Haryana

Yamunanagar

CC/1162/2012

Ashok Kumar s/o Sh.Hari Chand, - Complainant(s)

Versus

Kuldhir Rana, - Opp.Party(s)

M.K. Saini

03 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 1162 of 2012.

                                                                                              Date of institution: 02.11.2012.

                                                                                              Date of decision: 03.03.2016.

Ashok Kumar aged about 45 years son of Shri Hari Chand, resident of House No. 447, Sharma Colony, Camp, Yamuna Nagar, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                           …Complainant.

                                    Versus

1. Sh. Kuldhir Rana, Authorized Agent, Reliance General Insurance Company Ltd. Kamani Chowk, Yamuna Nagar, District Yamuna Nagar.
2. Reliance General Insurance Co. Ltd. Branch Office: SCO 212-214, Sector 34-A, Madhya Marg, Chandigarh, through its Branch Manager.

 

 

                                                                                                                                       … Respondents.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Mohit Kumar Saini , Advocate, counsel for complainant.   

              Respondent No.1 already ex-parte.

              Sh. Parmod Gupta, Advocate, counsel for respondent No.2.  

 

ORDER

 

1.                     Complainant Ashok Kumar 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 of Rs. 29,999/- (Rs. 30,000/-) insurance amount alongwith interest on account of theft of motorcycle and further to pay compensation as well as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant was registered owner of motorcycle bearing registration No. HR-02-S/1649 and the same was insured with the OP No.2 insurance company vide insurance Policy No. 2004792312006883 valid from 2.1.2010 to 1.1.2011  (Annexure C-1) for a sum insured of Rs. 29,999/- and a premium of Rs. 760/- was paid in this regard to the OPs.  The OP No.1 is the authorized agent of OP No.2, who is working on behalf of OP No.2. It has been further mentioned that on 28.10.2010 the complainant alongwith his brother namely Krishan Kumar son of Sh. Hari Chand had gone to Nehru Park, Yamuna Nagar and parked his motorcycle outside the Nehru Park and when they came back, the motorcycle in question was not standing where it was parked. The complainant moved an application to the police (Annexure C-2) and an FIR No. 536 dated 30.10.2010 (Annexure C-3) under section 379 IPC was registered in P.S. City Yamuna Nagar.  Thereafter, the complainant made claim to the OP No.2 through Op No.1 duly supported with the relevant documents. The OP No.2 sought the non-traceable report from the police or from the Court and as such after obtaining the same from the Court, the complainant handed over the untraceable report (Annexure C-4) to OP No.1 which was received by Op No.2. After receiving the untraceable report, the OP No.2 demanded duplicate copy of RC of motorcycle from R.A. Jagadhri and in this regard the complainant had written a letter (Annexure C-5) to the Registration Authority, Jagadhri. Now more than 10 months have been passed after completing all the formalities but the OPs did not release the insurance amount to the complainant and are still sleeping over the matter, the reason best known to them. The OPs have not made the payment of insurance amount on account of theft of motorcycle due to which the complainant has suffered a lot of mental agony and harassment. Hence, this complaint.

3.                     Upon notice, OP No.1 (Agent) failed to appear despite service through registered post, hence he was proceeded ex-parte vide order dated 6.9.2013. However, OP No.2 appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi to file and maintain the present complaint, no jurisdiction to hear and decide the present complaint, estopped from filing the present complaint and on merit it has been mentioned that as per complaint of the complainant, he left his motorcycle No. HR-02S-1649 unattended outside Nehru Park, Yamuna Nagar and he has not parked the said vehicle in the parking and has not taken the proper caution and pre-caution in parking the said motorcycle and has taken the risk of his own. The complainant has not informed the OPs within 48 hours of the alleged theft and as such he has violated the terms and conditions of the Insurance Policy and as such the claim was not paid. Further, the complainant has not completed the formalities despite several letters Annexure R-3 to R-6 and has not supplied the Claim form, NOC from the Financer, Original Keys, R.C. Transfer papers, D.L., untrace report, indemnity bond and letter of subrogation etc. and therefore, fault lies with the complainant. Hence, there is no deficiency in service on the part of OP Insurance Company and prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Insurance Policy as Annexure C-1, Photo copy of letter dated 28.10.2010 written to SHO, Yamuna Nagar as Annexure C-2, Photo copy of FIR as Annexure C-3, Photo copy of untraceable report as Annexure C-4, Photo copy of intimation letter to Registration Authority as Annexure C-5, Photograph of office of Kuldhir Rana, Reliance General Insurance as Annexure C-6  and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP No.2 tendered into evidence photo copy of Insurance policy as Annexure R-1, Photo copy of FIR as Annexure R-2, Photo copy of letter dated 3.1.2011 demanded documents as Annexure R-3 & R-4, Photo copies of letter of reminders dated 17.2.2011 and 3.3.2011 as Annexures R-5 & R-6 and closed the evidence on behalf of OP No.2.

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 OP No.2 reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is admitted fact that the complainant insured his motorcycle bearing registration No. HR-02S-1649 with the OP No.2 insurance company vide insurance policy No. 2004792312006883 valid from 02.01.2010 to 01.01.2011 (Annexure C-1/R-1) for a sum insured of Rs. 29,999 and premium of Rs. 760/- was paid in this regard to the OPs. It is not disputed that the motorcycle in question was stolen on 28.10.2010 which is evident from FIR No. 536 dated 30.10.2010(Annexure C-3/ R-2) registered in police station City, Yamuna Nagar and a claim was lodged with the OPs Insurance Company by the complainant.

8.                     The only plea of the OP Insurance Company is that the complainant has not informed the OP Insurance Company within 48 hours of the alleged theft and further FIR has also been lodged on 30.10.2010 whereas the alleged theft took place on 28.10.2010. Further it has been argued by the counsel for the OP Insurance Company that complainant has not completed/submitted the required documents i.e. claim form, copy of DL, copy of RC, untraceable report, NOC from Financer etc. despite so many letters sent to the complainant on dated 3.1.2011 Annexure R-4, dated 17.2.2011 Annexure R-5, dated 3.3.2011 as Annexure R-6. Learned counsel for the OP Insurance company further argued that as per condition No.1 of the insurance policy in question (Annexure R-1), there was violation of the terms and conditions of the insurance policy on the part of complainant. Hence, the claim of the complainant has been rightly repudiated as no claim and prayed for dismissal of complaint.

9.                     In support of his, learned counsel for the OP Insurance Company referred the case law titled as Bachan Singh vs. OIC ltd. 2014(3) CLT page 103(NC), in which it has been held that “ Consumer Protection Act1986, Section 2(1)(g)- Insurance Claim- Theft of insured truck- Delay I intimation to insurance company and also delay in lodging the Fir- Held-That the complaint is liable to be dismissed on the ground of the late registration of FIR and late intimation to the insurance company”. And further referred the case law titled as Arjun Lal Jat Versus M/s HDFC Irgo General Insurance Co. Ltd. & Others, 2014(4) CLT page 261 (N.C.) in which it has been held that “Once it has been shown that the theft took place solely on account of the driver, employed by the insured, the insurance company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured- Revision petition dismissed.”

10                    On the other hand, learned counsel for the complainant hotly argued that OP Insurance Company has withheld the genuine claim of the complainant on the false/ flimsy ground that the complainant has not informed the OP Insurance Company within 48 hours of the alleged theft. The motorcycle in question was stolen by somebody on 28.10.2010 and the complainant informed the police of P.S. City, Yamuna Nagar on the same day which is evident from Annexure C-2. However, the police lodged the FIR bearing No. 536 on 30.10.2010 and due to delay on the part of the police, complainant cannot suffer. It has been further argued that all the information sought by the OP Insurance Company was duly clarified by the complainant from time to time. Further, the learned counsel for the complainant draw out attention towards untraceable report issued by the Chief Judicial Magistrate vide its order dated 19.10.2011 (Annexure C-4) and further argued that in the case of theft demand of driving license by the insurance Company is illegal as it is settled law that in the case of theft driving license is not required to settle the claim. Learned counsel for the complainant further argued that there is no delay on the part of the complainant to intimate the insurance Company as well as to the police of P.S. Yamuna Nagar. Lastly prayed for acceptance of complaint and referred the case law titled as  Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, reported in 2014(4) CLT page 161 and also referred the case law titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission in which it has also held that “ in case of theft of vehicle, breach of policy condition is not germane- A delay of 15 days is not significant in such a case”. Further referred the case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula wherein it has held that “ Delay of 12 days in intimation to the insurance company- there may be a condition in the policy regarding delay in intimation but does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. And further referred the case law titled as National Insurance Company Ltd. vs. Ravi Dutt Sharma,  2011-4 PLR and lastly draw our attention towards the Instruction of IRDA “That the insurer cannot reject claims amount for delay in intimation”. Lastly prayed for acceptance of complaint.

11.                   After hearing both the parties, we are of the considered view that the OP insurance company has wrongly withheld the claim of complainant on the ground that the complainant has given late intimation to the insurance company after the alleged theft and the arguments advanced by the counsel for the OP on this point is not tenable as the IRDA has clearly mentioned in the instructions that the insurer cannot reject claims amount for delay in intimation” The authorities (supra) tendered by the OP are not disputed but not helpful in the present case whereas on the other hand case law referred by the counsel for the complainant titled as Manager New India Assurance Co. Ltd. Vs. Yadram (Supra), Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, (Supra) and Insurance Company Ltd. Vs. Ravi Dutt Sharma (Supra) are fully applicable to the facts of the present case.

 

12.                   Second plea of the insurance company that complainant has not submitted the requisite documents as demanded by the insurance company vide letters dated 3.1.2011 (Annexure R-3), 17.2.2011 (Annexure R-5) and lastly vide letter dated 3.3.2011 (Annexure R-6) is also not tenable. From the perusal of letters Annexure R-3, and reminders issued by the Insurance Company as Annexure R-5 and R-6, it is clear that the investigator was appointed to investigates the matter and to collect the documents and further to verify the same but no report of investigator has been placed on file by the OP Insurance Company due to the reason best known to them. Further, the insurance company has not disclosed in its written statement that on what date, complainant had lodged his claim with the OP Insurance Company. However, from the perusal of letter dated 3.1.2011 as Annexure R-3, it can be presumed that complainant might have lodged his claim between 28.10.2010 i.e. date of theft to 3.11.2010. As the OP insurance company has admitted in this letter that a letter was sent to the complainant on 3.11.2010 and that letter must be written by OP Insurance Company in response of the intimation given by the complainant on 28.10.2010 or before 3.11.2010. It means the complainant has duly informed the Op Insurance Company in time and also intimated to the police of P.S. Yamuna Nagar on the same day as generally police of the P.S. takes 1-2 days in lodging the FIR in case of theft. Further, untraceable report has been issued by the Chief Judicial Magistrate, Yamuna Nagar on 19.10.2011 as the copy of the same is on the file as Annexure C-4 and the same might have been supplied to the insurance company because the present complaint has been filed by the complainant on 2.11.2012. Moreover, this report is on the file since its filing. So, the defence of the insurance company on this point is also not tenable whereas in regard to the other documents which were demanded by the insurance company vide letters Annexure R-3 to R-6, we are of the view that the insurance company linger on the matter unnecessarily by putting illegal quarries as the attitude of the insurance companies remains generally bad at the time of releasing any claim to the insurer.

13.                   In the circumstances noted above and in view of the aforesaid law referred above, we are of the considered view that the OP Insurance Company has wrongly withheld the claim of the complainant on the ground of delayed intimation to the Insurance Company as well as lodging late FIR and the OP Insurance Company is liable to pay the claim amount as per IDV of vehicle i.e. Rs. 30,000/-.

14                    Resultantly, we partly allow the complaint of complainant and direct the OP No.2 i.e. Insurance Company to pay the insured amount of Rs. 30,000/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 2000/- as litigation expenses. It is also made clear that an amount of Rs. 30,000/- on account of theft of motorcycle bearing registration No. HR-02S-1649 will be released to the complainant subject to submitting the subrogation letter as well as indemnity bond in favour of OP Insurance Company. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 03.03.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

                                          (S.C.SHARMA)

                                           MEMBER