BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.167/17.
Date of instt.:21.06.2017.
Date of Decision:14.12.2018
Vinay Tandon s/o Shri Om Parkash Tandon, r/o Partap Gate, Kaithal.
……….Complainant.
Versus
- IndusInd Bank Ltd., Kurukshetra Road, Kaithal.
- Cholamandlam General Insurance Company, Cannaught Place, Delhi.
.……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Shri Rajbir Singh, Presiding Member.
Smt. Suman Rana, Member.
Present: Shri Vinay Verma, Advocate for the complainant.
Shri Manoj Ichhpilani, Advocate for the Opposite Party No.1.
Shri M.R. Miglani, Advocate for the Opposite Party No.2.
ORDER
(RAJBIR SINGH, PRESIDING MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he is the owner of one truck bearing Registration No.HR-64-8804 and said truck was hypothecated with OP No.1 who has provided financial help to him for purchase of said truck and at that time, it was agreed that the financial assistance will be provided to him only on the condition that the insurance of said vehicle will be got done by OP No.1 from the insurance of their choice. It is further alleged that OP No.1 thereafter got insured his truck in question from the OP No.2 for which, amount of Rs.31462/- was paid by OP No.1 to the OP No.2, which was later on charged from him and ultimately, the amount of premium has been paid by him. It is further alleged that the said truck was stolen in the intervening night of 21/22.10.2016 from Ghazipur Delhi and FIR was lodged in P.S. at Delhi on 22.10.2016 and intimation on the same day was given to the official namely Ankit Walia of OP No.1 on his mobile. It is further alleged that he thereafter duly intimated the theft of the vehicle to OP No.1 in writing and further requested the OP No.1 to forward his claim with OP No.2 as it was the OP No.1 who have got insured his vehicle through OP No.2. It is further alleged that he completed all the formalities asked to fulfill for the purpose of obtaining claim and signed some printed as well as some blank documents on the asking of official of OP No.1. It is further alleged that on 31.3.2017 OP No.2 repudiated his claim on the ground that the intimation regarding the theft of vehicle was given by him to Op No.2 after a long lapse of time. It is further alleged that the officials of the OP No.1 were informed immediately by him. Firstly a telephonic message was given to Ankit Walia and thereafter on 23.10.2016 information in writing was given by him. It is further alleged that he used to deposit the monthly installment of the loan before 7th of every month, so ultimately the officials of the OP No.1 came to know about the theft of the vehicle when the installment was not deposited by him. It is further alleged that there is no privity of contract between him and OP No.2. The insurance policy was taken by OP No.1, so he had the liability to disclose each and every fact only to OP No.1 and he duly informed the OP No.1 about all the facts. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, the Opposite Parties No.1 & 2 appeared before this forum and filed their separate replies. The OP No.1 filed the reply raising the preliminary objections regarding mis-joinder of parties; cause of action and jurisdiction. It is further submitted that the answering respondent has nothing to do with the reimbursement as alleged as it is the matter between complainant and insurance company, however, the OP No.2 be kindly directed to make the payment of claim to the answering respondent; that no one has taken the signature of the complainant on the pretext of answering claim as alleged; that para No.10 (IV) of complaint is contradictory one and incorrect as on the one hand, the complainant alleging that he has informed the OP No.1 on 23.10.2016 and on the other hand alleging that the official of OP No.1 came to know about the theft when the installment was not deposited by the complainant. The rest of the contents of the complaint are denied and prayed for dismissal the same.
The OP No.2 also filed the reply submitting therein that the answering respondent has already repudiated the claim of the complainant on the ground of delay intimation and complainant was duly intimated vide letter dt. 31.3.2017; that as alleged theft took place on 21.10.2016 and intimation has been given on 21.11.2016 after the lapse of 30 days of alleged theft; that answering respondent investigated the matter and investigator fund that alleged theft is very doubtful; that 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; that this Hon’ble Forum has got no territorial jurisdiction to entertain and try the present complaint as there is no branch office at Kaithal; that FIR has been registered in collusion with police officials only to get false claim from the insurance company; that it is wrong to alleged that intimation was given on the same day to Ankit Walia; that there is no privity of contract between answering respondent. The rest of the contents of the complaint are denied and prayed for dismissal the same.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1, Mark C-1 to Mark C-4 and closed the evidence on 11.1.2018. The OP No.1 tendered in evidence affidavit Ex.RW1/A, document Mark R1 and closed the evidence on 25.10.2018. The OP No.2 tendered in evidence affidavit Ex.RW1/A, documents Ex.R1 & Ex.R2 and closed the evidence on 05.10.2018.
4. We have heard ld. counsel for the complainant as well as for the OPs and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleadings and evidence of the case, we found that there is no dispute between the parties that the complainant is the owner of truck bearing registration No.HR64-8804, which was hypothecated with OP No.1 and said vehicle was insured with OP No.2 w.e.f. 26.2.2016 to 25.2.2017 vide Motor Policy Schedule cum Certificate of Insurance Mark C-3. There is also no dispute that the said vehicle was stolen in the intervening night of 21/22.10.2016 and the complainant sent written intimation in this regard to the OP No.1 vide letter dt. 23.10.2016 through Trackon Courier vide its receipt Ex.C1. The complainant lodged an FIR bearing No.031348 dt. 22.10.2016 in PS Crime Branch Delhi Mark C-2.
6. The OPs repudiated the claim of the complainant vide letter dt. 31.3.2017 Ex.R2 on the ground that the theft was took place on 21.10.2016 and intimation was given by the complainant to OP No.2 on 21.11.2016 i.e. after a delay of 30 days.
7. As the OP No.2 has repudiated the claim of the complainant, the onus to prove the grounds on which the claim was repudiated was upon the OP No.2. The ld. counsel for the OP No.2 contended that there is no privity of contract between complainant and OP No.2 and this fact is also admitted by the complainant in his complaint. But this contention of the OP No.2 has no force, because the complainant got insured the vehicle in question from OP No.2 through OP No.1 and the policy in question was issued by the OP No.2 in the name of the complainant, that’s why there is privity of contract between the complainant and OP No.2.
8. The ld. counsel for the OP No.2 further contended that the theft took place on 21.10.2016 and intimation has been given by the complainant on 21.11.2016 after the lapse of 30 days of alleged theft and violated the terms & conditions No.1 & 9 of the insurance policy. In support of his contention, he produced case laws cited in 1 (2017) CPJ, Page No.493 (NC) titled Pradeep Kumar Tiwari Vs. Oriental Insurance Company Ltd. & Anr. and III(2016) CPJ, Page No.408 decided by the Hon’ble National Commission, New Delhi. On the other hand, the ld. counsel for the complainant argued that it was the OP No.1, who got insured the vehicle in question from OP No.2, that’s why the complainant immediately intimated about the theft to the official of OP No.1 namely Ankit Walia on his mobile on the same day and also sent written intimation to OP No.1 on 23.10.2016 through courier. It is further argued that the insurance policy was taken by OP No.1, so the complainant had the liability to disclose each and every fact only to OP No.1 and he duly informed the OP No.1 about all the facts. To support his contention, the complainant produced copy of receipt of Trackon Courier Pvt. Ltd. as Ex.C1 and copy of letter dt. 23.10.2016 written to Branch Manager, IndusInd Bank Ltd., Kaithal as Mark C-1 on the case file. On perusal of Ex.C1 and letter Mark C-1, it is clear that the complainant has timely intimated about the theft of vehicle in question to the OP No.1. The complainant further produced copy of FIR bearing No.031348 dt. 22.10.2016 registered in PS Crime Branch, Delhi as Mark C-2 and on perusal of it, it is clear that the complainant also informed the police about the theft in question well in time. So, from the above facts, it is admitted case of the parties that the complainant has only intimated about the theft in question to the OP No.1 well in time instead of OP No.2 and due to delayed intimation about theft in question, the OP No.2 repudiated the claim of the complainant. But it is pertinent to mention here that there would have been no justification for the OPs for denying the claim of complainant in its entirety only for such violation of term and condition. In this regard, reliance can be made to authority titled as United India Insurance Co. Ltd. Vs. Gian Singh reported in II (2006) CPJ page 83 (NC), wherein it has been held by Hon’ble National Commission that in case of violation of condition of policy as to nature of use of the vehicle, the claim ought to be settled on non-standard basis. In the authority titled as Mohammad Ejaj Vs. UII, 2014(4) CLT page 161 (Hon’ble State Commission, Haryana), it has been held that Insurance Claim-Repudiation-On the ground that there was delay of 15 days in lodging the F.I.R. and 36 days in giving intimation to the Insurance Company-IRDA have given direction to the Insurance Companies not to reject genuine claims simply because of late registration of F.I.R. and late intimation to the Insurance Company-Held-IRDA is the controlling authority of all Insurance Companies and being a statutory body, is competent to frame guidelines and issue instructions to Insurance Companies which are binding upon them-Appeal accepted. In the authority cited in 2016(2) CLT page 434 (Hon’ble State Commission, Haryana) titled as Future General India Insurance Co. Ltd. Vs. Satbir, wherein the head-note, it is mentioned that Insurance claim-Theft of insured tractor-Prompt FIR-Delay of 66 days in intimation to insurance company-Held-In the Circular Ref:IRDA/HLTH/MISC/CIR/216/09/2011 dated September 20, 2011 issued by ‘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 grounds”-Insurance company is liable to indemnify the loss suffered by the complainant-Appeal dismissed.
9. The above authorities are fully applicable to the facts of instant case, whereas, the authorities produced by the OP No.2 are not applicable to the facts of the present case. Hence, we are of the considered view that the claim in respect of vehicle in question should have been settled by the OPs on the basis of the guidelines of non-standard settlement i.e. 75% of the insured value (Rs.11,54,250) i.e. Rs.8,65,687.50. So, the complainant is entitled to Rs.8,65,687.50 on non-standard settlement basis. Thus, the OPs have wrongly repudiated the claim of complainant in toto. However, it is pertinent to mention here that the vehicle in question was hypothecated with OP No.1 and this fact is also not disputed by the complainant.
10. Thus, in view of above discussion, we allow the complaint partly and direct the OP No.1 to give detail of his total dues towards the complainant regarding loan of truck in question to the OP No.2 as well as to the complainant within 15 days and the OP No.2 pay the same to OP No.1 and the remaining to the complainant if the due amount comes to less than Rs.8,65,687.50 and if the said amount comes to Rs.8,65,687.50 or more than Rs.8,65,687.50, in that case, the OP No.2 pay the total amount of Rs.8,65,687.50 to OP No.1. However, it is hereby made clear that the OP No.1 is at liberty to recover the balance amount from the complainant, as per law. The OP No.2 is further directed to pay Rs.5,500/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges to the complainant. Let the order be complied within 45 days, failing which, the complainant shall be entitled interest @ 9% p.a. from the date of commencement of this order till its realization. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.14.12.2018.
(Suman Rana) (Rajbir Singh)
Member. Presiding Member.
Present: Shri Vinay Verma, Advocate for the complainant.
Shri Manoj Ichhpilani, Advocate for the Opposite Party No.1.
Shri M.R. Miglani, Advocate for the Opposite Party No.2.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is partly allowed. File be consigned to record-room after due compliance.
Dated:14.12.2018. Member. Presiding Member.
