Punjab

StateCommission

A/367/2018

Baldev Singh - Complainant(s)

Versus

Iffco Tokio General Insurance - Opp.Party(s)

Yogesh Gupta

05 Nov 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No. 367 of 2018

 

 

                                                          Date of Institution   : 20.06.2018                      

                                                          Order Reserved on : 30.10.2018

                                                          Date of Decision     : 05.11.2018

 

1.      IFFCO-Tokio General Insurance Co. Ltd, 2^nd Floor, Opposite Nirankari Bhawan, G.T Road, Bathinda, Punjab through its Branch Manager/Authorized Signatory.

 

2.      IFFCO-Tokio General Insurance Co.  Ltd., Regd. Office at Iffco Sadan, C-1, District Centre, Saket, New Delhi- 110017 through its authorized signatory.

 

Now IFFCO-Tokio General Insurance Co. Ltd., through its Authorized Signatory, IFFCO Tower-II, 4^th Floor, Plot No. 3, Sector 29, Gurugram 122001.

 

                                                                  ..Appellants/Opposite parties                   

                   Versus

 

Baldev Singh aged 55 years son of Kartar Singh, resident of Village Azam Wala, Tehsil and District Ferozepur 78378-54127 Now, District Fazilka

 

 

                                                … Respondent/Complainant

 

First Appeal against order dated 13.04.2018 passed by the District Consumer Disputes Redressal Forum,  Ferozepur.

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

            Smt. Kiran Sibbal, Member

Present:-

          For the appellants       :  Sh.Yogesh Gupta, Advocate

          For the respondent      :  Sh. Raman Goklaney, Advocate

         

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 13.04.2018 of District Consumer Disputes Redressal Forum Ferozepur, directing the appellants to pay the amount of Rs. 5 lac as insurance claim to respondent of this appeal with interest @ 9% per annum from filing the complaint i.e. 18.07.2017 till its final realization, besides payment of Rs.3000/- as composite amount of compensation and for mental harassment. The respondent of this appeal is complainant in the complaint and appellants of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he got his Tractor  make Indo Farm 3055 DI Blue Colour Model 2013 bearing RC No. PB-05-J-3262 insured with OPs, vide policy no. 92801218 dated 14.06.2015  till 13.06.2016 for insured amount of Rs.5 lac  against premium amount of Rs.6674/-. The complainant plied his tractor in his fields for ploughing his land, during that time, the tyre of his tractor in question was punctured and due to  non-availability of puncture man, he left his tractor along with cultivators in his fields thereat. When he returned to his fields, he found that his tractor along with cultivators to have been stolen therefrom. He accompanied with his son Raja Singh tried to trace out the tractor, but it was not traced out. He along with his son Raja Singh informed OPs regarding theft of his tractor with cultivators by moving an application in that regard. But OPs asked the complainant to report the matter to the police and then he went to police station Sadar Abohar for giving intimation regarding theft of his vehicle. OPs obtained his signatures on blank papers after receipt of this application.  OPs have not settled his claim and rather repudiated it, vide letter dated 12.05.2017. He challenged the repudiation of the insurance claim as illegal and prayed for direction to OPs to pay the insured amount of Rs. 5 lac of the vehicle along with compensation of Rs.50,000/- and Rs.11,000/- as costs of litigation.

3.                Upon notice, OPs no. 1 and 2 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that the complainant has suppressed the material facts from the Forum. The complex questions of facts and law are involved in the complaint, which need lengthy evidence for its adjudication, which is not feasible in summary manner by this Forum. He has no locus standi or cause of action to file the complaint.  As per condition no. 5 of the policy, the insured is bound to take steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and further  insurer at all times will have free and full access to examine the insured vehicle. In the event of any accident, loss of vehicle without proper precautions taken by the insured, it shall be entirely at the hands of the insured’s own risk. Any deficiency in service was denied by OPs on their part in this case. The complainant gave intimation of the theft of the vehicle on 15.03.2016 with delay of 152 days to OPs and also lodged DDR on 15.03.2016 after delay of about 152 days. The complainant violated the condition no.1 of the terms and conditions of the policy by not giving notice in writing to insurance company regarding the occurrence of any loss or damage to the insured vehicle. The complaint was contested on above referred grounds even on merits by OPs and they pleaded justification in repudiation of the insurance claim and further prayed for dismissal of the complaint.

4.                The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-12 and closed the evidence. As against it, OPs tendered in evidence affidavit of Vikas Gulati Insurance Investigator as Ex.OP1&2/1 along with copies of documents Ex.OP1&2/2 to Ex.OP1&2/26, affidavit of Rajiv Ranjan General Manager authorized signatory for IFFCO Tokio as Ex.OP1&2/27 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Ferozepur accepted the complaint of the  complainant by virtue of order dated 13.04.2018. Aggrieved by above order of the District Forum Ferozepur, opposite parties now appellants, have carried this appeal against the same.

5.                We have heard learned counsel for the parties and have also examined the record of the case.

6.                The forceful submission of counsel for appellants is that complainant has not complied with condition no.1 of the policy by giving immediate intimation in writing to insurance company of theft of  vehicle and the above referred information was given to them with delay of 152 days as the alleged theft of the vehicle took place on 14.10.2015, whereas intimation was given to OPs regarding theft of the insured vehicle by complainant/insured on 15.03.2016 only.  The evidence on the record has been perused by us. Policy document is Ex.C-3 on the record. Ex.C-2 is registration certificate of the insured vehicle in the  name of the complainant. Ex.C-4 is application dated 15.10.2015 of complainant,  which bears the stamp of the police. The forceful submission of counsel for complainant is that he gave intimation to SHO concerned on 15.10.2015, but the police has not entertained it, but the stamp of the police is affixed on it. Ex.C-5 is DDR 21 dated 15.03.2016 of the above referred theft recorded with the police at the instance of complainant. Repudiation letter is Ex.C-6 on the record sent by OPs to complainant.  Affidavits of Baldev Singh complainant in support of his case Ex.C-7 and affidavit of Raja Singh son of the Nachhattar Singh are also on the record. The application written by complainant to Deputy Commissioner Fazilka about incident of theft of his vehicle is dated 23.06.2017 and postal receipt thereof is Ex.C-10 on the record. Application given by complainant to SSP Fazilka is Ex.C-11 dated 23.06.2017 followed by postal receipt Ex.C-12. On the other hand, OPs relied upon affidavit of Vikas Gulati Insurance Investigator appointed by the insurance company, who tendered his affidavit Ex.OP1&2/1 in evidence on the record stating that he investigated the matter thoroughly  and his investigation report is dated 28.10.2016. He deposed that he found in investigation that vehicle was parked with key in the tractor by son of the complainant and not by the complainant at the place of alleged theft. The investigator further deposed in his statement that Malkit Singh son of the complainant admitted this fact that the tractor was parked by him and ignition key of the tractor was in the tractor at the time of above occurrence. Report of Engineer Vikas Gulati investigator in detail is dated 28.10.2016, vide Ex.OP1&2/2 on the record. The investigator also relied upon statement of Baldev Singh complainant and Malkit Singh son of complainant dated 17.08.2016 and further statement of the witness, vide Ex.OP1&2/8. The terms and conditions of the policy are Ex.OP1&2/26 on the record. The terms and conditions of the contract of insurance policy operate on the parties. The Forum cannot add or subtract anything from the contractual terms and conditions between the parties as agreed upon. Condition no.1 of the policy is reproduced as under :-

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give  all such information and assistance  as the Company shall require. Every letter claim, writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately, the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy,  the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.

The loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.  It is essential to give notice in writing by the insured to insurer of damage or loss to the vehicle immediately. The complainant relied upon his application given to the police-bearing stamp, but condition no.1 of the policy states that notice shall be given in writing to the insurance company immediately upon occurrence of theft of the vehicle or loss of the vehicle. Mere moving of application to the police would not discharge the complainant from the liability of giving notice in writing of theft of the vehicle immediately to the insurance company. Affidavit of Rajiv Ranjan General Manager Ex.OP1&2/27  has been perused by us carefully on the record. The complainant stated that he gave intimation to OPs of this accident,  but there is no evidence to this effect on the record to instantiate it. The complainant gave intimation to OPs/insurance company only on 15.03.2016 with after delay of 152 days. Reasonable delay can be explained by the insured, but inordinate delay of 152 days has not been sufficiently explained on the record by the insured. It cannot be said  to be a technical matter because such a long delay in giving written intimation to the insurance company affects the rights of the insurance company to retrieve the vehicle and to look into the matter immediately. Consequently, the complainant has violated condition no.1 of the policy by not giving the intimation in writing to the insurance company immediately and thereby depriving the company from its valuable right of retrieval of vehicle or looking into the case immediately.

7.                The next submission of counsel for the appellants is that complainant left the key of the tractor in the tractor and left the tractor unattended, which is also violation of condition no. 5 of the policy. Condition no. 5 of the policy, is reproduced as under :-

“The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

It is obligatory on the insured to take all reasonable steps to safeguard the insured vehicle from any loss or damage. To prove violation of condition no.5 of the policy, OPs relied upon statement of complainant recorded by investigator at the time of investigating the matter. The statement of Malkit Singh son of complainant is Ex.OP1&2/7 to the effect that key of the tractor was left in the tractor, when it was stolen and its duplicate key was with the insured. There is, thus, admission of Malkit Singh son of the complainant contained in his affidavit Ex.OP1&2/7 regarding leaving ignition key of the tractor in the tractor at the time of theft. The statement of Baldev Singh complainant recorded by investigator in the shape of his affidavit is Ex.OP-1&2/6 on the record that ignition key of the tractor was left in the tractor at the time of theft, which was stolen. The complainant left tractor unattended in the fields with ignition key in it and went somewhere else. The complainant has not taken proper precautions to safeguard the insured vehicle by leaving ignition key in it and violation of condition no. 5 of the policy is proved on the record by the insured. OPs have, thus, correctly repudiated the claim of the complainant on account of violation of conditions no.1 and 5 of the terms and conditions of the policy. We cannot make out a new case for the complainant out of the existing terms and conditions of the policy. We are strictly bound by the terms and conditions of the policy, as agreed upon between the parties. The complainant has not pleaded this fact anywhere in the complaint that the terms and conditions of the policy were not communicated to him and as such, he was not aware of the same. In the absence of such pleas and evidence of the complainant on record, complainant is bound by the terms and conditions of the policy. We find support from law laid down by National Commission in case “Keshav Natu Mhatre versus New India Assurance Co. Ltd” reported in 2012(1) CLT 577 and law laid down by National Commission in “Md. Shamsur Alam versus Reliance General Insurance Co. Ltd and another” reported in 2016(2) CPJ 385 and law laid down by National Commission in “Reliance General Insurance Company Ltd. Versus Daljeet Singh Kashmeer Singh” reported in 2018(2) CLT 270. We further fortified with law laid down by National Commission in “National Insurance Co. Ltd versus Shravan Singh” reported in 2016(1) CPJ 450.

8.                As a result of our above discussion, we find no illegality in repudiation of the contract of insurance by OPs on account of violation of conditions no.1 and 5 of the policy by insured. The order of the District Forum to the contrary is not sustainable in the eyes of law in this appeal. The District Forum has not given cogent reasoning regarding exonerating non-compliance of conditions no.1 and 5 of the policy by the insured. The order of the District Forum Ferozepur dated 13.04.2018 is set aside in this appeal and appeal of  the appellants is accepted, resulting in dismissal of the complaint of the complainant now respondent in this appeal.

9.                The appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited Rs3,59,722/- as per compliance of the order of this Commission. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to the appellant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.

10.              Arguments in this appeal were heard on 30.10.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

11.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                       (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                   (KIRAN SIBAL)

                                                                         MEMBER

November 5, 2018                                                              

(ravi)