Punjab

Faridkot

CC/17/329

Mandar Singh - Complainant(s)

Versus

M/s Balaji Motors - Opp.Party(s)

Gursahib Singh Brar

13 Aug 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       329 of 2017

Date of Institution:     04.10.2017

Date of Decision :      13.08.2019

 

Mandar Singh aged about 47 years s/o Labh Singh son of Mangal Singh r/o Village Deep Singh Wala, Tehsil and District Kotkapura.                                                                        

...Complainant

Versus

1. M/s Balaji Motors, Muktsar Road, Sadiq, Tehsil and District Faridkot through its partner/responsible persons/ authorized person.
2. Hero Motor Crop Vertical Delhi DOX 803-A, 8^th Floor Tower C Konnectus Building, Opp: New Delhi Railway Station, Bhavbhuti  Marg, through its Director/MD/ responsible person/authorized person.
3. National Insurance Company, Ltd Regional Office-1, SCO. 332-334, Sector 34-A, Chandigarh, through Branch Office, Krishana Gali No. 3, Fauji Road, Kotkapura, Tehsil and District Faridkot through its Branch Manager/Authorized person.                  

.......OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

 

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Present: Sh Gurpal Singh Sandhu, Ld Counsel for complainant,

              Sh Ashok Monga, Ld Counsel for OP-3,

              OP-1 and OP-2 Exparte.

 

ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim for his stolen motorcycle and for further directing OP to pay Rs.40,000/-as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.10,000/-.

2                                Briefly stated, the case of the complainant is that Splendor Motorcycle of complainant bearing Registration No PB 04-Y-3384 was fully insured with OP-3 vide Insurance Policy bearing no. 39010231166203411626 for the period from 5.11.2016 till 4.11.2017 against all kinds of risks including theft. It is submitted that complainant purchased his motorcycle from OP-1, who is authorized dealer of OP-2. Further submitted that on 30.05.2017, said vehicle of complainant was stolen by someone and he immediately reported the matter to Police Station Sadiq and also gave due intimation regarding this to OPs, but they asked him to register criminal case regarding theft of his motorcycle with concerned Police Station and then, complainant got registered FIR No.53 dated 19.08.2017 under section 379 IPC in Police Station, Sadiq. Thereafter, complainant approached OP-3 for processing his claim but

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OP-3 refused to prepare his case for theft of his vehicle. He made several requests to OPs to make payment of his genuine insurance claim on account of his stolen vehicle, but they kept lingering on the complainant on one pretext or the other and now, they have flatly refused to admit the claim, which amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to him. He has prayed for directions to OP to pay compensation and litigation expenses besides the main relief. Hence, the  present complaint.

3                               The counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.10.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                             On receipt of the notice, OP-3 filed written statement taking preliminary objections that no cause of action arises against answering OP and there is no deficiency in service on their part. It is averred that no intimation regarding alleged theft dated 30.05.2017 was given by complainant to them and he never submitted requisite documents with them. in view of conditions no. 1, 4 and 8 of the Insurance Policy in question, complaint in hand is not maintainable and complainant has not complied with the mandatory conditions. He left his vehicle alongwith concerned documents unattended in street through the night and himself facilitated the said theft incident. Complaint involves complicated questions of law and facts requiring heavy evidence which

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is not possible in the summary proceedings of this Forum. He has concealed the material facts from this Forum and allegations levelled by him are vague and incorrect. Moreover, complaint filed by complainant is pre mature as complainant neither informed them regarding said theft incident nor submitted requisite documents for processing the claim and thus, claim of complainant has neither been processed nor declined by them. On merits also, OP-3 have denied all the allegations of complainant being incorrect and asserted that there is no deficiency in service on their part. It is asserted that complainant did not give timely intimation regarding said theft to them thereby preventing them to gather first hand information by immediate spot inspection, which is a violation of terms and conditions of insurance policy in question.  He has failed to comply with the necessary terms and conditions of the policy. Moreover, said alleged theft occurred on 30.05.2017, but FIR to this effect was got registered by him on 19.08.2017 after about a lapse of 81 days. Complainant has violated the terms and conditions of the policy in question as insured has not taken the reasonable steps to safeguard the vehicle and left it unattended. All the other allegations levelled by complainant are denied being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice on the part of OP-3. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                    Registered cover containing notice and copy of complaint alongwith relevant documents was sent to OP-1, but it

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received back in the Forum with report of postal authorities as refused. Notice sent to OP-2 did not receive back undelivered and was presumed to be served. No body appeared on behalf of OP-1 and 2 in the Forum on date fixed either in person or through counsel, therefore, vide order dated 7.12.2017, both OP-1 and OP-2 were proceeded against exparte.   

6                                              Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-5 and then, closed his evidence.

7                                     In order to rebut the evidence of the complainant, the ld Counsel for OP-3 tendered in evidence affidavit of Kamaljit Singh Ex OP-3/1 and document Ex OP-3/2 and then, closed the evidence.

8                                    We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the record.

9                                     From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that insured motorcycle of complainant was stolen during the validity of   insurance period and as per rules he gave due intimation regarding this incident to OPs and Police, who registered FIR no. 53 to this effect on 19.08.2017 Ex C-4, but OPs have not made a single penny on account of insurance

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claim. Action of OPs in not making payment of genuine insurance claim on account of theft of his vehicle, amounts to deficiency in service. In reply, Ops stressed mainly on the point that complainant did not give intimation to them regarding said theft. OP-3 alleged that said alleged theft occurred on 30.05.2017, but he lodged FIR after delay of 81 days on 19.08.2017 and moreover, complainant neither approached them on time nor submitted any documents with them for processing the claim and thus, complaint filed by him is premature. There is no deficiency in service on their part and prayed for dismissal of complaint with costs.

10                         The main objection raised by OP-3 is that the alleged theft occurred on 30.05.2017, but the complainant did not report the matter with the Police or OPs immediately, rather he first time intimated the Police on 19.08.2017 after a lapse of 81 days, which is a violation of terms and conditions of the Insurance Policy. On it, the ld counsel for complainant argued that complainant immediately informed regarding the incident of theft to Police and OPs on 30.05.2017. To prove his case, complainant placed on record application dated 30.05.2017 written by him to SHO, Sadiq reporting the incident of theft. He has produced  document Ex C-4 that is copy of FIR dated 19.08.2017, which proves the pleadings of complainant as it is clearly mentioned in it that complainant reported the matter regarding theft of his motorcycle to Police on 30.05.2017. Ex C-5 is copy of Policy Detail that further proves the pleadings of complainant that his vehicle was duly insured with them against all kinds of risks including theft. Ld counsel for complainant

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argued that only duty of complainant is to inform the Police regarding incident and it is on the Police to register the FIR of complainant and complainant has no control on it whether Police registered the FIR on same day or after investigation. He has put reliance on citation 2008 (3) CPJ titled as Ridhi Gupta Vs National Insurance Company Ltd wherein State Consumer Disputes Redressal Commission, Delhi has held that in our view FIR is not a requirement for adjudicating the insurance claim. Whenever vehicle or any cash or goods are stolen, insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police only is concerned whether the theft has taken place or not. Once the report is lodged with the Police may in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint Surveyor for the purpose of assessing the loss. If the Police find that a person has lodged a false report, he can be prosecuted for offence punishable under Section 182 IPC but in any way the Insurance Company cannot indulge in such exercise and enter into such and arena that does not belong to it. The similar view is taken by Hon’ble State Commission, Haryana in 1^st Appeal No. 754/2010 decided on 18.10.2012 titled as Branch Manager United India Insurance Company Ltd Vs Smt Sandhya Rani.

11                                         It is observed that complainant immediately gave information to Police as well as Ops and submitted all the

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documents for processing the claim to them. Ops are now, intentionally denying this fact only to avoid the liability of indemnifying the complainant regarding his stolen motorcycle. Moreover, plea taken by OPs that complainant did not inform OPs immediately and deprived them of gathering first hand information has no legs to stand upon as if the complainant can immediately report the matter to Police, then, there is no reason for him to not to inform Ops regarding the incident and to claim his genuine insurance claim. Now, the OP are intentionally trying to delay the insurance claim regarding theft of his vehicle. He further argued that if in any case, it is presumed that complainant did not inform Ops regarding incident on time, then in that case also, the OPs cannot deny payment of insurance claim to complainant. On this, he put reliance on citation 2016(1) CLT 539 titled as Baja Allianz General Insurance Company Ltd Vs Abdul Sattar and anr wherein our Hon’ble National Commission has observed that in order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition no.1 of insurance policy, which is reproduced as under”1. 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 process or copy thereof shall be forwarded to 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

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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 policy and co-operate with the Company in securing the conviction of the offender”. On reading the above, it is clear that in the event of theft of the vehicle, only requirement on the part of insured was to intimate the policy immediately and co-operate in securing the conviction of offender. He submitted that as per the observation of Hon’ble National Commission in case of theft, the only requirement on the part of complainant was to intimate the Police immediately and to cooperate with Police in securing the conviction of the offender and complainant duly complied with this condition and immediately reported the matter with Police. Therefore, Insurance Company cannot repudiate the claim of complainant. Reasons forwarded by Ops for not allowing the claim of complainant are not plausible and their action in denying payment of claim on baseless grounds is not appropriate and genuine, which amounts to deficiency in service on their part.

12                                            From the above discussion and case law produced by the complainant, we are of considered opinion that complainant immediately reported the matter with Police and lodged FIR with Police and also intimated Ops. Ops cannot deny the payment of insurance claim of vehicle of complainant on the ground that there is violation of the terms and conditions of the policy. Act of Ops in

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denying the payment of claim amounts to deficiency in service and trade mal practice on their part. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed. OPs are directed to pay Rs.46,980/-i.e insured value of lost vehicle subject to transfer of Registration Certificate of the vehicle in question in the name of OPs and also to execute other required documents for payment of claim by complainant in favour of OPs within 30 days from the date of receipt of these documents in their favour, failing which OPs shall be liable to pay interest at the rate of 9% per anum from the date of filing the complaint till final realization. OPs are further directed to pay Rs.5,000/- to complainant as consolidated compensation for harassment suffered and litigation expenses incurred by him. Compliance of this order be made within one month of receipt of the copy of the order failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 13.08.2019       

(Param Pal Kaur)           (Ajit Aggarwal)

                                      Member                         President