DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Nirmal Singh son of Joginder Singh, resident of H.No. 225, Village Badheri, Sector 41-D, Chandigarh.

                                                 ---Complainant.

V E R S U S

[1]   New India Assurance Co. Ltd., Managing Director, Regd. and H.O. 24, Whites Road, Chennai – 600014.

[2]       Regional Office, New India Assurance Co. Ltd., SCO No. 36-37, Sector 17-A, Chandigarh, through its Regional Manager.

[3]   New India Assurance Co. Ltd., SCO No. 804, NAC Manimajra, Chandigarh, through its Senior Divisional Manager.

[4]   M/s Berkley Insurance Brokers through its Representative Mr. Sandeep Chopra, Plot No. 40, Industrial Area, Phase-2, Ram Darbar, Chandigarh.

---Opposite Parties.

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:  Sh. H.S. Dhindsa, Advocate for the Complainant.

                                Sh. Sandeep Jasuja, Advocate for the Opposite Party No.4.

                                Sh. Ravi Kumar, Advocate for the Opposite Parties No1, 2 & 3.

PER JASWINDER SINGH SIDHU, MEMBER

1]           Complainant has filed the present complaint against the Opposite Parties, on the grounds that the Complainant was the owner of Innova vehicle bearing Reg. No. CH-02-2545 purchased on 19.12.2007 from M/s Pioneer Toyota. The vehicle was under repair and on completion of this repair the vehicle was insured after inspection on 5.1.2009 at 10:30 AM in the Motor Market, Sector 28-A, Chandigarh and at that point of time the cover note was issued by the office of Berkeley Insurance Brokers through Sandeep Chopra Opposite Party No.4 on the same day i.e. 5.1.2009 at 10:30 AM at their address Plot No. 40, Indl. Area, Ph-II, Ram Darbar, Chandigarh. The premium was paid in cash and on receipt of premium a cover note was issued to the Complainant.

              The vehicle in question was unfortunately stolen in the intervening night of 5/6.1.2009 and in this regard an F.I.R. was got lodged by the Complainant with Police Station Sector 39, Chandigarh. The copy of insurance cover note, the registration of the vehicle and the FIR are annexed as Annexure C-1, C-2 and C-3, respectively. 

              As the vehicle was comprehensively insured the Complainant submitted his claim with Opposite Party No.3 by filling the motor claim form and submitting it at their office. All the requisite documents along with Invoice, registration, three original keys along with photocopies of serial number of ignition keys, H.P. Agreement with TATA Capital Limited, as well as the income tax returns of the years 2006 to 2009 were also submitted on 20.02.2009 as demanded by the Investigator Sh. K.N.S.Sodhi. The Complainant is aggrieved due to the delay in processing of his genuine claim of the loss suffered by him. A legal notice dated 6.1.2010 was served upon the Opposite Parties through which Opposite Parties were called upon to reimburse the claim within 15 days from its receipt. In response to the said notice, the Opposite Parties demanded the untraced report of the vehicle in question. The copy of the legal notice and the response of the Opposite Parties demanding the untraced report are Annexure C-4 and C-5 respectively.  The Complainant thereafter got the untraced report issued by the court of ld. JMIC, Chandigarh dated 10.12.2009 and the same was submitted to the Opposite Parties along with forwarding letter dated 7.4.2010 and the same are annexed as Annexure C-6 and C-7 respectively.

              The Complainant after having completed all the formalities as required by the Opposite Parties claims that the Opposite Parties have failed to do the needful and release the money due towards him. Thus alleging deficiency in service on their part, prays for the direction of the Forum for the release of his genuine claim amount along with interest at the rate of 7% p.a. for the period of delay till it is actually paid.

              The Complainant further seeks compensation of Rs.50,000/- for the undue delay and harassment and Rs.15000/- as cost of litigation. 

2]           On notice, Opposite Parties No.1 to 3 have filed their joint reply/ version contesting the claim of the Complainant and has taken preliminary objections to the effect that the Complainant being a Transporter by profession on his own admission and was using the vehicle in question as Taxi hence he does not fall in the definition of Consumer as per the Consumer Protection Act, 1986 hence the present complaint is not maintainable against the answering Opposite Parties. Furthermore, a mention of some sequence of events which had happened in the present case without elaborating upon them, are also cited as reason for the dismissal of this complaint.

              On merits, Opposite Parties No.1 to 3 have filed their para wise reply to all the averments of the present complaint stating that the ownership of the vehicle is a matter of record and does not require any reply. The fact that the vehicle was under repair on the date of its inspection for getting the insurance done is refuted on the ground that the records of Globe Automobiles Pvt. Ltd., B-51, Industrial Area, Phase-VI, Mohali where the vehicle in question was given for repair on 4.11.2008 was actually delivered to the Complainant after completion of repairs on 2.1.2009. The copy of said register maintained by Globe Automobiles is annexed at Annexure R-1. It is also alleged that the Complainant has actually stage managed the entire sequence of events from the point of getting insurance till the reporting of its theft. The answering Opposite Parties has also alleged that immediately after the completion of repair the vehicle was being used without the insurance cover and this fact has not been disclosed by the Complainant. It is also cited that Annexure C-1 is not the cover note, but is actually the claim form which was filled by the Complainant and submitted on 20.1.2009. The contents of para 3 are also admitted to be correct that during investigations all the documents sought from the Complainant were provided to the Investigator Sh. K.N.S. Sodhi. It is mentioned that the Complainant was not regular in getting his vehicle insured as the previous policy had expired on 18.12.2008 whereas the insurance subscribed for was issued on 5.1.2009 after a gap of three days since the vehicle had left the workshop, after repairs. It is also alleged that the Complainant manipulated the meter reading of the vehicle as it is projected to be 10431 Kms on 5.1.2009 whereas it was 12837 as per the Surveyor Report (Annexure R-3) which was prepared at the time of happening of the accident on 30.10.2008 on account of which the vehicle was under repair and a claim for the same was lodged under the previous Policy.

              The answering Opposite Parties in order to unearth the truth behind the difference in meter readings had issued a letter dated 9.3.2009 to Berkeley Finance by the Investigator seeking explanation of the said manipulation. A copy of the letter is annexed at Annexure R-4. On account of this suspicion the answering Opposite Parties had demanded the untraceable report which the Complainant submitted but there is no answer from the side of the Complainant with regard to the variation in the Speedo meter reading. Rest contents of Para No. 6 & 7 are denied and Para No. 8 is not replied being legal. The answering Opposite Parties pray for the dismissal of the present complaint on the above mentioned facts and circumstances.

3]           Opposite Party No.4 too have taken preliminary objections with regard to the present complaint being false, frivolous, vexatious and has been filed with ulterior motive of taking some undue benefit by humiliating, harassing and pressurizing the answering Opposite Party and as such, it deserves to be dismissed by imposing exemplary costs. 

              On merits, Opposite Party No. 4 has admitted the contents of para no. 1 of the complaint. However, in reply to para no. 2 Opposite Party No. 4 admits to the averments to the extent that the answering Opposite Party had inspected the vehicle when the request for issuance of fresh insurance policy came up for consideration and it was mandatory that the vehicle should be physically inspected because there was a gap of time period after the lapse of previous policy. In reply to para 3 of the complaint the answering Opposite Party claims that it needs not answer, reason being that it is upto Opposite Parties No.1 to 3 to answer the same as it was their  responsibility to settle or repudiate the claim of the Complainant. The averments of para 4 are denied for want of knowledge and giving the reason that it cannot be blamed for anything which is beyond its ambit. In reply to para 5 the Opposite Party admits to the receipt of the legal notice but because of the non-processing of the claim of the Complainant by the insurance company the answering Opposite Party cannot be held liable. At the same time, the answering Opposite Party is merely an Agent and has no authority to process the claim hence, no allegation of deficiency in service or unfair trade practice can be leveled against it. In reply to the next para it is mentioned that the answering Opposite Party is also not instrumental in the delay of the settlement of the claim of the Complainant which is addressed to Opposite Parties No. 1 to 3. Hence on the aforesaid reasons, the Opposite Party No. 4 prays for the dismissal of the present complaint against it.

4]           Parties led their respective evidences.

5]           Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

6]           In the present complaint the facts with regard to its ownership as well as the subscription of insurance policy by the Complainant from Opposite Party No. 3 is not disputed as the same is evident from the copy of the cover note which is annexed at Annexure R-4 Pg.10 (colly) and bears the NO. CHD 2K3 No. 0471610 wherein an amount of Rs.20,035/- has been mentioned as collected for the issuance of insurance cover of the vehicle in question and the IDV value of the vehicle is shown as Rs.6.50 lacs. The Opposite Parties No.1 to 3 have also admitted to the fact that the theft of the vehicle in question has taken place on the intervening night of 5/6.1.2009 and the Complainant had lodged F.I.R. with Sector 39 Police Station. The copy of the F.I.R. is annexed at Annex.C-3. On Page 2 of the F.I.R. it is further mentioned that there is no delay in filing the F.I.R.  Thereafter, a claim was lodged with Opposite Parties No.1 to 3 on 20.01.2009 by filling by motor claim form which is annexed at Annexure C-1, though the Complainant has mentioned the same document  as cover note in order to impress upon the fact about the effective period of insurance. The Opposite Party had initiated an investigation on its own as there was a close proximity between the dates of issuance of policy with the happening of the theft of the vehicle, it is evident from Annexure R-4, which is a communication of one Sh. K.N.S. Sodhi, Investigator for the Investigating Agency, written to Berkeley Finance, seeking few clarifications about the physical inspection of the vehicle done at the time of issuance of the cover note and the same is dated 9.3.2009. Hence it is evident  that the Opposite Parties No. 1 to 3 initiated the process the claim of the Complainant  but slept over the matter for more than NINE MONTHS and were shaken out of their slumber by serving a legal notice  dated 6.1.2010 (Annex.C-4), which was replied through their communication dated 12.1.2010.

7]           The Complainant has clearly mentioned that in response to the letter dated 12.1.2010, he  submitted the Untraceable Report dated 10.12.2009 issued under the seal of Ld. J.M.I.C. Chandigarh along with a letter dated 07.04.2010 requesting the Opposite Party no.1 to sanction the claim within two weeks from the receipt of this letter.  The counsel for the Complainant while submitting the untraceable report dated 10.12.2009 had mentioned in no uncertain terms that the failure on the part of Opposite Parties No. 1 to 3 beyond this stipulated period of two weeks would compel his client to approach the competent court.  From the entire set of documents as well as from the reply of Opposite Parties No. 1 to 3 the answering Opposite Parties No. 1 to 3 have failed to mention as to what is the status of the claim of the Complainant and reasons for its delay. The Complainant after having waited for 02 months filed the present complaint alleging deficiency in service on the part of the Opposite Parties.  

8]           The Opposite Parties No. 1 to 3 while contesting the claim of the Complainant has failed to bring on record their communication dated 12.01.2009 wherein they had demanded the untraceable report from the Complainant. While addressing this issue they have categorically stated in para 5 of their reply that the Complainant was asked to furnish untraceable report which he ultimately did but failed to give response/ explanation with regard to lower mileage on the Speedo meter i.e. 10431 Kms on 5.1.2009 and that of 12837 Kms on 30.10.2008. The same is also mentioned at Para 5 of the affidavit of Sh. Raj Kapur, Sr. Div. Manager of Opposite Party No.3. Hence we feel that the Opposite Parties No.1 to 3 have actually not processed the claim of the Complainant in the absence of untraceable report which was duly submitted by the Complainant on 7.4.2010. It was after waiting for another Two Months that the Complainant was compelled to knock at the door of this Forum in order to seek Redressal of his grievances against the Opposite Parties. It is surprising that the Opposite Parties No. 1 to 3 prefers to sleep over the matter endlessly and compels its unsuspecting customers to make numerous visits to its office. Though it is a prerogative of the Opposite Parties No.1 to 3 to settle the claim of the Complainant as per the law laid down but at the same time they are responsible to do the needful within stipulated time frame which is reasonably enough to complete the process.  Hence in the present circumstances the Opposite Parties No. 1-3 are deficient in giving prompt services and it is a settled law that a delayed service is a deficiency in service.  

9]           The Opposite Parties No.1 to 3 though had engaged the investigator in order to fathom the circumstances at the time of issuance of the policy but they have failed to bring on record the findings of such investigation. The issue of difference of the Speedo meter reading on two different dates as mentioned in Para 5 of their version which according to them was to be answered by the Complainant is purely unreasonable. We find it difficult to understand as to how the Complainant was answerable about the meter reading which was noted down or photographed by the Agent of Opposite Party No.4. It is also important to mention that Opposite Parties have failed to bring on record the communication through which such information was demanded from the Complainant. We feel that the Opposite Parties by doing so have actually failed to adhere to the provisions of I.R.D.A. (Protection of Policyholders Interests) Regulations 2002, Regulation 10(1)(h) which speaks as follows “An insurer carrying on life or general business, as the case may be, shall at all times, respond within 10 DAYS of the receipt of any communication from its policyholders in all matters, such as: guidance on the procedure for registering a claim and early settlement thereof.”  Hence in the light of this provision Opposite Parties 1-3 are deficient in services.       

10]          The Opposite Parties in their reply have alleged manipulation of documents and concealment of facts on the part of the Complainant but there is neither any document nor a mention of any specific act which could prove these two allegations against the Complainant. The Opposite Parties No.1 to 3 in their para 2 on merits have claimed that the claim for the loss was submitted on 20.1.2009 i.e. after 15 days of alleged incidence of theft, thereby creating an element of suspicion in their mind about the credentials of the Complainant. We feel that enough time has passed since the lodging of the claim with the Opposite Parties till the filing of the present complaint against them. It is difficult to believe as to why no definite decision has been taken about this claim even after the passage of two months of the submission of untraceable report. The Opposite Party has failed to come up with a definite answer to this question, even after a lapse of 1 ½ year since the pendency of the present complaint with this Forum. Though the Opposite Party No.4 had availed an opportunity of bringing on record some additional documents by moving an application dated 21.7.2011 which was allowed by the order this Forum vide order dated 21.11.2011. These documents submitted by Opposite Party No.4 has established the fact that it had done its job with due diligence. Annexure R-4/2 is a copy of Register maintained by it, wherein the entry of cover note no 471610 is mentioned against the date 5.1.2009 and also shows an amount of Rs.20,035/- collected by them. In the present circumstances the deficiency in service on the part of the Opposite Parties No.1 to 3 is writ large and we feel that the Complainant has a genuine grievance against them. The objection of a delay of filing the claim form after a gap of 15 days has not been objected to when the claim form was filed, and if the Opposite Parties No.1 to 3 have actually not taken the cognizance of such an act at the very onset, they cannot be allowed to raise this issue at this stage and that too in a situation when there is no mention about it in any of their communications to the Complainant. In the present case, it is an out right case of non settlement of claim of the complainant, even after all the necessary documents as demanded by the Opposite Party have been submitted with them way back on 7.4.2010. There after sufficient time has lapsed. The Opposite Party has failed to explain the reasons behind this delay. As such, the ratio of the judgment titled Kishan Swaroop Shivhare Vs. Oriental Insurance Co. Ltd., I (2000) CPJ 78 (M.P)  is applicable as it has been observed that the non settlement of claim of an insured car- stolen- amounts to deficiency in service and the complainant is entitled to the value of the stolen vehicle along with interest. Apart from this, as per the judgment Ridhi Gupta Vs. National Insurance Co. Ltd., III (2008) CPJ 459, wherein it is clearly mentioned that in case of Theft, information to the police in any form including DD Report is a sufficient requirement and once the report with the police in any form is made, the insurance company is barred from appointing any investigator. Hence the investigation initiated by them is nothing but a farce.

11]          In the light of the above observations, we feel that the present complaint succeeds against the opposite parties 1-3 and we direct them  to release the Insured Declared Value of the vehicle in question to the complainant along with interest @9% per annum from the date of institution of the present complaint i.e.31.05.2010 till it is actually paid. The Complainant is also awarded costs of litigation to the tune of Rs.10,000/-.

12]          The above said order shall be complied within 30 days of its receipt; thereafter, the Opposite Parties shall be liable for an interest @18% per annum on the aforesaid amount till it is paid, except for the cost of litigation.

13]          Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

18^th January, 2012.                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER