O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is the registered owner of the vehicle/ HTV-Tata 2515 bearing No.HR-55-G-0178 which was insured by the O.P bearing policy No.361500/31/10/6300001341 valid for the period from 20.09.2010 to 19.09.2011. The said vehicle was duly financed through Megma Fincrop Ltd. It is alleged that the complainant paid a sum of Rs.18,198/- to the O.P towards the yearly premium and the total value of the sum assured of Rs.9,18,000/- as per the said policy. On 22.10.2010 the said truck alongwith original R.C. and one set of original key and other documents was stolen and the complainant immediately informed the Police on 100 number on the same day at about 10:16:26 and in this regard registered an FIR No.755/2010 dated 17.11.2010 under section 379 IPC at P.S. Mangol Puri, Distt. Outer, New Delhi. It is alleged that the O.P was intimated regarding the theft of the said truck within stipulated period. It is further alleged that the complainant applied for insurance claim to O.P and produced all the relevant documents which were asked by the O.P along with the copy of FIR, copy of untrace report dated 07.01.2011 and the complainant also handed over the one set of original keys of the said vehicle. It is alleged that surveyor Sh. Laxman Dass Arora was appointed by the O.P. On 17.08.2011 complainant was surprised to receive a letter from the O.P whereby O.P declined the claim of the complainant on the ground of violation of condition No.5 of the terms and conditions of the insurance policy. It is further alleged that as per the instruction of said surveyor the complainant paid him a sum of Rs.10,000/- for preparation of the documents and completion of the necessary formalities as per his version. It is alleged that the said surveyor failed to provide survey report and receipt of the above said amount. It is further alleged that complainant made several complaints and sent reminders to the O.P but all in vain. Complainant has also sent a legal notice dated 16.09.2011 but to no avail. On these facts complainant prays that O.P be directed to pay the insured amount of Rs.9,18,000/- and also to pay cost and compensation as claimed.
2. O.P appeared and filed their written statement. O.P in its written statement has not disputed that the said truck was insured with the O.P. It is alleged that there was no attendant and as such the truck was lying unattended for many days having keys and documents inside it thereby giving an open invitation for the bad elements to take away the tanker. It is further alleged that the vehicle in question was duly hypothecated with the bank from whom the complainant got the said vehicle financed and as per IMT clause-7 as mentioned in the terms and conditions of the policy the claim amount is required to be paid to the pledgee bank and not to the insured where there is total loss. It is alleged that complainant has taken the goods carrying commercial vehicle policy in respect of the said vehicle from the answering O.P and as the policy was for commercial purpose and not private one as such the subject matter is outside of the jurisdiction of this forum. It is further alleged that complainant is also having the business of petroleum products under the name and style of Indo Bulk Carriers and hence complainant cannot be called as consumer. It is alleged that complainant has not submitted any document to show that any agreement with Jolly Roadlines/ IOCL has come to an end. It is further alleged that the vehicle was not parked in any parking but in an open space giving invitation to the bad elements and thus the complaint needs to be dismissed for the own fault of the complainant. It is alleged that this is a clear violation of condition No.5 of the insurance policy and hence the claim was not payable and is repudiated vide its letter dated 17.08.2011. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint. On the other hand Mrs. Rashmi Bajra, Admn. Officer has filed affidavit in evidence on behalf of the O.P testifying all the facts as stated in their written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submissions of Ld. Counsels for the parties.
5. The main dispute in this complaint revolves round the issue as to whether the repudiation by the insurance on the basis of exclusion clause was justified or not. The insurance company has taken preliminary objection that the complainant was carrying of commercial activity with the vehicle and such subject matter is outside the jurisdiction of this forum. The plea raised by O.P is not sustainable in the eye of law because the complainant is not carrying on any commercial activity with O.P. The complainant has simply insured his vehicle with O.P and paid the requisite installment. Therefore, the plea raised by O.P does not hold any water. Needless to say that complaint pertains to theft of the vehicle which was insured with the O.P and the O.P while relying on condition No.5 of the insurance policy stating therein that insured had not taken all reasonable steps to safeguard the vehicle incurred from loss or damaged by leaving key and R.C. of the vehicle in the vehicle itself, repudiated the claim. It is now well settled law that no condition of policy can be pressed into service by the insurer until/ unless the same has been furnished to the insured. Admittedly the terms and conditions of the policy were never supplied to the insured, therefore, the O.P cannot be permitted to have recourse to the terms and conditions. Even otherwise the O.P cannot wriggle out of its liability because the complainant informed the Police by way of telephone on 100 number about the theft on 22.10.2010 though the case was registered on 17.11.2010. It is now well settled law by catena of decision of higher court that in case of theft of vehicle the insured shall inform the Police and the insurance company immediately, so that the Police and the insurance company can make efforts to trace out the vehicle. It is equally settled that delay in reporting the theft to the Police would certainly be fatal to the claim by the insured. In case titled as New India Assurance Co. Vs. Trilochan Jane, First Appeal 321 of 2005, decided on 09.12.2009 by Hon’ble National Commission, wherein it was held that delay in intimation to the insurance company is the valid ground for the repudiation of the claim. It has been categorically held by Hon’ble National Commission that the intimation to the Police in theft cases should be given at least within 24 hours of the theft. In the instant case the intimation to the Police was given by the complainant without choosing no time that telephonic call on 100 number by informing PCR. The complainant discharged his responsibility by putting the criminal machinery into motion. It hardly matter if the FIR was registered on the same day or after some days of such information.
6. Keeping in view of discussion stated above, we are of the opinion that the insurance was unjustified in repudiating the claim which amounted to deficiency in service. We award a sum of Rs.9,18,000/- with interest @ 6% from the date institution of the complaint till payment, with further award of Rs.10,000/- towards harassment, mental agony, loss of time which will also include litigation expenses.
Copy of this order be sent to the parties as per rules.
Announced this 16th day of May, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
Avi
