Haryana

Yamunanagar

CC/127/2014

Yashvir S/o Ravinder Singh - Complainant(s)

Versus

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

Ranbir singh

05 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 127  of  2014.

                                                                                              Date of institution: 26.02.2014

                                                                                              Date of decision: 05.05.2016.

Yashvir aged about 32 years son of Shri Ravinder Singh, resident of House No. 723, Durga Garden, near FCI Godown, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.                                                                                                                                                                                                                                                                               …Complainant.

                                    Versus

 

National Insurance Co. Ltd. Divisional Office New Fountain Chowk, Workshop Road, Yamuna Nagar, through its Divisional Manager.    

 

                                                                                                                        … Respondent.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh, Ranbir Singh , Advocate, counsel for complainant.   

              Sh. V.K.Sharma, Advocate, counsel for respondent. 

 

ORDER

 

1.                     Complainant Yashvir filed this complaint under section 12 of the Consumer Protection Act 1986, praying therein that the respondent (hereinafter referred as OP) be directed to make the payment of insured amount of Rs. 34069/- alongwith interest on account of theft of motorcycle and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant had purchased a motorcycle Splendor Plus bearing registration No. HR-02Y-8658 which was insured with the OP Insurance Company as comprehensively vide Insurance Policy No. 35100731126201833684 w.e.f. 16.10.2012 to 15.10.2013 for a sum of 34069/-. On dated 22.02.2013 at about 4.00 P.M, the complainant had parked his motorcycle in front of his house after locking the same and after some time, when he came out from the house, he found that the said motorcycle was not at spot. The complainant made search here and there but of no use. The complainant approached the OP Insurance Company and informed about the theft of motorcycle in question and also got lodged a FIR bearing No. 91 dated 23.2.2013 under section 379 IPC in Police Station, City Jagadhri. It has been also stated that all the documents i.e. RC, Insurance policy were also lying in the motorcycle at the time of its theft. A claim was also lodged with the OP Insurance Company vide claim No. 721/2013 and some documents were demanded vide letter dated 17.06.2013 by the OP Insurance Company which was duly replied. Untraceable report dated 12.09.2013 was also submitted with the OP Insurance Company. After waiting for quite a long time, the OP Insurance Company sent a letter dated 07.01.2014 to the complainant vide which his claim was arbitrarily repudiated on the flimsy ground. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, not come to this Forum with clean hands, there is no deficiency in service or cause of action and there is unexplained delay of more than 24 hours in informing the police by the complainant and further there is a delay of more than 3 days in informing the OP Insurance Company. Moreover, on receipt of information of the alleged theft, the OP Insurance Company assessed the claim and found that the motorcycle in question was in possession of the complainant on 24.02.2013 and the complainant got it repaired at Jalali Motors Thana Bhawan, Shamli (U.P.) under job card No. 22231-02-RJC-0213-274(Annexure R-1), which clearly implies that the said motorcycle was apparently not stolen, as alleged, as such on account of misinformation and misrepresentation the complainant has violated the terms and conditions of the insurance policy (Annexure R-2). Hence, the complaint is liable to be dismissed. On merit, it has been admitted that motorcycle bearing registration No. HR-02Y-8658 which was insured with the OP Insurance Company as comprehensively vide Insurance Policy No. 35100731126201833684 w.e.f. 16.10.2012 to 15.10.2013 for a sum of Rs. 34069/- as IDV. Rest contents of the complaint has been denied and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove his case, complainant tendered into evidence his affidavit as Annexure CW/A and documents such as Photo copy of FIR bearing No. 91 dated 23.02.2013 as Annexure C-1, Photo copy of untraceable report issued by police as Annexure C-2, Photo copy of untraceable report issued by Additional Chief Judicial Magistrate, Yamuna Nagar at Jagadhri dated 12.09.2013 as Annexure C-3 & C-4, Photo copy of application regarding intimation to the Registering Authority, Jagadhri as Annexure-C-5, Photocopy of repudiation letter dated 07.01.2014 as Annexure C-6, Photo copy of insurance policy as Annexure C-7, Photo copy of temporary registration number as Annexure C-8, Photo copy of Form No.22 bearing chassis No. MBLHA10EZBHH11498 Engine No. HAI0EFBHH12280 as Annexure C-9 and closed his evidence.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Parveen Arora, Administrative Officer, NIC, Yamuna Nagar as Annexure RW/A and documents such as Copy of Job card dated 24.02.2013 as Annex. R-1, Copy of Insurance policy as Annex. R-2, Copy of repudiation letter as Annex. R-3, Copy of terms and conditions of insurance policy as Annexure R-4 and closed the evidence on behalf of OP.

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 registration No. HR-02Y-8658 and motorcycle in question was insured with the OP insurance company vide insurance Policy No. 35100731126201833684 w.e.f. 16.10.2012 to 15.10.2013 for a sum of 34069/- and a premium of Rs. 1063/- was paid in this regard to the OP insurance company. It is not disputed that the motorcycle in question was stolen on 22.02.2013, which is evident from FIR No. 91 dated 23.02.2013(Annexure C-1) registered in police station Jagadhri City, Untraceable report issued by the Addl. Chief Judicial Magistrate, Jagadhri dated 12.9.2013 (Annexure C-3 & C-4) and a claim was lodged with the OP Insurance Company by the complainant.

8.                     It is the case of the complainant that the motorcycle in question was stolen on 22.2.2013 during the subsistence of the policy and genuine claim lodged by the complainant was not honoured by the opposite party as the complainant lodged his claim with the OP Insurance Company in time and completed all the formalities.  Learned counsel for the complainant further argued that the OP Insurance Company has wrongly repudiated the genuine claim of the complainant on flimsy ground. In this regard the counsel for the complainant referred the case law titled as  Shri Ram General Insurance Company Limited Versus Ashok Kumar 2015(1) CPR page 32 Haryana State Commission, Panchkula wherein it has been held that Consumer Protection Act 1986- Sections 15 & 17- Insurance- Theft of Truck- Insurance Company repudiated the claim on the ground that there was delay of three days in giving intimation to Insurance Company- Repudiation of genuine claim of complainant on the ground that there was delay in giving intimation to Insurance Company after three days of theft of truck was not justified- Order under appeal requires no interference- Appeal dismissed. Learned counsel for the complainant further referred the case law titled as National Insurance Company Limited Versus Ravi Dutt Sharma an Another, 2011(3) RCR (Civil) page 631 wherein it has been held that Insurance Act, 1938- Insurance Claim- Theft of car which was duly insured- Report lodged with police promptly- Delay in informing the insurance company- Company cannot repudiate the claim on this ground-Held:- 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. Further referred the case law titled as B.Shantilal & Co. (Deceased) & Others Versus New India Assurance Co. Ltd. & Another, 2012(1) CPC page 55 wherein it has been held that Consumer Protection Act, 1986- Section 21(a)(iii)- Robbery- Jewellers Block Policy- Appellant obtained Jewellery block policy for Rs. 1,18,50,000/- - Jewellery worth Rs. 9,94,960/- was taken away by robbers- Lodging of FIR delayed due to fear of threatening- State Commission refused to grant any relief with the plea that complaint could not be decided before criminal proceedings in this regard were concluded- Revision filed- As investigators and solicitors are in favour of reimbursement of compensation, Oder of State Commission cannot be sustained- Appellants are entitled to recover the amount of Rs. 9,95,000/- with 10% interest with cost of Rs. 25,000/- - Revision allowed.

9.                     On the other hand counsel for the OP Insurance Company argued that there is violation of terms and conditions of the policy as the theft had taken place on 22.2.2013 and FIR was lodged on 23.2.2013 after more than 24 hours. Even the intimation was also given to the opposite parties after 3 days regarding the alleged theft of motorcycle. Learned counsel for the OP Insurance Company further argued that on receipt of information of the alleged theft, the OP Insurance Company assessed the claim and found that the motorcycle in question was in possession of complainant on 24.02.2013 and the complainant got it repaired at Jalali Motors Thana Bhawan, Shamli (U.P.) which is evident from Job card No.22231-01-RJC-0213-274 (Annexure R-1), which clearly implied that the said motorcycle was apparently not stolen, hence the claim of the complainant has rightly been repudiated and there is no deficiency in service on the part of OPs. Learned counsel or OP 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 it has been observed 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.”   Further referred the case law titled as National Insurance Company Versus Chuhar Singh, First Appeal No. 2598 of 2003 decided on 30.05.2011 by the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula. Learned counsel for the OP Insurance Company further referred the case law titled as  Bachan Singh vs. OIC ltd. 2014(3) CLT page 103(NC), Arjun Lal Jat Versus M/s HDFC Irgo General Insurance Co. Ltd. & Others, 2014(4) CLT page 261 (N.C.).

10.                   After hearing both the parties at length, we are of the considered view that there is deficiency in service on the part of OP Insurance Company as the Insurance Company has totally failed to file any cogent evidence in support of their stands taken in the written statement as the only plea of the OP Insurance Company is that on receipt of the information of the alleged theft, the OP Insurance Company assessed the claim and found that the motorcycle in question was in possession of the complainant on 24.02.2013 as per job card dated 24.02.2013 issued by Jalali Motors Delhi Saharanpur Road, Thanabhawan, Shamli (U.P.) Annexure R-1 but this plea of the OP Insurance Company is not tenable as the Op Insurance Company has totally failed to file any affidavit of any official of the said service centre i.e. Jalali Motors to prove that the job card was issued from their service centre or not? Even no investigation report or surveyor report has been placed on file by the Op Insurance Company who assessed the claim and collected the job card dated 24.02.2013 (Annexure R-1) from the said service centre. We have perused the job card dated 24.02.2013 (Annexure R-1) minutely and it is evident that the job card in question does not bear any signature of any person i.e. either the complainant or any stranger, so it cannot be said that the complainant got serviced the motorcycle in question from that service centre or any stranger/thief. In the absence of cogent evidence it cannot be held that motorcycle in question was in the possession of complainant after the theft on 24.02.2013.

11.                   Further arguments advanced by the counsel for the OP Insurance Company that there is a delay of one day as the FIR has been lodged on 23.02.2013 whereas the theft took place on 22.02.2013 is also not tenable as the FIR bearing No. 91 dated 23.02.2013 has been lodged by the complainant on the very next day, i.e. within a period of 24 hours and the matter was duly investigated by the concerned Police Station, Jagadhri and after investigating the matter, police officials of Police Station, Jagadhri submitted untraceable report which was duly accepted by the Hon’ble Court of Sh. R.P.Singh, Additional Chief Judicial Magistrate, Jagadhri vide its order dated 12.09.2013 (Annexure C-3 and C-4).

12.                   The arguments advanced by the counsel for the OP Insurance Company that the theft took place on 22.02.2013 and intimation was given to the OP Insurance Company after three days is also not tenable as the IRDA has clearly mentioned in the instructions that the insurer cannot reject claims amount for delay in intimation”  Moreover, the OP Insurance Company has totally failed to file any intimation letter sent by the complainant, even no cogent evidence has been filed by the OP Insurance Company that they were intimated after three (3) days. We have minutely perused the repudiation letter Annexure R-3 from which it is evident that claim of the complainant has been repudiated on the ground of misrepresentation and misinformation i.e. not on the ground of delay in intimation or delay in lodging the FIR. The same view has been held by the 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 and also referred the case law titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission in which 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”. Further referred the case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula wherein it 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 does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. And further referred the case law titled as National Insurance Company Ltd. vs. Ravi Dutt Sharma, 2011-4 PLR. The law cited by the complainant as well as OP Insurance company is not disputed but as the every complaint have its own facts and circumstances which cannot be overlooked.

13.                   In the circumstances noted above, as the case of the complainant is duly proved from the copy of FIR (Annexure C-1) untraceable report issued by the official of the P.S. Jagadhri as well as Additional Chief Judicial Magistrate, Jagadhri on dated 12.9.2013 (Annexure C-2 to C-4). As such, the OPs have wrongly repudiated the claim of the complainant on the ground of misrepresentation and misinformation and the OP Insurance Company is liable to pay the claim amount as per IDV of vehicle i.e. Rs. 34069/-.

14                    Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay the insured amount of Rs. 34069/- 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. It is also made clear that an amount of Rs. 34069/- on account of theft of motorcycle bearing registration No. HR-02Y-8658 will be released to the complainant subject to submitting the subrogation letter as well as indemnity bond, other papers which are necessary to transfer the RC in the name of Insurance Company in favour of OP Insurance Company. 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: 05.05.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER