DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
C. C. No. : 13 of 2019
Date of Institution: 15.01.2019
Date of Decision : 13.11.2019
- Shanti Devi wife of Ghaniya Lal.
- Parminder Kaur wife of late Sanjiv Kumar son of Ghaniya Lal.
- Sahil Arora minor son of Sanjiv Kumar son of Ghaniya Lal.
- Nancy Arora minor daughter of Sanjiv Kumar son of Ghaniya Lal.
Both the minors/complainant no. 3 and 4 through their real mother Parminder Kaur complainant no.2 being next friend and natural guardian,
All residents of Opposite Church, Sunder Nagar, Faridkot.
...Complainant
Versus
New India Assurance Company through its Branch Manager, Baba Farid Market, Opposite Kotwali, Faridkot.
....OP
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. Ajit Aggarwal, President,
Smt Param Pal Kaur, Member.
Present: Sh Manjinder Singh Sodhi, Ld Counsel for complainant,
Sh Atul Gupta, Ld Counsel for OP.
ORDER
(Ajit Aggarwal, President)
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Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim for his stolen truck and for further directing OP to pay Rs. On lac as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.22,000/-.
2 Briefly stated, the case of the complainant is that Sanjiv Kumar son of complainant no.1 was owner of truck bearing no. RJ 13 G – 6981 and his truck was insured with OP against policy no.36070131110100005850 for the period from 24.01.2012 to 23.01.2013 and during the subsistence of insurance policy in question, on 9/10-01-2013, his truck was stolen by some unknown person. Due intimation regarding said theft was given to OP and FIR to this effect was also got recorded by son of complainant with Police. Son of complainant lodged claim with OP, but despite repeated requests, OP did not clear the claim. Opposite Party neither repudiated the claim no approved the same. Meanwhile, son of complainant also died on 8.07.2013 leaving behind his legal heirs complainants. It is submitted that said truck was the only source of income for complainants and after the death of son of complainant, there is no other bread winner in their family. Complainants approached OP several times and made repeated requests to them to clear the claim on account of theft of truck of son of complainant, but they have not done anything needful. Even issuance of legal notice by complainants bore no fruit. Act of non payment of
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insurance claim by Opposite Party amounts to deficiency in service on their part and has caused harassment and mental agony to complainants. Ld counsel for complainant has prayed for directions to OP to pay compensation and litigation expenses besides the main relief. Hence, the present complaint.
3 The counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.01.2019, complaint was admitted and notice was ordered to be issued to the opposite party.
4 On receipt of the notice, OP filed written statement taking preliminary objections that there is no deficiency in service on the part of OP. It is averred that complaint involves complicated questions of law and facts requiring lengthy evidence to prove the present case, which is not permissible in the summary procedure of this Forum. Complainant has breached the terms and conditions of the policy and has not come to the Forum with clean hands and has concealed the material facts from this Forum that claim of complainant was disclosed by answering OP due to non completion of formalities. Despite repeated reminders dated 15.04.2013, 24.06.2013 and 1.08.2013, complainant did not submit the requisite documents for processing the claim and therefore, his claim was rejected as no claim on 28.09.2013. Even he did not give the information regarding said theft incident to them in time. On receipt of delayed information from
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complainant, OP appointed Investigator, who conducted investigation and got recorded the statements of insured, driver of the vehicle and some other persons and driver of said vehicle gave statement before the Investigator that after working hours, truck of complainant was used to be parked in the union alongwith other trucks as he and owner of the said truck had no parking place at their places and on 9.01.2013 after unloading the truck at about 5-6 p.m., at the time of parking the vehicle, he left the ignition key in the cabin of truck and locked the cabin and all this act of driver of truck in grossly negligent that enabled thieves to take away the vehicle and thus, driver himself contributed the said theft. However, on merits, Ld counsel for Opposite Party have denied all the allegations of complainant being wrong and incorrect and reiterated that there is no deficiency in service on their part and prayed for dismissal of complaint with costs. All the other allegations levelled by complainant are denied being wrong and incorrect. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.
5 Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant Ex.C-25, and documents Ex C-1 to C-24 and then, closed his evidence.
6 In order to rebut the evidence of the complainant, the ld Counsel for OP tendered in evidence affidavit of
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Deen Dyal Aggarwal as Ex OP-1 and documents Ex OP-2 to 3 and then, closed the evidence.
7 We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.
8 From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainants is that insured truck of deceased son of complainant no.1 was stolen during the validity of insurance period and as per rules he gave due intimation regarding this incident to OP and also got recorded FIR no. 17 to this effect on 10.01.2013 Ex C-2, but OP have illegally and unlawfully repudiated the insurance claim on the ground that stolen truck was negligently parked by driver of truck leaving the ignition key inside the cabin thereby facilitating the commitment of theft. Action of OPs in not making payment of genuine insurance claim on account of theft of said truck, amounts to deficiency in service. In reply, Ops stressed mainly on the point that despite issuance of repeated reminders dated 15.04.2013, 24.06.2013 and 1.08.2013, complainant did not submit the requisite documents for processing the claim. He also did not give the information regarding said theft incident to them in time. As per OP driver of said truck left the ignition keys of truck inside its cabin and negligently
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parked the same in truck union. They have rightly repudiated the claim of complainant and there is no deficiency in service on their part.
9 The first objection of Ops is that the alleged theft occurred on 9.01.2013, but the complainant did not report the matter with the Police or OPs immediately, rather he first time intimated the Police on 23.01.2013, which is a violation of terms and conditions of the Insurance Policy. On it, the ld counsel for complainant argued that complainant immediately informed regarding the incident of theft to Police on 10.01.2013 and also reported the theft verbally to Sh Rajan, Divisional Officer, Faridkot /OP on 10.01.2013 and in writing on receipt of copy of FIR on 23.01.2013 and this fact is clearly mentioned in Investigation Report dated 18.03.2013 given by Investigator Ex C-19. Moreover, from the statement of Nageshwar Tanti driver of truck it is clear that it is the usual practice of all truck drivers to ply the truck in truck union and they all leave the ignition keys of trucks insider its cabin. Statement of Devinder Singh Head of Truck Union, Faridkot further clears the point that truck of deceased son of complainant number one was used to be parked in truck union and it was stolen on 9-10.01.2013 and he himself alongwith Sanjiv Kumar/deceased son of complainant approached Police and got reported the theft incident to them and Police also visited the Truck Union to conduct investigation regarding stolen truck of Sanjiv Kumar. Copy of FIR No.17 dated 22.01.2013, clarifies the point that complainant reported the matter regarding incident of theft to them within 13 hours vide General Diary
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Reference Entry No.21 to them on 8.03.2013, Police gave report that truck was untraceable and was not found by Police. It is further argued that only duty of complainant is to inform the Police regarding incident and it is on the Police to register the FIR of complainant and complainant has no control on it whether Police registered the FIR on same day or after investigation. He has put reliance on citation 2008 (3) CPJ titled as Ridhi Gupta Vs National Insurance Company Ltd wherein State Consumer Disputes Redressal Commission, Delhi has held that in our view FIR is not a requirement for adjudicating the insurance claim. Whenever vehicle or any cash or goods are stolen, insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police only is concerned whether the theft has taken place or not. Once the report is lodged with the Police may in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint Surveyor for the purpose of assessing the loss. If the Police find that a person has lodged a false report, he can be prosecuted for the offence punishable under Section 182 of the IPC but in any way the Insurance Company cannot indulge in such exercise and enter into such and arena that does not belong to it. The similar view is taken by Hon’ble State Commission, Haryana in 1st Appeal No. 754/2010 decided on 18.10.2012 titled as Branch Manager United India Insurance Company Ltd Vs Smt Sandhya
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Rani. Untraced Report under Section 173 of CRPC in respect of Case No.17 Dated 20.01.2013 under section 379 of IPC given by Police Station, Faridkot further clarifies that truck of son of complainant was not found. ExC-3 is copy of Death Certificate of son of complainant that leaves no doubt that Sanjiv Kumar owner of said truck has since been died. Legal notice dated 8.11.2018 issued by complainants to OP reiterates the grievance of complainant and reveals that despite repeated requests, OP Insurance Company has not cleared the claim of complainant on false grounds.
10 It is observed that complainant immediately gave information to Police as well as Ops and submitted all the documents for processing the claim to them. Ops are now, intentionally denying this fact only to avoid the liability of indemnifying the complainant regarding his stolen article. If the complainant immediately reported the matter with Police, then, there is no reason for him to not to inform Ops regarding the incident and to claim his genuine insurance claim. Now, the OP are intentionally denying regarding it. He further argued that if in any case, it is presumed that complainant did not inform Ops regarding incident on time, then in that case also, the OP cannot deny payment of insurance claim to complainant. On this, he put reliance on citation 2016(1) CLT 539 titled as Baja Allianz General Insurance Company Ltd Vs Abdul Sattar and anr wherein our Hon’ble National Commission has observed that in order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition
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no.1 of insurance policy, which is reproduced as under”1. 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 thereafter, the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and process or copy thereof shall be forwarded to Company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the policy and co-operate with the Company in securing the conviction of the offender”. On reading the above, it is clear that in the event of theft of the vehicle, only requirement on the part of insured was to intimate the policy immediately and co-operate in securing the conviction of offender. He submitted that as per the observation of Hon’ble National Commission in case of theft, the only requirement on the part of complainant was to intimate the Police immediately and to cooperate with Police in securing the conviction of the offender and complainant duly complied with this condition and immediately reported the matter with Police. Second objection raised by OP that driver of said truck left the ignition key inside the cabin of truck has no legs to stand upon in the light of statements given by driver and Head of Truck Union from which it is clear that it is the usual practice of
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all truck drivers to ply the their trucks in truck union and it is their common practice to leave the ignition key for engine of truck inside the cabin of truck and there is no negligence on the part of driver. Therefore, Insurance Company cannot repudiate the claim of complainant. Reasons forwarded by OP for not allowing the claim of complainant are not plausible and their action in denying payment of claim on baseless grounds is not appropriate and genuine, which amounts to deficiency in service on their part.
12 From the above discussion and case law produced by the complainant, we are of considered opinion that act of Ops in denying the payment of genuine insurance claim amounts to deficiency in service and trade mal practice on their part. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed. OP is directed to pay the complainant Rs.5,00,000/-i.e insured value of lost vehicle subject to transfer of Registration Certificate of the vehicle in question in the name of OP and also to execute other required documents for payment of claim by complainant in favour of opposite party within 30 days from the date of receipt of these documents in their favour, failing which OP shall be liable to pay interest at the rate of 9% per anum from the date of filing the present complaint till final realization. OP is further directed to pay Rs.5000/- to complainant as consolidated compensation for harassment and litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order failing which
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complainants shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.
Announced in Open Forum
Dated : 13.11.2019
(Param Pal Kaur) (Ajit Aggarwal)
Member President
