Haryana

Bhiwani

CC/15/2021

Virender - Complainant(s)

Versus

NIA - Opp.Party(s)

Virbhan Siwatch

28 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                                    Complaint Case No. : 15 of 2021

                                                                     Date of Institution    : 08.01.2021

                                                                     Date of decision:      : 28.06.2024

 

Virender Singh son of Sh. Sheoram R/o village Gudana, Tehsil and District Charkhi Dadri.

                                                            ...Complainant 

 

                                                    Versus

The New India Assurance Co. Ltd., having its branch office opposite Civil Hospital, Bhiwani, through its Branch Manager/authorized signatory.

...Opposite party

 

COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. Ajay Bhalothia, Advocate for complainant.

Sh. Rajbir Singh, Advocate for OP.

 

                                                  ORDER

 

SAROJ BALA BOHRA,  PRESIDING MEMBER:

1.                 Brief facts of this case are that complainant being owner of a Haiwa Truck LPT-2518 bearing registration No.HR-61B-8087 got it insured comprehensively from OP for a period from 31.12.2017 to 30.12.2018. It is alleged that in the night of 20.07.2018/21.07.2018, the vehicle was stolen from village Sehland, Tehsil Kanina, District Mahendergarh. FIR No.264 dated 21.07.2018 under Section 379 IPC was lodged at P.S. Kanina. Complainant approached OP. Surveyor was appointed and complainant submitted all relevant documents to the surveyor as well as to OP insurance company. The vehicle was not traced out, so untraced report was filed in the case by police which was accepted by the Court concerned vide order dated 26.03.2019. It is submitted that after receiving of untraced report as well as final report, complainant submitted the same to OP insurance company for settling the claim but despite lapse of a period of more than two years, OP not settled the claim without assigning any sufficient cause or reason. So, legal notice dated 17.06.2020 was served upon the OP but it was neither replied nor claim was settled. Hence, the present compliant has been preferred by complainant alleging deficiency in service resulting into monetary loss as well as mental and physical harassment.  In the end, prayer has been made to direct the OP to pay Rs.16,70,150/- alongwith interest @ 18% per annum from the date of theft of the vehicle till final payment. Further to pay Rs.50,000/- on account of compensation for harassment besides Rs.20,000/- as litigation expenses. Any other relief, to which this Commission deems fit has also been sought.

2.                 Upon notice, OP appeared and filed written statement raising preliminary objections qua locus standi, maintainability of complaint, suppression of material facts and complaint bad for mis-joinder and non-joinder of necessary parties.  On merits, it is submitted that OP was informed about the alleged theft after a delay of 7 days i.e. on 26.07.2018 which amounts to violation of condition no.1 of the insurance policy that Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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.  But complainant failed to comply with the same. However, OP insurance company deputed Sh. Suresh Kumar Vashistha, to investigate the matter who after going through all the documents sent registered letters dated 24.07.2018 and 26.08.2018 to the complainant to furnish various documents/formalities/clarifications. But the complainant failed to comply with the formalities. Finding no alternate, the investigator submitted his report on 11.12.2018. After going through the said report, OP company closed the claim of complainant as No Claim vide letter dated 30.09.2019 and 08.01.2020. In the end, prayer has been made to dismiss the complaint with costs.

3.                 Complainant in evidence, tendered his affidavit Ex.CW1/A alongwith documents Annexure C-1 to Annexure C-5 and closed the evidence on 08.09.2022. 

4.                 On the other side, Ld. counsel for OP tendered in evidence affidavits Ex. RW1/A & Ex.RW2/A of Sh. Labh Singh, Regional Manager and Sh. Suresh Kumar Vashisth, Advocate/investigator respectively alongwith documents Ex. R-1 to Ex. R-7 and closed the evidence on 04.12.2023.

5.                 We have heard learned counsel for the parties and perused the record minutely.

6.                 At the outset, on the day of theft, the vehicle was under the cover of insurance. As per repudiation letters (Annexure R-4 & R-6), the claim to complainant had been denied by OP for non-submission of requisite documents for settlement of the claim which are reproduced as under:-

(1)      Why you have intimated the theft of the vehicle after a gap of 7 days?

(2)      Have you inform 100 No. PCR immediately fort the theft loss?

(3)      Details of last five fuelling/service of the vehicle.

(4)      Purchase invoice in original of the theft vehicle.

(5)      Final Police Report (U/s 173 Cr.P.C.) and untraceable report duly accepted by competent Court.

(6)      Newspaper cutting of theft of vehicle.

(7)      Permit, R.C. of theft vehicle and Fitness of insured vehicle in original or self attested copies.

(8)      Both original keys of theft vehicle.

(9)      Latest NCRB report.

(10)    Claim form duly filled.

(11)    Details of previous theft of this vehicle alongwith copy of FIR No.72 dated 02.04.2016 and Superdari Order.

(12)    You have informed during investigation on 07.09.2018 that driver of your vehicle Mr. Raj Karan S/o Hari Singh R\o village Sehlang was not present, as he is facing police investigation, Please visit alongwith your driver for recording his statement.

(13)    Copy of letter to Registration Authority of above noted vehicle, informing them to theft of vehicle.

(14)    Copy of statement of payment of Loan/Finance on this vehicle.

(15)    Please inform name, address, contact number of the cleaners/conductors of your vehicle and their tenure of employment with you.

(16)    Details of last five trips/lodge book of the vehicle.

(17)    Details of Toll Slips before theft of above noted vehicle.

(18)    During investigation it was found that cabin lock of above noted vehicle were changed after recovery of first theft of the vehicle so please submit the bill of lock in original.

(19)    Any other information to enable us to process further your theft vehicle claim file.

7.                 Learned counsel for OP in support of his case has placed reliance of case law delivered by Hon’ble Supreme Court of India in Civil Appeal No.4758 of 2023 titled Ashok Kumar Vs. New India Assurance Co. Ltd., decided on 31.07.2023 wherein, inter-alia, it is observed that ‘The District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.’   The Counsel has also placed reliance on another case law passed by the Hon’ble Supreme Court of India in Civil Appeal No.2067 of 2002 titled State Bank of India Vs. B.S. Agriculture Industries (I), decided on 26.03.2009 wherein it is held that ‘Consumer Protection Act, 1986, Section 24-A- limitation is two years from date of accrual of cause of action- On its plain averments complaint barred by time-And ought to have been dismissed as such-But curiously this aspect not examined by any consumer fora-Although specific plea in that regard taken by appellant bank-Impugned decision set aside-complaint dismissed as time-barred.

8.                 From the record, it is evident that the vehicle was stolen on the intervening night of 20.07.2018/21.07.2018 and FIR was lodged on 21.07.2018 (Annexure C-2). Further, the OP insurance company has averred in their pleadings that complainant informed about the alleged theft after a delay of 7 days i.e. on 26.07.2018 which amounts to violation of condition no.1 of the insurance policy.  From this averment, it has come out that complainant informed the OP insurance company after 7 days of its occurrence and the claim of complainant was repudiated vide their letter dated 08.01.2020. It means that the intervening period, from information of the theft till repudiation of the claim on 08.01.2020 was taken by the OP insurance company in processing of the claim and thereafter, the present complaint has been preferred by complainant on 08.01.2021. Therefore, the complaint is well within two years of limitation to file a consumer complaint under Consumer Protection Act, 2019.

9.                 The another point raised in the complaint is that there was delay of 7 days in intimating the OP insurance company. But from the FIR (Annexure C-2) it is evident that theft of the vehicle occurred on in the intervening night of 20/21.07.2018 and FIR qua this incident was lodged on 21.07.2018, on the very next day of the theft, thus there is no delay in intimating the police, however, there may some delay in intimating the OP insurance company but that delay is not sustainable as per case law of Hon’ble Supreme Court of India in Civil Appeal No.653 of 2020 titled Gurshinder Singh Vs. Shri Ram General Insurance Co. Ltd. &Anr. decided on 24.01.2020 wherein it is observed that ‘Delay in intimating the insurance company about occurrence of theft no ground to deny claim.’  As such, in our view, there is no breach of any terms and conditions of insurance policy. The queries of OP in the repudiation letter(s), qua submission of FIR and untraced report are material but rest are just to linger on the matter and to avoid their liability from paying the claim to complainant.

10.               After hearing learned counsel for the parties and going through the record, we are of the considered view that on the day of theft, the vehicle was under insurance cover and despite best efforts by police, it had not been traced out and the Court concerned accepted such report of the police. Therefore, the complainant is entitled to get IDV of the vehicle which as per insurance policy (Annexure R-7) is Rs.16,70,150/-. As such, we are of the view that the documents placed on record by complainant were sufficient to release the claim of stolen vehicle. Accordingly the complaint is allowed and OP is directed to comply with the following directions within 40 days from the communication of this order:-

(i)       To pay a sum of Rs.16,70,150/- (Rs. Sixteen lacs seventy thousand one hundred fifty) as IDV of the vehicle in question, to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint till its realization subject to execution of letter of Subrogation and completing all other formalities qua transfer of vehicle in question etc. in favour of OP Insurance Company by the complainant within 15 days from the date of communication of this order.

(ii)      Also to pay a sum of Rs.20,000/- (Rs. Twenty thousand) on account of harassment  caused to the complainant at the hands of OP.

(iii)     Also to pay a sum of Rs.11,000/- (Rs. Eleven thousand) on account of litigation expenses.

                    In case of default, all the awarded amounts shall attract simple interest @ 12% per annum for the period of default.  If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

Announced.

Dated: 28.06.2024.