Delhi

New Delhi

CC/1034/2009

Manish - Complainant(s)

Versus

M/S. The Oriental Insurance 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./1034/2009                                       Dated:

In the matter of:

SH. MANISH

S/o Sh. Shri Pal,

R/o 717, Gali No. 44,

Lekhu Nagar, Tri Nagar,

Delhi-110035.

        ……..COMPLAINANT

VERSUS

THE ORIENTAL INSURANCE COMPANY LTD.,

Through its Managing Director/General Manager/

Principal Officer, Hansalaya Building,

10^th Floor, 15- Barakhamba Road,

New Delhi-110001.

 

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

ORDER

 

The repudiation of the insurance claim of the complainant by the OP insurance company in respect of stolen insured motorcycle bearing No.DL-4SBJ-1349 (model 2007-Bajaj) (in short, the said motorcycle) has led the complainant file the present complaint under section 12 of The Consumer Protection Act, 1986 (in short, Act). The complainant's case in nutshell is that the said motorcycle of complainant was stolen on 22/11/2008 outside his house and intimation of same was given by the complainant to the police on the same day as per DD dated 22/11/2008 to the Police Control Room and ultimately FIR bearing No. 341, dated 20/12/2008 was registered at P.S.Keshav Puram Under Section 379 IPC. Later, police filed final untraceable report under section 173 Cr. P.C. dated 14/1/2009. According to the complainant, he immediately had given information of the theft of his insured motorcycle to the agent, who had insured the said motorcycle and also to the Manager at Service Centre No. 1, 10th Floor, at Hansalaya Building, New Delhi, by fax on 17/2/2008 and a letter dated 18/12/2008 was received from the said office by the complainant and some unfounded grounds of delay were raised in the said letter.

The case of the complainant is that thereafter, he supplied all the necessary documents in his possession to the agent/investigator of the OP, Sh. Rajesh Sharma on 3/1/2009 as per the letter dated 22/12/2008  of Shri Rajesh Sharma. Additional documents were also supplied on 20/3/2009, after taking the same from the bank. The complainant sent reminders but his claim was not settled so ultimately complainant sent a legal notice dated 22/5/2009 by UPC, as well as registered post. The OP ultimately rejected the insurance claim of the complainant in an arbitrary and unfair manner as per their letter dated 22/5/2009.

According to the complainant OP has been deficient in service to the complainant by failing to settle the claim in a fair manner and in time. The complainant has prayed that OP should be directed to pay the sum of Rs.47,000/- along with interest at the rate of 15% per annum from 20/3/2009 onwards till payment, besides the sum of Rs. 50,000/- on account of harassment, mental pain and agony etc. and another sum of Rs. 11,000/- for the present complaint and for expenses of legal notice sent to the OP.

The notice of the complaint was issued to the OP insurance company, who contested the complaint and filed written statement alleging that complainant has suppressed the material facts and has not approached this Forum with clean hands. According to the OP, the complainant violated the terms and conditions of the insurance policy in question. According to OP, the complainant lodged the F I R No. 341, dated 20/1/2009 while the vehicle in question was stolen on 22/11/2008 which is a clear violation of Condition, No. 1 of the policy. Another point raised is that the incident occurred on 22/11/2008, but the complainant informed the OP on 20/1/2009, i.e., after 20 days of incident in clear violation of the terms of the policy, according to which the claim for the theft of vehicle was not payable if theft is not reported to the company within 48 hours of its occurrence. The OP has alleged that the letters and reminders, dated 27/3/2009, 28/3/2009 and 31/3/2009 of the complainant were duly replied by the OP insurance company. The OP has also alleged that the legal notice of the complainant was also duly replied. The OP has denied the other facts stated in the complaint and has prayed for its dismissal with heavy costs.

In the rejoinder the complainant has denied the averments made in the written statement of the OP insurance company and has reaffirmed the facts stated in the complaint. In support of his case, the complaint has filed his affidavit in evidence. On behalf of the OP insurance company, the affidavit in evidence of Mr Y. P. Grover, Branch Manager of the OP insurance company, is filed. Both parties have filed written arguments.

We have heard the Ld. Counsel for OP and have gone through the written arguments filed on behalf of both the parties, record of the case and relevant provisions of law. None appeared on behalf of complainant on 6/5/16 to address oral arguments. 

The basic facts of the case are not in dispute. It is not disputed that complainant being registered owner of the motorcycle in question has got it insured with the OP insurance company and the theft in question took place during currency of the insurance policy. It is also not disputed that the theft in question took place on 22/12/2008, but the FIR in question was lodged in the police station on 20/1/2009.

In the backdrop of above admitted position the contention on behalf of the complainant is that the complainant immediately gave information of the theft of the motorcycle to the insurance agent and also to the Manager at Service Centre, No. 1, 10th floor,  Hansalya building, New Delhi, by fax on 17/12/2008 and by letter dated 18/12/2008 and has later supplied all the documents along with insurance claim form with the OP insurance company, but his claim was repudiated on the ground of delay information to the OP insurance company and also delay in lodging of the F I R.

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 that he orally intimated the insurance agent about the theft of the motorcycle in question, soon after the theft is not acceptable for the reason that this fact is disputed on behalf of the OP insurance company and also because Honourable National Commission in Sh. Anand Singh's case (supra) has found 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 of the honourable National Commission, 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 is legally correct and justified.

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

 

                                        (H M VYAS)

                               MEMBER