| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.152/2012 Shri Giri Raj S/o Rati Ram 135, Sarai Kale Khan, Nizamuddin East, New Delhi ….Complainant Versus Oriental Insurance Co. Ltd. Oriental House, A- 25/27, Asaf Ali Road, New Delhi Oriental Insurance Co. Ltd. Service Centre (DRO 1) Hansalya Building Barakhamba Road, New Delhi- 110001 Oriental Insurance Co. Ltd. Main Market, G-8, Hauz Khas, New Delhi ….Opposite Parties Date of Institution : 12.04.2012 Date of Order : 07.03.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - Facts of the complaint as pleaded by the Complainant are that the Complainant owned a vehicle by the name of Scorpio, the registration no. of the said vehicle is DL 3C AS 1627.
- The said vehicle in the intervening night of 12-13 July, 2009 got stolen from the house of Complainant’s daughter, where he had gone to visit. Immediately the matter was informed to police and FIR no. 368/2009 was lodged at Police Station Mehrauli, New Delhi.
Copy of the FIR is annexed as Annexure-C4. The said vehicle was insured by Oriental Insurance Company Ltd., which was valid from 05.03.2009 to 04.03.2010. It is averred that the Complainant intimated the theft to the agent of OP. Thereafter, the Complainant was informed by Police Station, Mehrauli that his vehicle was found from some thieves by the police at Punhana, District Mewat, Haryana. It was also disclosed to the Complainant that the thieves, who had stolen the vehicle, injured some boy at Shikarva Village and while the police was trying to catch the thieves they tried to escape and in the process the vehicle over turned and was badly damaged. Copy of FIR no. 240/2009 dated 13.07.2009 is annexed as Annexure-C5. - It is next averred that the Complainant as well as the police reported the accident to OP. The Complainant took out the printout of the policy as all the documents of the vehicle were stolen alongwith the vehicle. When Delhi Police came to know about the recovery of the vehicle by police at Punhana the police informed about the said matter to OP because the said vehicle was insured by OP.
- It is next stated that the Police Station, Mehrauli procured the vehicle from the concerned court at Gurgaon thereafter, the Complainant applied for superdari of the vehicle and he got the vehicle on superdari on 29.07.2009.
Copy of the order sheet of release order by the Court of Gurgaon and the Court of Delhi are annexed as Annexure-C6. - After receiving the vehicle on superdari the Complainant removed the vehicle from the Police Station and gave it to Koncept Automobiles Pvt. Ltd. for repairs as the vehicle was badly damaged. Koncept Automobiles Pvt. Ltd. prepared a job sheet and assessed the total claim of Rs.2,15,562/-. As the said amount for repairs was not paid by OP, Complainant paid the amount by taking loan. Meanwhile the Complainant raised its claim on OP.
- The Complainant repeatedly communicated to OP regarding the claim and was informed on 07.10.2010 that OP had repudiated the claim on vague grounds that the theft was not intimated to OP within 48 hours. The vehicle was stolen or damaged on 13.07.2009; however the same was reported to OP on 03.08.2009. The Complainant reiterate the fact that the agent of OP from whom, he had taken the insurance was informed verbally regarding the theft and damage of the vehicle, however written intimation was made to OP on 03.08.2009.
- Alleging deficiency in service of OP for not paying the rightful claim of the Complainant, the Complainant has approached this Forum for direction to OP to pay Rs.2,15,000/- to the Complainant alongwith interest @18% p.a. and to pay Rs.2,00,000/- compensation towards mental agony and Rs.51,000/- towards litigation cost.
- OP resisted the complaint stating inter-alia that the Complainant has violated the term and condition no. 1 of the insurance policy as, he had failed to give notice to the insurance company in writing immediately regarding the theft of the vehicle and give all assistance and co-operation required in order to secure the conviction of the offender. Complainant by not informing OP deprived the insurance company the right to investigate the matter immediately after the theft, as is required under the conditions of the insurance policy. Terms and conditions of the policy are annexed as
Annexure-A.
- It is next stated by OP that theft of the vehicle took place on the intervening night of 12 and 13 July, 2009, whereas OP regarding the theft was intimated for the first time on 03.08.2009 that is more than 22 days after the accident. The letter of intimation dated 03.08.2009 is annexed as Annexure-C and the undated claim form is annexed as Annexure-D.
- After intimation also the Complainant failed to inform about the subsequent recovery and his taking the delivery of the vehicle on superdari. The vehicle in question was taken by the Complainant without any mechanical inspection report, missing/damaged parts report and recovery memo thereby depriving the company to initiate appropriate loss minimization steps including appointment of an investigator and to get the vehicle inspected at the time of recovery for the alleged missing/damaged parts. The said fact is further substantiated by the Complainant’s statement dated 25.04.2010 annexed as Annexure-E. The Complainant got the vehicle repaired on his own without assessment of loss and approval of the surveyor and is therefore not entitled to reimbursement for the cost of repairs. OP has vehemently denied that OP or his agent was any time informed regarding the theft and accident of the vehicle before 03.08.2009. It is thus prayed that the complaint be dismissed with exemplary costs as the claim was rightly repudiated.
- Complainant has filed replication to the written statement reiterating the averments made in the Complaint. Affidavit by way of evidence and written arguments have been filed on behalf of parties. Arguments are heard and record is perused.
- Admittedly, Complainant’s vehicle was stolen on the intervening night of 12 and 13 July, 2009. As per letter dated 03.08.2009 annexed as Annexure-C with the Written Statement of OP. First written intimation to OP was given for the first time on 03.08.2009 that is more than 22 days after the theft and the accident. It is Complainant’s case that the Complainant was visiting his daughter at Village Jonapur, New Delhi and had parked his vehicle outside her house. The Complainant in morning found that the said vehicle was stolen; he immediately lodged an FIR regarding the same at Mehrauli Police Station, New Delhi on 13.07.2009. The same day Complainant received an information from the Police Station Mehrauli, that his vehicle had met with an accident and the thieves, who had stolen the vehicle were caught by the police at Punhana, District Mewat, Haryana. The said accident was reported and an FIR was lodged at Police Station Punhana. FIR lodged at Police Station Mehrauli regarding theft is appended at page no. 12 and FIR at Police Station Punhana, Mewat regarding accident is appended at page no. 14.of the complaint.
- Thereafter, Complainant got the vehicle on superdari on 29.07.2009 after the vehicle was got procured by Mehrauli Police Station from concerned court at Gurgaon. Subsequently the Complainant got his vehicle repaired and raised total claim of Rs.2,15,562/-to OP. However, the claim of the Complainant was repudiated mainly on the ground that due to the delay in intimation to OP, claim for the theft of vehicle was not payable.
- In Gurshinder Singh V/s Shri Ram General Insurance Company decided by Hon’ble Supreme Court on 24.01.2020 it is held:-
“We find, that the second part of Condition No. 1 deals with the ‘theft or criminal act other than the accident’. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle”. - Complainant has assigned cogent reasons for delay in intimation. Taking into consideration the aforesaid dicta delay of 22 days in intimating OP more so when the Complainant was running from pillar to post, reporting for theft and getting to know that the vehicle had met with an accident. Thereafter, releasing the vehicle on superdari, the delay is justifiable and explained. Therefore, we are of the opinion that delay in informing the insurance company (OP) should not debar the insured to get the insurance claim, when the delay is justifiable and explained.
- The ground for repudiation was that as the Complainant had not informed the OP promptly about the alleged theft of the vehicle, its recovery and subsequent release on superdari, thus depriving the company to initiate appropriate loss minimization steps (including appointment of an investigator) and also to get the vehicle inspected at the time of recovery for the alleged damages/missing parts. Repudiation letter provided by OP also states that the Complainant did not co-operate with the surveyor/investigator deputed by the company to ascertain the correct facts and chain of events to enable the company to access the loss and evaluate the claim. On the contrary Complainant’s relatives/aquaintances tried to browbeat the surveyor and investigator by their abusive behaviour, pressure tactics and hostile attitude. All the grounds individually and collectively tantamount to breach of express conditions of the policy. Therefore, Complainant’s claim was repudiated.
- Though, there is no denying the fact that the Complainant should have intimated OP immediately after taking delivery of the vehicle from police on superdari on 29.07.2009 so that OP could initiate appropriate loss minimization steps and also could have appointed an investigator/surveyor to get the vehicle inspected at the time of recovery for the alleged damages/missing parts; and could have taken minimization steps and also could have appointed an investigator/surveyor to get the vehicle inspected at the time of recovery for the alleged damages/missing parts; however, on perusal it is noticed that OP did appoint a surveyor and there is a final motor survey report dated 09.01.2010 appended at page no. 29. with the Evidence of OP. Close scrutiny of the said documents reveals that date of allotment of survey was 04.08.2009 i.e. immediately after receiving the intimation from the complainant. The date and time of survey mentioned is on 06.08.2009, 11.08.2009 and 18.08.2009. The surveyor had received 49 photographs of the accidental vehicle. It is pertinent to state here that surveyor after inspecting the vehicle and noting various damages assessed the net liability of insurance company to be Rs.1,18,795/-. After reading the said report there is no doubt in our mind that the vehicle had met with an accident and the surveyor had also fixed net liability on OP. Therefore, we are of the opinion that OP is liable to pay the said amount.
- In similar facts Hon’ble Supreme Court in Gurshinder Singh v/s Shri Ram General Insurance Company decided on 24.01.2020 held that:
“We find, that this court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claim, which had already been verified and found to be correct by the investigator.” - In view of the discussion above, we are of the opinion that OP is liable to pay Rs.1,18,795/- with interest @6% towards the damages caused to the vehicle from the date of filing of the complaint till realization. OP is also directed to pay Rs.10,000/- towards litigation cost failing which OP shall be liable to pay Rs.1,18,795/- with interest @10% till realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. | |
