BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 491 of 2019
Date of Institution : 21.08.2019
Date of Decision : 08.03.2022.
Mahinder son of Sh. Roshan Lal, resident of Ward No. 20 Gali Ravi Dass Mandir Wali, Chauhan Nagar Mandi Dabwali, District Sirsa.
……Complainant.
Versus.
1. The National Insurance Company Limited, Regional Office- IInd, SCO 337-340, Sector 35-B, Chandigarh.
2. National Insurance Company Limited, Mandi Dabwali, District Sirsa.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI PADAM SINGH THAKUR…………….. PRESIDENT
SMT. SUKHDEEP KAUR……………………. MEMBER
SH. SUNIL MOHAN TRIKHA………………..MEMBER
Present: Sh. Himanshu Kumar, Advocate for the complainant.
Sh. Rakesh Bajaj, Advocate for the opposite parties.
ORDER
In brief, the case of complainant is that complainant was owner of a vehicle Tralla (Ghoda) make Tata Motor India Limited Model 2009 bearing engine No. 6BTAA160HP90G6277535 and chassis No. MAT41520692H12006 and registration No. PB-30F/9053. The said vehicle was hypothecated with Indusind Bank Limited and was fully insured with ops against all risks and liabilities vide insurance policy/ cover note No. 420703/31/16/00000813 and said policy was effective from 14.7.2016 to 13.7.2017. On 21.7.2016, complainant alongwith his driver Darshan Lal parked their truck tralla under the shed of Anaj Mandi, Killianwali and gone to their house. On 24.7.2016, when his driver Darshan Singh went to bring the tralla, he found that Tralla was missing from there and complainant was informed by him in this regard. Thereafter, complainant and said Darshan Singh tried their best to search out the Tralla and came to know that said Tralla has been stolen by somebody else, therefore, a case bearing FIR No.109 dated 11.8.2016 under Section 379 IPC was lodged with police station Lambi District Mukatsar against unknown thief and the matter was accordingly investigated by the police. The police filed untrace report in this regard and intimation of theft was also given to the ops alongwith requisite papers for disbursement of claim amount. The ops assured for disbursement of claim amount to the complainant within a short period after filing of investigation report by the police. It is further averred that now the police has filed untraced report in this regard in the Court of Ms. Shilpi Gupta, learned SDJM, Malout and complainant has been requesting the ops time and again to indemnify the claim amount. The ops have bluntly refused to disburse the genuine claim amount of Rs.11,00,000/- being the IDV as assessed by the ops which clearly amounts to gross deficiency in service and unfair trade practice on the part of ops. The complainant also got served a legal notice upon ops on 18.3.2019 but to no effect. Hence, this complaint.
2. Ops were served and they filed written statement taking certain preliminary objections qua maintainability, locus standi, suppression of material facts, estoppal, jurisdiction and that complainant filed the complaint before the settlement/ decision of his claim and therefore, the complaint was filed at a pre-mature stage. On merits, it is submitted that as per information and documents supplied by complainant, the alleged theft of vehicle of complainant took place on 26.7.2016 at about 8.00 p.m., and the FIR was got lodged on 11.8.2016 i.e. after a delay of 16 days of the alleged theft of vehicle. The complainant gave intimation of this factum to the answering ops on 5.8.2016 i.e. after delay of 10 days, whereas, as per terms and conditions of insurance policy, such intimation should have been given to the answering ops and to the police immediately of the incidence. In this manner, the complainant has violated the terms and conditions of the insurance policy. The complainant has not shown any reasons in this regard, whereas as per terms and conditions of insurance policy, the complainant was under legal obligation to inform the ops about theft of his vehicle within 48 hours of incidence. It is further submitted that after lodging the claim by complainant, the answering ops wrote a letter dated 25.10.2016 to the complainant and thereby required the complainant to supply certain documents, but the complainant did not give any response to the same. Again on 15.11.2016, another letter was written to the complainant for providing the documents and subsequent reminders dated 3.3.2017, 22.3.2017, 12.4.2017, 24.5.2017, 6.6.2017, 13.6.2017 were also sent to the complainant in this regard. However, as the complainant failed to supply the required documents, therefore, his claim file was closed on 23.6.2017. Thereafter, complainant moved an application on 25.7.2018 for re-opening of his claim file, which was received by ops on 30.8.2018. The matter was referred to the Regional Office of ops and after getting the necessary approval from the Regional Office, the claim case file of complainant was re-opened on 4.10.2018 and the claim file of complainant was received by op no.2 on 2.11.2018. Thereafter, vide letter dated 2.5.2019 and 15.5.2019, the op no.2 sought clarification from the complainant about the alleged letter issued by the Police Station, Lambi in respect of delay in lodging of the FIR on account that the police was busy in investigating the matter, but the said letter supplied by complainant was got investigated by the ops through Shri Satish Aggarwal, Surveyor, who reported that the letter supplied by complainant is fake. Again a letter dated 23.5.2019 was written by the ops to the complainant and thereby required certain information from the complainant, but the complainant did not give any reply to the same. Therefore, vide letter dated 31.5.2019, the claim of complainant was rendered as No Claim and his claim file was closed. The complainant has concealed all above facts from this Commission while filing the present complaint. The complainant has no where stated that the matter was reported to the police on 27.7.2016 and that the police investigated the matter and that due to that reason, the FIR was lodged after a delay of 17-18 days. So, an adverse inference is liable to be drawn against the complainant. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
3. The complainant has tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C9.
4. The ops have tendered affidavit of Sh. Satish Aggarwal, Surveyor and Loss Assessor Ex.RW1/B, affidavit of Sh. V.K. Gumbar, Senior Divisional Manager Ex. RW1/A and documents Ex.R1 to Ex.R19.
5. We have heard learned counsel for the parties and have gone through the case file.
6. Learned counsel for complainant contended that claim of complainant has been wrongly rejected/ closed by the ops on the ground of non submission of documents whereas all the required documents were submitted to the ops. The matter of theft of Tralla was also reported to the police by the complainant immediately when he came to know about the theft of the same and accordingly a case bearing FIR No.109 dated 11.8.2016 for offence under Section 379 IPC was registered against unknown person in Police Station Lambi, District Mukatsar. He further contended that as the vehicle could not be traced out by the police, therefore, an untraced report submitted by the police has been accepted by the Court of Ms. Shilpi Gupta, learned SDJM, Malout vide order dated 1.6.2018, copy of which is Ex.C5. He contended that insurance company has wrongly and illegally rejected the genuine claim of the complainant and relied upon decisions of Hon’ble Supreme Court in cases titled as Gurshinder Singh vs. Sriram General Insurance Co. Ltd. CA No. 653 of 2020 decided on 24.1.2020 & Dharmender vs. United India Insurance Co. Ltd. CA No. 5705 decided on 13.9.2021 and prayed for acceptance of complaint.
7. On the other hand, learned counsel for ops contended that despite several letters written to the complainant for submission of required documents, the complainant failed to supply the same and ultimately his claim file was closed. Moreover, the claim is not payable as there is delay on the part of complainant in reporting the matter of theft of Tralla to the police as well as to the insurance company and as such complainant has violated terms and conditions of insurance policy and has relied upon decision of Hon’ble National Consumer Disptues Redressal Commission in case titled as New India Assurance Company Ltd. vs. Trilochan Jane, 2012 (4) CPJ 441 and also decision of Hon’ble Odisha State Consumer Disputes Redressal Commission, Cuttack in case titled as Shiromani Mohanty & anrs. Vs. National Insurance Company Ltd. III (2021) CPJ 195 in which it was held by Hon’ble Commission that “it was a breach of condition of insurance policy that matter was not reported to the insurance company immediately and claim has been denied by Hon’ble Odisha State Commission”. Ld. counsel prayed for dismissal of complaint.
8. We have duly considered the rival contentions of the parties. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has also placed on file copy of legal notice Ex.C1, copy of application dated 10.6.2019 Ex.C2, copy of letter of Police Station Lambi Ex.C3, copy of letter dated 21.5.2018 Ex.C4, copy of order dated 1.6.2018 regarding acceptance of untrace report Ex.C5, copy of certificate of insurance cum policy schedule Ex.C6, copy of certificate of registration Ex.C7, copy of FIR Ex.C8, copy of general diary details Ex.C9.
9. The ops also have tendered affidavit of Sh. V.K. Gumbar, Senior Divisional Manager as Ex.RW1/A in which he has reiterated all the averments made in the written statement. Ops have also produced affidavit of Sh. Satish Aggarwal, Surveyor and Loss Assessor as Ex.RW1/B, copy of letter dated 31.5.2019 Ex.R1, copies of letters dated 23.5.2019, 15.5.2019, 2.5.2019 Ex.R2 to Ex.R4, copy of letter of Surveyor Ex.R5, copy of insurance policy Ex.R6, copy of affidavit of complainant Ex.R7, copy of application dated 25.7.2018 Ex.R8 and copies of letters/ reminders Ex.R9 to Ex.R18 and copy of vehicle enquiry report Ex.R19.
10. Admittedly, the trala in question of complainant bearing registration No. PB-30F/9053 was insured with the ops with effect from 14.7.2016 to 13.7.2017 and on 24.7.2016 i.e. during subsistence of policy period, the trala in question was found missing by Sh. Darshan Singh driver of complainant as same was stolen by some unknown person. Information of theft was given to the police by the complainant and a case FIR No.109 dated 11.8.2016 for offence under Section 379 IPC was registered in Police Station Lambi, District Mukatsar against unknown person. But however, as neither accused nor trala in question could be traced by the police, therefore, an untraced report was submitted to the Illaqa Magistrate, Malout and same was accepted by the Court of Ms. Shilpi Gupta, learned Sub Divisional Judicial Magistrate, Malout as is evident from copy of the order dated 1.6.2018 Ex.C5. According to complainant, intimation of theft was also given to the ops and claim alongwith requisite documents was submitted to the ops but ops have not indemnified the claim amount to the complainant.
11. The ops have placed on file copy of their letter dated 31.5.2019 written to the complainant as Ex.R1 wherein it is mentioned that complainant was asked time and again through various letters to submit relevant documents of claim but he failed to supply the same and as such claim of complainant was closed. In this regard, complainant has also placed on file copy of his application dated 10.6.2019 Ex.C2 moved to Branch Manager of ops whereby he informed the ops that he has already submitted all the original documents regarding his claim i.e. FIR, untraceable report, insurance, permit, policy, RC and passing papers and requested the ops to pay his claim amount. It is not possible and believable that a person who has to receive such huge claim amount for his insured vehicle from insurance company will not submit the required documents to the insurance company for getting his claim. So, the demand of the documents again and again by the ops from the complainant vide letters/ reminders is not justified.
12. The other plea of ops that complainant has violated terms and conditions of insurance policy by late informing the police and insurance company about theft of Tralla has also no substance because complainant in his application dated 25.7.2018 moved to Branch Manager of National Insurance Company Limited, Mandi Dabwali, copy of which is placed on file by ops themselves as Ex.R8, the complainant has categorically stated that intimation of theft of his vehicle which took place on 26.7.2016 was given by him to the police on 27.7.2016 and as police remained busy in investigation, so FIR was lodged with delay. He has further stated that intimation of theft was given to the insurance company on 5.8.2016 as he was searching his vehicle with his two three friends here and there, so delay in giving intimation occurred whereas he duly informed the police on 27.7.2016 i.e. on the next day of occurrence. So, now the insurance company ops cannot take the plea of late intimation and delay, if any has been duly explained by the complainant in his above said application. Moreover, Bench of Hon’ble three Judges of Supreme Court in case titled as Gurshinder Singh vs. Sriram General Insurance Company Ltd. (supra) has held that “Mere delay in intimating insurance company about occurrence of theft cannot be a ground to deny claim of insured.”
13. In the present case, since vehicle was duly insured with the ops at the time of occurrence and since vehicle could not be traced out by the police or by the complainant, therefore, an untrace report was submitted by the police to the Court of Ld. Illaqa Magistrate and same has been accepted vide order dated 1.6.2018 Ex.C5. So, keeping in view of the above law laid down by the Hon’ble Supreme Court, the complainant is entitled to the claim amount i.e. insured declared value of Rs.11,00,000/- as assessed by the ops at the time of insurance of vehicle in the certificate of insurance cum policy schedule Ex.C6 as insurance was effective from 14.7.2016 to 13.7.2017 and insured Trala was stolen on 24.7.2016 i.e. during subsistence of policy in question. Non payment of claim amount to the complainant by the ops on above said lame excuses also amounts to deficiency in service and unfair trade practice on the part of ops.
14. Keeping in view of our above discussion, we allow this complaint and direct the opposite parties to pay claim amount of Rs.11,00,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive this amount alongwith @7% per annum from the date of order till actual payment. We also direct the ops to pay a sum of Rs.10,000/- as compensation for harassment and Rs.5000/- as litigation expenses to the complainant. In case ops fail to comply with the order within above said stipulated period, further action under Section 71/72 of Consumer Protection Act, 2019 will also be taken against them. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced. Member Member President,
Dated: 08.03.2022. District Consumer Disputes
Redressal Commission, Sirsa.
