Haryana

Yamunanagar

CC/645/2011

Raj Kumar S/o Ishwar Dayal - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Ramnik Garg

05 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 645  of  2011.

                                                                                          Date of institution: 16.06.2011

                                                                                          Date of decision: 05.07.2016.

Raj Kumar son of Sh. Ishwar Dayal Aggarwal Proprietor of M/s Rahul Traders, Saharanpur Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                        …Complainant.

                                                 Versus

Oriental Insurance Company Ltd. Branch Office, Opposite Madhu Cinema, Jagadhri Road, Yamuna Nagar through its branch Manager/Divisional Manager. 

 

                                                                                                                                                  … Respondent. 

 

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Ramnik Garg, Advocate, counsel for complainant.   

              Sh. Amit Bansal, Advocate, counsel for respondent.  

 

ORDER

 

1.                     Complainant Raj Kumar filed this complaint under section 12 of the Consumer Protection Act 1986 seeking directions to the respondent (hereinafter referred as OP) to pay an amount of Rs. 25,000/- on account of theft of his motorcycle bearing registration No. HR-02M-7089 alongwith interest and further to pay compensation as well as litigation expenses.     

2.                     Brief facts of the present complaint, as alleged by the complainant, are that he is the registered owner of motorcycle bearing registration No. HR-02M-7089, which was insured with the OP vide policy bearing No. 261700/31/2009/3659 valid from 01.07.2008 to 30.06.2009 for a sum insured of Rs. 25,000/- and a premium of Rs. 817/- was paid in this regard to the OP.  On 22.01.2009, the motorcycle in question was stolen by unknown person from the outside of ICICI Bank, which was lying in lock position. An FIR No. 61 dated 22.01.2009 under section 379 IPC was registered with the P.S.City, Yamuna Nagar and intimation in this regard was given to the OP. Thereafter, the complainant completed all the formalities by submitting the claim documents as required by the OP but the OP did not settle the claim of the complainant till the filing of the complaint.   As such, there is a gross negligence and deficiency in service on the part of OP by not paying the claim insured amount and due to that negligent act, the complainant has been suffering mental agony, harassment as well as financial loss for which he is entitled for compensation besides the claim amount.  Hence, this complaint.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainant has not approached this Forum with clean hands as he has suppressed the material facts; this Forum has no jurisdiction to entertain and try the present complaint; present complaint has been filed without any cause of action. The complainant has tried to manipulate the facts for imposing this false and frivolous complaint. The true facts are that the claim of the complainant was duly entertained in due course and after thorough investigation and consideration on all aspects its was found that the motorcycle bearing registration No. HR-02M-7089 was stolen on 22.01.2009 and the complainant gave information to the opposite party regarding the theft on 02.02.2010 i.e. after 11 days of the occurrence. It has been further mentioned that as per terms and conditions of the insurance policy notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. It is also a requirement of condition No.1 of the Insurance Policy that “ Claim for theft of vehicle not payable if theft not reported to company within 48 hours of its occurrence. As such it is clear from the facts of the case that there was clear cut violation of terms and conditions of the insurance policy and the claim in question was not payable. Therefore, the claim was legally and justifiably repudiated and the complainant was duly informed regarding the fate of his claim. On merit, controverted the plea taken by the complainant and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant  tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of insurance policy as Annexure C-1, Photo copy of FIR as Annexure C-2, Photo copy of driving license as Annexure C-3, Photo copy of registered letter dated 02.02.2009 written to RTO Yamuna Nagar as Annexure C-4, Photo copy of intimation letter dated 02.02.2009 as Annexure C-5, Photo copy of letter dated 20.03.2009 demanding untraceable report from the complainant as Annexure C-6, Photo copy of letter dated 30.11.2009 submitting the untraceable report as Annexure C-7, Photo copy of untraceable report as Annexure C-8, Photo copy of Final Form/Report as Annexure C-9, Photo copy of letter dated 17.02.2010 requesting for processing the claim as Annexure C-10 and closed the evidence on behalf of complainant.   

 5.                    On the other hand, counsel for the OP Insurance Company has tendered into evidence affidavit of R.S.Kalra, Divisional Manager/ Authorized Signatory OIC as Annexure RW/A and documents such as Photo copy of Insurance policy as Annexure R-1, Photo copy of motor claim scrutiny form as Annexure R-2, Photo copy of information letter dated 02.02.2009 as Annexure R-3, Carbon copy of repudiation letter dated 31.03.2010 as Annexure R-4, Photo copy of surveyor report as Annexure R-5 and closed the evidence on behalf of OP.

6.                     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 party reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is admitted fact that the complainant was registered owner of the motorcycle bearing registration No. HR-02M-7089 and it was insured with the OP vide policy bearing No. 261700/31/2009/3659 valid from 01.07.2008 to 30.06.2009 for a sum assured of Rs. 25,000/- and a premium of Rs. 817/- was paid in this regard to the OP which was stolen by some unknown person on 22.01.2009 during the currency of insurance policy. It is also admitted that regarding theft of Motor Cycle, an FIR No. 61 dated 22.01.2009 (Annexure C-2) was lodged with the police of P.S. City, Yamuna Nagar.

 8.                    The only plea of the insurance company is that the claim of the complainant has been rightly repudiated vide letter dated 31.03.2010 (Annexure R-4) as the alleged theft took place on 22.01.2009 whereas OP insurance company was intimated on 02.02.2009 i.e. after 11 days of the alleged theft which is clearly violation of the terms and conditions No.1 of the insurance policy, according to which the insured was duty bound to give immediate intimation to the insurance company and also referred the case law titled as New India Assurance Company Ltd. vs. Trilochan Jane, First Appeal No. 321 of 2005 decided on 9.12.2009 and the case titled as Om Parkash vs. National Insurance Company Ltd. 2012 (III) CPJ page 59 and further referred the another case law titled as H.D.F.C. Ergo General Insurance Co. Ltd. Versus Bhagchand Saini, 1(2015) CPJ page 206 (N.C.) wherein it has been held that 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.

9.                     On the other hand, counsel for the complainant hotly argued that the genuine claim of the complainant has been wrongly repudiated on the flimsy ground by the OP insurance company. The motorcycle bearing registration No. HR-02M-7089 was stolen by somebody on 22.01.2009 and the complainant immediately informed the police of P.s. City Yamuna Nagar which is evident from FIR No. 61 dated 22.01.2009 (Annexure C-2). It has been further argued that all the information sought by the OP insurance company was duly clarified by the complainant from time to time. Further, the learned counsel for the complainant draw our attention towards the untraceable report issued by Chief Judicial Magistrate, Yamuna Nagar vide its order dated 05.11.2009 (Annexure C-8). Lastly argued that insurance companies cannot reject the genuine claims simply because of late intimation to the Insurance Company.  To substantiate the aforesaid version, the complainant’s counsel submitted the case law delivered by our Hon’ble State Commission, Haryana, Panchkula in case titled as Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, reported in 2014(4) CLT page 161 wherein it has been held that “Insurance Claim-Repudiation- on the ground that there was delay of 15 days in lodging the FIR and 36 days in giving information to the Insurance                                            Company-IRDA have given direction to the insurance companies not to reject genuine claims simply because of late registration of FIR and late intimation to the Insurance Company- Held-IRDA is the controlling authority of all Insurance Companies and being a statutory body, is competent to frame guidelines and issue instructions to Insurance Companies which are binding upon them. Appeal accepted. Learned counsel for the complainant further referred the Instruction of IRDA “That the insurer cannot reject claims amount for delay in intimation”

10.                   After going through the above noted facts at length, we are of the considered view that arguments advanced by the counsel for the OP is not tenable.  From the perusal of FIR (Annexure C-2) it is clearly evident that complainant intimated the police immediately on the same day regarding the theft of motorcycle bearing registration No. HR-02M-7089 and lodged the FIR bearing No. 61 dated 22.01.2009 on the same day. Further from the untraceable report issued by the competent court of law (Annexure C-7), it is also evident that police could not trace out the motorcycle in question. Although the complainant intimated the OP Insurance Company after 11 days from the theft, however, OP Insurance Company cannot repudiate the claim of complainant as the IRDA has clearly mentioned in the instructions that the insurer cannot reject claims amount for delay in intimation”. The authorities (supra) tendered by the OP are not disputed but not helpful in the present case whereas on the other hand the Hon’ble Delhi State Commission, New Delhi in case titled as Ridhi Gupta Vs. NIC, 2008(3) CPJ page 459 has held that theft information to the police in any form, including DD report, sufficient requirement-Once report lodged with the police in any form, Insurance Company barred from appointing investigator to investigate, whether theft took place or not. Even in another case titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission has also held that “ in case of theft of vehicle, breach of policy condition is not germane- A delay of 15 days is not significant in such a case”. Further in case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula it has been held that “ Delay of 12 days in intimation to the insurance company- there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. Even Hon’ble Punjab & Haryana High Court 2011-4 PLR National Insurance Company Ltd. Vs. Ravi Dutt Sharma has held that “merely because there was a delay on the part of the insured to inform petitioner-Company would not be a reason enough to decline or repudiate the claim and it is further held that Insurance Companies are not acting fairly in all such matters after charging huge premium- Intention is always to repudiate the claim on one ground or the other” 

11.                   In the present case also there was only delay in intimation for 11 days whereas FIR was lodged on the same day. The case law referred above are fully applicable on the facts and circumstances of the case, so, we are of the considered view that the repudiation of the claim by the OP Insurance Company on the ground of delay intimation to the Insurance Company is not genuine which constitute deficiency in service on the part of OP Insurance Company and the OP Insurance Company is liable to pay the claim amount as per IDV of vehicle i.e. Rs. 25000/-.

12.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay the insured amount of Rs. 25000/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 2000/- as litigation expenses. It is also made clear that an amount of Rs. 25000/- on account of theft of motorcycle bearing registration No. HR-02M-7089 will be released to the complainant subject to submitting the subrogation letter as well as indemnity bond in favour of OP Insurance Company. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 05.07.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER