Haryana

Yamunanagar

CC/176/2012

karnail singh S.o Bachan Singh - Complainant(s)

Versus

National Insurance Co.Ltd. - Opp.Party(s)

Ajay Deep Singh

26 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 176  of  2012.

                                                                                              Date of institution: 21.02.2012.

                                                                                              Date of decision: 26.02.2016.

Karnail Singh aged about 45 years son of Bachan Singh, resident of House no. 1147, Sector 17, HUDA, jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                            …Complainant.

                                    Versus

National Insurance Co. Ltd. Divisional Office, New Fountain Chowk, Workshop Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar. 

 

                                                                                                                                                       … Respondent.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh,. Ajay Deep Singh , Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for respondent. 

 

ORDER

 

1.                     Complainant Karnail Singh filed this complaint under section 12 of the Consumer Protection Act 1986, seeking directions to the respondent (hereinafter referred as OP) to make the payment of full sum assured on account of theft of his motorcycle bearing Temporary No. HR-99/FD/9286T and further to pay Rs. 50,000/- as compensation for mental agony and harassment alongwith Rs. 5500/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that on 19.02.2010 complainant purchased Hero Honda Splendor motorcycle bearing temporary No. HR-99/FD/9286T Engine No. HA10EAA9B10207 chassis No.MBLHA10EJA9B05471 and motorcycle in question was insured with the OP insurance company vide insurance cover note No. 35070131096201693559, valid from 19.02.2010 to 18.02.2011 (Annexure C-7) for a sum insured of Rs. 37,288 and a premium of Rs. 1006/- was paid in this regard to the OP.  It has been further stated that the aforesaid insurance policy covered the risk of theft also. It has been further alleged that on 23.11.2010, the said motorcycle of complainant was stolen by somebody near Sohan Singh Moulding Industries, Industrial Area, Yamuna Nagar. Thereafter the complainant tried his best to find out his stolen motorcycle but all in vain. Finding no other alternative the complainant moved an application to the police station City, Yamuna Nagar and in this regard  FIR bearing No. 578 dated 24.11.2010(Annexure C-3) under section 379 IPC was got registered with police station City, Yamuna Nagar. Thereafter, the complainant intimated the OP regarding the theft of motorcycle in question. The police of P.S. City Yamuna Nagar tried to find out the stolen motorcycle of complainant but finally the said motorcycle was not traceable and order regarding untraceable report passed by Chief Judicial Magistrate, Yamuna Nagar on 30.11.2011 (Annexure C-1). After giving the intimation, the complainant again visited the office of OP Insurance Company so many times but the officials of the OP told that they will do the needful as early as possible or if the vehicle is not traceable, the company will pay the complete amount of insured vehicle. Thereafter on 6.1.2012 the complainant received a letter from Insurance Company that the claim of complainant has been rejected.  As such, there is a great deficiency in service on the part of OP and complainant is entitled to get the insured amount alongwith compensation and litigation expenses as prayed above. Hence, this complaint.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service and on merit it has been mentioned that an intimation dated 29.11.2010 was received by the OP Insurance company from the complainant to the effect that his motorcycle make Hero Honda Splendor bearing Engine No. HA10EAA9B10207 chassis No.MBLHA10EJA9B05471 was stolen at Sohan Singh Molding Industries, Industrial Area, Yamuna Nagar. On receipt of the intimation of theft, the OP Insurance Company deputed Sh. Gurmeet Singh, Investigator to investigate the alleged theft and to submit his fact findings report. On receipt of report of the said investigator and on processing the claim, it was observed that both the original keys of motorcycle in question were not handed over by the complainant to the insurance company. Besides this, the alleged date of theft is 23.11.2010 but neither the police nor the insurance company was immediately informed by the complainant. It has been further submitted that the theft took place on 23.11.2010 but the police was informed on the next day. Besides this, the insurance company was intimated after a delay of six (6) days. As such, the complainant violated the terms and condition of the insurance policy. It has been further mentioned that the complainant purchased the motorcycle on 19.02.2010 and plying the vehicle in question without getting it registered in the office of Registering Authority even after eight months of its purchase in utter violation of the provisions of Motor Vehicle Act.  The complainant is statutorily bound as per Section 39 of Motor Vehicle Act not to ply/drive the motor vehicle without getting it registered but the complainant was using his vehicle in violation of the law. Therefore, the claim was legally and justifiably repudiated vide letter dated 6.1.2012(Annexure R-8) and prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of orders on Untraceable report as Annexure C-1, Photo copy of intimation letter as Annexure C-2, Photo copy of FIR as Annexure C-3, Receipt of Teflon Coating as annexure C-4, Copy of bill of motorcycle as Annexure C-5, Temporary number of motorcycle as Annexure C-6, Insurance cover note as Annexure C-7 and closed the evidence on behalf of complainant.  5.                    On the other hand, counsel for the OP tendered into evidence affidavit of Ms. Parveen Arora, Administrative Officer, as Annexure RW/A and affidavit of Gurmit Singh, Investigator as Annexure RW/B and insurance cover note alongwith terms and conditions as Annexure R-1, Photo copy of intimation letter dated 29.11.2010 as Annexure R-2, Claim form as annexure R-3, Photo copy of FIR as Annexure R-4,  Photo copy of invoice of motorcycle as Annexure R-5, Photo copy of verification of license as Annexure R-6, Photo copy of investigation report as Annexure R-7, Photo copy of repudiation letter as Annexure R-8 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite party reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is admitted fact that the complainant purchased motorcycle bearing temporary No. HR-99/FD/9286T bearing chassis No.MBLHA10EJA9B05471 Engine No. HA10EAA9B10207 and motorcycle in question was insured with the OP insurance company vide insurance cover note No. 35070131096201693559, valid from 19.02.2010 to 18.02.2011 (Annexure C-7) for a sum insured of Rs. 37,288 and a premium of Rs. 1006/- was paid in this regard to the OP. It is not disputed that the motorcycle in question was stolen on 23.11.2010 which is evident from FIR No. 578 dated 24.11.2010(Annexure C-3/ R-4) registered in police station City, Yamuna Nagar and a claim was lodged with the OPs Insurance Company by the complainant and Sh. Gurmit Singh, Investigator was deputed and who has submitted his report on 24.1.2011(Annexure R-7).

8.                     Learned counsel for the OP Insurance company argued that the temporary registration of the stolen motorcycle was valid only for one month, complainant negligently failed to get the same registered with the Motor Vehicle Registration Office (SDM Yamuna Nagar) within one month mandatory period for the registration of vehicle. Thus by continuing to drive the said motorcycle on temporary registration number beyond a mandatory period of one month, there is violation of section 43 of the Motor Vehicle Act wherein it has been clearly mentioned that to drive the motor vehicle with temporary number even after lapse of one month is offence and not legal. Hence, the claim of complainant has been rightly repudiated vide letter dated 6.1.2012 (Annexure R-8) and referred the case law titled as Bharti AXA General Insurance Co. Ltd. vs. B.A. Lokesh Kumar, Revision Petition No. 1834 of 2012 decided on 25^th July 2013.

9.                     Learned counsel for the OPs further argued that the claim of the complainant has been rightly repudiated vide letter dated 6.1.2012(Annexure R-8) as the theft took place on 23.11.2010 whereas the OP insurance company was intimated on 29.11.2010 i.e. after 6 days of the alleged theft which is clearly violation of the terms and conditions No.1 of the insurance policy, according to which the insured was duty bound to give immediate intimation to the insurance company and referred the case law titled as New India Assurance Company Ltd. vs. Trilochan Jane, First Appeal No. 321 of 2005 decided on 9.12.2009  wherein it has been observed that in the case of theft “where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”  

10                    On the other hand, learned counsel for the complainant hotly argued that OP Insurance Company has illegally repudiated the genuine claim of the complainant on the false/ flimsy ground that temporary registration was valid for one month and alleged theft took place after 7 months from the date of expiry of temporary number in this regard the counsel for the complainant referred the case law titled as New India Assurance Co. Ltd. versus Bimlesh, 2014(4) CPJ page 569 (NC) wherein it has been held that Accident of vehicle- Non registration- Insurable interest- Claim repudiated- Deficiency in service- District Forum allowed complaint- State commission dismissed appeal- Hence revision- Obligation casts upon transferor and transferee to report factum of transfer of authority arises only after transfer of vehicle has already taken place- Ownership of vehicle is transferred on execution of sale letter and requirement of informing transfer to registering authority is only a post transfer statutory requirement- Complainant became owner of vehicle and had insurable interest at the time it got damage- Repudiation not justified. Further referred the case law titled as Bharti AXA General Insurance Company Limited versus Venus, 1 (2012) CPJ page 207State Consumer Disputes Redressal Commission Punjab wherein it has been held that Non registration of vehicle cannot be ground of repudiation of just claim under the policy- Order passed Forum is legal and valid- No interference required.

11                    Learned counsel for the complainant further argued that the genuine claim of the complainant has been wrongly repudiated on the second ground by the OP insurance company. The motorcycle in question was stolen by somebody on 23.11.2010 and the complainant informed the police of P.S. City, Yamuna Nagar on 24.11.2010 which is evident from the FIR  Annexure C-3/R-4. It has been further argued that all the information sought by the OPs insurance company was duly clarified by the complainant from time to time. Further, the learned counsel for the complainant draw our attention towards the untraceable report issued by Chief Judicial Magistrate, Yamuna Nagar vide its order dated 30.11.2011(Annexure C-1). To substantiate the aforesaid version, the complainant’s counsel submitted the case law delivered by our Hon’ble State Commission, Haryana, Panchkula in case titled as Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, reported in 2014(4) CLT page 161. Learned counsel for the complainant further referred the Instruction of IRDA “That the insurer cannot reject claims amount for delay in intimation”

12.                   After hearing both the parties, we are of the considered view that the OP insurance company has wrongly repudiated the claim of the complainant. It is totally admitted case of the insurance company that insurance policy as well as temporary registration number stands in the name of complainant. So, no question arises that the complainant was not having any insurable interest at the time of alleged theft. The arguments advanced by the counsel for the OP is not tenable and law referred also not applicable to the facts of the present case whereas on the other hand, law referred by the counsel for the complainant titled as Bharti AXA general Insurance Co. Ltd. vs. Venus (supra) is fully applicable to the present case wherein it has been held that Consumer Protection Act 1986-Sections 2(1)(g), 14(1)(d), 15- Insurance- Accident- Surveyor appointed- Claim repudiated- Plying vehicle without any registration certificate- Forum allowed complaint- Hence appeal- Contention, car being used without being registered and thus clear violation of law by respondent- Not accepted- Appellant had not produced terms and conditions of policy- Not producing copy of terms and conditions, which were settled between parties, shows that there was no violation of terms and condition of policy by respondent- There is also nothing on record that non registration of car has in any way contributed to the accident- Non registration of car has got no nexus with the accident- Not each and every violation of any provision, however slightest it may be, which can be labelled as committing breach of law- Non registration of vehicle cannot be ground of repudiation of just claim under the policy- Order passed by Forum is legal and valid- No interference required. Further the latest pronouncement of our Hon’ble National Commission, New Delhi has held in case titled as National Insurance Company Versus Ram Diya, 2015(2) CLT page 543 that theft of unregistered vehicle, while parked in the parking- offence under section 39 read with section 192 of Motor Vehicle Act- Insurance claim cannot be repudiated on this ground. Further in this case Hon’ble National Commission held that for the prosecution under section 192 read with section 39 of the Act, the complainant could be fined between Rs. 2000 to 5000 – denial of insurance cover for violation of section 39 of the Act to the complainant would this amount to imposing a punishment much higher than the punishment prescribed under section 192 of the Act- Repudiation of the claim is not justified- Revision petition dismissed.

13.                   Secondly, the claim of the complainant has been wrongly repudiated by the OP insurance company on the ground that the intimation was given to the insurance company after 6 days from the alleged theft and the arguments advanced by the counsel for the OP on this point is not tenable as the IRDA has clearly mentioned in the instructions that the insurer cannot reject claims amount for delay in intimation” The authorities (supra) tendered by the OP are not disputed but not helpful in the present case whereas on the other hand in case titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission it has also held that “ in case of theft of vehicle, breach of policy condition is not germane- A delay of 15 days is not significant in such a case”. As per case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula has held that “ Delay of 12 days in intimation to the insurance company- there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. Even Hon’ble Punjab & Haryana High Court 2011-4 PLR National Insurance Company Ltd. Vs. Ravi Dutt Sharma has held that “merely because there was a delay on the part of the insured to inform petitioner-Company would not be a reason enough to decline or repudiate the claim and it is further held that Insurance Companies are not acting fairly in all such matters after charging huge premium- Intention is always to repudiate the claim on one ground or the other” 

14.                   In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it has been observed that the repudiation of the claim by the OP Insurance Company on the ground of delayed intimation to the Insurance Company as well as non registration of vehicle is not justified and the OP Insurance Company is liable to pay the claim amount as per IDV of vehicle i.e. Rs. 37,288/-.

15                    Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay the insured amount of Rs. 37,288/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 2000/- as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 26.02.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

                                                                                           (S.C.SHARMA)

                                                                                             MEMBER