Punjab

Ludhiana

CC/15/273

Jalandhar Kumar - Complainant(s)

Versus

oriental Ins.Co.Ltd - Opp.Party(s)

Abdul Rashid

20 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 273 of 23.04.2015

Date of Decision            :   20.12.2016 

 

Jalandhar Kumar s/o Raghubir Raur r/o village Makkhapur, P.O.Mahul Azamgarh, U.P.

….. Complainant

                                                         Versus

 

1.The Chairman, The Oriental Insurance Company Limited., Regd.& Head Office at A-25/27, Asaf Ali Road, New Delhi-110002.

2.The Regional Manager, The Oriental Insurance Company Limited, Regional Office, SCO No.109-110-111, Sector 17-D, Chandigarh-160017.

3.The Divisional Manager, The Oriental Insurance Company Limited, CBO-V,146, Industrial Area-A Opp.Allahabad Bank, Cheema Chowk, Ludhiana.

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.Abdul Rashid, Advocate

For Ops                          :          Sh.B.S.Rampal, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant purchased an Auto Rickshaw of make Bajaj ‘Re-Maxima’ bearing registration No.UP-50-AT-8209 having engine No.30268 and Chassis No.00976 from M/s Dada Motors, Savitri-111 Complex, Dholewal Chowk, G.T.Road, Ludhiana on 14.02.2014 for consideration of Rs.2,14,800/-. That Auto Rickshaw after purchase was duly insured with OP3 on 25.3.2014 vide cover note No.CHD-D236046. Complainant was going from his house while driving the said Auto, but on the way, he met with an accident on 10.6.2014 at Azamgarh (U.P.). Auto of the complainant was partly damaged in that accident and even complainant sustained multiple injuries i.e. on his head, eyes/eye brows and even he lost his eye sight. Complainant was admitted in Vedanta Hospital and Research Center, Bilariya Ganj Road, Lacchirampur, Azamgarh, U.P. Even he was examined in other hospitals like Shishir Neuro Center, Partap Diagnostic Center etc., at Azamgarh. Various parts of the above said vehicle even stood damaged in the accident. Insurance of the vehicle was having validity period from 25.03.2014 to 24.03.2015 because the complainant purchased the insurance policy by paying the insurance premium of Rs.6233/- from OP3 and complied with all the terms and conditions. Complainant many times requested OP3 to pay the claim, but the said request has not been acceded till date and as such, the complainant claims to have suffered heavy loss on account of breach of terms and conditions of insurance policy. Legal notice dated 19.03.2015 was served by the complainant through counsel, but despite that the claim amount not paid till date and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to pay the amount of Rs.3 lac along with interest @18% per annum from the date of claim. Compensation for damages of Rs.15,000/- on account of harassment, inconvenience, mental as well as physical agony and an amount of Rs.50,000/-more claimed along with costs of litigation.

2.                In written statement filed by Ops jointly, it is pleaded interalia as if the complaint is not maintainable in the present form; complainant has not approached this Forum with clean hands; complainant is estopped by his act and conduct from filing this complaint; complaint bad due to non joinder of necessary parties; complainant is not a consumer within the meaning of Consumer Protection Act; there is no deficiency in service on the part of Ops and complaint being false and frivolous, merits dismissal with costs. It is further claimed that contract of insurance is binding on the parties and nothing can be added or subtracted to the terms thereof. Medi-claim policy was issued to the complainant subject to the terms and conditions of the policy. Complainant has never lodged any claim with Ops, so complainant not entitled to any compensation, particularly when he even failed to produce any documents showing the lodging of claim, or sending of intimation letter by him. No claim form was received by the Ops and nor any letter was received regarding supply of documents to Ops. No correspondence was entered between the parties and as such, the complaint of the complainant alleged to be false and frivolous. It is claimed that the complaint has been filed for abusing the process of law with malafide intention and ulterior motive. It is denied that the complainant met with any accident as alleged or he got treatment from hospitals as alleged. Each and every other averment of the complaint denied specifically one by one.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Annexure-1 to Annexure-92 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for Ops tendered in evidence affidavit Ex.RA of Sh.Yash Paul, Branch Manager of Oriental Insurance Co.Ltd., along with document Ex.R1 and thereafter, closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely.

6.                An application dated 13.07.2015 was filed by Ops for directing the complainant to submit the documents in proof of lodging of the claim with Ops. However, counsel for the complainant suffered statement on 18.11.2015 to the effect that whatever documents available with the complainant, the same had already been produced. Even he suffered statement that oral intimation to Dada Motors was submitted by the complainant, but no written intimation letter was submitted. Even as per that suffered statement by the counsel for the complainant, claim form is already with the insurance company. In view of that recorded statement of counsel for the complainant, this application was disposed of in terms that further directions to the complainant to submit the documents cannot be issued, but legal consequences will follow by keeping in view the contents of produced documents.

7.                Though, in the complaint as well as in the affidavit Ex.CA, it is mentioned that legal notice through counsel was got served by the complainant on Ops on 19.03.2015, but no date was mentioned regarding the date of lodging of claim by the complainant with Ops or any of them. Even the dates as and when the complainant requested OP3 many times, to pay the claim not mentioned and as such, particulars in this respect certainly are vague. If the complainant met with an accident on 10.6.2014 at Azamgarh(U.P.), then it was his duty to inform Ops regarding this accident or sustained damage or the personal injuries at earliest, so that Ops could have verified the facts in that respect. However, no written intimation was given to the Ops or any of them. Rather, the above referred statement dated 18.11.2015 of counsel for the complainant is to the effect that oral intimation was given to Dada Motors, but no written intimation letter was submitted qua the accident. Dada Motors is not a party in this case and as such, by keeping in view the statement dated 18.11.2015 of counsel for complainant, there is no escape from the conclusion that virtually the complainant has not lodged any claim with Ops and nor he gave any intimation in writing to any of Ops. Contract of insurance by virtue of which, relief claimed through this complaint, is a contract between the complainant and Ops and not between the complainant and Dada Motors. If that be the position, then giving of oral intimation regarding the accident to Dada Motors will not serve the purpose of giving intimation of accident by the complainant to Ops. If complainant could have given oral intimation to  Dada Motors, then why he failed to submit the written intimation letter or claim form with the Ops qua that no explanation virtually is offered at all and as such, inference is obvious that actually the complainant has not lodged any claim with Ops and nor he gave any intimation qua the accident in question to Ops.

8.                After going through para no.3 of affidavit Ex.CA, it is made out as if  complainant claims that he gave intimation about the accident to Dada Motors on phone numbers, which was given on the insurance cover note. If really these phone calls would have been given to Dada Motors, then complainant would have disclosed the phone number through which these calls were given, but those phone numbers not mentioned nor any record of such phone calls submitted. So much so that no officials of Dada Motors examined to prove the fact qua giving of oral intimation through phone numbers and as such, complainant has withheld the best available evidence in that respect deliberately, due to which, by drawing adverse inference against him, it has been held that intimation by the complainant through Dada Motors even not sent and as such, he(complainant) virtually choose not to implead Dada Motors as party deliberately.

9.                In para no.3 of affidavit Ex.CA, it is further mentioned that Dada Motors informed the complainant as if Dada Motors will lodge the complaint with the insurance company. Through that para no.3 of affidavit Ex.CA, complainant claims to have submitted all the documents with Dada Motors. Name of the documents submitted with Dada Motors even not mentioned and nor complainant claims to have called upon Dada Motors subsequently for confirming about the fact qua lodging of the claim with the insurance company. If really complainant would have lodged the claim through Dada Motors, then he would have impleaded Dada Motors as party or would have called some officials of Dada Motors for providing the submission of the documents, but the same has not been done deliberately. After lodging of the claim with Dada Motors, complainant would not have kept mum, but he would have repeatedly called upon the officials of Dada Motors for ascertaining the status of complaint lodged by him. That status not tried to be ascertained at any stage and that is why the contents of affidavit Ex.CA are absolutely silent in that respect and as such, certainly complainant disclosing lie regarding lodging of the claim with Ops through anyone. In view of all this and keeping in view the non-production of any document on record showing the lodging of claim by the complainant with Ops or any of them, it has to be held that actually the complainant never lodged claim with Ops and nor gave any written intimation or sent letter qua alleged accident to Ops.

10.              Annexure-1 is the bill of purchase of Auto Rickshaw in question by the complainant from Dada Motors on 14.2.2014, but Annexure-2 is the copy of insurance cover note, whereas Annexure-3 is the copy of route permit, which authorized the complainant to drive the vehicle in question. Annexure-4 is the discharge card showing the admission of the complainant in Vedanta Hospital on 11.4.2014, but discharge there from on 25.6.2014. Annexure-5 is the document showing as if some intimation was given to the police, whereas Annexure-6 is the copy of permit in respect of Contract Carriage. Annexure-7 to Annexure-86 are the documents showing as     if complainant got treatment from the hospitals, spent something for purchase of medicines and got certain tests conducted. All this record  nowhere shows giving of intimation by the complainant to Ops. Intimation virtually as such was sent by the complainant to Ops only through notice Annexure-87 served through counsel through postal receipts Ex.C88 to Ex.C90 on 19.3.2015 for the first time. These documents even do not at all establish that the complainant lodged the claim with Ops or gave any intimation regarding the accident in question to Ops.

11.              As per page no.3 of document Ex.R1, claim for theft of the vehicle not payable, if theft not reported to the insurer within 48 hours of the occurrence. Terms and conditions of the contract are binding on the parties and nothing can be added or subtracted thereto is the settled propositions of law laid down in cases of Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.). In view of this legal position, a duty was caste on the complainant, as insured, to give intimation of accident at earliest to the insurer, so that Ops may have verified the facts regarding the alleged sustained loss in course of accident and even may verify as to whether really the accident in question had taken place or not?

12.              If condition of insurance policy provides for giving notice in writing by the insured to insurer immediately upon an accidental loss or damage, then intimation of theft/loss must be given within 24 hours to the police, otherwise valuable time will be lost in tracing the vehicle. Likewise, the insurer should also be informed within a day or two, so that the insurer can verify as to whether any theft had been taken place as well as insurer may take immediate steps for getting the vehicle traced. After getting     the intimation, the insurer can co-ordinate and co-operate with the police to trace the vehicle. Keeping in view of inaction of submission of oral or written intimation by the insured to insurer qua the loss and damage to the insured vehicle, it has been held in case New India Insurance Company Limited vs. Trilochan Jane-IV(2012)CPJ-441(N.C.) that delay of 9 days in reporting the matter/incidence to the insurance company is violative of the terms and conditions of the policy. Likewise, in case of Bihar State Hydro Electric Power Corporation Limited vs. National Insurance Company Limited-2015(1) CLT-292(N.C.), it has been held that delay of two days in reporting the matter to the police, but 7 days in reporting the theft incidence to the insurer is fatal to the case of the complainant. Keeping in view this legal position in mind and the fact that the complainant has not given any intimation at all to the Ops qua the sustained damage/loss to the vehicle in question, it has to be held that the complainant committed breach of terms and conditions of the insurance policy in not submitting the intimation at earliest, which denuded Ops to find the truth by getting the facts investigated or verified through its surveyor or loss assessor/investigator. As claim not at all submitted by the complainant and as such, complainant not entitled to any relief because no deficiency in service on the part of Ops is there at all. Application for issuing directions to complainant to submit the documents regarding lodging of claim also disposed of through this order itself by keeping in view the terms of earlier orders of 18.11.2015 in terms that particulars submitted with respect to the lodging of the claim shows as if intimation was given to Dada Motors and not to Ops. This order on the application will also be a part of this main order.

13.              As a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                   (Param Jit Singh Bewli)                         (G.K. Dhir)

                             Member                                          President

Announced in Open Forum

Dated:20.12.2016

Gurpreet Sharma.