Delhi

New Delhi

CC/322/2010

Akhilesh Chand Shukla - Complainant(s)

Versus

M/S. National Insurnace Company Ltd. - Opp.Party(s)

18 Jul 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

Case No.C.C./322/2010                                  Dated:

In the matter of:

MR. AKHILESH CHAND SHUKLA,

Aged about 31 years

S/o Sh. Ramanuj Shukla,

R/o 151-A, Pocket-C, Sidhartha Extension,

New Delhi-14.

 

        ……..COMPLAINANT

 

 

VERSUS

1.     NATIONAL INSURANCE CO. LTD.

        Through its Manager

        Div. No. 10, Flat No. 1001-106m

        BMC House, Connaught Place,

        New Delhi

 

2.     MARUTI INSURANCE

        J.K.M. Motors Pvt. Ltd.,

        Through Its Manager

        A-25, Sector-9, Noida U.P.

 

3.     NATIONAL INSURANCE CO.LTD.

Through Its Manager

Dharam Place, Sector-18,

Noida U.P.

       

               .... OPPOSITE PARTIES

 

 

PRESIDENT: S.K. SARVARIA

ORDER

 

In this complaint filed under sections 12 and 13 of The Consumer Protection Act, 1986 (in short Act), the complainant, in brief, has alleged that he purchased Wagnor car for a consideration of Rs. 3,52,598/- on 29/3/2007 and this vehicle was registered as DL3CAZ0197 DL3CAF3A-3851 on the same day from the showroom and got it  insured on the value of Rs. 2,52,840/- on payment of premium of Rs. 7008/-. The cover note and policy No. 3692479 of the OP 1 insurance company was issued by OP 2 in favour of the complainant. The complainant installed gasket in the vehicle and got it endorsed on his registration certification of the vehicle and paid additional amount of Rs. 703/- to the OP 1 and got additional insured value of Rs. 23,750/-

On 13/3/2009 the car of the complainant was stolen from Sunlight Colony, No. 1 between 9.30 p.m. to 7.30 a.m. The complainant immediately dialed number hundred to call the PCR. Subsequently complaint was lodged with the police and police registered an FIR No. 113 thereafter, the complainant informed the OP about the incident and put of the claim from the OP. The intimation of theft of the vehicle was also given to the Transport Authority. The police filed untraced report on 15/6/2009. On  the asking of representative of the opposite party, documents, key of the car were deposited by the complainant and complainant was assured of the processing the claim and his signatures were obtained on different papers as per procedural requirement to process the claim. The officials of OP 1 and OP 3 sought consent for 25% substandard deduction for the settlement of the claim as the OP 1 had given discount at the time of insurance. But the OP refused the insurance claim, by letter dated 10/2/2010 on the fictitious ground that the complainant had misrepresented the facts/signed false statement at the time of insurance. According to complainant all information was taken by the OP 2 himself, he himself calculated the discount and premium. If in any case premium was calculated less it would not affect the incident of theft.

The complaint has prayed for direction against the opposite parties to make the payment in the sum of Rs. 276,590/- along with interest at the rate of 12.65% in favour of the complainant and also direction against opposite parties to pay to complainant. In addition  sum of Rs. 50,000/- as compensation for mental agony and pain besides interest at the rate of 12.65% per annum from the date of default till the date of realisation of the amount and litigation costs are also claimed.

The notice of the complaint was issued to the opposite parties. OP 1 and OP 3 contested the claim and filed joint written statement. OP 1 and OP 3 admitted that the vehicle in question was insured by the OP 1 for the period 26/3/2008 to 25/3/2009 for an insured estimated value of Rs. 2,52,840/- only vide policy No. 3692479.  According to OP 1 and OP 3, the complainant lodged his claim on account of theft of his vehicle in question on 23/3/2009. Thereafter, Mr Amit K Mittal, surveyor and loss assessor was appointed by the Insurance Company to assess the value of the loss. Meanwhile, the OP 1 company consulted record and found that the insured has taken the no claim bonus of 20% and paid the less premium by misrepresenting the facts, as the insurance company received the letter dated 11/8/2009 from the previous insurance company, i.e., ICICI Lombard General Insurance Co. who confirmed that the complainant is entitled to 0% bonus as no claim bonus. According to OP 1 and OP 3 the complainant intentionally misrepresented the facts from the insurance company to get no claim bonus and paid bill less premium, which is clearly the breach of terms and conditions of the insurance policy. The insurance company on this ground by its letter dated 10/2/2000 repudiated the claim of the complainant and intimated the same to the complainant. Another point taken by the OP 1 insurance company is that the vehicle was stolen on 13/3/2009, and the F I R was lodged after 10 days, i.e., on 23/3/2009, and the insurance company was intimated on 23/3/2009 for the reasons best known to the complainant. The complainant has not mentioned any reason why said FIR was not lodged immediately and why intimation to the insurance company was not conveyed immediately in writing without delay, and as such, the complaint of the complaint is liable to be dismissed on this ground alone. The OP 1 and OP 3 have denied other facts stated in the complaint and have prayed for its dismissal with heavy costs.

In the rejoinder to the WS of OP 1 and OP 3, the complainant has denied the averments made therein and has reaffirmed the facts stated in the complaint.

OP 2 has filed separate reply and has not specifically denied majority of the facts stated in the complaint alleging the same as per matter of record and so need no reply. The territorial just jurisdiction of this District Forum is questioned by OP 2, and it is alleged that the complainant is not entitled to relief as per prayed for. Dismissal of the complaint with exemplary costs and deletion of the name of OP 2, is sought as relief in the written statement by the OP 2.

In support of his case, the complaint has filed his affidavit in evidence. On behalf of OP 1 and OP 3, the affidavit in evidence of Mr Joginder Sharma AO of the OP 1 insurance company is filed. No affidavit in evidence is filed on behalf of OP 2.

The complainant,  OP 1 and OP 3 jointly have filed separate written arguments.

We have heard learned counsel for complainant and have gone through the written arguments filed on behalf of complainant and joint written argument on behalf of OP 1 and OP 3, record of the case and relevant provisions of law. None appeared on behalf of OP 1 and OP 3 or for OP 2 addressing arguments on 3/6/2016.

The basic facts are not disputed. Admittedly, the vehicle in question was insured by the OP 1 for the period 26/3/2008 to 25/3/2009 for an insured estimated value of Rs. 2,52,840/- only vide policy No. 369 2479. Theft of vehicle occurred during the currency of the policy period. The repudiation of the insurance claim was done by the OP 1 on the ground or misrepresentation of claiming no claim bonus amount, leading to reduction in the insurance premium paid by the complainant. In a normal situation, we would have considered grant of insurance claim by proportionately reducing the insured amount/claim of the complainant to the proportion by which the insurance premium is reduced on account of alleged misrepresentation. But in the present case, the OP 1 and OP 3 have also taken additional grounds that there was delay in lodging the F I R and delay in intimation to the OP 1 insurance company about the theft of the vehicle in question by the complainant. So these of rounds taken by OP 1 and OP 3 dissuades us from granting proportionate claim to the complainant against OP insurance company.

In Reliance General Insurance Co. Ltd. v. Jai Prakash  :2016(1) CLT 344 (NCDRC), the honourable National Commission has made the following observations:

"The term accidental loss or damage, wherever, it appears in the standard form of the insurance policy will have to be given the same meaning. If the aforesaid term is interpreted to exclude loss due to theft, as the contention of the complainant is, it would imply that the proposal submitted by the insured which forms the basis of the contract of insurance does not provide insurance against theft of the vehicle, and consequently the insurer is not liable to reimburse the insured for such a loss. This obviously is not the case either of the insurer or of the insured. Similarly, this could not have been the intention of the parties to exclude the consequential loss in case of loss or damage to property due to an accident while not excluding such a loss on account of theft of a vehicle. Hence, there is no escape from the conclusion that the substitution of the term 'accident or loss or damage' in the old standard form by the term 'accidental loss or damage' in the new standard form does not change the scope of the insurance policy issued in respect of a motor vehicle and therefore, the decision of the Hon'ble Supreme Court in Parvesh Chander (supra) would equally apply in respect of the insurance policies issued after 30.07.2002 when the revised standard form came into force.

 For the reasons stated herein above, we have no hesitation in holding that the insured was under a contractual obligation to intimate the theft of the vehicle to the insurer immediately after the said theft came to his knowledge and mere intimating the police or lodging an FIR does not amount to sufficient compliance with the terms and conditions of the insurance policy. Since admittedly, there was substantial delay in intimating the theft of the vehicle to the insurance company in both these cases, the insurer was entitled to repudiate the claim on account of the aforesaid default on the part of the insured. Consequently, revision petition No. 2479 of 2015, filed by Reliance General Insurance Co. Ltd. is allowed and the complaint filed by the respondent / complainant Jai Prakash is hereby dismissed. Revision Petition No.1068 of 2015 filed by Shri Gurnam Singh against The New India Assurance Company Ltd. is hereby dismissed. No order as to costs. "

 

In Shriram General Insurance Co. Ltd. v. Sh. Anand Singh, :2016(2) C.P.R. 423 (NCDRC) following observations were made by the honourable National  Commission:

"On reading of the above, it is clear that as per the aforesaid condition No. 1 the insured was under contractual obligation to inform the insurance company/petitioner about the theft of the vehicle immediately. Admittedly the intimation in writing about theft of vehicle was given by the insured after a delay of 10 days from the date of theft. The respondent/complainant has not given any explanation for the delay . Therefore, we have no hesitation in holding that this is a clear case of violation of condition No. 1 of the insurance contract. The issue regarding the fact that violation of the aforesaid condition came up before the Co-ordinate Benches of this Commission in the matter of Trilochan Jane (supra) as also Ram Avtar (supra) wherein this Commission has taken a view that failure of the insured to immediately inform about the theft in writing amounts to violation of contract and justifies the repudiation of the insurance claim . We do not find any reason to differ from aforesaid view. Thus, it is held that the respondent/insurance company was justified in repudiating the claim .

10. So far as IRDA circular referred to by the State Commission in the impugned order is concerned, it may be noted that the State Commission has misread the aforesaid circular. The circular provides that the condition regarding giving intimation of loss to the insurer within stipulated period should not prevent the settlement of genuine claims particularly when there is a delay in intimation or in submission of documents due to unavoidable circumstances. In this case, the complainant has not been able to explain or point out any unavoidable circumstance which prevented him from giving the written intimation about the theft to the respondent/insurance company. Thus this is a clear case of violation of condition No. 1 of the insurance contract, which is mandatory. Hon'ble Supreme Court in the matter of Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha, Civil Appeal No.6739/2010 decided on 17.8.2010 while dealing with the similar condition in the insurance contract observed as under:-

"Admittedly, the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation , the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. Unfortunately, all the consumer for as omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy."

11. From the above it is clear that violation of condition No. 1 i.e. failure to give intimation of theft in writing immediately to the insurance company goes to the route of the insurance claim . In view of the above, we are unable to accept the view of the State Commission that the claim was wrongly repudiated . We accordingly allow the revision petition, set aside the impugned orders and dismiss the complaint."

 

The contention on behalf of the complainant is that he intimated the OP insurance company about the theft of the vehicle but he has not given the date on which he intimated the OP insurance company about it. On behalf of the OP insurance company it is specifically alleged that the F I R was lodged after 10 days, on 23/3/2009 while the vehicle in question was  stolen on 13/3/2009. It is also alleged that notice was required to be given in writing to the OP insurance company immediately upon happening of the accident/loss. But the complainant failed to fulfill this condition and OP insurance company was intimated on 23/3/2009. Therefore, in the light of decision of Honourable National Commission in Sh. Anand Singh's case (supra). We find the repudiation of the insurance claim of the insured by the insurance company to be justified when the insured has not intimated in writing the insurance company promptly. Further, in the light of Jai Prakash's case (supra) prompt intimation to the police about theft of the vehicle coupled with delayed intimation to the insurance company about it is also violation of the policy conditions and in such a case repudiation of the insurance claim by the insurance company is justified. Therefore, in the light of the views taken by  the honourable National Commission in Anand Singh’s Case (supra) and Jai Prakash’s Case (supra) we do not find any merit in this complaint and hold that the repudiation  of the insurance claim of the complainant by the OP insurance company cannot be set aside.

In the light of the above discussion the complaint is dismissed. The parties are, however, left to bear their own cost of litigation. A copy of this order each be sent to both parties by post free of cost. This final order be sent to server (www.confonet.nic.in ).

The file be consigned to the record room.

Pronounced in open Forum on 18/07/16

 

(S K SARVARIA)

PRESIDENT

 

                                               (NIPUR CHANDNA)                                 (H M VYAS)

                                                     MEMBER                                            MEMBER