Delhi

North East

CC/197/2016

GIRISH KUMAR - Complainant(s)

Versus

NEW INDIA ASSURENCE CO.LTD. - Opp.Party(s)

04 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 197/16

 

In the matter of:

 

	Girish Kumar S/o Shri Ram Charan R/o 1/ J.S. Type-1 Mental Hospital, Dilshad Garden- Delhi-95	Complainant
	Versus
	New India Assurance Co. Ltd 10th Floor, core 1, Scope Minar, Laxmi Nagar, Delhi-110092. Also at: New India Assurance Co. Ltd 234/4767, Pratap Street, Ansari Road, Darya ganj Delhi-110002.	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

28.07.2016 25.05.2018 04.06.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had taken an insurance policy bearing no. 32320231130100005419 with respect to his motorcycle Bajaj Pulsar registration no. DL-7SBS- 5258 with the OP w.e.f. 02.11.2013 to 01.11.2014 for an IDV of Rs. 83,405/- on payment of Rs. 1789/- as premium paid by the complainant to the OP. The said bike however got stolen on 27.06.2014 at around 3:45- 04:00 PM near  Reliance fresh, New Seemapuri Delhi. The complainant lodged an FIR No. 914/2014 under section 379 IPC with PS Seemapuri, Delhi on 30.06.2014 against prime suspect one Manish Kumar whom he had got stationed near the said bike when the complainant had gone inside the market to buy some items. The complainant informed the OP on 04.07.2014 vide claim intimation letter duly filled and the same was received by the OP on the same date. However, the OP, vide repudiation letter dated 27.04.2016, repudiated the claim of the complainant on grounds of violation of condition no.1 (delayed intimation) of occurrence of loss and condition no.5 (insured not taken reasonable care) and stated that since the complainant had failed to inform the OP immediately after loss and had also left the key in the vehicle resulting in its loss, the complainant had violated fundamental breach in the terms of policy and thereby repudiating his claim. Therefore the complainant, aggrieved due to the repudiation of claim was constrained to file the present complaint before this Forum for issuance of directions for OP to pay Rs. 1,00,000/- to the complainant on grounds of deficiency of service inclusive of litigation charges.

Complainant has annexed copy of purchase documents of the bike for the period November 2013 purchased by the complainant from Fair Deal Bajaj, copy of policy schedule cum certificate of insurance with respect to two wheeler package policy taken by complainant from OP, copy of FIR no. 914/14 dated 30.06.2014, copy of claim intimation letter/motor vehicle claim form dated 04.07.2014 submitted by the complainant to the OP under receiving of OP, repudiation by OP dated 27.04.2016, copy of letter dated 07.07.2014 from Managing Partner N & B Associates asking for requisite documents and statements of the complainant and related persons dated 05.08.2014.

2. Notice was issued to the OP which entered appearance and filed its written statement on 07.10.2016. The OP while admitting the insurance of the said vehicle of the complainant with the OP, urged that the complainant had violated the terms and conditions of the policy in as much as he failed to intimate the OP timely about the theft which took place 27.06.2014 whereas the intimation about the theft was given vide registration of FIR on 30.06.2014 and registration of claim / intimation of theft to OP on 04.07.2014 and due to this delayed intimation, the OP was deprived of its legitimate right to get enquiry conducted into the alleged theft of the vehicle and make an endeavor to recover the same. As such the complainant had violated condition no.1 of the policy which stipulated immediate notice in writing to the insurance company upon the occurrence of any accident, loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. In case of theft of criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to police and cooperate with the company in securing conviction of the offender. The OP stated that there was inordinate delay on the part of the complainant in intimation to police as well as to OP and relied upon the judgment of Hon’ble NCDRC in NIC Vs Charanjeet Singh in FA No. 1439/2007 in which the Hon’ble NCDRC held that huge delay in filing FIR and intimation to the insurance company would constitute fundamental breach of condition of insurance policy justifying repudiation of claim. Further the OP relied upon the judgment of Hon’ble NCDRC on the issue of delay in intimation in the case of Rang Lal (deceased) Vs Manager UIIC in Revision Petition no. 1362/2011 in which the Hon’ble NCDRC had held that as per the condition of the insurance policy, the theft has to be intimated to the insurance company “immediately” as any delay could be fatal for preventing the insurance company from carrying out investigation as to the truth of the alleged theft. The OP further placed reliance upon the judgment of the Hon’ble Apex Court in the case of Oriental Insurance Company Vs Parvesh Chander Chadha in Civil Appeal no. 6739/2010 in which the Hon’ble Apex Court held the view that not informing insurance company immediately after the theft deprives the insurance company of its legitimate rights to get an enquiry conducted into the matter. The OP further took the plea that the said vehicle in question was duly hypothecated with Pledgee Home Credit India Finance Private Limited (HCIFPL) and as per IMT clause 7, the claim amount was to be paid to the pledgee bank and not to the insured in case of total loss but the complainant had not made the said financer necessary party to the present complaint in which regard the OP has annexed letter dated 27.11.2014 from Home Credit to OP stating that the financer shall have sole right to receive insurance claim from the OP in case of loss/theft of hypothecated vehicle. OP further took the defence that the complainant had violated condition no.5 of the T&C of the policy and was negligent to safeguard the vehicle and failed to produce any of the original keys of the motorcycle and gave instead two duplicate keys stating that he had got the locked changed and had lost both the original keys in early June 2014 which the OP has alleged to be highly improbable that the complainant lost both the original keys within six months of its purchase (02.11.2013 till date of theft i.e. 27.06.2011) and there was no intimation to the police about loss of any of the keys. The OP further took the defence that the complainant failed to submit any proof of change of lock. Lastly the OP relied upon the investigator report in which the investigator had submitted that the complainant had not been able to give realistic firm proof for the keys of the stolen vehicle bearing registration no. DL-7SBS-5258 Bajaj Pulsar which was stolen on 27.06.2014 between 3:45-04:00 PM from Reliance Fresh, New Seemapuri. The OP therefore alleged that the complainant had violated condition no.5 of the policy which stipulated that the insured had to take all reasonable steps to safeguard the vehicle from loss or damage however the complainant left the key in the motorcycle or gave it to one Manish, whom the complainant has alleged to have stolen the said motorcycle and as per the investigator, the said Manish Sharma was known to the son of the complainant. The OP also relied upon the clause no. 4 & 8 of Indian Motor Tariff 2002 which governed insured taken reasonable steps to safeguard the vehicle from loss or damage and due observance and fulfillment of terms and condition and endorsement of the policy and prayed for dismissal of the complainant.
3. Rejoinder was filed by the complainant in rebuttal to the written statement of the OP in which the complainant submitted that the OP cannot take shelter of the alleged condition of the policy as per its situational suitability to repudiate the genuine and legitimate claim of the complainant. The complainant further submitted that the concerned officials of OP had agreed to settle the claim of the complainant initially before filing of the present complaint to avoid any litigation and the complainant was asked to give an affidavit but later the OP back tracked without assigning any reason for refusal to honour its commitment. The complainant further denied having violated any terms and conditions of the policy and stated that he had immediately orally informed officially the OP about the theft of the vehicle on 28.06.2014 and it was the OP which had refused to receive his written complaint and that there was no delay of seven days as alleged by the OP on the part of the complainant in intimation or delay in registration of FIR. Further the complainant submitted that the Home Credit India Financer Private Limited (HCIFPL) was not a necessary party since the vehicle was insured with the OP only and the complainant summarily denied the parawise defence taken by the OP in his written statement.          
4. Evidence by way of affidavit was filed by the complainant reiterating the grievance in the complaint and exhibited the documents viz the insurance cover note, RC of the bike, FIR, loss/ damaged intimation letter dated 04.07.2014, declaration letter dated nil and repudiation letter dated 27.04.2016 therewith.
5. Evidence by way of affidavit was filed on behalf of the OP exhibiting the policy schedule with terms and conditions, repudiation letter dated 27.04.2016, claim intimation letter dated 04.07.2014, letter dated 27.11.2014 from HCIFPL to OP regarding sole right to receive insurance claim from OP on the loss/theft of the hypothecated vehicle bearing registration no DL-7SBS-5258, copy of bill of lock submitted by the complainant dated 05.06.2014 and investigation report by N & B Associates report dated 17.11.2014. The OP also cited the case laws relied upon and the policy terms and conditions and IMT clauses allegedly violated by the complainant in the present case making grounds for justification of repudiation of claim.
6. Written arguments were filed by the complainant as well as the OP. In the written arguments filed by the complainant, the complainant delineated his grievance as mentioned in the complaint and his evidence and justified the grounds for filing the complaint on wrongful repudiation of his genuine claim by the OP without any cogent reason by wrongly alleging delay in intimation and lodging FIR to the prejudice of rights and contentions of the complainant under the shelter of the terms and conditions of the policy. The complainant relied upon the judgment of Hon’ble NCDRC in the case of Veena Devi vs National Insurance Company II (2012) CPJ 466(NC), V.V. Rama Raju Vs United India Insurance Co. Ltd I (2012) CPJ 279 (NC) and Vijay Raj Vs New India Assurance III (2012) CPJ 726 (NC).

In the written arguments filed by OP the OP reiterated its defence of repudiation of claim on grounds of violation of terms and condition no.1 of the insurance policy by the complainant by stating that there was inordinate delay of seven days in intimation to the OP in as much as the alleged theft took place on 27.06.2014 and the OP was intimated on submission of claim form on 04.07.2014 which deprived the OP of its legitimate right to conduct enquiry in to the alleged theft of the vehicle. The OP placed on record the judgments of NIC Vs Charanjeet Singh in FA no. 1439/2007 passed by Hon’ble NCDRC in which the Hon’ble NCDRC had held that a huge delay of three months in intimation to the insurance company by the insured about the loss of vehicle would construe fundamental breach of condition of insurance policy and thereby justifying the repudiation of claim by insurance company. The OP further relied upon the judgment of Hon’ble NCDRC in Rang Lal Vs United India Insurance Co.Ltd in RP No. 1362/2011 in which the Hon’ble NCDRC observed that the theft has to be intimated to the insurance company “immediately” according to condition of the insurance policy and a delay of over two months on the part of the complainant in intimating the same can be fatal to investigation. The OP further placed reliance on the judgment passed by Hon’ble NCDRC in Reliance General Insurance Company Vs Jay Prakash in RP No. 2479 of 2015 in which the Hon’ble NCDRC had held that the insured is under contractual obligation to intimate the theft of the vehicle to the insurer immediately after the said theft came to his knowledge and mere intimation to police or lodging FOR is not sufficient compliance with the T&C of the insurance policy and thereby entitling the insurer to repudiate the claim on account of default on the part of insured. The OP also placed reliance upon the judgment of the Hon’ble NCDRC Delhi in the case of Rajinder Kumar Vs National Insurance in which the Hon’ble SCDRC, relying upon the judgment of Hon’ble National Commission in Devender Singh Vs NIC III (2003) CPJ 77 and New India Insurance Co.Ltd Vs Trilochan Jane IV (2012) CPJ 441 held that the purpose of “immediate” intimation of theft is to enable the insurer to verify the factum of theft and to take immediate steps to get the vehicle traced. In the said case there was delay of 5 days in intimation of theft on which grounds the complaint was dismissed on the District Forum (Central) and the said dismissal was upheld by the Hon’ble SCDRC. Lastly the OP relied upon the landmark judgment of Oriental Insurance Co. ltd Vs Parvesh Chander in Civil Appeal No. 6739 of 2010 passed by Hon’ble Apex Court in which the Hon’ble Supreme Court held that in terms of policy issued by the insurance company /appellant therein, the insured / respondent therein was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived on its legitimate right to get an enquiry conducted into the alleged theft and the appellant cannot be saddled with the liability to pay compensation even on non standard bases to the respondent despite the fact that the respondent failed to comply with the terms of the policy.

7. We have heard the rival contention of the parties in terms of arguments forwarded by them, documentary evidence placed on record and judgments relied /cited by them in their respective claim/defence.

The purchase of policy and the subsistence of the same during the period the theft is not disputed nor is the factum of theft of the said motorcycle which was got insured by the complainant with the OP. However the issue / dispute is on the delayed intimation to the OP by the complainant about the theft as also delay in lodging of FIR. Further the OP has also disputed the claim of the complainant on the basis of the investigation report which has highlighted the negligence on the part of the complainant in not taken proper care to safeguard his vehicle as he had entrusted the same with some acquaintance called Manish who was known to his son while the complainant had gone the market to purchase some items however, on returns from the market, neither the bike nor Manish could be found on the spot and the complainant was later on suspecting the same Manish as the Culprit for theft. The complainant could not give any realistic or firm proof of inability to produce any of the original two keys of the said bike which he claimed to have lost on the same day at Kalkaji Mandir in early June 2014 within six month of purchase of the said bike without any intimation thereof to the concerned police or any original bill of repair of lock being produced by the complainant. The complainant did not placed on record any finance details / statement of account from the date of finance till date of theft and later of non repossession from HCIFPL regarding the status of loan and outstanding EMIs to the investigator of the OP nor did he arraign the said financer as necessary party despite it having the first charge over the insurance claim, if any.

8. We have applied our judicial mind to the factual matrix of the case and thoroughly perused the case file and the documents and judgment filed by the complainant and the OP. The documentary evidence filed by the complainant unfortunately corroborates the defence of the OP of delay in lodging FIR and claim intimation for which no cogent justification has been given by the complainant anywhere in the pleading except evasive denial. Even the judgments filed by the complainant are irrelevant to the present case / dispute / claim as the same pertain to different facts and circumstances and do not cover the present dispute. We find force in the defence of the OP in repudiating the claim on the complainant as the conduct of the complainant does not inspire confidence of earnestness of intent/ sincerity of purpose / sense of urgency in taking preemptive and pro active action in such an adverse circumstances of theft and therefore the delay on his part in intimation to the OP as well the police of the factum of theft, leaving the motorcycle unattended, entrusted with some random acquaintance thereby violating conditions no.1 and 5 of the policy terms and condition goes against the complainant in his own case of gross negligence and violation of terms and conditions. We therefore do not find any merits in the present complaint in view of the well settled and established ratio in catena of judgments passed by the Hon’ble Supreme Court and the Hon’ble NCDRC which have a very firm and stern observation on delay on the part of the insured in intimation of theft to the insurance company depriving of its legitimate right to conduct an enquiry thereto. We therefore dismiss the present complaint as devoid of merits with no order as to cost.    
9.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  04.06.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member