Haryana

Charkhi Dadri

CC/233/2021

Sh. Suresh Kumar - Complainant(s)

Versus

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

Sh. Pankaj Chhikara

04 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI

 

                                                        Complaint Case No. 233 of 2021

                                                        Date of Institution: 08.09.2021            

                                                        Date of Decision:    04.07.2024    

         

                   Sh. Suresh Kumar  aged about 47 years  son of Sh. Karan Singh resident of 

                    village Atela Khurd, Tehsil & District Charkhi Dadri.

                                                                                                                   …Complainant

 

                                                          VERSUS

 

1. National Insurance Company Ltd. Divisional Office 155-156 (1^st Floor), Commercial Urban Estate-1, Hisar, District Hisar-125001 through its Divisional Manager.
2. M/s India INFOLINE Finance Ltd. Branch office SCO 134 G 1 First Floor, Near Telephone Exchange, Hisar, District Hisar 125001 through its Branch Manager.            (Given up vide order dt.16.05.2022)

 

…Opposite parties

                        Complaint under the Consumer Protection Act.

 BEFORE:            Sh. Manjit Singh Naryal............................ President

Sh. Dharam Pal Rauhilla…………….,……Member.

 

PRESENT:           Sh. Pankaj Chhikara, Advocate for complainant.

Sh. Vinod Kumar Chahar, Advocate for the opposite party no.1.

OP no.2 given up vide order 16.05.2022.

 

ORDER:

 

The brief facts of the complaint are that the complainant was the registered owner of the vehicle TATA vehicle Model 2518 Haiwa  bearing Registration No. HR-84-9342, Engine No. 71D84383232, Chassis No.MAT448802HAD04121, which was insured with opposite party for the period from 17.10.2017 to 16.10.2018 vide policy No. 42030031176300003637.

2. It was submitted that in the night of 31.08.2018/01.09.2018, the said vehicle was parked at his village Atela Khurd and all the original papers of the RC, permit, insurance etc. were inside the said vehicle. On the next morning, the said vehicle was found missing. He searched the vehicle here and there but the same was not found. Then the complainant made a complaint to the police. The police lodged FIR No.347 dated 01.09.2018, under section 379 IPC at P.S. Badhra.
3. It was submitted that the complainant had given information to the opposite party about this theft and lodged the claim in opposite party’s office. thereafter OP no.1 had demanded certain documents which were submitted with the office of OP no.1. The complainant many times visited to the opposite party office and requested to pass claim but opposite party lingered on the matter on one pretext or the other.
4. It was further submitted that the local police tried to find out the culprits and the stolen vehicle. The local police failed to trace out the said vehicle. The complainant had deposited certified copy of untraced report of police obtained from the concerned Court of   Hon’ble Court of Sh. Mukesh Kumar, JMIC, Charkhi Dadri.
5. It was further submitted that all the documents were already taken by the insurance company and all formalities were completed but the opposite party evaded the matter by one way or other by making false excuses and did not pass the claim.
6. It was further submitted that the complainant served a legal notice upon the opposite party by regd. post through his counsel but the opposite party did not reply the same. The aforesaid act of opposite party amounted to deficiency in service and the complainant had filed this complaint with a prayer to direct the OP no.1 to pay amount of insurance claim Rs. 32,50,000/- alongwith interest and OP no.2 be directed not to recover any amount from the complainant on account of the theft alongwith  compensation and litigation expenses. Any other relief, which this Hon’ble Commission deems fit and proper was also prayed for.
7. Notices of the complaint were given to the opposite parties. Opposite party no.1 appeared and filed reply. It has been submitted that  the vehicle  was got insured by the complainant and it was stolen.  The complainant failed to abide by terms and conditions of policy which states that 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 insured shall take all reasonable steps to safeguard the vehicle from loss or damage.

The alleged loss has taken place on 31.08.2018 and FIR lodged on 01.09.2018 but there is no immediate intimation /claim submission given to the insurance company.

Answering OP got investigated and surveyed the matter through the investigator/surveyor but the complainant failed to provide the necessary and required documents as well as untraced report from the Illaqa Magistrate/ court . Further it was delayed and failure on the part of the complainant. There is no deficiency in service on the part of OP no.1 and requested for dismissal of complaint with costs.

8.           The counsel for the complainant had given statement to give up OP no.2 being unnecessary. Pursuant to the same, this commission vide order dt. 16.05.2022 the OP no.2 was given up. However name of OP no.2 is appearing on RC of the vehicle as “Hypothecated to India Infoline Finance Ltd.” Accordingly, “No Objection” will be required to be submitted to the OP no.1 at the time of releasing the claim amount to the complainant.
9. To prove his case, the complainant tendered into evidence his affidavit, Ex. CW1/A and documents Annexure C1 to Annexure C15 and closed the evidence on 03.01.2023
10. On the other hand, the learned counsel for the opposite party no.1 tendered into evidence his affidavit Ex. RW1/A, Ex.RW2/A and Ex.R1 to Ex.R12 and closed the evidence on 27.07.2023
11. Learned counsel for the complainant raised the contention that from the evidence on record, it was proved that the complainant was the registered owner of the vehicle bearing Registration No. HR-84-9342, Engine No. 71D84383232, Chassis No.MAT448802HAD04121, which was insured with opposite party for the period from 17.10.2017 to 16.10.2018 vide policy No. 42030031176300003637. The insured declared value of the vehicle was Rs. 31,50,000/-. It was argued that in the intervening night of 31.08.2018 / 01.09.2018 the vehicle was stolen. It was stolen by some unknown person. The complainant searched the vehicle here and there but the same was not found. Then the complainant lodged FIR No. 347 dated 01.09.2018, under section 379 IPC at P.S. Badhra.
12. It was argued that the complainant gave information to the opposite party about this theft and lodged the claim in opposite party’s office. The complainant many times visited to the opposite party’s office and requested to pass claim but  opposite party lingered on the matter on one pretext or the other.
13. It was further argued that the local police tried to find out the culprits and the stolen vehicle but all in vain. The local police failed to trace out the said vehicle.
14. It was further argued that all the documents were already taken by the insurance company and all formalities were completed but the opposite party evaded the matter by one way or other by making false excuses and did not pass the claim.
15. It was further argued that the complainant served a legal notice upon the opposite party by regd. post through his counsel but the opposite party did not reply the same. The aforesaid act of opposite party amounted to deficiency in service.
16. On the other hand, learned counsel for the opposite party raised the contention that the complainant failed to furnish documents i.e. untraced report therefore, it is the violation of fundamental condition of the policy. Thus this claim is not payable and present complaint is liable to be dismissed.
17. It was further argued that complainant has contravened the terms and conditions of the insurance policy as he parked his vehicle unattended carelessly which is a clear cut negligence on the part of the complainant himself and the answering opposite party is not liable to pay for such theft claim.
18. It was further argued that the complainant has no cause of action to file the present complaint as complainant is not ready to furnish the required documents i.e. untraced report which are necessary for theft claim, hence there is no negligence on the part of answering opposite party no.1 and is clear cut negligence of  the complainant himself who instead of furnishing these documents filed present complaint just to pressurize the answering opposite party.
19. In order to pressurize the answering opposite party, to concede his illegal demands, the complainant filed the instant complaint thus the present complaint is not maintainable and liable to be dismissed. It was further argued that the complaint being meritless was liable to be dismissed.
20. We have heard the learned counsel for the parties besides going through the case file very carefully. It is evident from the documents placed on record that theft of the vehicle took place in midnight of 31.08.2018/01.09.2018, FIR was lodged on 01.09.2018 and claim was filed on 05.09.2018. There was delay of 3 days in filing the claim with the OP. Such delay happens in process and collecting relevant documents etc. The same deserves to be condoned and condoned accordingly.

                   In this connection, attention is invited to the Instructions dated 20.09.2011 issued by the Insurance Regulatory and Development Authority (‘IRDA’ for short), which are binding on the insurance company/opposite party as well, and the same are reproduced hereunder:

“The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

The Current contractual obligation imposing the condition that the claims shall be intimated to the insurer with the prescribed documents within a specified number of days is necessary for insurer for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.

The insurer’s decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds, in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if recorded in time.

The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurer’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.”

21. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.
22. In view of the latest instructions issued by IRDA in September, 2011, referred to herein before, to all the insurance companies, no such objection was to be raised by the companies in respect of receipt of late information in the claims which otherwise legally maintainable. If the claim of the complainant is otherwise maintainable, the delay, if any, in providing intimation to the insurance company about the theft of the insured vehicle would not render the case of the complainant to be doubtful on any score and the insurance company would not be justified to repudiate the claim of the complainant on account of delay in intimating the theft of the insured vehicle to the insured.
23. In this case, Sh. Rajender S Sharma, Sr. Branch Manager, National Insurance Co. Ltd. has filed his affidavit as Ex. RW1/A to support the case of the opposite party  stating inter alia that the complainant had failed to supply the requisite documents. The requisite documents is mainly “untraceable report” as desired by OP-1 vide its letter dated 03.01.2020 (Annexure C7), 15.06.2020 (Annexure C8) and 02.07.02020 (Annexure C9). Other documents such as-insurance policy, copy of FIR etc. are available on record and had already been submitted to insurance company. The proceedings in respect of FIR No. 347 of 01.09.2018 lodged by the complainant are  still continuing and certain documents have been placed on record duly certified by office of CJ(SD)-cum-CJM, Charkhi Dadri, but “Untraceable Report” has not been submitted. Prima facie, it appears that “Untraceable Report” has not been obtained by the complainant so far. In the absence of “Untraceable Report” the OP no.1 had closed the claim as “No Claim” vide its letter dated 28.08.2020 (Ex.R7).
24. The averments made in the complaint have been supported by the affidavit of the complainant, Ex. CW1/A, wherein he has reiterated the averments made in the complaint and specifically deposed that he had reported the matter to OP-1. During the course of argument, it was not disputed that the theft of the insured vehicle had taken place during the subsistence of the insurance policy. However, the same could not be traced out by the police. The complainant has deposed that he had filed FIR on 01.09.2018 and also informed the opposite parties and filed claim with OP no.1 on 05.09.2018. The documents required for passing the claim are already on the record of this case except untraced report. It has been placed on record that the complainant had requested the opposite party no.1 to release the claim. Prior to this complaint, the complainant had served a legal notice upon the opposite party, but despite that the opposite party failed to pass the claim. Since the complainant has been residing within the territorial the jurisdiction of this Commission, therefore, this Commission has jurisdiction to entertain the instant complaint.
25.           It is pertinent to take reference of investigation report dated 28.11.2018 carried out by M/s Royal Associates, Investigating & Detective Agency appointed by OP-1 placed on record vide Ex.R1 by the OP no.1. the conclusion  of the said report is as under:-

“On the basis of above said findings and documentary evidence we are of the opinion that date, time and place of theft seems to be genuine. Hiwa was duly locked at the time of theft. As per registration authority it is still in the name of insured (Suresh Kumar). It is having valid fitness as well as route permit at the time incident. Matter was immediately reported to police and FIR was lodged on 01.09.2018. There isno delay in giving information to police. As per police record and our investigation stolen Hiwa has not been recovered so far. I..V. was in good looking and working condition at the time of theft. Particulars of Hiwa as mentioned in RC, Ins. Policy and FIR are same. Insurer may deal with the claim as per terms and conditions of the insurance policy, keeping in view the above said findings. This report issued without prejudice.”

The facts mentioned in the above-referred report corroborate the averments of the complainant except the fact that untraced report was awaited at that point of time. The assertion of theinsurance company that it is not possible to keep the file pending for indefinite period and claim file was closed as “No Claim” is not acceptable as we are well aware that conclusion of court proceedings are time consuming and sometimes, it takes years to reach final conclusion/decision. Such circumstances are beyond control of any individual. Hence, appreciating the practicality of legal process, the complainant cannot be deprived of his genuine claim.

26.           In view of above mentioned facts and circumstances of the case, it is evident that “Untraced Report” has not been obtained by the complainant as proceedings against FIR No.347 dated 01.09.2018 are  still in progress. The present complaint is pre-mature as vital document i.e. “Untraced Report” has not yet been submitted by the complainant to OP-1. Had the same been submitted by the complainant, OP-1 could have not closed the claim. It is true that there has been loss to the complainant because the vehicle was stolen as substantial proof are on record and theft has been admitted by OP no.1 as well.  The claim of the complainant is genuine and allowed for Rs. 31,50,000/- being IDV of the vehicle. Hence in the interest of justice and fair play, the following order is passed:-

1. OP No.1 i.e. National Insurance Company Limited is hereby directed to open the claim of the complainant viz. Shri Suresh Kumar as proceedings are continuing in respect of FIR No. 347 dated 01.09.2018 and keep the same alive till the complainant submits “Untraced Report” and settle the same for Rs.31,50,000/-(Thirty One Lakh Fifty Thousand only) being IDV of the insured vehicle  on receipt of “Untraced report” or  judgment of  the Court in this regard.
2. No order is passed for any compensation and litigation charges. The same are to be borne by the complainant as there has been a lapse on the part of complainant who has failed to submit “Untraced Report”.
3.  Complainant is directed to approach the OP no.1 as soon as “Untraced Report” or final judgment is received in respect of proceedings continuing in Civil Court under FIR No.347 dated 01.09.2018.

27. Copy of this order be supplied to the parties concerned free of costs. File be consigned to the record room after due compliance.