Haryana

Yamunanagar

CC/505/2013

Rajinder Singh S/o Chanan Singh - Complainant(s)

Versus

OIC - Opp.Party(s)

Sultan Singh

23 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 505  of  2013.

                                                                                          Date of institution: 11.07.2013

                                                                                          Date of decision: 23.05.2016.

 

Sh. Rajinder Singh aged about 59 years son of Sh. Chanan Singh, resident of VPO Khizrabad, Tehsil Chhachhrauli, District Yamuna Nagar.                                                                                                                                                          …Complainant.

                                    Versus

Oriental Insurance Company, Branch Office, near Bus Stand, Jagadhri District Yamuna Nagar through its Branch Manager.

 

                                                                                                                                                                    … Respondent.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

           

Present: Sh. Sultan Singh, Advocate, counsel for complainant.   

              Sh. Sushil Garg, Advocate, counsel for respondent.

 

ORDER

 

1.                     Complainant Rajinder Singh filed this complaint under section 12 of the Consumer Protection Act 1986 praying therein that respondent (hereinafter referred as OP Ins. Company) be directed to pay full sum assured of the motorcycle alongwith Rs. 25,000/- as compensation and Rs. 5500/- on account of litigation expenses.  

2.                     Brief facts of the present case are that complainant had got insured his Motorcycle Splendor Plus Motorcycle bearing registration No. HR-71-4472 for a sum of Rs. 24,000/- vide policy bearing No. 261701/31/2012/5905 having validity from 22.09.2011 to 21.09.2012. In the intervening night of 28/29.01.2012, the complainant had parked his motorcycle in gallery of his house and on 29.01.2012, when he woke up, he found that his motorcycle was missing. It was stolen by some unknown person from the house of complainant. Thereafter, the complainant intimated to the police station Khizrabad on next day but the FIR was not lodged on 29.01.2012 which was lodged on 13.03.2012. The original registration certificate and insurance documents were kept in the motorcycle which were also stolen with the motorcycle. The complainant intimated the OP Insurance Company regarding the theft of motorcycle and submitted the claim form alongwith copy of RC and FIR but the OP Insurance Co. refused to accept the papers which were sent through speed post on 11.05.2012. Thereafter, Sh. Anil Sharma, Investigated the matter and took both keys of motorcycle from the complainant. The complainant so many times requested to pay the insurance claim but the OP Insurance Company did not pay any heed to the request of complainant. Lastly, the complainant issued a legal notice dated 13.05.2013 upon the OP but no response has been made. Hence, this complaint.

3.                     Upon notice, OP Insurance Company 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, the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit, this Forum has also no jurisdiction to entertain and try the present complaint as the dispute involves the determination of complex and number of complicated issues. As a matter of fact, the claim of the complainant was duly investigated and found that the motorcycle bearing registration No. HR71-4472 was stolen on 28.01.2012 and complainant gave information to the OP regarding theft on 14.05.2012 i.e. after about four (4) months of the occurrence and FIR bearing No. 33 was also lodged on dated 13.3.2012 i.e after a gap of 46 days ( 1 month 15 days).  As per terms and conditions of the insurance policy that “ claim for theft of vehicle not payable if theft not reported to company within 48 hours of its occurrence.”  It is clear from the facts of the case that there is breach of the conditions of the policy. On merit, 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 CX and documents such as Photo copy of FIR No.33 dated 13.03.2012 as Annexure C-1, Photo copy of Postal receipt dated 11.05.2012 as Annexure C-2, Photo copy of legal notice dated 13.05.2013 as Annexure C-3, Photo copy of postal receipt dated 13.05.2013 as Annexure C-4 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Abash Toppo, Assistant Manager, OIC, Divisional Office, Yamuna Nagar as Annexure RW/A and documents such as Photo copy of FIR No. 33 dated 13.03.2012 as Annexure R-1, Photo copy of affidavit of Rajinder Singh as Annexure R-2, Photo copy of letter dated 19.09.2012 for clarification for late intimation as Annexure R-3, Photo copy of insurance policy as Annexure R-4 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 parties reiterated the averments made in the reply and prayed for its dismissal.

7.                     Admittedly, the motorcycle in question of the complainant was insured with the OP Insurance Company vide policy bearing No. 261701/31/2012/5905 (Annexure R-4) having validity from 22.09.2011 to 21.09.2012 for a sum of Rs. 24,000/- in the name of Rajinder Singh complainant. It is the case of the complainant that the motorcycle in question was stolen on 29.01.2012 during the subsistence of the policy and claim lodged by the complainant was not honoured by the OP, whereas it is the case of the OP that there is violation of terms and conditions of the Ins. policy as the theft had taken place on 29.01.2012 but FIR Annexure C-1/R-1 was lodged on 13,03.2012 i.e. after 1 month 15days. Even the intimation was given to the OP Insurance Company on 14.05.2012 i.e.after a gap of more than 4 months, hence the claim of the complainant has rightly been repudiated.  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 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”.

8.                      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.”  

9.                     In another case titled as HDFC ERGO General Insurance Co. Ltd. vs. Bhagchand Saini 2015(1) CPJ page 206 National Commission 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.

10                    Further in case titled as Royal Sundaram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil 2015(3) CLT page 90 (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.

11.                   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 OP have repudiated the claim of the complainant on false and flimsy ground. Even the OP 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 National Insurance Co. Ltd. Versus Nitin Khandelwal, 2008(3) CPC page 559 (S.C) but this citation is not applicable in the present in view of latest law laid down in case titled as HDFC ERGO General Insurance Co. Ltd. vs. Bhagchand Saini (supra) wherein it has been held that Complainant is not entitled for any compensation even on ‘non-standard’ basis- Complaint dismissed.

12.                   After hearing the parties at length, we are of the considered view that no doubt the vehicle in question was stolen on 28.01.2012 during the subsistence of the insurance policy but as the FIR bearing No. 33 (Annexure C-1/R-1) was registered on 13.03.2012 i.e. after 1 month 15 days and intimation was given on 11.05.2012 after a period of about 4 months after the alleged loss, so, 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 13.03.2012 is also not tenable. Further, no cogent evidence has been filed by the complainant to prove that he intimated the police on the same day. 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 near about 4 months. The same view has been held in case law titled as Surender Vs. National Insurance Co. Limited 1(2013) CPJ page 741 National Commission as 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 Insurance Company also 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 authority (supra) tendered by complainant is 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 and after going through the law cited, this Forum is of considered view that there was violation of terms and conditions of Insurance policy and opposite party has rightly repudiated the claim of the complainant vide its letter dated 19.9.2012 (Annexure R-3). 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 in open court. 23.05.2016.

                                                                                                ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER