Haryana

Yamunanagar

CC/1144/2012

Surya Parkash S/o Phool Singh - Complainant(s)

Versus

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

P.S.Khurana

24 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 1144 of 2012.

                                                                                          Date of Institution: 30.10.2012

                                                                                          Date of Decision: 24.11.2016.

Surya Parkash aged about 28 years son of Shri Phool Singh Advocate, resident of House No. 2486/17 Housing Board Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                                                       …Complainant.

                                                         Versus

 

1. Branch Manager National Insurance Company Ltd. ( A Govt. of India Undertaking) Divisional Office New Fountain Chowk Yamuna Nagar-135001.
2. Managing Director, National Insurance Company Ltd. ( A Govt. of India Undertaking) registered Head office 3, Middleton Street Kolkata 700071.                                                                                             

                                                                                                                                                                                   … Respondents

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                         SH. S.C.SHARMA, MEMBER.

Present: Sh. P.S. Khurdban, Advocate, counsel for complainant.   

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

ORDER

 

1.                        Complainant Surya Parkash filed this complaint under section 12 of the Consumer Protection Act 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is owner of Motorcycle Hero Honda Splendor Plus bearing registration No. HR-02V-7632 bearing Model 2009 which was insured with the OPs Insurance Company vide its insurance policy bearing No. 36100731116202015373 valid w.e.f. 26.11.2011 to 25.11.2012 for a sum of Rs. 30061/-. The complainant was out of station on 17.01.2012 as he was serving with the firm of Gurgaon having its branch office at Karnataka and due to that motorcycle in question was stolen by some unknown persons during his absence on 17.01.2012. The father of the complainant reported the matter to the police on the same day, upon which an FIR bearing No. 27 dated 17.01.2012 under section 379 IPC was registered in the police station, Jagadhri. Intimation was also given to the office of the OPs Insurance Company vide registered post on 25.06.2012 (Annexure C-3). After intimating the OPs through registered post, the OP No.1 issued letters dated 07.07.2012 and 10.07.2012 and ultimately repudiated the claim of the complainant vide its letter dated 31.07.2012 (Annexure C-8). Hence, this complaint.

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no deficiency in service; there is no cause of action; there was violations of terms and conditions of the insurance policy as the alleged theft was to be reported to the OPs Insurance Company immediately but in the present case, the complainant intimated the same after 160 days of the alleged theft as the alleged theft took place on 17.01.2012 and intimation was given to the OPs Insurance Company vide letter dated 21.06.2012 and received on 26.06.2012, thus, the delay is fatal and the present complaint is liable to be dismissed. It has been further mentioned that even as per the contents of the FIR submitted by the complainant, it has been revealed that motorcycle in question was not properly guarded as it was parked outside the gate of the house of the complainant for the last 20 days prior to the date of alleged theft, which also again amounts to gross violations of another policy condition and as such claim of the complainant has been rightly repudiated by the OPs Insurance Company and on merit all the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and lastly 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 Insurance Policy as Annexure C-1, Photo copy of FIR as Annexure C-2, Photo copy of intimation letter dated 21.06.2012 as Annexure C-3, Postal receipts as Annexure C-4 and C-5, Photo copy of letter dated 07.07.2012 issued by OPs as Annexure C-6, Certified copy of untraced report issued by S.P. Yamuna Nagar as well as JMIC Yamuna Nagar dated 07.09.2015 as Annexure C-7, Copy of repudiation letter dated 31.07.2012 as Annexure C-8 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh Parveen Arora, Administrative Officer, NIC as Annexure RW/A and documents such as Photo copy of insurance policy as Annexure R-1, Photo copy of claim repudiation letter dated 31.07.2012 as Annexure R-2, Photocopy of FIR as Annexure R-3, Photo copy of Claim form as Annexure R-4 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 very minutely & carefully. 

7.                     It is not disputed that the motorcycle bearing registration No. HR-02V-7632 was not insured with the OPs Insurance Company vide insurance policy bearing No. 36100731116202015373 valid w.e.f. 26.11.2011 to 25.11.2012 for a sum of Rs. 30061/- which is duly evident from copy of insurance policy Annexure R1/C-1. It is also not disputed that the motorcycle in question was not stolen on 17.01.2012 from Sector-17, HUDA, Jagadhri, which is duly evident from copy of FIR Annexure C-2. It is also not disputed that the police of P.S. Sector-17, HUDA, Jagadhri could not trace out the motorcycle in question and submitted untraced report, which is duly evident from the copy of untraced report issued by the S.P. Yamuna Nagar as well as Judicial Magistrate Yamuna Nagar  Annexure C-7.

8                      The only version of the complainant is that the Ops Insurance Company has wrongly and illegally repudiated the claim of the complainant whereas the case of the complainant is duly proved from the copy of FIR and untraced report and referred the case law titled as National Insurance Company Limited Versus Ravi Dutt Sharma and another, 2011(3) RCR Civil page 631 wherein it has been held that Insurance Act, 1938, Section 38- 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 Oriental Insurance Company Ltd. Versus Om Pm Parkash Gupta and another, 2009(2) CLT page 303 wherein it has been held that theft of vehicle- Breach of trust- Once the police have registered the case u/s 379 IPC the loss shall come within the definition of theft- The question of breach of trust by party will not affect the right of the person, who lost the vehicle.

            And also referred the case law titled as National Insurance Company Ltd Versus B. Venkataswamy, 2014(2) CPC page 137 NC wherein it has been held that a valid claim cannot be repudiated merely that insurer was informed at belated stage- In the present case, the vehicle was obtained by police as it was carrying litigants liquor bottles- As delay was due to reasons beyond the control of complainant- The claim cannot be denied on technical grounds- Petition dismissed.

 9.                    On the other hand, counsel for the OPs argued at length that the claim of the complainant has been rightly repudiated by the OPs Insurance Company as the complainant intimated the OPs Insurance Company after a period of 160 days which is evident from the intimation letter dated 21.06.2012 (Annexure C-3). Learned counsel for the OPs further draw our attentions towards the contents of the FIR (Annexure R-3) and argued that motorcycle in question was parked outside the house unattended from the last 20 days. Hence, there was violation of the terms and conditions of the insurance policy on the part of the complainant. Learned counsel for the OPs referred the case law titled as National Insurance Company Versus Chuhar Singh, First Appeal No. 2598 of 2003 State Commission, Haryana, Panchkula and referred the another case law titled as New India Assurance Company Limited Versus T.V.Sarath, 2009(2) CPC page 34 wherein it has been held that Theft of Camera- Repudiation- Claim for theft of camera was allowed by District Forum and upheld in appeal- It came into evidence as per FIR and affidavit of complainant that he left his suit case at Bus Stand but found it missing when he came back-For a below failed to appreciate the fact that complainant was himself negligent by not taking reasonable care to protect his goods like a man of ordinary prudence- Insurer cannot be held liable for the negligence of complainant- Order set aside.

            And also referred the case law titled as Bachan Singh Versus The Oriental Insurance Company Ltd. 2014(3) CLT page 103 NC wherein it has been held that Insurance Claim- Theft of insured truck- Delay in intimation to insurance company and also delay in lodging the FIR- Held- That the complaint is liable to be dismissed on the ground of the late registration of FIR and late intimation to the insurance company.

                        Lastly learned counsel for the OPs prayed for dismissal of complaint .

10.                   After hearing both the parties and going through the law cited above, we are of the considered view that there is a deficiency in service on the part of OPs Insurance Company as from the perusal of copy of FIR bearing No. 27 dated 17.01.2012, it is duly evident that the matter was immediately reported to the police of P.S. City, Jagadhri. Furthermore, the complainant has specifically mentioned in his complaint that the OPs Insurance Company was also informed by submitting application alongwith FIR and this facts mentioned in para no.4 of the complaint has only denied for want of knowledge by the OPs Insurance Company in reply of para No.4 of the complaint. Although the motorcycle in question was standing outside the house of the complainant for the last 20 days as the complainant has admitted this fact in the FIR, even then it is not the case of the OPs Insurance Company that the motorcycle in question was parked unattended and without any lock. However, at the same time, it cannot be overlooked that as per the contents of the FIR motorcycle in question was standing outside the house from the last 20 days, meaning thereby that complainant himself was not vigilant or careful. Further there is also no cogent evidence on the file that complainant immediately informed the OPs Insurance Company as alleged in the complaint. Although, the complainant was not vigilant and matter was not reported to the OPs Insurance Company promptly, even then the OPs Insurance Company cannot repudiate the claim of the complainant in toto.  The same view has been expressed by the Hon’ble Supreme Court of India in case titled as National Insurance Company versus Nitin Khandelwal,  2008 (IV) CPJ page 1 Supreme Court  wherein it has been held  “in the case of theft of vehicle, breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

Even in another case titled as New India Assurance Co. Ltd. Vs. Malti bhikhabhai Bhoya 2013 (3) CLT 178 (NC) it has been held that if there has been any breach of warranty or condition of policy including limitation as to use, insured is entitled to get 75 % of the admissible claim on non-standard basis- The insurance company is not entitled to repudiate the claim in toto. The law cited by the counsel for the OPs is not disputed but not helpful to the facts of the present case.

11.                   In the circumstances noted above, we are of the considered view that OPs insurance company has wrongly repudiated the claim of the complainant as a whole whereas, the claim of the complainant should be settled on NON-STANDARD BASIS. 

12.                   Resultantly, we partly allow the complaint of the complainant and direct the OPs insurance company to pay Rs. 22,545/- being 75% of the total sum insured of Rs. 30,061/- alongwith interest @ 7% p.a. from the date of filing the present complaint till actual realization subject to submission of the, subrogation letter and indemnity bond and NOC, if any, and other relevant documents/papers i.e. Form No. 29 &30 which are necessary to transfer the vehicle in the name of OPs Insurance company. This order shall be complied within a period of 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. Parties are left to bear their own cost. The parties concerned be communicated with a copy of this order free of cost and the file be consigned to the record room after due compliance.

Announced in open court.24.11.2016.                                                                                               

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER