Delhi

North East

CC/367/2016

MOHD. ALI - Complainant(s)

Versus

National Insurance Co. - Opp.Party(s)

14 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 367/16

 

In the matter of:

 

	Mohd Ali S/o Sh. Shokat Ali R/o D-98, D-Block, Bhagirathi Vihar, Delhi-110094.	Complainant
	Versus
1.             2.	National Insurance Co.Ltd Hero Motocorp Vertical Delhi DO X, 803A, 8th Floor, Tower C.K. Konnectus Building, Opp. New Delhi, Railway Station, Bhavbhuti Marg, New Delhi-110002.   Aman Motors Through Proprietor At 3 ½ Pusta, Kartar Nagar, Delhi-110053.	Opposite Parties

 

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

28.12.2016 14.08.2018 14.08.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the present complaint as delineated by the complainant are that he had purchased a motorcycle of the make Hero Splendor Plus bearing Chassis No. MBLHA10CGGHFA3029, Engine No. HA10ERGHF91044 color Grey Black bearing Registration No. DL-5SA-T-6708 from OP2, authorized dealer of Hero Motor Corp on 17.06.2016 for total sum of Rs. 55,000/- vide invoice no. 11315-02-SINV-0616-2409.  The complainant, at the request of OP2 got the said vehicle insured with OP1 vide certificate no. 39010231166201198916 against payment of premium of Rs. 1,697/- for the period w.e.f 17.06.2016 to 16.06.2017 and the insured Declared Value (IDV) was Rs. 46,432/-. However, the said vehicle got stolen on 29.07.2016 when it was parked by the complainant in front of Gyan Deep School, Yamuna Vihar, Delhi despite taking all precautions. The complainant got E-FIR / online application vide FIR No. 022324 registered with PS Crime Branch on 31.07.2016 under Section 379 of IPC and when the police could not recover the said vehicle, the complainant informed the OP1 about the theft and also obtained copy of the untraced report order dated 26.09.2016 digitally signed by Hon’ble Judge Shri Sharad Gupta, Ld. ACMM Karkardoma Courts, Delhi. The complainant has further submitted that he orally informed the officials of OP1 about the theft of the said vehicle and submitted the copy of e-FIR alongwith the other documentary formalities and raised demand to reimburse the claim amount against the theft of the said vehicle but the officials of OP1 refused to reimburse the same on false and baseless pretext in order to avoid its responsibility/liability. Therefore the complainant has alleged illegal and unfair trade practice and deficiency of service against the OPs causing him mental pain and agony and vide the present complaint has prayed for issuance of directions against OP1 to release/reimburse the claim amount /IDV of the said vehicle in favour of the complainant alongwith Rs. 1,00,000/- as compensation for irreparable loss and mental agony on account of negligence of OP1 and Rs. 11,000/- towards litigation expenses.

The complainant has attached copy of driving license, RC, copy of invoice of purchase of the motorcycle, copy of policy cover note, copy of E-FIR, copy of untraced report order dated 26.09.2016.

2. Notice were issued to the OPs on 13.01.2017 which entered appearance on 13.02.2017 and filed its written statement on 15.03.2017. OP2 failed to appear till 18.04.2017 despite service effected on 23.01.2017 and was therefore proceeded against ex-parte on the said date i.e. 18.04.2017. OP1 in its written statement took the preliminary objection that the complainant had intimated / filed the claim of the theft in the office of the OP1 on 15.09.2016 i.e. after delay of 49 days from the date of alleged theft which was violation of condition No.1 of the two wheeler package policy which clearly stated that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all information and assistance as the company shall require”, Therefore complainant was not entitled to claim from OP1. OP1 further took the defence that the vehicle was stolen as per submission of the complaint on 29.07.2016 whereas the E-FIR was registered on 31.07.2016 i.e. after delay of two days showing malafide intention of the complainant. OP1 therefore submitted that in view of the aforementioned circumstances, when the complainant approached OP1 belatedly on 15.09.2016 for intimation of theft, the OP1, on the very next day i.e. 16.09.2016 issued the repudiation letter to the complainant through speed post rejecting his claim as “NO CLAIM”. OP1 has filed the copy of repudiation letter, copy of intimation for appointment of survivor dated 15.09.2016, copy of cover note, copy of Section 64 VB Insurance Act compliance certificate bearing stamped dated 15.09.2016, copy of E-FIR and two wheeler package policy.
3. Rejoinder to the written statement of OP1 was filed by the complainant as summary denial of defence taken by OP1.
4. Evidence by way of affidavit was filed by the complainant reaffirming and reiterating his grievance against OP1 for rejection / repudiation of his claim.
5. Evidence by way of affidavit was filed by OP1 exhibiting the repudiation letter dated 16.09.2016, copy of intimation for appointment of surveyor dated 15.09.2016, copy of insurance policy, copy of E-FIR and copy of T&C of two wheeler package.
6. Written arguments were filed by complainant as well as OP1 reaffirming / reinforcing their respective grievance/defence. OP1 placed reliance upon the judgment of Hon’ble Supreme Court in the case of M.S. Middle High School Vs HDFC ERGO General Insurance Co. Ltd in which the Hon’ble Apex Court upheld the decision of the Hon’ble High Court of Punjab and Haryana at Chandigarh which held that once there is breach of condition of policy, the liability cannot be fastened on the insurer.  
7. We have heard the oral arguments advanced by the counsels for complainant and OP1 in terms of their rival contention and have carefully perused the documentary evidence placed on record by both the parties.

A specific query was put to the counsel to the complainant by this Forum at the time of advancing oral arguments as to when the intimation of theft was given by the complainant to OP1 to which the complainant admitted to have given the intimation of theft to OP1 on 15.09.2016 thereby confirming/corroborating the stand / defence of OP1 of delayed intimation of theft of 49 days for which no cogent explanation / reason was forwarded or put forth by the complainant.

As goes the maxim ‘ignorance of law is no excuse’, no explanation for delay in informing the OP1 by the complainant has come forth and no such defence as not being aware that police action by way of FIR and immediate intimation to the insurance company has to be taken in case of theft is not justifiable ground for defence for delayed intimation to both the authorities. The Hon’ble National Commission in the recent judgment of Reliance General Insurance Co. Ltd Vs Pratap Singh I (2018) CPJ 190 (NC) had held in similar facts of complainant not being able to provide any detail about existence of any unavoidable circumstances that prevented him from giving intimation to insurance company with a delay of 38 days against the complainant in the light of its own judgment in New India Assurance Co. Ltd Vs Trilochan Jane IV (2012) CPJ 441 (NC) as also held by Hon’ble Apex Court in National Insurance Co vs Nitin Khandelwal IV (2008) CPJ 1 (SC) in which Hon’ble Supreme Court held that such delay is fatal for the claim. The Hon’ble National Commission in the judgment of Bhartiya Samajik Vikas Samitee Vs National Insurance Co. Ltd and Ors III (2017) CPJ 49 (NC) has ruled that in such cases of theft the insured is duty bound in terms of policy to inform the police and insurance company about theft immediately after the incident as per the contract between insured and insurer, both being strictly governed by terms and conditions of policy and failure to inform / delayed information deprives the insured of its otherwise legitimate right of claim. The Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd Vs Parvez Chander Chaddha 2010 CPJ I SC in CA No. 6739/2010 held that in such a case of delayed intimation by the insured, the insurance company cannot be saddled with liability to pay compensation to the insured and had thereby dismissed both the revision petitions on this ground.

In view of the settled law on this issue of rightful repudiation of claim in the event of delayed intimation to the police and insurance company, we are not inclined to allow the present complaint since the complainant could not establish comprehensively / cogently reason/ justification for this inordinate delay. By merely stating that he was waiting for untraced report by the concerned court to explain the delay in no valid ground to condone the act of the complainant. The complaint is therefore dismissed with no order as to cost.

8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  14.08.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member