Haryana

Karnal

CC/572/2021

Sandeep Kumar - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

Ramesh Choudhary

13 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 572 of 2021

                                                        Date of instt.12.10.2021

                                                        Date of Decision:13.03.2024

 

Sandeep Kumar son of Shri Satbir Naib, resident of H.no.253-L, Sector-8, Urban Estate, Karnal.

                                               …….Complainant.

                                              Versus

 

National Insurance Company Limited, Divisional Office Santokh Market, Railway Road, Karnal 132001 through its Divisional Manager.

 

                                                                      …..Opposite party

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh.Vineet Kaushik…….Member

      Dr. Suman Singh………Member

          

 Argued by: Shri R.S.Mann, counsel for the complainant.

                    Shri Virender Adlakha, counsel for the OP

 

                    (Jaswant Singh President)

 

ORDER:

 

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is registered owner of trolla bearing registration No.HR45B-9562 and the said trolla was duly insured with the OP from 09.10.2019 to 08.10.20200 and IDV of the said vehicle was Rs.17,50,000/-. On 06.12.2019 at about 4/4:30 PM the driver of the complainant parked the trolla-trolley in a open/empty site near Saksham Petrol Pump, Sector-4, Karnal. The site was under CCTV surveillance where workers of Saksham Petrol Pump were present on duty. After locking the trolla the driver went to his house. From the aforesaid site, the trolla in question was stolen alongwith trolley during the intervening night of 06/07.12.2019, consequent thereupon an FIR No.988 dated 08.12.2029, under Section 379 IPC was lodged with Police Station City Karnal in the above said theft case and on his disclosure statement dated 26.12.2019 and got recovered only trolley standing from the side of road at Rohini, Delhi. As per initial disclosure statement of accused Munish, he sold away the Trolla (Ghora) to a mechanic at Jaipur for Rs.2,60,000/- and the amount was to be paid after one month, but when the police party proceeded to Jaipur on 27.12.2019 after taking remand from the Court the accused denied from his disclosure statement at Namastey Chowk, Karnal regarding this a DDR was got recorded in police post Sector-4, Karnal. Thereafter, on 28.12.2019 the accused Munish suffered another disclosure statement that the Trolla (Ghora) was parked by him at Mayapuri Market Delhi for sale. The accused was taken to Mayapuri Market but could not recover it even after searching a lot and in this regard a zimni dated 28.12.2019 was recorded. The police has submitted challan against the accused Munish without recovery of trolla. The complainant has submitted all the documents regarding non-recovery of trolla and requested the dealing staff of OP again and again to settle the claim but all in vain. The complainant astonished to receive a letter dated 07.07.2021 that the theft claim in question is not payable as the thief of trolla has been apprehended by the police and the stolen trolley was also recovered. Vide this letter the official of OP suggested that the complainant had gone to police and the trolla from Jaipur was recovered. Despite the fact that the OP has knowledge non-recovery/untraced report of trolla in question by the police. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability, cause of action, estoppels, locus standi, jurisdiction, concealment of true and material facts, etc. On merits, it is pleaded that the alleged vehicle was not used by the complainant himself to earn his livelihood and self employment purpose. The vehicle was used by driver Sarvar son of Umardan. The complainant is running a transport under the name and style of Balaji Roadlines which is having 13 big trallas for earning profit and not for earning his livelihood. From the bare reading of complaint it is evident that the alleged vehicle was parked unattended at a lonely place, which is clear cut violation of terms and conditions of insurance policy, hence, the present complaint deserves to be dismissed. The complainant has not provided the required documents, driving licence of driver, untraced report of alleged vehicle and clarification/ information for late intimation to the police, as well as to the answering OP. Furthermore, as per the complainant the alleged vehicle was stolen during the intervening night of 06/07.12.2019 and FIR was lodged on 08.12.2019 after the gap of 2 days and no intimation was given to police on the same day i.e. 06/07.012.2019 nor any call was made on 100 number, neither the complainant gave the intimation to the OP regarding theft of vehicle on the same day, which clearly shows that the complainant in connivance with local police had got lodged false FIR by manipulating a false and concocted story in the FIR just to grab money from the OP. As per initial disclosure statement of accused, he sold away the trolla to a mechanic at Jaipur for a sum of Rs.2,60,000/- and the amount was to be paid after one month. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel or the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of policy Ex.C1, copy of complaint to police Ex.C2, copy of repudiation letter Ex.C3, copy of request to OP for settlement of claim Ex.C4, copy of application to SHO Ex.C5, copies of disclosure statement Ex.C6 to Ex.C9, copies of statements U/s 161 Cr.P.C Ex.C10 and Ex.C11, copy of investigation report Ex.C12, copy of final report Ex.C13 and closed the evidence on 16.06.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Reena Basak, Assistant Manager, NIC as Ex.OPW1/A, copy of policy Ex.OP1, copy of intimation Ex.OP2, copy of claim form Ex.OP3, copy of investigation report Ex.OP4, copies of statements U/s 161 Cr.P.C Ex.OP5 to Ex.OP7, copies of letters Ex.OP8 to Ex.OP11, copy of fard supeardari Ex.OP12 and Ex.OP13, copy of disclosure statement Ex.OP14, copy of map of place of incident Ex.OP15, copy of photographs Ex.OP16, copy of final report Ex.OP17 and closed the evidence on 25.08.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OP.  On the intervening night of 06/07.12.2019, the vehicle in question was stolen and in this regard an FIR no.988 dated 08.12.2019 under section 379 IPC has been registered in Police Station City, Karnal. Intimation in this regard was sent to the OP and complainant also lodged the claim alongwith all the required documents to settle the claim but OP did not settle the claim and lastly closing the same on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that complainant has not supplied required documents despite various repeated requests and reminders. In the absence of requisite documents the OP were unable to decide the claim and due to non-submission of documents. He further argued that the vehicle in question was being used for commercial purpose, therefore, the complainant does not fall under the definition of consumer as per Consumer Protection Act. He further argued that there is delay of two days in registration of FIR with the police, meaning thereby that the FIR in question was registered in connivance with the police for grabbing the claim amount from the OP. He further argued that complainant has violated the terms and conditions of insurance policy, thus complainant is not liable to any claim and lastly prayed for dismissal of the complaint.

9.             Admittedly, the vehicle in question was stolen during the subsistence of the insurance policy. It is also admitted that the IDV of the vehicle is Rs. 17,50,000/- (Rs. Seventeen lacs fifty thousand only).

10.           The claim of the complainant has been denied by the OP, vide letter Ex.C3 dated 07.07.2021, on the ground that since the accused has been arrested and in the disclosure statement accused has admitted that he has sold the vehicle in question to a mistri in Jaipur for a sum of Rs.2,60,000/-, therefore, the company is not liable to make the payment of claim amount.  

11.           The OP has alleged that the vehicle in question was being used by the complainant for commercial purpose and the complainant is having thirteen big trallas as such, he is not a consumer as per Consumer Protection Act. In this regard, the OP has neither placed on record, Registration Certificate of the alleged said thirteen vehicles nor any other documentary proof, from which it can be ascertained that the vehicle in question was being used for commercial purpose and the complainant is having other commercial vehicles. Hence, this plea taken by the OP is having no force.

12.           The OP has alleged that from the vehicle was parked unattended at a lonely place and has not taken all the reasonable steps for safeguard of his vehicle from loss or damage. The vehicle was parked at a Petrol Pump and was under CCTV surveillance and was locked properly but the OP has miserably failed to explain the act of complainant amounting to negligent behaviour for not safeguarding the vehicle. In this regard, we are of the considered opinion that a common person never wants to let his vehicle for damages or to be stolen. This plea taken by the OP seems to be a concocted one and has been cooked up only in order to deprive the complainant from his genuine claim. Hence, this plea taken by the OP has no force at all.

13.           The OP has alleged that the complainant has not provided driving licence of driver, untraced report of vehicle. Since, the final report U/s 173 Cr.P.C. Ex.C13, has been submitted by the police in the concerned Court and the copy thereof has been supplied to the OP and from the said report, it has been proved that vehicle in question has not been recovered. There is no legal hitch to decide the claim without the submission of the pending documents, if any, when the complainant had already submitted the required documents for settlement of the claim. Hence, the demand of above mentioned documents are unnecessary and irrelevant and just to harass the complainant and just to deny the claim of the complainant. Moreover, it is also unbelievable an insured whose personal interest is involved for such huge amount why he will not supplied the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigation. Hence, in view of the above, we found no substance in this contention of the OP.

14.           The next plea taken by the OP is that there is two days delay of intimation regarding the theft of the vehicle in question by the complainant to the police. In the present case vehicle in question was stolen in the intervening night of 06/07-12-2019 and complainant intimated to the police on 07.12.2019 and in this regard the First Information Report (FIR) No.988 dated 08.12.2019 was registered in Police Station, Sadar Karnal. Generally, the owner/Driver of the vehicle first tries to search the vehicle at his own level, but when he fails to trace out the same, the matter is reported to the police. It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

16.  

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.   

17.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that acts of the OP while closing the claim of the complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

18.           As per cover note of the insurance policy Ex.C1, the Insured Declared Value (IDV) of the vehicle in question is Rs.17,50,000/- but it is not proved that whether the trolley is covered or not in the said insurance policy. The trolley has already been recovered. Hence, if the trolley is covered in the said IDV of the insurance policy, then the OP can deduct the value of the said trolley and paid the remaining IDV of the vehicle in question. Thus, the complainant is entitled for the IDV after deducting value of trolley, if any, alongwith interest, compensation and litigation expenses etc.

19.           In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.17,50,000/- (Rs. Seventeen lacs fifty thousand only) alongwith interest @ 9% per annum from the date of closing of the claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. However, the OP can deduct the value of recovered trolley if the same is insured. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:13.03.2023                               

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal

 

 

(Vineet Kaushik)                (Dr. Suman Singh)

                           Member                                  Member