Haryana

Ambala

CC/10/2019

Sanjay Kumar Sharma - Complainant(s)

Versus

NIA - Opp.Party(s)

Shamsher Khatker

08 Nov 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  10 of 2019.

                                                          Date of Institution           :  14.01.2019.

                                                          Date of decision    :  08.11.2019.

 

Sanjay Kumar Sharma son of late Shri Madan Lal Sharma, aged about 48 years, Permanent resident of Village & Post Office Kambassi, Tehsil Barara, District Ambala, at present resident of H.No.15, Ram Nagar, Ambala City.

 

                                                                                      ……. Complainant.

 

The New India Assurance Company Limited, Branch Office-Civil Line, Arya Chowk, Above OBC Bank, Ambala City-134001 through Senior Branch Manager.

 

          ..…. Opposite Party.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Shamsher Khatkar, Advocate, counsel for complainant.

Mrs. Suraj Rashmi Sharma, 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 direction to it:-

1. To pay Rs.39,880/- being the insured value of the vehicle to the complainant.
2. To pay Rs.25,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs.11,000/- as litigation expenses.

 

 

Brief facts of the case are that the complainant is the registered owner of the Activa/Scooter bearing registration no. HR54C-9390. It was duly insured with OP vide Two Wheeler Enhancement Cover policy No.35350231160300013578 dated 02.01.2017 with period of Cover from 03.01.2017 12:00:01 AM to 02.01.2018 11:59:59 PM. On 11.10.2017, Activa/Scooter of the complainant was stolen by some unknown person. He informed about the said incident to the Police Post No.4, however, the police did not register the FIR and he asked to come on the next day. On the next day, he again visited the police and enquired about his above mentioned vehicle. The police officials told him to search his vehicle at his own level and assured that they would also search it by their means. He as well as the police failed to trace the Activa/Scooter despite their best efforts. FIR bearing No.0508 dated 27.11.2017 under Section 379 IPC was registered at Police Station, Ambala City. He also informed the OP regarding the theft of his Activa/Scooter, on 01.12.2017 by enclosing the copy of the FIR No.0508 dated 27.11.2017. The police failed to arrest the accused and to trace his Activa/Scooter, and submitted untraced report dated 20.03.2018 before the learned Court of Ms. Swati Sehgal, the then Chief Judicial Magistrate, Ambala. Thereafter, on 06.07.2018, he submitted letter of subrogation and letter of indemnity as demanded by the OP. Vide letter dated 11.07.2018, the OP again requested the complainant to submit some documents/queries. He submitted his reply along with his affidavit to the OP on 24.08.2018. Thereafter, he served upon the OP a legal notice dated 12.11.2018 but of no avail. The OP by not paying his genuine claim, has committed deficiency in service. Hence, the present complaint.

2.                Upon notice, the OP appeared through counsel and has filed written version raising preliminary objections regarding false and frivolous. On merits, it is stated that the complainant did not inform the insurance company about the theft of the Activa/scooter bearing No.HR54C-9390 as per the rules and regulations of the insurance companies.  No documentary proof produced on the file regarding this fact that the theft of the Activa/Scooter was taken on 11.10.2017. No theft had taken place at the alleged time and place. The complainant has filed a frivolous complaint in order to extract compensation from the OP Company. The complainant got registered an FIR on 27.11.2017, after a delay of 46 days of the alleged occurrence of the incident. Intimation about the loss of the said Activa/Scooter was given by the insured to the company on 01.12.2017 i.e after a delay of 51 days of the occurrence of the incident. Whereas, the complainant was supposed to inform the matter to the police and the Insurance Company immediately after the theft of his Activa/Scooter. The complainant has not completed the formalities as per the rules of the Insurance Company. The OP insurance company had rightly repudiated the claim after seeking legal opinion from its counsel and duly informed the complainant that his claim has been repudiated on the ground of non-compliance and violation of condition no.1 of the insurance policy which reads as under:-

           “In case of theft or criminal act which may be subject of claim, the insured shall give immediate notice to the police”.

          Thus, the insurance company is not liable to pay the claim. There is no deficiency on the part of the OP and the present complaint may be dismissed with costs.

3.                The complainant alongwith learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-12 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Shri K.K.Sachdeva, Senior Divisional Manager, New India Assurance Company Ltd., Ambala Cantt. as Annexure OP-A alongwith documents Annexure OP-1 to OP-9 and closed the evidence on behalf of OP.

4.                We have heard the learned counsel of the parties and carefully gone through the case file and the case laws referred by the ld. counsel for the complainant and Ld. Counsel for the OP.

5.                The learned counsel for the complainant argued that the duly insured Activa/Scooter of the complainant was stolen on 11.10.2017. He informed the police immediately after theft of his scooter. The police official on duty told him to trace his scooter at his own level and assured that police will also trace the same. When the police and the complainant could not trace the scooter inspite of their best efforts, then the police registered an FIR on 27.11.2017. The complainant also informed the OP and also submitted all the relevant documents with it, however the OP vide letter dated 05.10.2018 (Annexure C9/OP-1) has repudiated the claim. By repudiating his genuine claim the OP has committed deficiency in service and is thus, not only liable to indemnify the complainant for a sum of Rs.39,880/- i.e., the IDV of the scooter in question, but is also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation expenses. In support of his contention, he has placed reliance on the case, titled as Om Parkash Vs. Reliance General Insurance and Another, AIR 2017 SUPREME COURT 4836.

                   Contrary to it, the learned counsel for the OP argued that the Activa/Scooter in question was stolen on 11.10.2019, whereas the complainant intimated the Police on 27.11.2017 i.e. after a delay of 46 days and to the insurance company on 01.12.2017 i.e after a delay of 51 days from the date of occurrence of the incident. As such there is breach of condition No.1 of the Insurance Policy. Thus, no amount is payable to the complainant. In support of her contention, Ld. counsel for the OP has placed reliance upon the case law titled as Mange Singh Chauhan Versus New India Assurance Company Ltd. 2015(2) CLT, 301 National Consumer Disputes Redressal Commission, New Delhi.

6.                Admittedly, the OP, vide letter dated 05.10.2018 (Annexure C-9/OP1) had repudiated the claim on the ground that the intimation of theft was given to the police after a delay of 46 days and to the insurance company after a delay of 51 days from the date of occurrence of the incident. So far as, the delay of 46 days in lodging the FIR with the police, the complainant has explained that he is not at fault for the said delay, as he immediately after the occurrence of the incident had informed the police and the police officials tried their level best to trace out the same, but when they failed to trace the same, then they registered the FIR on 27.11.2017. It is pertinent to mention here that in circular Ref:-IRDA/HLTH/MISC/CIR/216/09/2011 dated September, 20^th, 2011, issued by Insurance Regulatory Development Authority (IRDA), it has been mentioned that genuine claims should not be rejected on account of delay in intimation, and that, the insurer’s decision to reject a claim must be based on “sound logic” and “valid grounds”.  It may be stated here that in the case of Om Parkash (supra), the Hon’ble Supreme Court of India has held that condition regarding delay shall not be shelter to repudiate insurance claims which have been otherwise proved to be genuine. In view of the law laid down by the Hon’ble Supreme Court of India and the circular of IRDA, it would not be fair and reasonable on the part of the OP to reject the claim. From the policy document (Annexure C-2), it is evident that the insured declared value of the scooter in question is of Rs.39,880/-, therefore the OP is liable to indemnify the complainant to the tune of Rs.39,880/-. It is also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation expenses.

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

1.           To pay Rs.39,880/- (IDV value) to the complainant.
2.           To pay Rs.5,000/- as compensation for mental agony and physical     harassment suffered by the complainant
3. To pay Rs.3000/- as litigation expenses.

                   The OP is further directed to comply with the aforesaid direction, 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 on the awarded amount @7% per annum from the date of repudiation till its realization. Certified copies 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: 08.11.2019.

 

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

              Member                                  Member             President