Haryana

Yamunanagar

CC/451/2010

Tishu Bhalla S/o Ashwani Kumar - Complainant(s)

Versus

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

Sushil Garg

29 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 451  of  2010.

                                                                                              Date of institution: 07.05.2010

                                                                                              Date of decision: 29.02.2016.

Tishu Bhalla son of Sh. Ashwani Kumar age 23 years resident of House no. 211, Vishav Karma Mohalla, Gali No.6, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.      

                                                                                                                                                                                                                                                                                                                                                     …Complainant.

                                                              Versus

1. IFFCO TOKIO General Insurance Company Ltd. 6330, Second Floor, above Dena Bank, Punjabi Mohalla, Ambala Cantt, through its Branch Manager.
2. IFFCO TOKIO General Insurance Company limited, Corporate office, 4^th & 8^th floor IFFCO Tower, Plot No.3, Sector 29, Gurgaon, Haryana, through its Corporate Manager.   

 

                                                                                                                                                                  … Respondents.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh,. Sushil Garg , Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for respondent. 

 

ORDER

 

1.                     Complainant Tishu Bhalla filed this complaint under section 12 of the Consumer Protection Act 1986, seeking directions to the respondents (hereinafter referred as OPs) to make the payment on account of theft of his motorcycle amounting to Rs. 28,000/- as insured declared value of the motorcycle and further to pay Rs. 50,000/- as compensation and damages alongwith Rs. 11,000/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that the complainant insured his motorcycle bearing registration No. HR02-P-6391 Make Bajaj Discover covering the risk of theft also with the OPs insurance company vide insurance cover note No. 38065601 valid from 30.12.2008 to 29.12.2009 (Annexure C-2) for a sum insured of Rs. 28,000/- and a premium of Rs. 867/- was paid in this regard to the OPs.  It has been further alleged that on the midnight of 5.7.2009/6.7.2009, the said motorcycle of complainant was stolen by somebody from the premises of complainant at New Delhi and on the very next day i.e. on 6.7.2009 the complainant moved an application (Annexure C-3) to the police Incharge of PP Sanjay Gandhi Hospital, Mangolpuri and also intimated to the OPs Insurance company and thereafter an FIR No.222/2009 dated 18.7.2009 (Annexure C-4) was lodged in this regard by the police. The OPs Insurance Company appointed the Surveyor M/s Sai Associate who conducted the investigation and submitted his report to the Insurance Company. Thereafter, the complainant completed the documentary formalities required by the surveyor and sent the untraceable report of the aforesaid vehicle but the OP Insurance Company failed to settle the claim under the policy. The complainant visited the office of Ops at Ambala and requested to settle the claim and every time the officials of the OPs Insurance Company assured the complainant that the claim will be settled very soon and postponed the matter on one pretext or the other. The complainant was astonished to receive a letter dated 29.01.2010 (Annexure C-7), whereby the OPs insurance company intimated the complainant that his claim has been repudiated due to in ordinate delay with regarding to intimate to the police as well as Insurance Co. after a delay of 11-12 days whereas the complainant had given an application on 6.7.2009 (Annexure C-3) pertaining to the theft of the vehicle and the copy of the said application bears the stamp and signature of the police official. The OPs insurance company illegally, arbitrarily and on flimsy ground repudiated the claim of the complainant. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service, no cause of action ever arose within the territorial jurisdiction of this Forum and on merit it has been mentioned that a claim was lodged with the OPs Insurance Company on 17.7.2009 in respect of theft dated 6.7.2009 of Motorcycle bearing registration No. HR-02P-6391. Thereafter, the claim was processed by the OPs Insurance Company and an investigator M/s Sai Associates were deputed to investigate the genuineness of the loss. On assessing of the claim and on the perusal of documents and report of Surveyor it was observed that the intimation was given to OP Insurance company after a gap of 11 days. Besides this there is a delay of 12 days in registration of FIR/giving intimation to the police as FIR was lodged on 18.7.2009 (Annexure R-3). It was also revealed from the documents that the complainant falsely prepared the intimation to the police dated 6.7.2009 (Annexure R-5). As per terms and conditions of the insurance policy there must be an immediate intimation to the Insurance Company and to the police on the happening of the insured vehicle but in the instant case there is inordinate delay in giving intimation the police and the Insurance Company. As such, the Ops insurance company vide its registered letters dated 29.01.2010 (Annexure R-2) and 6.5.2010 (Annexure R-1) repudiated the claim of complainant. Lastly, prayed for dismissal of complaint.  .

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of bill/ invoice of Motorcycle as Annexure C-1, Photo copy of insurance cover note as Annexure C-2, Photo copy of application dated 6.7.2009 as Annexure C-3, Photo copy of FIR as Annexure C-4, Photo copy of Untraceable report as annexure C-5,Photo copy of application dated4.8.2009 as Annexure C-6, Repudiation letter dated 29.01.2010 as Annexure C-7 and closed the evidence on behalf of complainant.

 5.                    On the other hand, counsel for the OPs tendered into evidence affidavit of Rajiv Chaudhary AVP, Iffco Tokio General Insurance Company as Annexure RW/A and documents as photo copy of claim repudiation letter dated 6.5.2010 as Annexure R-1, Photo copy of claim repudiation letter dated 29.1.2010 as Annexure R-2, Photo copy of FIR as Annexure R-3, Photo copy of surveyor report as Annexure R-4, Photo copy of intimation application to Chowki Incharge as Annexure R-5, Photo copy of insurance cover note as Annexure R-6, and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite party reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is admitted fact that the complainant purchased motorcycle bearing registration No. HR-02P-6391 and motorcycle in question was insured with the OPs insurance company vide insurance cover note No. 38065601 valid from 30.12.2008 to 29.12.2009 (Annexure C-2) for a sum insured of Rs. 28,000 and a premium of Rs. 867/- was paid in this regard to the OPs insurance company. It is not disputed that the motorcycle in question was stolen on midnight 5/6.7.2009 which is evident from FIR No. 222 dated 18.7.2009(Annexure C-4/ R-3) registered in police station Sanjay Gandhi Hospital, Mangolpuri and a claim was lodged with the OPs Insurance Company by the complainant and Investigator of M/s Sai Associates was deputed and who has submitted his report on 25.4.2010(Annexure R-4).

8.                     It is the case of the complainant that the motorcycle in question was stolen on 5/6.7.2009 during the subsistence of the policy and genuine claim lodged by the complainant was not honoured by the opposite parties whereas it is the case of the OPs that there is violation of terms and conditions of the policy as the theft had taken place on the mid night of 5/6.7.2009 and FIR was lodged on 18.7.2009 i.e. after 12 days. Even the intimation was also given to the opposite parties on 17.7.2009 after a gap of more than 11 days.  As the FIR has been lodged after 12 days and intimation was given to OPs after 11 days, hence the claim of the complainant has rightly been repudiated and there is no deficiency in service on the part of OPs. Learned counsel or Ops referred the case law titled as Royal Sundram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil, 2015 (3) CLT page 90 (N.C) and another case law titled as H.D.F.C. Ergo General Insurance Co. Ltd. Versus Bhagchand Saini, 1(2015) CPJ page 206 (N.C.) have weight as delay in reporting to the insurer about the theft would be violation of condition of the policy as it deprives insurer of a valuable right to investigate as to commission of theft and to help in tracing the vehicle. Moreover, in the policy, it has been specifically mentioned that claim for theft of the vehicle not payable if theft not reported to the company within 48 hours of its occurrence. Further also referred case titled as Om Parkash vs. National Insurance company Ltd. 2012(III) CPJ Page 59 in which National Commission has observed that “ Insurance-theft of vehicle-Delay in intimation-Claim repudiated-alleged deficiency in service-District Forum allowed complaint- State Commission allowed appeal-Hence revision-terms and conditions of insurance policy are required to be strictly construed and no exception can be made on the ground of equity-Even delay of few days in not intimating Insurance Company about incident of theft is fatal-insured looses its right to be indemnified when he himself is not vigilant about his rights and his obligations in regarding to compliance of terms and conditions of policy-impugned order upheld”.

9.                      Further in the case titled as New India Assurance Company Ltd. vs. Trilochan Jane First Appeal No. 321 of 2005 decided on 9.12.2009 it has been observed in the case of theft “where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”  

10                    In another case titled as HDFC ERGO General Insurance Co. Ltd. vs. Bhagchand Saini (supra) observed that Insurance-Theft of vehicle- Delay in intimation-Violation of conditions of policy-Claim repudiated-alleged deficiency in service- District Forum allowed complaint- State Commission dismissed appeal-Hence revision-Delay of about 4 months in giving intimation to Insurance Company- Insurance contract is a contract of indemnity-Violation of conditions has to be taken into account- Complainant is not entitled for any compensation even on ‘non-standard’ basis- Complaint dismissed. Revision petition allowed.

11                    Further in case titled as Royal Sundaram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil (N.C) has observed that Insurance Claim-theft of car- Insured intimated the insurer regarding theft of his car after 39 days of the accident-Held- Insured has violated the mandatory terms and conditions of the insurance policy-revision petition allowed.

12.                   On the other hand, counsel for the complainant argued that the complainant has informed the police immediately and draw our attention towards letter dated 6.7.2009 (Annexure C-3) in which complainant has alleged that intimation was given to the Chowki of Police Incharge Sanjay Gandhi Hospital Mangolpuri Delhi but the arguments on this point is not tenable firstly OPs insurance company verified the genuineness of this letter from the concerned police station P.S. Mangolpuri showing the photo copy of that letter (Annexure C-3) which was return with the report “ NO DD Entry in the Roznamcha of P.P.S.S.G. Mangolpuri on dated 6.7.2009 and no information in the P.S. reported. May be submitted as per report” copy of which is Annexure R-5 and secondly we have perused the contents of the FIR wherein the complainant has not mentioned/disclosed that he had already given the information on 6.7.2009 to the concerned police station. At the time of lodging of FIR on dated 18.7.2009 the complainant has simply stated that on 5.7.2009 his motorcycle which was standing outside of his house was stolen. In this FIR it has nowhere mentioned that complainant has disclosed about the intimation given on 6.7.2009. Even the complainant has only filed the photocopy of intimation letter dated 6.7.2009 which cannot be relied upon straightway when the verification report is otherwise. In view of the report Annexure R-5 obtained by the insurance company from the concerned police station, we are of the view that alleged intimation letter Annexure C-3 have no value being manipulated one. Further, the motorcycle in question has been stolen from the Mangolpuri Delhi which is evident from the copy of FIR dated 18.7.2009 and insurance policy/ cover note has been issued by the Branch Office Ambala Cantt but the present complaint has been filed before this Forum simply mentioning that agent of the OPs were sitting at Yamuna Nagar but the complainant failed to implead the agent or any office of the agent situated at Yamuna Nagar. The counsel for the complainant referred the case laws titled as Jasbir Kaur vs. Oriental Insurance Company Ltd. and Others, RCR(Civil) page 123 Punjab  & Haryana High Court, Oriental Insurance Co. Ltd. Versus Kandha Nayak, 2010(1) CLT page 189 Orissa State Commission Cuttack, National Insurance Company Ltd. Versus Nitin Khandelwal, IV (2008) CPJ page 1 (SC) Amalendu Sahoo vs. Oriental Insurance Co. Ltd. 2010(1) CPC page 653 (S.C.), United India Insurance Co. Ltd. versus Bhupinder Singh, 2013(2) CPC (N.C.), B. Shantilal & Co. (deceased) & others versus New India Assurance Co. Ltd. & Another, 2012(1) CPC page 55 (N.C) and United India Insurance Co. Ltd. versus Bhupinder Singh, 2013(2) CPC Page 314 (N.C.).

13.                   After hearing both the parties we are of the considered view that there is no deficiency in service on the part of OPs as in the present complaint, motorcycle in question was stolen in the mid night of 5/6.7.2009 whereas FIR was lodged on 18.7.2009 i.e. after a period of 12 days and the intimation to the insurance company was also given on 17.7.2009 i.e. after 11 days which is evident from the letter dated 29.1.2010 issued by the OPs Annexure C-7. The complainant has totally failed to file any documentary evidence or mention/disclose the fact that on what date he has informed to the OPs Insurance Company. The authorities (supra) tendered by complainant are not disputed but not helpful in the present case whereas the authorities (supra) tendered by the OPs are fully applicable in the present case.

14                    In view of the above discussion, this Forum is of considered view that there is violation of condition No.1 of the terms and conditions of policy (Annexure R-6) and opposite parties have rightly repudiated the claim of the complainant vide letter dated 29.01.2010(Annexure C-7/R-1).  As such, there is no deficiency in service on the part of opposite parties. Hence, the present complaint is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 29.02.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER