Haryana

Ambala

CC/360/2018

Renu Joshi - Complainant(s)

Versus

NIA Co. - Opp.Party(s)

Ankush Gupta

05 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.: 360 of 2018.

                                                          Date of Institution           :  29.10.2018.

                                                          Date of decision    :  05.03.2020.

 

Renu Joshi wife of Rameshwar aged about 42 years, resident of House No.764, New Luxmi Nagar Street, Jandli, Ambala City, 134004.

 

                                                                                      ……. Complainant.

                                                     Versus

 

The New India Assurance Company Ltd., resident of 5406, Shree Complex,        2^nd Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt. through its          Divisional Manager.

 

                       ..…. Opposite Party.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Ankush Gupta, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for OP.

 

Order:        Smt. Neena Sandhu, President

 

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay the claim amount of Rs.47,664/- to the complainant along with interest @18% per annum from the date of accident till the date of payment.
2. To pay a sum of Rs.20,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.11,000/- as litigation costs.

 

Brief facts of the case are that the complainant purchased a vehicle Honda Activa 3G DLX bearing registration No.HR01-AP-6013, with her hard earned money and got it insured with the OP for the period from 09.10.2016 to 08.10.2017, vide policy No.35350131160300006188 by paying the premium amount. On 01.10.2017, the said vehicle got stolen from Ambala Cantt. bus stand and complainant moved an application to the police. A DDR to this effect was duly recorded by the police vide application No.13221005172254. Complainant also informed the OP about theft of her vehicle. Complainant and her husband tried their level best to trace out the vehicle, but failed to trace out the same. Complainant visited the police station several times to inquire about her activa and also requested the official of the PS Parao for registration of Ambala, which was got registered on 18.11.2017 having FIR No.0304. Thereafter, complainant lodged the claim with the OP. Official of the OP came to the complainant approached the complainant and demanded some papers and asked few questions to the complainant and her husband and got signed some paper. Complainant number of times visited the office of the OP to inquire about her claim, but every time the official of the OP asked the complainant to wait for some time. Complainant came under shock when she received a letter from the OP, vide which her claim was repudiated for uncalled reasons. Complainant requested the OP number of times to indemnify her for the loss suffered by her, but they paid no heed to their genuine request. Hence, the present complaint.

2.                 Upon notice, OP appeared through counsel and filed written version, raising preliminary objections regarding maintainability, not approached this Hon’ble Forum with clean hands, suppression of true and material facts, no cause of action. On merits, it is stated that the insurance policy was issued subject to certain terms and conditions and the insured was under legal obligation and bound to follow the same, without any failure. The claim of the complainant was duly entertained in due course without going into the aspect of its maintainability due to late intimation. The complainant had violated the terms and conditions of the insurance policy, the competent authority was compelled to repudiate the claim legally within the ambit and purview of the terms and conditions of the policy and as per insurance bye laws. After going through the papers submitted by the insured and the report submitted by the investigator Shri Shubham Arora, it was proved and established that the complainant not only informed the OP on 04.10.2017, i.e. after a delay of 3 days and to the police on 18.11.2017, i.e. after an inordinate and crucial delay of 48 days from the alleged date of theft of the vehicle and has violated the condition No.1 of the insurance policy. Complainant manipulated online DDR just to fill up the legal lacuna. Apart from late intimation, the husband of the complainant, who was having the custody of the insured vehicle at the relevant time behaved negligently and failed to take reasonable care to safeguard the vehicle from any loss as was legally expected from his as he left the alleged insured scooter in question carelessly unattended and un-locked that too at an isolated place and thus violated the condition No.5 of the Motor Policy. The OP had rightly repudiated the claim of the complainant and as such prayed for dismissal of the present complaint with costs. 

3.                The ld. counsel for the complainant tendered affidavit of the complainant as Annexure-CA along with documents as Annexure C-1 to C-5 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavits of Shri K.K. Sachdeva, Sr. Divn. Manager & Authorized Signatory, The New India Assurance Co. Ltd., Divisional Office, Ambala Cantt. and Shri Shubham Arora, Insurance Claims Investigator, 3548/1, Timber Market, Ambala Cantt. as Annexure OP-A & OP-B respectively alongwith documents Annexure OP-1 to OP-8 and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel for parties and have carefully gone through the case file.

5.                Admittedly, the vehicle in question was duly insured with the OP for an IDV of Rs.47,664/-, for the period from 09.10.2016 to 08.10.2017, vide policy schedule Annexure C-2. From the perusal of lost property report Annexure C-4 and FIR dated 18.11.2017, Annexure C-5, it is evident that the said vehicle got stolen on 01.10.2017. The OP repudiated the claim of the complainant vide letter dated 09.02.2018, Annexure OP-2, on the ground that there was delay of three days in informing the OP and delay of 48 days in lodging the FIR with the police, and as such there was violation of condition No.1 of the Motor Insurance Policy and also on the ground that the husband of the complainant who was in custody of the scooter at the relevant time of the alleged loss behaved negligently and failed to take reasonable care as was legally expected from him as he left the insured vehicle carelessly, unattended and unlocked and that too at an isolated place and as such there is violation of Condition No.5 of the policy. The Ld. counsel for the complainant vehemently argued that the complainant informed the police immediately, regarding theft of her vehicle, vide application no.13221005172254. This fact has also been mentioned in the FIR. The OP had wrongly repudiated the claim on the ground of delay. Even, the OP was wrong in repudiating the claim on the ground that vehicle was left unattended & unlocked, because the husband of the complainant went to washroom, after parking the vehicle at the bus stand by locking the same properly. On the contrary, the Ld. counsel for the OP argued that the vehicle of the complainant got stolen on 01.10.2017, but he lodged the FIR with the police on 18.11.2017. The application, Annexure C-4 placed on record by him is manipulated one. There is delay of three days in informing the OP and 48 days in informing the police from the date of occurrence of the incident, as such there is violation of condition No.1 of the policy. Even, there is violation of condition No.5 of the policy, because husband of the complaint, who was in possession of the vehicle in question, at the relevant time behaved negligently by leaving the vehicle unattended & unlocked and failed to take reasonable care to safeguard the same. As there was violation of condition No.1 and 5 of the policy by the complainant, the OP has thus rightly repudiated the claim of the complainant.

                   In support of this contention that complainant informed the police immediately, after occurrence of the incident she has placed on record an application. The reference of the same has been found mentioned in the FIR dated 18.11.2017. No doubt, the OP has alleged that the application is manipulated one, but to prove the said fact, no cogent and convincing evidence has been adduced by it. In the absence thereof, we have no reason to disbelieve the contention of the complainant that she informed the police well within time. Admittedly, there is delay of three days in informing the Insurance Company about the theft of the vehicle. In the case of Gurshinder Singh Versus Shri Ram General Insurance Company, decided on 24.01.2020, by Three Judges Bench of Hon’ble Supreme Court of India, it has been held that mere delay in informing the theft to the insurer when the same was already informed to the law enforcement authorities cannot amount to a breach of ‘duty to co-operate’ of the insured. It has further been held that the view taken by this Court in the case of Om Parkash Vs. Reliance General Insurance and another, Vol IV 2017 CPJ-10 (SC), that if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hypo-technical view. Mere delay in intimating the insurance company about the occurrence of the theft, should not be shelter to repudiate the insurance claim which has been otherwise proved to be genuine. In view of the law laid down by the Hon’ble Supreme Court of India in the above referred cases, we hold that OP has wrongly repudiated the claim of the complainant on the ground of delay. So far as the other ground for repudiation of the claim is concerned. In this regard complainant has pleaded that there was no negligence in safeguarding the vehicle as her husband went to washroom after parking the vehicle in question at the bus stand after locking it properly. On the contrary, the OP has pleaded that the vehicle in question was left unattended & unlocked in an isolated place. In the report of Investigator, Annexure OP-6 and statement of the complainant, Annexure OP-8, it is nowhere mentioned that the vehicle in question was left unattended & unlocked. No other document has been placed on record by the OP to prove the said fact. As such we do not hesitate to conclude that the OP has failed to prove it’s case. In the absence of any documentary evidence, we do not find any force in this contention of the OP. As such we do not hesitate to conclude that the OP was wrong in repudiating the claim of the complainant on this ground also. The OP is thus liable to indemnify the complainant for the loss suffered by her. From the insurance policy, Annexure C-2, it is evident that the IDV of the vehicle in question is Rs.47,664/-. Therefore, the OP is liable to pay the said amount to the complainant alongwith interest. It is also liable to compensate the complainant for the mental agony and physical harassment suffered by her alongwith litigation expenses.

6.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP in the following manner:-

1. To pay Rs.47,664/- i.e. IDV of the vehicle to the complainant alongwith interest @ 7% per annum w.e.f. 09.02.2018 i.e. the date of the repudiation of claim, till its realization.
2. To pay Rs.3,000/- as compensation for mental agony and        physical           harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP shall pay interest @ 9% per annum on the awarded amount mentioned at Sr. No.(i) and (ii). Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 05.03.2020.

 

(Vinod Kumar Sharma)                      (Ruby Sharma)               (Neena Sandhu)

              Member                                   Member                          President