complainant has relied upon the case law reported in 2017(3) CLT page 321 (NC) titled as NIC Vs. Govind, wherein the Hon’ble National Commission has held that “Insurance claim-Statements u/s 161 Cr.P.C.-Plea of insurance company that at the time of accident the vehicle was being used for hire and reward purpose against the terms and conditions of the insurance policy-Insurance company relied upon the sole statements of two witnesses before the police u/s 161 Cr.P.C. that they hired the vehicle from the insured-Held-As the above two witnesses had retracted, their statements recorded under Section 161 Cr.P.C., which otherwise inadmissible, are of no avail to the insurance company-The statements of witnesses recorded by the police during investigation of the case are not admissible in the case.”

12.            Further the ld. Counsel for the complainant has also relied upon the case laws decided by Hon’ble Supreme Court in appeal (Civil) case No.3409 of 2008 decided on 08.05.2008 titled as NIC Vs. Nitin Khandelwal; 2017(2) CPR page 614 (NC) titled as ICICI Lombard General Insurance Co. Ltd. Vs. Chandrakant Raman Lal Panchal and 2017(2) CPR page 114 (NC) titled as ICICI Lombard General Insurance Co. Ltd. Vs. Jafarbhai Daubhai Sama, wherein the same question of law has been discussed. 

 13.            On the other hand, the plea of Ops insurance company is that the version of the complainant is not believable because he has given two different versions about the incident.  As per FIR, the tractor-trolley in question was in possession of Sh. Maha Singh and Nanu Ram and while they were taking lunch, the said tractor-trolley was parked outside the Sita Ram Ashram and the same was stolen by some unknown person, whereas as per statement of owner Mahipal and one Nanu Ram given before the investigator, it has been stated by the aforesaid witnesses that Nanu Ram had given lift to unknown person and in the way the unknown persons snuffed something intoxicating substance to said Nanu Ram and Maha Singh and threw them from the tractor and took away the tractor trolley in question and as such, as per terms and conditions of the policy, the claim is not permissible under the terms and conditions of the policy.  Besides this, Shri Maha Singh has also violated the terms and condition of the policy as he had permitted the use of the tractor for Hire and Reward at the time of incident by way of allowing two unauthorized person to travel with him.  Further, learned counsel for the Ops hotly argued that the delay of two days in lodging the FIR is fatal, which amounts to violation of the policy condition. Lastly, it was also contended that the present case involving in an incident of robbery as per statement of complainant and Nanu Ram is not covered as per terms and conditions of the policy since robbery is not covered under the policy in question.

14.            It is an admitted fact that the tractor-trolley in question was insured with the Ops No.1 & 2-insurance company at the time of incident.  It has also come on record that an FIR under Section 379 IPC was registered on 11.10.2011 but insured tractor could not be traced out by the Police despite its best efforts and ultimately the learned court of ACJM Saharanpur sent the case untraced vide its order dated 17.12.2011.  At this stage, it would be relevant to point out that the Ops No.1 & 2 insurance company has not placed any document or cogent evidence to prove that at the time of theft/robbery of the aforesaid vehicle, the same was being used for hire and reward.  Moreover, Sh.Maha Singh and Sh.Nanu Ram in their statement before the Sh.Sachin Gulati, Investigator never stated that they have used the tractor-trolley in question for hire and reward.  Mere to say by the investigator or insurance company without any cogent evidence that the tractor in question was being used for hire and reward against the terms and conditions of the policy is not tenable.  We have also perused the terms and conditions of the policy contained in annexure R.6 wherein we find no such condition which entitle/empower the Ops No.1 & 2 to repudiate the claim of the complainant on the ground of robbery.  Regarding delay the preposition of law laid down by our Hon’ble State Commission, Haryana to the case supra reported in 2017(2) CLT P.183 titled as Reliance General Insruance company Limited vs. Rajender is fully applicable to the facts and circumstances of the case.

15.            In view of the above discussion, we are of the considered view that in the case in hand, the vehicle has been snatched or stolen, the loss has been caused to the complainant.  The insurance company is liable to indemnify the owner of vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The insurance company should not reject the claim in toto on technical grounds.  This Forum is aware of law laid down by Hon’ble National Commission in case law reported in 2017 (2) CPR page 66 (NC) titled as Shamsher Vs. HDFC Ergo General Insurance Co. Ltd., wherein the Hon’ble National Commission has held that “Insurance-Theft of insured tractor with trolley-Tractor having been purchased only four days before its theft, it would belie any reasonably instructed person’s conviction that it was being regularly used for transportation of sand/soil-At the same time, it can also not be ignored that there was delay on part of Complainant in lodging FIR as well as informing Insurance Company about theft within a reasonable time-Balancing equities, interests of justice would be sub-served if Insurance Company is directed to settle claim of Petitioner on non-standard basis (75% of IDV)-Directed accordingly.”

16.            Therefore, even assuming that there was a breach of condition of insurance policy, the insurance company ought to have settled the claim on non-standard basis.  As per IRDA instructions, the insurance company cannot repudiate the genuine claim in toto in case of loss of vehicle.  Keeping in view the facts and circumstances of the case and law laid down by the Hon’ble Apex Court, the insurance company is liable to indemnify the claim on non-standard basis i.e. 75% of the IDV.  The case law produced by ld. Counsel for the Ops No.1 & 2 are not applicable on the facts and circumstances of the instant case.  Regarding the deficiency in service against the Ops No.3 & 4, from the perusal of record, it reveals that the Ops No.3 & 4 are financier, who financed the loan amount to the complainant.  Hence, there is no deficiency on the part of Ops No.3 & 4.    

17.            Thus, as a sequel of above discussion, we partly allow the complaint and direct the Ops No.1 & 2 to pay Rs.3,68,062.50 paise i.e. 75% of Rs.4,90,750/- (IDV), subject to furnishing of subrogation letter, cancelled RC and other documents as required by the Ops No.1 & 2 within 15 days.  The Ops No.1 & 2 are also directed to pay Rs.5500/- as compensation on account of harassment, mental agony and also to pay Rs.2200/- as litigation charges.  Let the order be complied with within 30 days from the date of submission of subrogation letter, transfer the ownership of vehicle in the name of Ops No.1 & 2 and other documents as required by the Ops No.1 & 2, failing which, the complainant shall be entitled interest 9% p.a. from the date of this order till its realization.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.      

Announced on: 27.11.2017.

                                                                    (SATPAL)

                                                                    PRESIDENT.

(VEENA RANI SHEOKAND)        

                   MEMBER