DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.291/2013
Sh. Dayaram Yadav
S/o Shri Kishori Lal Yadav
Taxi stand sector-9, R. K. Puram,
Near Sangam Cinema,
New Delhi-110022 ….Complainant
Versus
M/s National Insurance Co. Ltd.
through its Directors
E-13, Main Market, Hauz Khas,
New Delhi-110016 ….Opposite Parties
Date of Institution : August, 2013 Date of Order : 03.11.18
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Naina Bakshi, Member
Briefly stated, the case of the complainant, in nutshell, is that the complainant is the owner of Maruti Esteem LXI registration No. DL-IY-B-1687 which was purchased by the complainant in the year 2007 with CNG version. The vehicle was insured with the OP vide insurance policy No.360700/31/11/6300002656 for the period from 26.09.11 to 25.09.12 for the depreciated value of Rs.229767/-. On 15.12.11 the vehicle met with an accident near Shani Mandir, Sector-7, R. K. Puram, as a cow suddenly came in front of the vehicle. Driver Sh. Anoop Kr. was driving the vehicle. The driver telephonically informed the complainant, who was out of station at that time for personal work. The complainant came in Delhi on 22.12.12 and immediately lodged a report of accident with the P.S. R. K. Puram. The complainant also lodged a claim with the OP. The OP demanded some further documents from the complainant which was submitted to the OP and their surveyor. The surveyor of the OP assessed the loss of vehicle as complete loss due to the accident. It is submitted that even after passing nearly one year, the OP has not decided the claim of the complainant and verbally told the complainant that the claim of the complainant has been repudiated as the complainant has intimated the complainant on 22.12.11 i.e. after 7 days from the date of occurrence. It is submitted that the OP totally ignored the fact, that there was no deliberate delay on the part of the complainant. Hence pleading deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the present complaint for the following reliefs:-
- Direct the OP to pay Rs.2,29,767/- towards insurance value of the insured vehicle alongwith interest @ 24% p.a. from the date of loss till the date of payment.
- Direct the OP to pay Rs.1,00,000/- towards damages for harassment, tension, and agony undergone by the complainant at the hands of the OP.
- Direct the OP to pay Rs.10,000/- towards cost of the complaint.
OP in the written statement has inter-alia stated that under the contract of insurance the insured is thus under a solemn obligation to act as uninsured and should take proper and necessary steps to safe or recover the insured property and minimize the loss. Secondly, give immediate intimation of loss to the insurer without delay, which will be relevant for the insurer to take immediate action to prevent the fraud, recover the vehicle and further loss. As per the contract of insurance the passenger carrying commercial vehicle package policy vide policy No. 360700/31/11/6300002656 was issued in respect of the insured vehicle No.DL-1Y-B-1687 valid from 26.09.11 to 25.09.12 in favour of Daya Ram Yadav subject to the terms, conditions, acceptance and limitation of the insurance policy. The said vehicle met with accident on 15.12.11 near Shani Mandir, R. K. Puram whereas the complainant lodged complaint vide DD entry 56-B dated 22.12.11 in the P.S. R. K. Puram after 7 days from the date of accident of the said insured vehicle. As per the rules and according to the requirement of the policy, the FIR should be filed on the same day. The complainant intimated of loss only on 19.12.11 i.e. after 4 days from the date of accident of the said insured vehicle. The delay in lodging the claim has prevented the OP in investigating into the matter with regard to genuineness of the claim. Reckless attitude of the complainant towards the OP i.e. much delay intimation left no option for the company to minimize the loss of the vehicle or to do spot survey of the insured vehicle after accident which is very essential of the claim.
The complainant has also breached the policy condition No.1 which says that in case of accident or criminal act, which may be the subject of the claim under the policy, the insured shall give immediate notice to the police and cooperate with the OP in securing the conviction of the offender. It is submitted that the complainant had not made a claim at police 100 no. immediately after getting the knowledge of the accident. The said vehicle was driven by his driver. On 19.12.11 an intimation was received from the complainant on 19.12.11 for appointment of surveyor. The matter was referred to the division office for appointment of surveyor. Accordingly Mr. D. K. Sharma was appointed as surveyor for assessment of loss. The surveyor found that the complainant hiding some facts and investigated the matter and assess the loss accordingly. The surveyor/investigator after investigation gave his report that although CNG has been endorsed in the registration certificate as a Retrofit fitment, however the same has not been mentioned in the insurance policy. The OP wrote a letter to the complainant on 27.03.12 and requested the complainant to clarify his position, but the complainant kept silent. Hence, finding no other option while going through all the facts, the OP came to the conclusion, that the complainant had given wrong declaration and found guilty of suppression of material fact and accordingly repudiation letter was sent to the complainant on 21.12.12.
It is submitted that the complainant has also breached the policy condition No.5 which says that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage. The complainant lodged a complaint after 4 days from the date of accident. The conduct of the complainant itself proved that the complainant is negligent as the vehicle left unattended on the road side by the representative of the complainant whom the vehicle was entrusted by the complainant.
Complainant also breached the policy condition No.8 which says that due observance and fulfillment of terms, conditions and endorsement of the policy in so far as they relate to anything to be done or complied with by the inured shall be condition precedent to any liability of the OP to make any payment under the policy. It is submitted that the complainant informed the OP regarding accident to the police and insurance company was much delayed, the OP closed the file as no claim. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder reiterating the averments made in the complaint.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. R. K. Kayat Manbager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
Admittedly, the complaint was is the owner of Maruti Esteem LXI registration No. DL-IY-B-1687 which was purchased by the complainant in the year 2007 with CNG version. The vehicle was insured with the OP vide insurance policy No.360700/31/11/6300002656 for the period from 26.09.11 to 25.09.12 for the depreciated value of Rs.229767/-. On 15.12.11 the vehicle met with an accident near Shani Mandir, Sector-7, R. K. Puram as a cow suddenly came in front of the vehicle.
The complainant filed the certificate of registration issued by the Transport Authority wherein it is mentioned that the vehicle is fitted with CNG kit as Annexure C-1. The insurance policy filed by the complainant as Annexure C-2. The complainant filed the copy complaint registered with P.S. R. K. Puram as Annexure C-4. The complainant filed the circular dated 20.09.11 issued by the IRDA. We mark the same as Annexure-5 for the purpose of identification.
- Now the main question is that whether the CNG was fitted at the time of purchase of the vehicle or not?
- Next question arises for consideration whether there is any delay in loding the FIR or intimation to the OP to not?
Regarding the issue No.1.
The complainant filed the decision of the Hon’ble State Commission, Delhi in appeal No. 1082/2013 - Shri Ram Gen. Ins. Vs. Jaswant Singh dated 16.07.2008 wherein it is stated that “ it was the duty of appellant/OP to ensure whether the CNG kit was installed in the vehicle or not when all relevant papers were shown to it while taking the policy. The same is a lapse on part of the appellant/OP. In these circumstances, appellant/OP is liable for the loss caused to the respondent/complainant.”
It is clear from the certificate of registration that the said car was CNG fitted at the time of purchase. The insurance policy was valid from 26.09.11 to 25.09.12. The contention of the complainant is that while preparing the policy, the OP did not mention about the same on the policy. Therefore regarding CNG fitted in the vehicle is correct. Hence, the question regarding not mentioning the CNG fitted in the registration certificate of the vehicle is not justified by the OP.
Regarding the issue No.2.
Whether the complainant file the FIR delay to police as well as filed the claim to the OP delay by 7 days & 4 days respectively, the complainant justified the reasons in the complaint that the complainant was out of station and could not file the FIR and claim in time. In this regard, the complainant has filed the judgment passed by the Hon’ble Supreme Court in Om Prakash Vs. Reliance General Insurance, 2017 AIR (SC) 4836.
In the case of Om Prakash (supra) the Hon’ble Supreme Court held that “the condition regarding the delay shall not be shelter to repudiate the insurance claim which has been otherwise proved to be genuine. It needs no emphasize that the Consumer Protection Act aims at providing better protection of the interest of the consumer. It is a beneficial legislation that deserves liberal construction. This laudable objection should be not be forgotten while considering the claim made under the Act.”
In the case of Hukum (supra) the Hon’ble National Commission held that “a genuine claim is not be rejected by the Insurer only on account of delay in its submission. The insurer is required to require from the claimant as to what was the reason or the delay in submission of the claim. The claim should be rejected only where the insurer finds that it was liable to be rejected even if it had been submitted in time”.
In view of the above judgment, the Hon’ble Supreme Court and Hon’ble National Commission rejected the plea for delay in filing the claim application. Hence the delay of filing FIR & claim by the complainant is justifiable as the reasons stated by the complainant.
Regarding CNG kit the Hon’ble State Commission has held that it was the duty of the OP to ensure whether the CNG kit was installed in the vehicle or not when all the relevant papers were shown while taking the policy, hence the plea taken by the OP is not justified.
In view of the above discussion, we hold the OP guilty of deficiency in service while rejecting the genuine claim of the complainant. We allow the complaint and direct the OP to pay Rs.2,29,767/- i.e. IDV of the vehicle to the complainant and Rs.20,000/- as compensation for harassment and mental agony undergone by the complainant within a period of one month from the date of receipt of the copy of this order failing which the OP shall become liable to pay the said amount of Rs.2,29,767/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the date of realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 03.11.18.
