Haryana

Ambala

CC/351/2017

Sushil Kumar Sehgal - Complainant(s)

Versus

NIC - Opp.Party(s)

24 Jul 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 351 of 2017

                                                          Date of Institution         : 16.10.2017

                                                          Date of decision   : 24.07.2018

 

Sushil Kumar Sehgal son of Sh.Krishan Lal Sehgal, resident of 81B Ram Nagar, Ambala City.

……. Complainant.

                                      Versus

 

The National Insurance Co. Ltd.Building, Ambala City through its Branch Manager.

….…. Opposite Party.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                             

 

Present:       Sh. R.K.Jindal, counsel for complainant.

                    Sh. R.K. Vig, counsel for Op.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant insured his TATA Mahindra Bolero Maxi Truck Regn.No/HR37C-3246 with OP vide policy No.420401/31/15/6300005720. In the intervening night of 25/ 26.07.2016 the complainant had parked the vehicle in question in front of his shop but the same was stolen by some unknown person and regarding this FIR No.189 dated 26.07.2016 under Section 379 IPC was registered in Mahesh Nagar, Police Station.  The complainant immediately informed the OP regarding this and also submitted the untraced report duly accepted by the court. Vide email letter dated 21.07.2017 the OP had asked the name, address, phone number and whereabouts of the driver. The complainant himself had parked the vehicle in front of his shop in the intervening night of 25/26.07.2016 therefore, there was no need about the particulars of the driver. The complainant also sent a reply to this letter to the OP but despite that it did not settle the claim and further asked the complainant to submit the where-about of the driver vide letters No.16.08.2017 and 05.09.2017 and also got served legal notice upon it but to no avail.  The act and conduct of the Op clearly amounts to deficiency in service on its part. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C13.

2.                          On notice Op appeared and filed its reply wherein it has been submitted that the present complaint is not maintainable as the complainant for the first time informed to the insurance company on 16.08.2016 after a gap of 20 days regarding loss of truck No.HR37-C-3246  which took place on 25/26.07.2016. The relevant term and condition says that  Notice shall be given in writing to the company immediately upon occurrence of any accident or 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.  The terms and conditions are to be complied with by both the parties.  The complainant had not provided the name, address and whereabouts of the driver which shows that the complainant has concealed the material facts. The Op had written letter dated 05.09.2017, 16.08.2017 and reply dated 25.09.2017 in connection with the claim in question  asked him to submit the driver statement but he did not bother to submit the same.  There is no deficiency in service on the part of OP as the complainant did not cooperate the insurance company. The complainant did not suffer any financial, physical and mental loss. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OP has tendered affidavit Annexure RA and documents Annexure R1 to Annexure 15.

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

4.                Admittedly, the vehicle in question was insured with the OP and same was stolen during the subsistence of the policy and regarding this FIR Annexure C3 was also lodged in police station Mahesh Nagar, Ambala. The main ground of the OP is that the complainant was not cooperating with the insurance company as he had failed to submit the whereabouts of the driver of the vehicle to the insurance company despite writing several letters to him. In para No.2 of the complaint the complainant has specifically mentioned that he himself had parked the vehicle in question in front of his shop/godown No.209 after locking the same and this version also finds support from the FIR Annexure C3, therefore, it appears that the plea for non-settling the claim of the complainant does not survive rather it shows that how the insurance company is bent upon to repudiate the genuine claim of the complainant on the ground that the complainant is not cooperating to the investigator by submitting the statement of driver. But in view of the contents of the FIR Annexure C3 that complainant himself had parked the vehicle and complainant also sent the claim form Annexure R2 corroborating the version as depicted in the FIR.  The complainant has made a statement before the investigator qua an enquiry from the driver whether he had taken the vehicle or not, therefore, it does not show that any requirement of the driver was necessary in the investigation because the complainant has specifically mentioned that he himself had parked the vehicle and this version is also recorded by the police in FIR.  In the present case the vehicle of the complainant was stolen by some unknown person and regarding this untraced report submitted by the police before the court has already been accepted and consigned to the record room vide order dated 03.05.2017 (Annexure C4).  Whether or not there is a breach of condition will always depend upon the circumstances and facts of the case. The vehicle in question is said to have been stolen when the complainant parked the vehicle in front of his shop. The plea of the OP in closing the claim of the complainant on the ground that to submit the driving statement failing which the claim would be filed as No Claim is not sustainable rather it appears that this ground has been made in order to defeat the rights of the complainant despite the fact that he had got the vehicle insured after paying the premium, therefore, the OP is ceased to raise such plea.

5.                The other ground of the OP that there was delay in question in intimating the insurance company is also not sustainable because it is common knowledge that a person who got lost his vehicle may not straightaway go to the Insurance Company to claim compensation.  Though the OP had taken the plea of late intimation to the insurance company in the written statement but the claim has not been closed only on the ground of not submitting the statement of driver as mentioned in Annexure R12 dated 07.11.2017 and even the investigator / surveyor in his report Annexure R4 has authenticated the theft of the vehicle.  The case laws relied upon by learned counsel for the OPs titled as Devinder Kumar Vs. National Insurance Company RP No.3840 of 2011  decided on 02.04.2012 by Hon’ble National Commission, Surender Vs. National Insurance Company 1 (2013) CPJ 741 (NC), Iffco Tokio General Insurance Vs. Dileep Kumar Mishra RP No.3331 of 2010 decided on 23.09.2015 by Hon’ble National Commission, Mantoo Ram Bari Vs. Branch Manager, New India Assurance  RP No.609 of 2016 decided on 16.03.2016 by Hon’ble National Commission, ShriRam General Insurance Co. Ltd. Vs. Anand Singh RP No.3269 of 2014 decided on 27.04.2016 by Hon’ble National Commission and Reliance General Insurance Company Vs. Arun Kumar Singh RP No.1054 of 2016 decided on 03.01.2017 by Hon’ble National Commission  are not applicable to the case in hand, therefore, same are being distinguished.

 

 

6.                Keeping in view the above facts and circumstances of the case, we are of the view that the complainant has been able to prove deficiency in service against the Op and accordingly, the present complaint deserves acceptance. The present complaint is allowed with costs and Op is directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay Rs.2,40,000/- being from the date of complaint alongwith interest @ 9% from the date of complaint till its realization.

(ii)     Also to pay a sum of Rs.5,000/- as cost as assessed above.

Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 24.07.2018                                  (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                       Member