Jammu and Kashmir

Jammu

CC/577/2017

RAKESH CHOUDHARY - Complainant(s)

Versus

NATIONAL INSURANCE CO. - Opp.Party(s)

RAJIV SHARMA

12 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File No.             :   218/DFJ                

 Date of  Institution   : 13-09-2017                   

 Date of Decision       :  12-12-2018

 

Rakesh Choudhary,

S/O Late Sh.Daya Ram Choudhary,

R/O H.No.457-F,Lane No.1 Nai Basti,

Jammu.

                                                                                                                                                        -Complainant

                       V/S

 

1.National Insurance Company Limited,

  Through authorized Person,

  Middleton Street,P.B.No.9229,

  Kolkata-700071.

2. National Insurance Company Limited,

  Through authorized Person/Branch Manager,

   Divisional Office-II Volga Complex,Cana Road,

   Jammu-180001.

                                                                                                                                                              -Opposite parties

CORAM:-

                  Sunit Gupta                     (Distt.& Sessions Judge) - President

                  Ms.Vijay Angral                                                              - Member

                  Mr.Ghulam Sarwar Chouhan                                       -Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                             

Mr.Rajiv K Sharma,Advocate for complainant, present.

Mr.Sanjay K Dhar Advocate for the OPs,present.

 

                                                                       ORDER.

                              Facts relevant for the disposal of complaint on hand are that; complainant being registered owner of vehicle bearing registration No.JK02BQ-2402,got the same insured with opposite parties(For short Ops),w.e.f.15-12-2015 to 14-12-2016,against the premium of Rs.22,000/-That said vehicle was having its purchase agreement with the bank Mahindra & Mahindra Finance and the said vehicle was commercial vehicle and same was purchased to earn livelihood of the family, which includes old age mother, wife and two minor daughters and the complainant being driver by profession was driving the said vehicle himself and the income from the said vehicle was the only source of income of the family. That unfortunately the said vehicle was stolen on 25-07-2016 and complaint in this regard was also made to the concerned Police Station,however,for the reason best known to the police, FIR was registered on 7-8-2016.That final report in this regard has also been produced in the Court of Law. That the complainant has also provided all the formalities as demanded by the OPs,which were required to pay the insured amount to him. Thereafter the complainant had visited the office of OPs  number of times, but the OPs were delaying the payment only on the ground that the FIR has been registered on,07-08-2016,however,the said vehicle was stolen on,25-07-2016.Constrained by the act of OPs,complainant served legal notice to OPs,but the Ops are adopting delaying tactics and has not released the amount to the complainant and this act of OPs constitutes deficiency of service. Hence the present complaint. In the final analysis, complainant prays for indemnity to the tune of Rs.5.65,250/-alongwith interest @ 18% per annum and in addition, also prays for compensation of Rs.80,000/-including litigation charges.

                   On the other hand,OPs filed written version and resisted the complaint on the ground that the claim as raised by the complainant is not maintainable and payable on the ground that he has given intimation of loss to OPs at a very belated stage on,12-08-2016,i.e.after about 18 days from the date of alleged  occurrence which took place on 25-07-2016 and also reported the occurrence to police concerned on 07-08-2016 i.e. after a period of 13 days and such considerable delay is fatal for recovery of vehicle in question and chances of recovery are diminished. That the complaint is also not maintainable and deserves out right dismissal in view of the fact that the complainant has committed breach of mandatory term of insurance policy by not reporting of theft to police, as well as to OP insurer immediately. The complainant was bound to give immediate intimation of theft to Insurance Company. It is submitted that as per Condition No.1 of the contract of insurance, complainant was under a contractual obligation to give a notice in writing to the OPs immediately upon the occurrence of any accidental loss or damage in the event of any claim, but the complainant instead of giving immediate notice intimated OPs company on 12-08-2016 about the alleged theft of his vehicle bearing registration No.JK02BQ-2402. Thus the claim was bonafidely after proper application of mind and in accordance with the terms and conditions of the contract of insurance processed and during scrutiny of claim, the complainant was asked to explain his stand about delay but instead of replying and explaining, the complainant has preferred the present complaint on false and frivolous grounds. The condition No.1of the policy reads as under:

                        “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require”

                          It is also submitted that intimation with regard to alleged theft of vehicle on 25-07-2016 was received by OP Company admittedly at a very belated stage on 12-08-2016 and immediately after receipt of the claim, complainant was requested to produce requisite documents. During scrutiny of the claim, it was observed that occurrence of theft was reported by the complainant to police concerned on,07-08-2016 and accordingly an FIR No.184/16 dated 07-08-2016 was registered therefore, there was considerable delay in reporting theft to the concerned police. It is further submitted that complainant was duly intimated and made aware of the reason of rejection of the claim.

                       Complainant adduced evidence by way of duly sworn self evidence affidavit and evidence affidavits of Sudesh Kumari and Sat Paul,respectively. Complainant has placed on record copy of certificate of registration, copy of policy schedule, copy of FIR and copy of letter issued by OP to complainant. Complainant has placed on record copy of order passed by Ld.Judicial Magistrate Ist Class(Sub Judge)Jammu, copy of final report and copy of legal notice.

                  On the other hand,OPs adduced evidence by way of duly sworn evidence affidavit of Vijay Abrol,Divisional Manager National Insurance Co.Ltd.Divisional Office-II Canal Road, Jammu.

                 We have perused case file and heard L/Cs for the parties at length.

                    After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not Ops are deficient in service in not settling case of the complainant.

                 L/C for complainant vehemently argued that despite completion of all requisite formalities,OPs did not indemnify the loss suffered by the complainant, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OPs is that the claim was intimated to OPs after about 18 days from the date of alleged occurrence which took place on 25-07-2016 and also reported the occurrence to police concerned on,07-08-2016 i.e. after a period of 13 days .

                       Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to reproduce the same again and if need arises, same would be referred hereinafter at appropriate stage.

                Be it noted that in so far as insurance of vehicle in question and its theft during currency of policy is concerned, same are not in dispute.  Once it has been shown that vehicle was comprehensively insured and it was stolen during currency of Insurance Policy, in that event, Ops are not expected to devoid the benefits of Insurance Policy to the insured on technical grounds, which are short of fundamental breach of contract of indemnity.

                      We have gone through the case laws relied upon by the parties Amalendu Sahoo V/S Oriental Insurance Company reported in 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi Lal reported in 2007(II)SLJ(Con.In the case Amalendu Sahoo V/S Oriental Insurance Company,the Hon’ble Supreme Court, has laid down that:

       “The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the vehicle and even if it is assumed that there was breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis

            So in view of principle of law laid down in the above cited case law, the Insurance Company cannot repudiate the insurance claim in toto raised by the complainant regarding loss of the vehicle in question which is admittedly insured by the OP.The Hon’ble National Commission in the case New India Assurance Company Ltd.versus Narayan Prasad Appaprasad Pathak (2006)CPJ 144(NC),while granting claim on non-standard basis has set out in the judgment, the guidelines issued by the Insurance Company about the settling all such non-standard claims.

                     In our view the point involved in the present case is squarely covered by the law laid down by Hon’ble Supreme Court and Hon’ble National Commission, wherein it has been held that in a case where there is breach of condition of insurance policy by giving late intimation, the insurance company should settle the claim on non-standard basis. In the said decision the guidelines have been reproduced and as per said guidelines in case of breach of condition of insurance policy like delay in giving intimation about the damage or loss, the claim can be settled on non-standard basis by paying insurance of 75% of the admissible claim. The proposition of law laid down by Hon’ble Supreme Court in the said case is applicable in the instant case.

                     Perusal of file shows that the vehicle in question has been insured for an amount of Rs.5,65,250/-and as per guidelines laid down by Hon’ble Supreme Court, the complainant is entitled to reimbursement of claim to the extent of 75% of the admissible claim .The OPs insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss assessed by the surveyor, but in this case the OPs have not settled the claim even on non-standard basis also and thus the OPs are guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% ,out of the insured amount, which comes to Rs.4,23,938/                                    

               Therefore in view of the abovesaid discussion, we are of the view that the repudiation of insurance claim made by OPs is improper, unjustified and resorted to by insurance company OPs only to defeat the genuine claim of the complainant and it amounts to deficiency in service.

                         The complaint is accordingly allowed and the OPs are directed to indemnify the complainant by paying him Rs.4,23,938/-It is to be noted that complainant apart from insurance amount, has also claimed Rs.80,000/-on account of mental pain, shock and suffering alongwith  interest.Hon’ble High Court, in Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh, passed in CIMA No.162/2013, decided on, 14-05-2013 in para 7 held as follows:

    7.The case of the respondent falls within third description,i.e.,any other breach of warranty/condition of policy including Limitation as to use for which the insurer is to pay up to 75% of admissible claim.75% of the admissible claim has been awarded,i.e.Rs.2.50 lac.Same is in consonance with the ratio of the judgment referred. In our view, in the given circumstances, when maximum,i.e.75% of the admissible claim has been awarded, award of interest and litigation charges amounting to Rs.10,000/-shall be impermissible.However,parking expenses charged by the Garage where damaged vehicle was lying since accident are allowable. In total Rs.2.50 lac are worked out to be payable to the respondent.

                         Therefore, in view of law laid down by Hon’ble High Court, complainant is not entitled to over and above the 75% of admissible claim

               This order shall be complied with within one month from the date of receipt of the order. Copy of the order be provided to the parties free of charge. The complaint is accordingly disposed of and the file be consigned to records.

Order per President                                                     Sunit Gupta

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

   12-12-2018                                                                       Jammu.

Agreed by                                                               

 

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member