Order dictated by:
Sh.S.S.Panesar,President.
- Complaint filed by the complainant was dismissed by District Consumer Disputes Redressal Forum, Amritsar vide order dated 21.10.2013 holding “that the complainant is running transport company having so many trucks which proves that the complainant is running a transport company and as such, she was doing business with the truck in dispute. As such, she does not fall within the definition of ‘consumer’ under the Consumer Protection Act. In the light of above discussion, we hold that the opposite parties were justified in repudiating the claim case of the complainant. Complaint is without merit and same is hereby dismissed with no order as to costs.”
- Aggrieved by the order, opposite parties filed an appeal before the Hon’ble State Consumer Disputes Redressal Commission (Punjab) Chandigarh challenging order dated 21.10.2013 and the Hon’ble State Commission vide order dated 1.12.2015 accepted the appeal & set-aside the order passed by District Consumer Disputes Redressal Forum, Amritsar by holding that Insurance policy was not obtained for commercial purposes. It was simply recorded by the District forum that the complainant does not fall under the definition of the “consumer” and such a finding cannot be sustained & the complaint was remanded back to the District Forum for deciding the same on merits.
3. The complainant purchased a comprehensive insurance policy bearing No.40120031116300001286 for a sum of Rs.8,99,950/- valid from 16.8.2011 to 15.8.2012 covering the risk of the second hand TDV 2214 AL Truck Model 2007, registration certificate No.PB-02-AW-8686 owned and operated by her for earning her livelihood. The complainant had purchased the said truck in August, 2007 from Ashok Leyland Co. by raising the requisite finance from M/s.Cholamandalam DBS Finance Ltd., and also got it registered in her name. It was further alleged that on the evening of 29.11.2011, the driver Devinder Singh parked the truck for night, outside the office at 131, Jahajgarh, Truck Stand, Amritsar and in the morning of 30.11.2011, he found the said truck stolen. Complainant duly informed the opposite party and the police on the same day. The said theft was registered vide FIR No. 99/2011 dated 5.12.2011 at Police Station “B” Division, Amritsar. The complainant lodged claim with the opposite party alongwith requisite documents. The opposite party appointed M/s.SSA Investigating & Consultancy Agency, Pathankot to investigate into the matter and he submitted the report on 6.2.2012 alongwith bill of Rs. 5120/-. The complainant had duly filed the requisite Insurance claim with opposite party No.2 alongwith all the necessary documents as demanded by the opposite party. Thereafter complainant visited the opposite parties so many times to settle the claim. But the opposite party instead of settling the claim, re-demanded the documents from the complainant vide letter dated 5.11.2012. The complainant has sought for the following reliefs vide instant complaint:-
(a) Opposite parties be directed to pay the Insurance claim to the tune of Rs. 8.99 Lakhs;
(b) Opposite parties be also directed to pay adequate compensation and litigation expenses.
Hence, this complaint.
4. On notice, opposite parties No.1 & 2 appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter-alia that present complaint is malafide and designed one which can be well judged that even on the identical ground six complaints titled as “Bikramjit Singh Versus National Insurance Company Ltd.,” “Inderpreet Singh Versus National Insurance Company Ltd” “Sukhwinder Singh Versus National Insurance Company Ltd.” “Paramjit Singh Versus National Insurance Company Ltd.” “Jaswant Singh Versus National Insurance Company Ltd.” “Preeti Anand Singh Versus National Insurance Company Ltd.” have been filed simultaneously and that too regarding the theft of trucks. Even most of the complaint, complainants are close associates and relations of each other . As the public money is involved and the controversy in question being complicated one and can only be adjudicated in a regular civil court by way of placing various documents, adducing evidence and conducting cross examination etc in order to bring out the truth . As such the present complaint merits dismissal on this simple score only ; that present complaint is not legally maintainable as inspite of various requests and reminders more particularly vide letters dated 5.11.2012, 13.2.2012 and 2.5.2012 complainant has failed to furnish all the requisite documents to replying opposite party which were essential for processing the claim, as such the opposite party was not having any option except to treat the claim as “No claim” vide letter dated 15.3.2013 ; that complainant has failed to give intimation regarding the alleged accident of vehicle immediately because as per the version of the complainant the alleged vehicle was stolen on 29-30.11.2011, whereas the opposite party was informed vide letter dated 7.12.2011 received on 8.12.2011, as such the relief sought is not available to the complainant ; that in view of the facts and circumstances of the case, it becomes evident that there is gross negligence on the part of complainant as he has failed to take proper care and cautions in order to safeguard his interest as the alleged vehicle was kept as unguarded , as such the relief sought is not available to the complainant. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
5. In his bid to prove the case, complainant tendered into evidence his duly sworn affidavit ex.CW1, copy of insurance policy ex.C-1, copy of registration certificate ex.C-2, copy of driving licence ex.C-3, copy of fitness certificate ex.C-4, copy of FIR ex.C-5, copy of intimation dated 7.12.2011 ex.C-6, copy of investigation report ex.C-7, copy of letter dated 4.6.2012 ex.C-8, copy of untraceable report ex.C-9, copy of verification of permit of vehicle ex.C-10, copy of letter dated 6.7.2012 ex.C-11, copy of letter dated 9.8.2012 ex.C-12, copy of letter dated 18.8.2012 ex.C-13, copy of letter dated 5.11.2012 ex.C-14, copy of letter dated 15.3.2013 ex.C-15, copy of the order dated 25.1.2003 ex.C-16, copy of zimni report ex.C-17 and closed his evidence
6. To rebut the aforesaid evidence, opposite parties No.1 & 2 tendered into evidence duly sworn affidavit of Sh.R.C.Malhotra, Senior Divisional Manager ex.OP1 alongwith documents ex.OP2 to OP12 and closed their evidence.
7. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of complainant.
8. Ld. Counsel for the opposite party has vehemently contended that claim of the complainant has rightly been repudiated by the opposite party vide repudiation letter Ex.OP5 on record. The alleged theft of the truck in dispute took place on the intervening night of 29/30.11.2011, whereas report to the police was lodged on 5.12.2011. Intimation letter to the police accounts for Ex.C-9. FIR on the basis of the said theft was already registered on 5.12.2011.However, the company was intimated vide letter dated 7.12.2011 Ex.C-6 which was received by the opposite party only on 8.12.2011. As per circular dated September 20th, 2011 issued by Insurance Regulatory Development Authority is as under:-
“INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY
Ref: IRDA/HLTH/MISC/CIR/216/09/2011 Dated : 20.9.2011
CIRCULAR
To All Life Insurers and Non Life Insurers
Re : Delay in claim intimation/documents submission with respect to
- All life Insurance contracts and
- All Non-life Individual and Group Insurance Contracts
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However , this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution . It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.
J.Harinarayan
CHAIRMAN”
9. Since the complainant has lodged the claim at a belated stage, therefore, opposite party was justified in repudiating the claim regarding theft of the insured vehicle in dispute. Reliance in this connection has been placed on National Insurance Co.Ltd.-Petitioner Vs. Suresh Kumar-Respondent 1(2016) CPJ 205 (NC) wherein it has been laid down that the complainant has nowhere alleged in the complaint that he intimated the Insurance company orally about the theft of the truck. Otherwise also, even if oral intimation is given, it is not compliance of condition No.1 which requires the insured to give immediate notice in writing. Further, it is admitted case of the parties that legal notice dated 1.9.2005 was sent by Sh. Vijender Dhankar, Advocate on behalf of the respondent to the concerned Divisional Manager of the petitioner Insurance company. On perusal of the copy of the said notice also, we find that there is not even a whisper about any intimation about the theft given to the petitioner Insurance Company. Thus, it is evident that respondent complainant in violation of condition No.1 of the Insurance Contract has failed to give immediate intimation in writing about the theft of the truck to the Insurance company.It has been further laid down that in view of the discussion above and the law laid down by the Apex Court , the Insurance Company was justified in repudiating the Insurance claim in view of violation of terms and conditions. The State Commission in its impugned order has totally ignored the above aspect of the matter. Therefore, impugned order cannot be sustained.
10. Further reliance has been placed on Shiv Priya-Petitioner Versus Chola Mandlam M.S. General Insurance Company Limited 1(2016) CPJ 410 (NC) wherein it has been laid down that 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 not 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 enquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. Unfortunately, all the Consumer Foras 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. Not only that ld.counsel for the opposite party has further contended that it is the case of the complainant in the complaint itself that on the evening of 29.11.2011, the driver Devinder Singh parked the truck for night, right outside the office at 131, Jahajgarh, Truck Stand, Amritsar and in the morning of 30.11.2011, the truck stood stolen. It means and imply that driver himself was negligent and there was none to attend the truck in dispute on the fateful day when the truck stood stolen. In this connection reliance has been placed upon National Insurance Co.Ltd.-Petitioner Vs. Ram Singh Gurjar-Respondent 1(2016) CPJ 209(NC) wherein it has been laid down that while relying upon the judgement of Hon’ble National Commission in II(2013) CPJ 578 in which repudiation of claim was upheld as complainant left keys in the vehicle. Further reliance has been placed on IV(2013) CPJ 137 (NC) in which repudiation of the claim was held proper as complainant had not taken ignition keys of the car when he went for urination.
12. On the basis of the aforesaid contention, ld.counsel for the opposite party has vehemently contended that complainant has failed to prove his case rather repudiation has been made as per terms and conditions of the Insurance policy in dispute and therefore, instant complaint is liable to be dismissed.
13. However, from the appreciation of the facts and circumstances of the case, it becomes amply clear that repudiation of the claim of the complainant has not been made in accordance with law. Circular dated 20.9.2011 which has been quoted by the opposite party in support of their case also clearly lays down that “however this condition should not prevent settlement of genuine claim particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.” In this case although the theft took place on the intervening night of 29/30.11.2011 and the police report was lodged on 8.12.2011, whereas the company was intimated vide letter on 7.12.2011. As a matter of fact the driver had intimated the owner of the truck in dispute and the driver as well as the owner made a search of the vehicle and when they were satisfied that it has been stolen , only then the police report was lodged regarding the theft of the vehicle in dispute. Moreover, the delay in lodging the report after 7/8 days of the occurrence is not fatal in this case because the claim of the complainant was genuine. The complainant has relied upon certain rulings of the Hon’ble National Commission. However, in those cases there was an inordinate delay of months together in lodging the police report as well as intimation to the Insurance company. But in the case in hand there is delay of few days only which cannot be held to be fatal by any stretch of imagination. Reliance in this connection can be placed on National Insurance Co.Ltd Vs. B.Venkataswam II(2014) CPJ 65 (NC) wherein it has been laid down that delay in claim intimation cannot be sole ground of repudiation for the opposite party. The insurer must not repudiate such claims, unless and until reasons of delay are specifically ascertained, recorded and insurers should satisfy themselves that delayed claim could have otherwise been rejected, even if reported in time. Further reliance can be had on Oriental Insurance Company Ltd Vs. Viceroy Car Rental Private Limited and another 2014(1) CPC 376 (Punjab & Haryana High Court) , wherein it has been held that where the petitioner repudiated the valid claim on the only ground that respondent had failed to give information of theft of insured vehicle within 48 hours of the theft, the authorities below have rightly deducted 15% of the total claim for delay in intimation on the part of the respondent/insured. However, the insured cannot be denied the total claim particularly when theft of vehicle is well proved.
14. Here in this case also, as discussed above, theft of the vehicle has been well proved by the complainant , which has not been denied even by the Investigator appointed by the opposite party. Report of Investigator is Ex.C-7/32 on record. The Insurance Claim in this case has been repudiated simply on account of the fact that there was delay in lodging the report with the Insurance Company. Simple delay, in our opinion, is not sufficient to decline the genuine claim of the complainant. Ends of justice will be fully met , if the insured is paid 75% of the IDV of Rs. 8,99,950/-. The complainant is also awarded compensation for deficiency in service on the part of the opposite parties for an amount of Rs. 5000/- besides that opposite parties are also directed to pay litigation expenses to the tune of Rs. 2000/-. Complaint stands allowed accordingly. Compliance of this order be made within 30 days of the receipt of copy of the order ; failing which awarded amount shall carry interest @ 9% p.a. from the date of filing of the claim until full and final recovery. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 4.11.2016.
