BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR
Complaint No. 246 of 2010.
Date of institution: 19.3.2010
Date of decision: 5.11.2015.
Hemant Chutani son of Sh. K.L. Chutani aged about 32 years, resident of H. No. 571, Santpura, Model Town, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.
…Complainant.
Versus
- Oriental Insurance Company Limited, Opposite Madhu Hotel, Jagadhri Road, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar through its Divisional Manager.
- Sh. Ashwani Pathak, Development Officer, Oriental Insurance Company, Divisional Office, Opposite Madhu Hotel, Jagadhri Road, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.
… Opposite parties.
BEFORE: SH. ASHOK KUMAR GARG, PRESIDENT
SH. S.C.SHARMA, MEMBER.
Present: Sh. P.K.Kashyap, Advocate, counsel for complainant.
Sh. Sanjay Sharma, Advocate, counsel for OPs.
ORDER
1. Complainant Hemant Chutani filed this complaint under section 12 of the Consumer Protection Act 1986 praying therein that respondents (hereinafter referred as OPs) be directed to pay a sum of Rs. 55,000/- as cost of motorcycle and a sum of Rs. 25,000/- as compensation and further to pay Rs. 11,000/- on account of litigation expenses..
2. Brief facts of the present case are that complainant had got insured his Motorcycle Make Bajaj Pulsar Model 2007 bearing registration No. HR-02R-2340 for a sum of Rs. 55,000/- vide policy cover note No. 953437 having validity from 22.4.2007 to 21.4.2008. The said motorcycle was stolen on 21.10.2007 when the complainant had gone to meet his friend at his house No. 1853, Sector-17, HUDA, Jagadhri after parking the said motorcycle outside his house. The complainant immediately visited the police station P.S. City Jagadhi and gave intimation to the police regarding the theft of motorcycle bearing Registration No. HR-02-R-2340, and an intimation was also given to the insurance company on the next day through Sh. Ashwani Pathak OP No.2 and the insurance company assured the complainant to make the payment of stolen vehicle. The complainant handed over the copies of relevant documents including insurance, registration certificate and driving license etc. immediately to the insurance company. The theft had taken place in the month of October 2007 but the OP company did not settle the claim of complainant for two years and finally vide letter date 29.10.2009, the claim of the complainant illegally, arbitrarily repudiate without any cogent reason and on the ground citing the violation of policy conditions which were never issued to him alongwith the policy and the said repudiation letter has no force in the eye of law. The act and conduct of the OP company is highly negligent and deficient in services and on account of said reason the complainant has suffered great mental agony, harassment and financial loss for which the complainant is entitled for compensation. Hence this complaint.
3. Upon notice, OP No.1 appeared and filed its written statement by taking some preliminary objections such as complaint is neither legally maintainable nor tenable in the eye of law, no negligence or deficiency in service on the part of OP No.1, no locus standi to file the present complaint, complainant has suppressed the material things from the Forum and on merit it has been stated that it is a negligence of the complainant that he has not locked his vehicle while parking and OP No.1 is not liable for his negligence. The complainant has neither informed nor supplied any copy of DDR/FIR and nobody came with the report of stolen of motorbike as alleged. So the claim of complainant has been rightly repudiated and complaint is unfounded, misconceived and is liable to be dismissed with costs. As such, there is no negligence or deficiency in service on the part of OP No.1 and prayer for dismissal of the complaint.
4. OP No.2 appeared and filed his written statement by taking some preliminary objections such as the present complaint is neither legally maintainable nor tenable in the eye of law, no negligence or deficiency in service, no locus standi to file the present complaint and on merit that the complainant while parking his vehicle did not lock his motorcycle and in negligible condition the OP No.2 is not liable and reiterated the stand taken by OP No. and lastly prayed for dismissal of complaint against the OP No.2.
5. To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Intimation letter dated 7.11.2007, Photo copy of insurance policy as Annexure C-2, Photo copy of Repudiation letter dated 29.10.2009 as Annexure C-3, Photo copy of FIR as Annexure C-4, Photo copy of untraceable report as Annexure C-5 and closed the evidence on behalf of complainant.
6. On the other hand, counsel for the OPs tendered into evidence affidavit of Shri Ashwani Pathak, Development Officer as Annexure RX, Affidavit of Shri R.S.Kalra, Divisional Manager as Annexure RY and documents such as Photo copy of claim repudiated letter dated 29.10.2009 as Annexure R-1, Photo copy of Motor Claim Scrutiny Form as Annexure R-2, Photo copy of insurance policy as Annexure R-3, Photo copy of claim form as Annexure R-4 and closed the evidence on behalf of OPs.
7. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully. Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite parties reiterated the averments made in the reply and prayed for its dismissal.
8. Admittedly, the motorcycle in question of the complainant was insured with the OPs vide policy cover note No. 953437 (Annexure R-3/C-2) having validity from 22.4.2007 to 21.4.2008. for a sum of Rs. 55,000/- in the name of Hemant Chutani complainant. It is the case of the complainant that the motorcycle in question was stolen on 21.10.2007 during the subsistence of the policy and claim lodged by the complainant was not honoured by the opposite parties, whereas it is the case of the OPs that there is violation of terms and conditions of the Ins. policy as the theft had taken place on 21.10.2007 but FIR Annexure C-4 was lodged on 6.11.2007 i.e. after 15days. Even the intimation was given to the opposite parties on 21.4.2009 i.e.after a gap of more than 1 year 5 months. As the FIR has been lodged after 15 days and intimation was given to OPs after 1 year 5 months 15 days, hence the claim of the complainant has rightly been repudiated and there is no deficiency in service on the part of OPs. Learned counsel or Ops referred the case law titled as Royal Sundram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil, 2015 (3) CLT page 90 (N.C) and another case law titled as H.D.F.C. Ergo General Insurance Co. Ltd. Versus Bhagchand Saini, 1(2015) CPJ page 206 (N.C.) have weight as delay in reporting to the insurer about the theft would be violation of condition of the policy as it deprives insurer of a valuable right to investigate as to commission of theft and to help in tracing the vehicle. Moreover, in the policy, it has been specifically mentioned that claim for theft of the vehicle not payable if theft not reported to the company within 48 hours of its occurrence. The Hon’ble National Commission in case titled as Om Parkash vs. National Insurance company Ltd. 2012(III) CPJ Page 59 has observed that “ Insurance-theft of vehicle-Delay in intimation-Claim repudiated-alleged deficiency in service-District Forum allowed complaint- State Commission allowed appeal-Hence revision-terms and conditions of insurance policy are required to be strictly construed and no exception can be made on the ground of equity-Even delay of few days in not intimating Insurance Company about incident of theft is fatal-insured looses its right to be indemnified when he himself is not vigilant about his rights and his obligations in regarding to compliance of terms and conditions of policy-impugned order upheld”.
9. Further in the case titled as New India Assurance Company Ltd. vs. Trilochan Jane First Appeal No. 321 of 2005 decided on 9.12.2009 it has been observed in the case of theft “where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”
10. In another case titled as HDFC ERGO General Insurance Co. Ltd. vs. Bhagchand Saini (supra) observed that Insurance-Theft of vehicle- Delay in intimation-Violation of conditions of policy-Claim repudiated-alleged deficiency in service- District Forum allowed complaint- State Commission dismissed appeal-Hence revision-Delay of about 4 months in giving intimation to Insurance Company- Insurance contract is a contract of indemnity-Violation of conditions has to be taken into account- Complainant is not entitled for any compensation even on ‘non-standard’ basis- Complaint dismissed. Revision petition allowed.
11 Further in case titled as Royal Sundaram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil (N.C) has observed that Insurance Claim-theft of car- Insured intimated the insurer regarding theft of his car after 39 days of the accident-Held- Insured has violated the mandatory terms and conditions of the insurance policy-revision petition allowed.
12. On the other hand, counsel for the complainant argued that the motorcycle of the complainant was stolen by unknown persons and he lodged his claim immediately after completing all the formalities but the OPs have repudiated the claim of the complainant on false and flimsy ground. Even the OPs cannot repudiate the claim of the complainant as whole and as per citation of the Hon’ble Apex Court claim should be settled on Non Standard Basis by making 75% of the amount in case of violation of the terms and conditions of the insurance policy and referred the case laws titled as Amalendu Sahoo vs. Oriental Insurance Co. Ltd. 2010(1) CPC page 653 (S.C.), B. Shantilal & Co. (deceased) & others versus New India Assurance Co. Ltd. & Another, 2012(1) CPC page 55 (N.C) and United India Insurance Co. Ltd. versus Bhupinder Singh, 2013(2) CPC Page 314 (N.C.)
13. In the present case, it is admitted fact that vehicle of the complainant was insured with the OPs and the same was stolen during the subsistence of the insurance policy and the FIR bearing No. 385 (Annexure C-5) was registered on 6.11.2007 i.e. after 15 days but the complainant has not mentioned in his complaint when information was given to the OPs. However, he has written in his complaint that the information was given to the OPs immediately but this plea is not supported by any credible evidence because from the perusal of Annexure C-1, it reveals that the intimation was given to the insurance company on 7.11.2007 i.e. after a delay of 15 days whereas the OP tendered a copy of same letter Annexure R-5, it reveals that the intimation was given on 21.4.2009 after a period of 1 year 5 months 15 days after the alleged loss. The plea taken by the complainant that the intimation was given to the police on the same day but the police registered the FIR on 6.11.2007 is also not tenable it is settled law that normally, document does not lie but man may do. Even if we presume this, even then it is not enough to make the insurance company liable to pay the claim which was lodged with it after a gap of 1 year 5 month 15 days. On this point reliance can be placed on case law titled as Surender Vs. National Insurance Co. Limited 1(2013) CPJ page 741 National Commission because in that case the vehicle was stolen on 20.5.2008 and FIR was lodged on the same day but it has been specifically mentioned that it was obligatory on the part of complainant to intimate about the theft to the Insurance Company immediately. Further the OP relied upon the case law titled as Kulwant Singh vs. The Managing Director, United India Insurance Co. Ltd. & others, 2015 (1) CLT page 106 wherein it has been held that Insurance Claim-Delay in FIR-Theft informed after 3 days to police-Breach of Terms of Insurance Whether insurance claim can be decided on non standard basis-Held-No- Such a delay can be fatal as within three days the vehicle could have been driven long distance even across the border of the country or could have been dismantled and sold to the scrap dealer- By delaying the information of theft to the police, the insured had acted against the interest of insurer and this violation of condition is fundamental to the loss caused which justifies the repudiation of claim by the respondent insurance company. The authorities (supra) tendered by complainant are not disputed but not helpful in the present case whereas the authorities (supra) tendered by the OPs are fully applicable in the present case.
14 In view of the above discussion, this Forum is of considered view that there is violation of terms and conditions of policy and opposite parties have rightly repudiated the claim of the complainant vide letter dated 29.10.2009 (Annexure C-3). As such, there is no deficiency in service on the part of opposite parties. Hence, the present complaint is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.
Announced in open court. 5.11.2015.
( ASHOK KUMAR GARG)
PRESIDENT
(S.C.SHARMA)
MEMBER
