Haryana

StateCommission

A/537/2015

JAINA CONSTRUCTION CO. - Complainant(s)

Versus

ORIENTAL INSURANCE CO. - Opp.Party(s)

ASHISH GUPTA

16 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No  : 537 & 612 of 2015

Date of Institution: 19.06.2015 & 17.07.2015

Date of Decision : 16.12.2015

Appeal No.537 of 2015

 

Jaina Construction Company through proprietor Ashok Kumar s/o Sh. Tara Chand Jain, Resident of Ward No.5, Ferozepur Jhirka, District Mewat (Haryana).

                                      Appellant-Complainant

Versus

 

1.      The Oriental Insurance Company Limited 288/7, Munjal Tower, Old Railway Road, Gurgaon through its Divisional Manager.

2.      Indusind Bank Limited, First India Place, Block-A, Sushant Lok, Phase-1, Ground Floor, Tower-B, Gurgaon-122002 through its Branch Manager (Financer).

                                      Respondents-Opposite Parties

 

Appeal No.612 of 2015

The Oriental Insurance Company Limited 288/7, Munjal Tower, Old Railway Road, Gurgaon through its Divisional Manager.

 

                                      Appellant-Opposite Party No.1

Versus

 

1.      Jaina Construction Company through proprietor Ashok Kumar s/o Sh. Tara Chand Jain, Resident of Ward No.5, Ferozepur Jhirka, District Mewat (Haryana).

 

                                      Respondent-Complainant

2.      Indusind Bank Limited, First India Place, Block-A, Sushant Lok, Phase-1, Ground Floor, Tower-B, Gurgaon-122002 through its Branch Manager (Financer).

Respondent/Opposite Party No.2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member.                                                                                                                     

Present:              Shri Ashish Gupta, Advocate for Jaina Construction Company-complainant.

Shri Satpal Dhamija, Advocate for The Oriental Insurance Company Limited-Opposite Party No.1.

                             Shri Paras Chugh, Advocate for Indusind Bank Limited-Opposite Party No.2. 

 

                                                   O R D E R

 

NAWAB SINGH J.(ORAL)

 

This order shall dispose of afore-mentioned appeals bearing No.537  and 612 of 2015 because they have arisen out of common order dated February 26^th, 2015, passed by District Consumer Disputes Redressal Forum, Gurgaon (for short District Forum),  in complaint No.63 of 2010 filed by Jaina Construction Company.  

2.      Appeal No.537 of 2015 has been filed by Jaina Construction Company-complainant for enhancement of compensation and appeal No.612 of 2015  has been filed by The Oriental Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party No.1, for setting aside the impugned order.  

3.      The complainant got his truck bearing Registration No.RJ-02-098177 (Temporary), insured with the Insurance Company for the period October 31^st, 2007 to October 30^th, 2008 vide Insurance Policy Exhibit C-2. The Insured Declared Value (IDV) was Rs.17,05,865/-. The truck was financed with Indusind Bank Limited-Opposite Party No.2.

4.      During the intervening night of November 4^th/5^th, 2007 the truck was snatched from its driver in the area of Nagina, District Mewat. F.I.R. No.164 (Exhibit C-3) dated 5^th November, 2007 under Section 395 of the Indian Penal Code was lodged in Police Station Nagina. The Insurance Company was informed. Untraced Report (Exhibit C-4) was submitted by the Police. The complainant filed claim with the Insurance Company but the same was repudiated vide letter dated 19^th October, 2010 (Exhibit OP1/H) on the ground that there was delay of five months in giving intimation to the Insurance Company.

5.      After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order accepted complaint directing the Insurance Company as under:-

“Thus, complainant is entitled to Rs.12,79,399/- as 75% of the           IDV i.e. (Rs.17,05,865/-) with interest @ 6% p.a. from the date of filing of the complaint till realization from Insurance Company OP-1. The complainant, however, has been harassed by OP-1 unnecessarily since long and have caused mental agony due to heavy loss by way of robbery of his vehicle and Finance Company has already issued NOC in favour of the complainant regarding clearance of the loan against the complainant. Consequently, he being proprietor of the complainant firm is entitled to compensation of Rs.10,000/- from OP-1 Insurance Company. The complainant is also entitled to litigation expenses of Rs.5,000/-. The compliance be made within 30 days.”                                                                              

6.      The solitary contention raised on behalf of the Insurance Company is that the complainant had informed the Insurance Company after five months and thus violated condition No.1 of the insurance policy.

7.      The submission made is not tenable.  Indisputably, the truck of the complainant was insured for Rs.17,05,865/-  for the period October 31^st, 2007 to October 30^th, 2008, it was snatched on November 4^th, 2007. F.I.R. (Exhibit C-3) was lodged. The Insurance Company was informed. The Police submitted the Untraced Report (Exhibit C-4). The Insurance Company repudiated the claim merely on the ground that intimation was given to it after five months.

8.      Hon’ble Supreme Court in National Insurance Company Limited versus Nitin Khandelwal, IV (2008) CPJ 1 (SC), held as under:-

          “12.  In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle breach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.” 

9.      In Amalendu Sahoo Versus Oriental Insurance Company Limited, 2010 CTJ 485 (Supreme Court), referring to the principle laid down in Nitin Khandelwal’s case (Supra), Hon’ble Apex Court held that the insurance company cannot repudiate the insurance claim in toto and the insurer is liable to pay 75% of the admissible claim.

10.    In view of the above factual and legal position, the Insurance Company is liable to indemnify the owner of the truck on non-standard basis, that is, to the extent of 75% which the District Forum has awarded to the complainant vide impugned order.

11.    So far as the appeal filed by the complainant for enhancement of compensation, the District Forum directed the Insurance Company to pay Rs.12,79,399/- alongwith interest at the rate of 6% per annum from the date of filing complaint till its realisation. In considered opinion of this Commission, the interest at the rate of 6% is on lower side and the ends of justice would be met suitably if it is increased from 6% to 9%. It is ordered accordingly. 

12.    The impugned order is modified in the manner indicated above and the appeals stand disposed of.

13.    The statutory amount of Rs.25,000/- deposited at the time of filing appeal No.612 of 2015 be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

 

Announced 16.12.2015

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL