Haryana

Yamunanagar

CC/1195/2012

Prem Bahadur S/o Sh.Raj Kumar - Complainant(s)

Versus

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

Nitin Arora

10 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI

                                                                                         Complaint No. 1195 of 2012                                                                                                                                                                                Date of institution: 09.11.2012

                                                                                         Date of decision: 10.10.2016.

 

Prem Bahadur age 35 years, son of Shri Raj Kumar resident of Plot No.19, Ishwar Nagar Colony, Tilak Nagar, Jagadhri, Workshop, Tehsil Jagadhri, Distt Yamuna Nagar.                                          

                                                                                                                  …Complainant.

                                           Versus

 

National Insurance Company Limited, Divisional office, Near Fountain Chowk, Yamuna Nagar through its Divisional Manager.

 

                                                                                                                 … Respondent. 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present:           Sh. Nitin Arora, Advocate, counsel for complainant.   

                        Sh. Parmod Gupta, Advocate, counsel for respondent.  

 

ORDER  (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act 1986 seeking directions to the respondent (hereinafter referred as OP Insurance Company) to pay sum insured/IDV of Rs,28000/-on account of theft of motor cycle and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant was registered owner of the motor Cycle Hero Honda Splendor bearing Registration No. HR02-V-7627, Model 2010 which was insured with the OP Insurance Company vide policy bearing No.35100731116202722402 valid from 16^th February, 2012 to 15^th February, 2013 for a sum of Rs.28,000/-. On 22^nd February, 2012, the complainant parked his motor cycle outside his shop after locking it and went to attend a Satsung and when the complainant came back, he did not find the said motor cycle at parking place. The complainant immediately informed at No.100 to the official of Police. Thereafter, the complainant went to the Police Station Farakhpur and reported the matter to the police but the official of the police did not lodge the FIR and assured the complainant that FIR will be lodged within 2 or 3 days, if the motor cycle is not traced out. Ultimately an FIR bearing No.60 dated 28.02.2012 under Section 379 IPC was registered. The complainant also lodged the claim with the OP Insurance Company and fulfilled the all the necessary formalities but the OP Insurance Company has repudiated the claim of the complainant, vide its repudiation letter dated 05.10.2012, on flimsy and manipulated grounds. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as there is a complicated question of law and fact involved in this case which needs elaborate evidence; complaint is not maintainable; complainant has no locus standi; complainant is estopped from filing the present complaint by his own act and conduct; complainant has not come to the Forum with clean hands and concealed the true and material facts. As per documents supplied by the complainant, it was observed that alleged theft took place on 22^nd February, 2012, whereas the complainant got lodged the FIR on 28^th February, 2012 i.e. after a period of 6 days and such right of investigation by the Insurance Company stands hampered with and the complainant has violated the terms and condition of the policy. Further, it has also been mentioned that complainant left his Motor Cycle in question un-attended without taking precaution and due care. Had the motor cycle been parked in an authorized parking then the matter would have been different and on merit it has been admitted that the complainant Prem Bahadur is the insured person of the motor cycle bearing Registration No.HR02-V-7627 which was insured with the OP Insurance Company for a sum of Rs.28,000/- valid from 16^th February 2012 to 15^th February, 2013. Rest of the contents of the complaint have been denied and reiterated the stands 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, photocopy of Insurance Policy as Annexure C-1, Photocopy of FIR bearing No.60 dated 28^th February, 2012 as Annexure C-2, Repudiation letter dated 05.10.2012 as Annexure C-3, Photocopy of Registration Certificate of Motor Cycle in question as Annexure C-4 and closed the evidence on behalf of complainant.  

 5.                    On the other hand, counsel for the OP Insurance Company has tendered into evidence affidavit of Parveen Arora, Authorised Signatory, NIC as Annexure RW/A, claim form as Annexure R-1, Copy of FIR as Annexure R-2, Photocopy of Insurance Policy as Annexure R-3 and closed the evidence on behalf of OP Insurance Company.

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 not disputed that complainant was Registered owner of the motor cycle  bearing Registration No.HR02-V-7627 which is also evident from the Photocopy of Registration Certificate of Motor Cycle as Annexure C-4. It is also not disputed that motor cycle  in question was insured with the OP Insurance Company vide policy bearing No.35100731116202722402 valid from 16^th February, 2012 to 15^th February, 2013 for a sum of IDV Rs.28,000/- which is also evident from the copy of Insurance Policy is Annexure R-3. Further it is also not disputed that motor cycle in question was stolen on 22^nd February, 2012 which is duly evident from copy of FIR bearing no.60 dated 28^th February, 2012 as Annexure C-2,

8.                     The only version of the complainant is that genuine claim has been wrongly and illegally repudiated by the OP Insurance Company vide its letter dated 05.10.2012( Annexure C-3) on the ground of  delay of 6 days in lodging the FIR  and delay of 7 days in intimation to the Insurance Company  and further on un-attended parking. whereas no truth is attached with the version of the OP Insurance Company as the complainant immediately informed to the police on 100 number but the official of the police did not lodge the FIR immediately. So, there was no fault on the part of complainant. It has been further argued that motor cycle in question was not parked un-attended as it was parked outside the shop of the complainant. Lastly, prayed for acceptance of the complaint.

9                      On the other hand, learned counsel for the OP Insurance Company argued at length that claim of the complainant has been rightly repudiated vide letter dated 05.10.2012 (Annexure C-3) as the complainant parked his motor cycle un-attended without taking the proper precaution and further the complainant informed the police and lodged the FIR on dated 28.02.2012 after a period of 6 days and also informed the Insurance Company after a period of 7 days i.e. 1^st March, 2012. So, there were violations of terms and condition of the Insurance Policy on the part of the complainant. 

10                    Learned counsel for OP Insurance Company referred the case law titled as “ Gurnam Singh Versus New India Assurance Co. Ltd. and others” Revision Petition No. 1068 of 2015 decided on 11.01.2016 (NC) - Consumer-Theft of Vehicle-Delay in intimation-Complainant’s claim was rejected by the Insurance Company on account of delayed intimation of theft of vehicle to it - However, impugned order allowed Complainant’s Complaint-Hence, present petition- Whether complainant had contravened terms and conditions of policy by not lodging FIR and not intimating Insurance company immediately after occurrence- Held, loss or damage, due to theft of vehicle, is required to be reported to Insurance Company immediately after theft is detected-Complainant was under contractual obligation to intimate theft of vehicle to Insurance Company immediately after said theft came to his knowledge-Mere intimating police or lodging FIR does not amount to sufficient compliance with terms and conditions of Insurance policy-Substantial delay in intimating theft  of vehicle to Insurance Company-Insurance Company was entitled to repudiate claim on account of default on part of Complainant-Petition allowed and lastly prayed for dismissal of the complaint.

11.                   After hearing both the parties at length, we are of the considered view that claim of the complainant has been wrongly repudiated in Toto by the OP Insurance Company. No doubt, in the terms and condition No.1 of insurance policy it has been incorporated that, “Notice shall be given in writing to insurance company immediately upon the occurrence of any accident or loss or damages”. So, the complainant violated the terms and condition of the insurance policy but despite this, we are of the considered view that the complainant should not be denied his claim in it’s entirely. It is, therefore, quite just and fair that the claim is in respect of loss of motor-cycle must be settled on the basis of the guidelines of non-standard settlement. In this regard, reliance can be made to authorities reported as United India Insurance Co. Ltd. Vs. Gian Singh reported in II(2006) CPJ page 83 (NC), wherein it has been held by Hon’ble National Commission that in case of violation of condition of policy as to nature of use of the vehicle, the claim ought to be settled on non-standard basis. In case titled as National Insurance Co. Ltd. Vs. Nitin Khandelwal reported in IV(2008) CPJ page 1 (SC). In para No.13 of judgment, it has been held by the Hon’ble Supreme Court that the appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for 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. In this case, the Hon’ble State Commission allowed 75% of the claim on non-standard basis, which was upheld upto the Hon’ble Supreme Court. The said authorities are fully applicable to the present case. So, we are of the considered view that the Op has wrongly repudiated the claim of complainant in toto which amounts to deficiency in service on the part of Op. The law referred by the counsel for the op Insurance Company is not disputed but the facts of the present complaint are different to facts of that case. 

11.                   Resultantly, in view of above discussion, we allow the complaint and direct the Op to settle the claim of complainant on non-standard basis i.e. 75% of the insured value Rs. 28000/- i.e. Rs.21, 000/- alongwith interest @ 7% p.a. from the date of filing of this complaint till its realization, subject to submission of subrogation letter and indemnity bond and other necessary documents which are required to transfer the ownership of Motor Cycle in question in the name of OP Insurance Company. Further the Op Insurance Company is also directed to pay Rs.2000/- as compensation as well as litigation expenses. Let the order be complied within 30 days from the date of communication of this order to the parties, failing which, the complainant shall be entitled to take action as per law. A copy of this order be sent to both the parties free of cost. File be consigned to the record room after due compliance.

Announced: 10.10.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                          DCDRF, Yamuna Nagar.

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER