Haryana

Karnal

CC/172/2019

Balbir Singh - Complainant(s)

Versus

L&T Insurance Now Marged With HDFC ERGO General Insurance Company Limited - Opp.Party(s)

Naresh Kumar Barana

05 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No.172 of 2019

                                                        Date of instt. 27.03.2019

                                                        Date of decision:05.04.2021

 

Balbir Singh age 45 years son of Shri Chettar Singh, resident of village Jani, tehsil and district Karnal. Aadhar no.583769255521. Mobile no.9416018572.

…….Complainant.

                                              Versus

 

1. L& T Insurance, now merged with HDFC Ergo General Insurance Co. Ltd. Sector-12, opp. Mini Secretariat, Karnal.

 

2. L&T Insurance, now merged with HDFC Ergo General Insurance Co. Ltd. 5^th floor, Tower-1, Stellar I.T. Park, C-25, Sector-62, Noida-201301 (UP) (insurer of Tractor-Sonalika, DI-750 bearing Regd. no.HR-05AM-6447 through its Branch Manager.

 

…..Opposite Parties.

               

       Complaint u/s 12 of the Consumer Protection Act, 1986.              

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present  Shri N.K. Barana counsel for complainant.

               Shri Sanjeev Vohra counsel for opposite parties.

 

                (Jaswant Singh President)

 

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 on the averments that complainant got insured his tractor-Sonalika, DI-750 bearing registration no.HR-05AM-6447 with the opposite parties (hereinafter referred as to OPs), vide policy no.915106003939060000, valid from 29.09.2014 to 28.09.2015. OPs assessed the value of the vehicle to tune of Rs.5,79,500/-. On 11.05.2015, complainant alongwith his tractor went to village Chausana and after cultivation, the complainant parked his tractor and went to sleep and when complainant awoke, the tractor was found missing and so some unknown person had stolen the abovesaid tractor and thereafter on the same day, the complainant immediately lodged a complaint with Police Station, Jhinjhana (UP0 and in this regard, an FIR no.348 dated 22.05.2015, under section 379 IPC was registered against some unknown person regarding theft of tractor. The complainant also made efforts to trace out the tractor but the tractor could not be found. After theft, the complainant went to the office of OP and informed them about the theft of tractor. The complainant submitted the requisite claim form alongwith all necessary documents and requested them to get the formalities completed for payment of the vehicle, but the officials of the OPs stated that as and when the untraced report is submitted by the police, the claim of the complainant would be settled and until and unless the untraced report is not submitted by the police in the court, till then claim cannot be settled. The police submitted untraced final report before the Illaqa Magistrate and the same was accepted vide order dated 08.06.2017. The complainant submitted the untraced report with the OPs and requested to settle the claim but OPs did not pay any heed to the request of complainant. Lastly, OPs repudiated the claim of the complainant on the ground of delay in intimation to the OPs. Thereafter, complainant visited the office of the OPs several times and requested to settle the claim but OPs failed to settle the claim. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that there has been inordinate and unexplained delay of 21 days in intimating the insurer and 11 days delay in lodging the FIR with regard to the alleged theft of the vehicle. It is further pleaded that the vehicle in question was stolen on 11.05.2015. The incident about theft was reported to the OP on 01.06.2015. It is further pleaded that the complainant by delay intimation of 21 days, has deprived the OPs from its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. It is further pleaded that during the scrutiny of the claim and submission of key, the complainant failed to submit second original key to the insurance company. That the loss of original keys was never intimated to the OPs nor any complaint to the police authority was made in this behalf. Since the complainant lost one keys of the vehicle, he did not changed his lockset as per the manufacturer’s specification and also failed to submit the second original key, which is absolute negligence on the part of the complainant which violates condition no.4 of the terms and conditions of the insurance policy. So, the claim of the complainant was rightly repudiated. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CW1/a, copy of FIR Ex.C1, copy of untraced report Ex.C2, copy of R.C. Ex.C3, insurance policy Ex.C4, terms and conditions of insurance policy Ex.C5 and closed the evidence on 07.01.2020 by suffering separate statement.

4.             On the other hand, OP tendered into evidence affidavit of Shweta Pokhriyal Legal Manager Ex.OP1/A, copy of repudiation letter dated 05.09.2018 Ex.O1, copy of FIR Ex.O2, copy of insurance policy Ex.O3 and copy of investigation report Ex.O4 and closed the evidence on 10.03.2021 by suffering separate statement.

6.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant argued that the complainant is registered owner of a tractor bearing registration No.HR-5AM-6447 and the said vehicle has got insured from the OPs. On 11.05.2015, the complainant parked his tractor and went to sleep and when he wake up found that his tractor was not there and had been stolen by some unknown person. He immediately informed the Police as well as to OPs with regard to theft of the tractor. The complainant visited so many times with the office of OPs but they postponed the matter on one pretext or the other and finally repudiated the claim of the complainant on flimsy ground. He further argued that  he has intimated the police on the very same day and the police of police station Jhigjhana assured that the FIR for stolen of vehicle has been lodged shortly and the complainant believing the same went to his house and if the FIR was lodged after a delay of 11 days, then it is the police official who is at fault and how the complainant can suffer for the wrong act done by the police official, thus, the claim of the complainant has been repudiated wrongly only in order to deprive him from his genuine claim. Learned counsel for complainant further argued that the complainant had handed over the original second key to the surveyor of the OPs. Hence, prayed for allowing the present complaint.

8.             Per-contra, learned counsel for OPs argued that there is unexplained delay of 21 days in intimating the insurer and 11 days delay in lodging the FIR with regard to theft of the vehicle. The claim of the complainant had been rightly repudiated by the OPs on the ground of delay intimation to the insurer as well as to the police as well as he failed to submit the second original key to the insurance company. The loss of original key was never intimated to the OP nor any complaint to the police authority was ever made in this regard. Hence, the claim of the complainant was rightly repudiated and prayed for dismissal of complaint.

9.             Admittedly, the complainant got insured the vehicle in question with the OPs. During the subsistence of the policy, the said tractor had been stolen and in this regard FIR No.348 dated 22.05.2015 Ex.C1 was lodged and intimation in this regard had also been given to the OPs. It is also an admitted fact that the police has filed untraced report Ex.C2 which was accepted by the learned Illaqa Magistrate, Kairana, Muzafarnagar but despite lodging the claim, the claim of the complainant has been repudiated vide repudiation letter dated 05.09.2018 Ex.O1 on the following grounds:-

i)      This is to bring to your kind notice that, as per the information furnished by you during investigation of the reported loss, we have been given an understanding that you have lost/misplaced one Original Key of the IV, against which you had not changed the lockset of the vehicle, it is gross negligence on your part and is not covered under the terms and conditions of the subject policy.

ii)     This is to bring to your kind notice as per information & documents furnished during the fact findings of the mentioned loss it was observed that the theft of your vehicle had happened on 11.05.2015 wherein the intimation to the insurer was given on 01.06.2015 i.e. after a delay of 21 days, further the FIR against the mentioned theft was lodged on 22.05.2015 i.e. after a delay of 11 days.

 

10.           The first plea taken by the OPs while repudiating the claim of the complainant that he has lost/misplaced original second key has no force, because as per the version of the complainant he had handed over the second original key to the surveyor of the OP and OP has taken the said false plea only in order to harass the complainant. Further, when the vehicle in question had been stolen then there is no logic for keeping the key with himself by the complainant becomes useless, hence the plea of the OPs appears only to harass the complainant. Moreover, claim cannot be repudiated on such minor basis.

11.           The second plea taken by the OPs that there is delay in lodging the FIR as well as intimating the insurance company with regard to theft of vehicle in question, has no force, because as per the version of the complainant, he has informed the police on the same day, in the police station but the police has lodged the FIR after a delay of 11 days and the complainant cannot suffer for the wrong act done by the police officials. Intimation with regard to OP, it is a common knowledge that no person can go straightaway to the insurance company as firstly he tries to trace his vehicle and when he does not find it after searching it by his own best level, then he goes to the insurance company for lodging the claim. In the present case also same thing happened. In this regard, we place reliance on the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017  wherein Hon’ble Supreme Court of India held in para no.11 that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.

11.           Keeping in view, the ratio of the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OPs amount to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which  otherwise proved genuine one.   

12.           As per insurance policy Ex.C4, the Insured Declared Value (IDV) of the vehicle in question is Rs.5,79,500/-, thus, the complainant is entitled for the same alongwith compensation and litigation expenses etc.

13.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.5,79,500/- to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:05.04.2021

 

                                                                       

                                                          President,

                                               District Consumer Disputes

                                               Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)              (Dr. Rekha Chaudhary)

                     Member                           Member