BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.338 of 2014
Date of Instt. 29.09.2014
Date of Decision : 18.11.2015
Gurmeet Kaur wife of Daljit Singh R/o VPO Apre, Tehsil Phillaur, District Jalandhar.
..........Complainant Versus
1. Oriental Insurance Company Limited, Regd.&Head Office-A-25/27, Asif Ali Road, New Delhi through its Chairman/Managing Director.
2. Oriental Insurance Company Limited, Divisional Office, Amardeep Building, Opp.Narinder Cinema, 32 GT Road, Jalandhar through its Divisional Manager.
3. Kotak Mahindra Prima Limited, Branch Office SCO 121, Feroze Gandhi Market, Ludhiana.
.........Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.AS Thind Adv., counsel for complainant.
Sh.Brijesh Bakshi Adv., counsel for OPs No.1 & 2.
Sh.Vikas Sood Adv., counsel for OP No.3.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased a vehicle make Tata-Indigo CS from Cargo Motors, Jalandhar on 6.3.2013. The registration number of the aforesaid vehicle was PB08-CJ-5300. The complainant got insured the aforesaid vehicle from the opposite party No.2. The policy number of the aforesaid vehicle was 233100/31/ 2013/3590 and the period of insurance was from 6.3.2013 to 5.3.2014. The marriage of the daughter of the complainant was got fixed on 20.10.2013 and the venue of the marriage was SIKO Resorts, Phillaur Road, Apre. On the day of marriage of the daughter of complainant, at about 2.00 PM, the son of the complainant parked the vehicle in question alongwith the wall of the marriage palace under the supervision of the security guards as the complainant has kept some valuable gifts in the car. At about 5.00 PM, when the son of the complainant came back to take some gifts from the car then he did not find his car at the spot where he parked it. The son of the complainant tried his level best to find the whereabouts of his car but all in vain. Later on, the son of the complainant intimated his family members about the theft of the vehicle in question alongwith the valuable gifts after the marriage was over. The son of the complainant immediately after the marriage got registered a complaint qua the theft of the vehicle bearing registration No.PB-08-CJ-5300 with the P.S.Phillaur but the police did not register the FIR and kept on delaying the matter for few days on one pretext or the other. Later on, when the son of the complainant registered a complaint on the police helpline No.181 only then police registered the FIR No.283 dated 25.10.2013 P.S.Phillaur under section 379 against some unknown person. The policy failed to nab the accused and they also failed to collect any evidence in the aforesaid case and finally on 27.3.2014, the police closed the investigation in the aforesaid case as they have failed to collect any evidence. Although, the complainant visited the office of the opposite party No.2 on 22.10.2013 and intimated them about the theft of their vehicle but the opposite party No.2 asked the complainant to bring the documents i.e copy of FIR, copy of registration certificate etc, so that the claim could be filed and in the absence of the aforesaid documents they can not entertain their request for the claim. The complainant was busy in the after marriage obligations at her home qua the marriage of her daughter as her daughter was supposed to go abroad alongwith her husband on 12.11.2013. Not only this, the complainant was also called by the police time and again for the purpose of investigation qua the theft of the vehicle in question of the complainant at Phillaur but despite of that she somehow managed to collect the duplicate of the documents asked for by the opposite party No.2 and she filed the claim qua the aforesaid vehicle with the opposite party No.2 at Jalandhar on 12.11.2013 and the complainant was allotted a claim No.230000/31/ 2014/030532 of her claim qua the theft of the vehicle in question. The complainant pursued the claim qua the aforesaid vehicle filed with the opposite party No.2. The complainant fulfilled all the formalities required for clearance of the claim filed with opposite party No.2. But, the complainant was shocked and surprised when she received a letter dated 14.11.2013 from opposite party No.2 vide which she came to know that her claim No.230000/31/2014/030532 has been rejected on the ground that the complainant has failed to intimate the opposite party No.2 about the theft of the aforesaid vehicle within a period of 48 hours. On such like averments, the complainant has prayed for directing the opposite party insurance company to pay her claim amount of Rs.5,46,877/- alongwith interest. She has also demanded compensation and litigation expenses.
2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite parties No.1 & 2 raised preliminary objections regarding maintainability, limitation, delay in loding the FIR and intimation to the insurance company, concealment of material facts etc. On merits they, inter-alia, pleaded that the delay in intimation of loss especially in the theft of vehicle cases is inexcusable and un-condonable because more the delay the more bleak is the chance of the tracing or recovery of the vehicle. The claim has been rightly repudiated. The complainant is not entitled to the amount claimed by her. They denied other material averments of the complainant.
3. In its written reply, opposite party No.3, inter-alia, pleaded that there is no cause of action against it and it has nothing to do with any dispute between the complainant and remaining opposite parties i.e insurance company. It only financed the vehicle and is entitled for this amount. The direction be issued to remaining opposite parties to discharge the liability and pay the insurance amount to opposite party No.3.
4. In support of her complaint, complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.
5. On the other hand, learned counsel for the opposite parties No.1 & 2 has tendered affidavit Ex.OPA alongwith documents Ex.OP-1/1 to Ex.OP-1/4 and closed evidence. Further learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A and closed evidence.
6. We have carefully gone through the record and also heard the learned counsels for the parties.
7. The facts involved in the present complaint are not much disputed. The insured vehicle of the complainant was reported to having stolen on 20.10.2013. The complainant lodged the claim with opposite party insurance company but it repudiated the claim of the complainant vide letter dated 14.11.2013 Ex.OP1/4 wherein it is mentioned as under:-
“With reference of the above, we would like to draw your kind attention regarding our policy condition that “Claim for theft of vehicle not payable if theft not reported to company within 48 hours of its occurrence”. As per documents submitted by you, we observe that theft of said vehicle took place on dated 20/10/2013 and intimation of same has been given to us on dated 12/11/2013 which is a matter of breach of policy condition which please note”.
8. Now, the question which arises for consideration is, whether opposite party insurance company was justified in repudiating the claim of the complainant on the ground of delay in intimation to it?
9. The insurance company is not justified in repudiating the genuine claim of the insured in all cases on the ground of delay in intimation to it. The delay is only fatal where the insurance company is prejudiced in investigating the genuineness of the claim I.e loss of vehicle. The regulatory authority has also issued circular in this regard. The above said circular reads as under:-
“INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY
Ref.IRDA/HLTH/MISC/CIR/216/09/2011 Date:20.09.2011
CIRCULAR
To:
All life insurers and non-life insurers
Re: Delay in claim intimation/documents submission with respect to
All life insurance contracts and
All non-life individual and group insurance contracts.
The authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents with a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation”.
10. Relying upon the circular the Hon'ble Haryana State Commission in Shriram General Insurance Company Limited Vs. Manoj, III (2015) CPJ 99 (Har.) has held as under:-
“5. The solitary submission of the learned counsel for the appellant is that the FIR was lodged with the police after a period of 11 days and intimation was given to the insurance company after 33 days and since the respondent-complainant violated the terms and conditions of the insurance policy, he was not entitled for the benefits of insurance.
6. The contentions raised on behalf of the appellant-opposite party is not acceptable. The evidence available on the record establishes that it a genuine claim of the respondent-complainant. FIR No.327 dated August 31st, 2011 was recorded and intimation was also given to the insurance company. Thus, it is amply proved that the vehicle was stolen and could not be traced. It was a genuine claim of the complainant in view of law laid down by this Commission in Shriram General Insurance Company Limited Vs. Rajesh Kumar, 2014(2) CLT 390, wherein reference of the circular dated September 20th, 2011 issued by Insurance Regulatory and Development Authority (IRDA) has been given. It has been specifically mentioned by IRDA that there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim of the claim(complainant), which is otherwise proved to be genuine”.
11. Ex.C6 is copy of FIR dated 25.10.2013. The theft took place on 20.10.2013. It is in the affidavit Ex.CA of the complainant that the son of the complainant immediately after the marriage got registered a complaint qua the theft of the vehicle bearing registration No.PB-08-CJ-5300 with the P.S.Phillaur but the police did not register the FIR and kept on delaying the matter for few days on one pretext or the other. The contents of FIR Ex.C6 clearly suggest that intimation to the police was given on the date of theft when the marriage of daughter of the complainant was fixed i.e 20.10.2013. In the FIR it is mentioned that I i.e Navjot Singh son of Daljit Singh i.e son of the complainant is resident of Apre and today the marriage of his sister was being performed in SIKO Resorts, Phillaur Road, Apre. When at about 2.00 PM he parked his car alongwith the wall of the marriage palace Apre under the supervision of security and at about 5.00 PM he found the car missing at that place. So the above wording of the FIR suggest that in fact son of the complainant had reported the theft of the vehicle to the police on the same day i.e 20.10.2015, when marriage of daughter of the complainant was fixed. It is matter of common knowledge that police is generally reluctant to register the FIR regarding theft. So in our opinion, the complainant can not be blamed if the police registered the FIR after five days. Ex.C7 is untraced report submitted by the police. It is also in the affidavit of the complainant that although, the complainant visited the office of the opposite party No.2 on 22.10.2013 and intimated them about the theft of their vehicle but the opposite party No.2 asked her to bring the documents i.ecopy of FIR, copy of registration certificate etc, so that the claim could be filed and in the absence of the aforesaid documents they can not entertain the request for the claim. It is further in her affidavit that she was busy in the after marriage obligations at her home qua the marriage of her daughter as her daughter was supposed to go abroad alongwith her husband on 12.11.2013. The complainant has placed on record copy of passport of her daughter Ex.C8 and from the perusal of copy of this passport it is evident that daughter of the complainant left for Australia on 11.11.2013. So if due to marriage of daughter of the complainant and certain other formalities to be performed by her after the marriage of her daughter as she was to go abroad with her husband within few days, some delay occurred in intimating the theft to the insurance company, it does not constitute a valid ground to repudiate otherwise genuine claim of the complainant. It is not a case of opposite party insurance company that the claim lodged by the complainant after investigation by them or by the police was found to be false one. So in our opinion, the genuine claim of the insured should not be defeated simply on the ground of delay due to some reasonable cause particularly in the light of above mentioned circular issued by Regulatory Authority. So in the above circumstances, we are of the opinion that insurance company was not justified in repudiating the claim of the complainant simply on the ground that the complainant has not lodged claim within 48 hours.
12. In view of above discussion, the present complaint is accepted and opposite parties No.1 & 2 are directed to pay IDV of the stolen vehicle i.e Rs.5,46,877/- alongwith 9% interest per annum from the date of filing of this complaint till the date of payment. The stolen vehicle was hypothicated with opposite party No.3. Opposite party No.3 was impleaded on the application of the complainant wherein it is admitted that the complainant has hypothicated the vehicle in question with opposite party No.3. So insurance company shall firstly pay the amount due to the opposite party No.3 from the complainant and balance if any shall be paid to the complainant. For this purpose, the complainant shall submit the certificate of amount due to opposite party No.3 to the insurance company within 15 days from the date of receipt of copy of this order. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
18.11.2015 Member Member President
