Haryana

Yamunanagar

CC/97/2013

Surjeet Singh S/o Gurdeep Singh - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Sumit Gupta

22 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 97 of 2013.

                                                                                          Date of institution: 08.02.2013

                                                                                          Date of decision: 22.08.2016.

Surjeet Singh aged about 44 years son of Sh. Gurdeep Singh, resident of 985 Kamla Nagar, Model Town, Opp. Police Station Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                                          …Complainant.

                                    Versus

 

The Oriental Insurance Company Ltd. Opp. Madhu Cinema, Jagadhri Road, Yamuna Nagar, through its Branch Manager.

 

 

                                                                                                                                 … Respondent

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Sumit Gupta , Advocate, counsel for complainant.   

              Sh. Sushil Garg, Advocate, counsel for respondent. 

 

ORDER

 

1.                     Complainant Surjeet Singh filed this complaint under section 12 of the Consumer Protection Act 1986, seeking directions to the respondent (hereinafter referred as OP) to make the payment on account of theft of his motorcycle amounting to Rs. 28,000/- as insured declared value of the motorcycle and further to pay Rs. 50,000/- as compensation and damages alongwith Rs. 11,000/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that the complainant was registered owner of motorcycle baring registration No. HR-02J-8239 Make Hero Honda Model 2003 and he had got insured the said vehicle with OP vide insurance cover note No. 718580 (Annexure C-1) valid w.e.f. 24.03.2005 to 23.03.2006 for a sum insured of Rs. 28,000/- and a premium of Rs. 645/- was paid in this regard to the OP. It has been further alleged that on 01.06.2005 at about 9.00 P.M., the complainant, after locking his motorcycle, had parked the same in front of his house and had gone inside of his house and after some time when he came back he did not find the his motorcycle there. The complainant tried to trace out the said motorcycle but could not find the same and finding no way he had lodged an FIR No. 327 dated 21.06.2005 (Annexure C-2) with the police station City Yamuna Nagar. The complainant had also informed in this regard to the OP insurance Co.  vide letter dated 20.06.2005 (Annexure C-3) and in response to the letter of complainant, the officials of OP sent a letter dated 21.07.2005 and then on 14.09.2006 (Annexure C-4) asking the complainant to submit the untraced report from 1st Class Magistrate. The complainant after obtaining the said report from court submitted the same to the Op vide letter dated 26.02.2007 (Annexure C-6) and also submitted other documents as desired by the OP Insurance Company but even then they have not released the claim of the said vehicle to the complainant. The complainant requested the OP Insurance company several times to release the claim but they did not pay any heed to the genuine request of the complainant. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as there is no deficiency in service on the part of OP Insurance Co. because of the fact that the  complainant did not submit the untraceable report as required by the Op Insurance Company for settling the claim as per terms of policy despite of various letter dated 02.07.2005 and 24.07.2006 written to the complainant and ultimately having no other option the Op Company closed the case file after giving the registered final notice dated 14.09.2006, hence the present complaint is nothing but an abuse of process of law; the present complaint is beyond limitation because the complainant did not submit the untraceable report within the stipulated time as required vide final notice dated 14.09.2006; The complainant has utterly failed to inform the Op Company regarding theft of his motorcycle in time and the report was only made on 20.06.2005 after 19 days from the date of alleged theft, whereas as per the terms of the policy, immediate information is required; complainant has arisen no cause of action to file the present complaint which is false, frivolous and baseless; this Forum has no jurisdiction to entertain and decide the present complaint. Even though, the OP company having no liability but if the forum come to the conclusion towards the liability of the OP Company in that eventuality, the complainant has to complete the document formalities by getting transfer the motorcycle in question in the name of Op Company in the records of registration authority and also submit the subrogation letter and letter  of understanding in favour of Op Company and on merit controverted the plea taken by the complainant and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and photo copies of documents such as Insurance policy as Annexure C-1, Copy of FIR as Annexure C-2, Intimation Letter dated 20.06.2005 as Annexure C-3, Letter dated 14.09.2006 as Annexure C-4, Letter dated 29.09.2006 as Annexure C-5, Letter dated 26.02.2007 as Annexure C-6, Letter dated 23.06.2010 as Annexure C-7, Letter dated 25.11.2011 as Annexure C-8 and closed the evidence on behalf of complainant.

 5.                    On the other hand, counsel for the OPs tendered into evidence affidavit of Abhas Assistant Manager, OIC as Annexure RW/A and photo copies of documents such as Coy of FIR as Annexure R-1, Letter dated 20.06.2005 as Annexure R-2, Letter dated 14.09.2006 as Annexure R-3, Postal receipt as Annexure R-4, and closed the evidence on behalf of OPs.

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 not disputed fact that the complainant being registered owner got insured his motorcycle bearing registration no. HR-02J-8239 with the OP insurance company vide insurance cover note No. 718580 valid from 24.03.2005 to 22.03.2006 (Annexure C-1) for a sum insured of Rs. 28,000 and a premium of Rs. 645/- was paid in this regard to the OPs insurance company.   

8.                     It is the case of the complainant that the motorcycle in question was stolen on 01.06.2005 during the subsistence of the policy which is evident from FIR No. 327 dated 21.06.2005 (Annexure C-2/ R-1) registered in police station City, Yamuna Nagar and a claim was lodged with the OP Insurance Company by the complainant which is evident from intimation letter dated 20-06-2005 (Annexure C-3) but the claim lodged by the complainant was not honoured by the opposite parties. Learned counsel for the complainant further argued that complainant submitted untraced report issued by 1^st class magistrate vide letter dated 26.02.2007 (Annexure C-6) and after submitting the untraced report, the complainant requested the OP Insurance Company to settle the claim of the complainant vide letter dated 29.09.2006, 26.02.2007, 23.06.2010, 25.11.2011 which is evident from Annexure C-5 to C-8 but they did not pay any heed to the genuine request of the complainant. Learned counsel for the complainant further argued that the complaint of complainant is not beyond limitation and draw our attention towards the case titled as Bombay Stock Exchange Ltd. Versus New India Insurance Co. Ltd. 2016(2) CLT Page 58 wherein it has been held that the claim was never repudiated by Insurance Company- It is a sound logical proposition that the cause of action should start from the date, when the insurance company have taken the final decision about the settlement of the claim- Contention of OP, that the complaint is barred by limitation under section 24(A) of the Act, does not hold any ground- Therefore, complaint cannot be held to be not maintainable on grounds of limitation- Consumer case allowed. Further also referred the case law titled as Sirpur Paper Mills Ltd. vs. National Insurance Company Ltd., II (1997) CPJ page 36 (NC) wherein it has been held that Limitation- Insurance- Fire occurred in October, 1986- Insurance Claim repudiated on 14.11.1986- Representation made to OP- Appointed a Surveyor- submitted report on 24.4.1989- Final repudiation made on 25.08.1994- Complaint filed on 07.06.1995- Whether within limitation? Yes.

9                      Whereas, on the other hand, it is the case of the OP Insurance Co. that the  complainant did not submit the untraceable report as required by the Op Insurance Company for settling the claim as per terms of policy despite of various letter dated 02.07.2005 and 24.07.2006 written to the complainant and further there was violation of terms and conditions of the Insurance policy as the theft had taken place on 01.06.2005 and FIR was lodged on 21.06.2005 i.e. after 20 days and further the intimation was given to the OP Insurance Co. on 20.06.2005 after a gap of more than 19 days, hence the claim of the complainant has rightly been repudiated and there is no deficiency in service on the part of OP Insurance Company. 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. Even the Hon’ble National Commission in case titled as Om Parkash vs. National Insurance company Ltd. 2012(III) CPJ Page 59 has also 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 loses 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”.

10.                    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 that in the case of theft “where no bodily injury has been caused to the insured, it is incumbent upon the insured 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 vehicle. Delay in reporting to the insurer about the theft of the vehicle 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.”   

11.                   Learned counsel for the OP Insurance Company further argued that the theft took place on 01.06.2005 and the present complaint has been filed on 08.02.2013 i.e. after a period of 8 years which is beyond limitation and the complaint is not maintainable and referred the case law titled as Sigma Diagnostics Ltd. vs. United India Insurance Co. Ltd. and another, III (2009) CPJ page 75 (S.C.), Pappu Managaratanam Versus Sai Sha finance and Chits & Another, 2015(1) CPJ page 105 (NC) wherein it has been held that Limitation- Condonation of delay- Service of legal notice not extend period of limitation- cause of action arose on 01.04.2001 when complainant deposited sum of Rs. 3,45,000/- as fixed deposit for one year- Plea of complainant that cause of action will arise from the date of service of legal notice dated 20.05.2004, not accepted-Complaint barred by limitation.

12.                   After hearing both the parties, and going through the law cited by the parties, we are of the considered view that there is no deficiency in service on the part of OP as in the present case, motorcycle in question was stolen on 01.06.2005 whereas FIR was lodged on 21.06.2005 i.e. after a period of 20 days and further the intimation to the insurance company was also given on 20.06.2005 i.e. after 19 days which is evident from the letter dated 20.06.2005 issued by the complainant (Annexure C-3). Further the Complainant has only placed on file letter dated 26.02.2007 (Annexure C-6) vide which he has alleged that he has submitted the untraced report but has failed to place any photocopy of the report u/s 173 Cr.Pc or of the untraced report issued by Magistrate, on the case file. Besides this, the complainant has filed the present complaint in the year 2013. i.e. after near about 7 - 8 years  from the date of alleged loss i.e.01-06-2005 and from the repudiation letter dated 14.09.2006 (Annexure R-3) which is hopelessly time barred. The arguments of the counsel for the complainant that complainant sent the letters dated 29.09.2006 & 26.02.2007, 23.06.2010 and 25.11.2011 to settle his claim is not tenable as no explanation has been given by the complainant that why he kept mum for about 7 - 8 years. Further the complainant has neither filed any application for condonation of delay nor any explanation has been mentioned in the complaint, So, the complaint of complainant is hopelessly time barred. As per section 24-A (1) of the C.P. Act, 1986  The District Forum, the state commission or the National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.  The Authorities (supra) tendered by complainant are not disputed but not helpful in the present case whereas the Authorities (supra) tendered by the OP are fully applicable in the present case.

13                    In view of the above discussion, this Forum is of considered view that there is violation of condition No.1 of the terms and conditions of policy as well as complaint is hopelessly time barred and OP Insurance Company has rightly repudiated the claim of the complainant. As such, there is no deficiency in service on the part of OP Insurance Company.

14.                   Resultantly we find no merit in the present complaint and the same 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: 22.08.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER