Haryana

Yamunanagar

CC 477/2010

Ishwar Rani W/o Joginder Singh - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Satish Sangwan

02 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 477 of 2010.

                                                                                          Date of Institution: 17.05.2010

                                                                                          Date of Decision: 02.11.2016.

Smt. Ishwar Rani aged about 40 years wife of Sh. Joginder Singh, resident of House No. 6/4, Krishna Nagar, Yamuna Nagar, District Yamuna Nagar, Tehsil Jagadhri and Partner of M/s J.S. Roadlines, 6/4 Krishna Nagar, Near Bedi School, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                        …Complainant.

                                    Versus

 

1. Oriental Insurance Company Ltd. having its office at Old Court Road, Jagadhri, District Yamuna Nagar, through its Branch Manager.
2. Punjab National Bank AggarsainChowk, Jagadhri through its Manager.

 

                                                                                                                … Respondents

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

Present: Sh. Satish Sangwan, Advocate, counsel for complainant.   

              Sh. Sushil Garg, Advocate, counsel for respondent No.1.

              Sh. AvinashChadha, Advocate, counsel for respondent No.2.

ORDER

 

1.                     Complainant Ishwar Rani filed this complaint under section 12 of the Consumer Protection Act 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant was partner of M/s J.S. Road lines Transport Company having its office 6/4 Krishna Colony, Yamuna Nagar and dealing in the business of transportation and being a partner of the firm, she is fully competent to file and maintain the present complaint. The complainant purchased a car make TATA Indica DLS, Model 2008 bearing registration No. HR-02T-4487 and got insured with the respondent no.1 (hereinafter referred as OP) Insurance Company vide insurance policy bearing No. 261701/31/2009/4213 valid from 23.08.2008 to 22.08.2009. The car of the complainant was stolen on 19.06.2009 from Sector-22A, Chandigarh and complainant tried his best at her own level to trace out the said car but all in vain. An FIR bearing No. 194 dated 28.06.2009 under section 379 IPC was lodged in the Police Station Sector-17, Chandigarh by the husband of the complainant namely Joginder Singh. However, the police of the P.S. Chandigarh failed to trace out the car in question and submitted the non-traceable report dated 20.01.2010 in the court. After that complainant lodged the claim with the OP Insurance Company and submitted all the documents i.e. Copy of FIR dated 28.06.2009, Copy of Untrace Report dated 21.01.2010, Copy of registration certificate and other relevant documents with the OP Insurance Company and requested to pass the claim in favour of the complainant but the official of the OP Insurance Company lingering on the matter on one pretext or the other and lateron flatly refused to pay the same. Lastly prayed that OP no.1 be directed to pay the sum assured on account of theft of car in question and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP No.1 appeared and filed its written statement whereas counsel for OP No.2 made a statement on 06.09.2012 recorded separately that he does not want to file the written statement.

4.                     OP No.1 filed its written statement by taking some preliminary objections such as there is no deficiency in service on the part of OP Insurance Company; complaint is not maintainable; complainant has concealed the material and true facts; the policy in question exist in the name of M/s J.S. Roadlines C/o 6/4 Krishana Nagar Colony, near Bedi School, Yamuna Nagar and as such complainant has no locus standi to file the present complaint; the intimation with regard to the theft of the car in question has not been given within 48 hours, in the terms of policy and as such claim for theft of the vehicle was not payable in any manner and on merit it has been specifically denied that complainant was a partner of M/s J.S. Roadlines and she is competent to file the present complaint. However, it has been admitted that the car bearing registration No. HR-02J-4487 was insured with the Op Insurance Company vide insurance policy bearing No. 261701/31/2009/4213 valid w.e.f. 23.08.2008 to 22.08.2009 for a sum of Rs. 3,39,947/- in the name of M/s J.S. Roadlines, Yamuna Nagar. It has been further mentioned that complainant submitted the claim form on 29.06.2009 i.e. after aperiod of 10 days for settlement of the claim stating wherein that the car in question was stolen on 19.06.2009 at Chandigarh and even the FIR No. 194 was also lodged on 28.06.2009 i.e. after a period 9 days under section 379 IPC. Lastly, prayed for dismissal of the complaint as the complainant has not given the intimation immediately to the police and to the insurance co. as per terms and conditions of the insurance policy in question.

5.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and photo copies of documents such as Insurance policy as Annexure C-1, Copy of notice/letter without date as Annexure C-2, Photo copy of FIR as Annexure C-3, Photo copy of Untrace report submitted by Deputy Superintendent of Police as Annexure C-4, Photo copy of driving license of Joginder Singh as Annexure C-5, Photo copy of registration certificate of car in question as Annexure C-6, Photo copy of partnership deed as Annexure C-7 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 Insurance Company tendered into evidence affidavit of Ashish Bhatnagar, Branch Manager OIC as Annexure RW1/A and affidavit of Satvinder Singh, Investigator as Annexure RW1/B and photocopies of documents such as copy of FIR as Annexure R1/1, copy of untrace report as Annexure R.1/2, Copy of insurance claim form as Annexure R1/3, copy of letter dated 03.07.2009 issued by PNB regarding theft of car as Annexure R1/4, Copy of letter dated 20.07.2009 of investigator as Annexure R.1/5, Copy of Verification of RC particulars as Annexure R1/6, Copy of letter dated 31.08.2009 issued by PNB regarding fate of claim as Annexure R1/7, copy of letter dated 07.10.2009 in reference to letter dated 31.08.2009 as Annexure R1/8, Copy of investigation report as Annexure R1/9, Copy of letter dated 24.11.2009 issued by investigator to the complainant for completing the formalities as Annexure R1/10, Copy of letter dated 15.12.2009  written to complainant as Annexure R1/11, Copy of postal receipt and acknowledgement as Annexure R1/12,  Copy of letter for completing the formalities as Annexure R1/13, Copy of postal receipt and acknowledgement as Annexure R1/14, Copy of letter for completing the formalities as Annexure R1/15, Copy of Insurance Policy as Annexure R1/16  and closed the evidence on behalf of OP No.1 Insurance Company.

7.                     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. 

8.                     It is not disputed that the car bearing registration No. HR-02J-4487 was not insured with the OP Insurance Company vide insurance policy bearing No. 261701/31/2009/4213 valid from 23.08.2008 to 22.08.2009 for a sum of Rs. 3,39,947/- which is duly evident from copy of insurance policy Annexure R1/16. It is also not disputed that the car in question was not stolen on 19.06.2009 from Sector-17, Chandigarh, which is duly evident from copy of FIR Annexure R-1/1/C-3. It is also not disputed that the police of P.s. Sector-17, Chandigarh could not trace out the car in question and submitted untrace report, which is duly evident from the copy of untraced report dated 20.01.2010 Annexure C-4/R-1/2 

9                      The Op no.1 Insurance company  is contesting the claim of the complainant only on the two (2) count, the first plea that the complainant had violated the terms and conditions of the Insurance policy as the theft had taken place on 19.06.2009 and FIR was lodged on 28.06.2009 i.e. after a delay of 9 days and further the intimation was given to the OP Insurance Co. on 29.06.2009 i.e. after a gap of 10 days, hence the claim of the complainant was rightly repudiated and there was no deficiency in service on the part of OP Insurance Company. 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. Ld counsel  for the op no.1 Insurance company also referred the case law titled as Om Parkash vs. National Insurance company Ltd. 2012(III) CPJ Page 59(N.C) wherein it has been 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 loses 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”.

             Further, also referred another case law titled as Shri Ram General Insurance Co. Ltd. Versus MahenderJat, 2015(1) CLT page 543 wherein it has been held that Insurance Claim-theft of vehicle- Delay in intimation- The intimation of theft was given  to the insurance company 21 days after the theft- Held- Thus, finding of the State Commission allowing the claim by the respondent is not justified- Petition allowed and also referred the case titled as New India Assurance Company Ltd. vs. Trilochan Jane IV(2012) CPJ page 441 NC, wherein ithas 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.”  

10.                   The learned counsel for the OPs Insurance Company further argued on the second plea that the present complaint has been filed by Smt. Ishwar Rani whereas as per their record the car in question was insured in the name of M/s J. R. Roadlines and draw our attention towards the copy of Insurance policy Annexure R.1/16 and copy of R.C. Annexure C-6. As such, the complainant has no locus standi to file the present complaint and referred the case law titled as Ram Niwas Soni Versus Vaish Model Sr. Secondary School & Others, II (2013) CPJ page 396 (NC) wherein it has been held that Excess amount of fees charged in admission- Complaint filed by complainant on behalf of his major son without any authorization, complaint was not maintainable- Complainant did not fall within purview of consumer. Lastly prayed for dismissal of Complaint of the complainant.  

11.                   On the other hand, counsel for the complainant argued that the car in question was stolen on 19.06.2009 during the subsistence of the policy which is evident from copy of FIR No. 194 dated 28.06.2009(Annexure C-3/ R-1/1) registered in police station Sector-17, Chandigarh and intimation was also given to the Op Insurance Company but the claim lodged by the complainant was not honoured by the opposite parties. Learned counsel for the complainant further argued that complainant submitted untraced report issued by Deputy Superintendent of Police vide letter dated 20.01.2010 (Annexure C-4) and after submitting the untraced report, the complainant requested the OP Insurance Company to settle the claim of the complainant but they did not pay any heed to the genuine request of the complainant. Lastly prayed for acceptance of complaint and referred the case law titled as Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, reported in 2014(4) CLT page 161and also referred the case law titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission in which it has been held that “in case of theft of vehicle, breach of policy condition is not germane- A delay of 15 days is not significant in such a case”. Further referred the case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula wherein it has held that “Delay of 12 days in intimation to the insurance company- there may be a condition in the policy regarding delay in intimation but does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. Further referred the case law titled as National Insurance Company Ltd. Versus Nitin Khandelwal, 2008(3) CPC page 559 wherein it has been held that Consumer Protection Act, 1986-Section 14(1)(d)- Insurance Claim- Insured vehicle stolen- Claim was repudiated on the ground that terms and condition of policy were violated- State Commission settled claim on non-standard basis directing Insurance Company to pay 75% of claim amount which was upheld- National Commission giving rise to present civil appeal- Held, claim cannot be repudiated for breach of policy condition as nature of use of vehicle cannot be taken into consideration- Order passed by Consumer Fora upheld.

12.                   After hearing both the parties, we are of the considered view that the first plea of the OP insurance company that the complainant has given late intimation to the OPs insurance company as well as police is not tenable as the IRDA has clearly mentioned in the instructions conveyed vide letter date 20.09.2011 that the insurer cannot reject claims amount for delay in intimation”  The Authorities (supra) referred on behalf of  OP insurance company  are not disputed but not helpful in the present case whereas on the other hand case law referred by the counsel for the complainant titled as Manager New India Assurance Co. Ltd. Vs. Yadram (Supra), Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, (Supra) are fully applicable to the facts of the present case.  However, the claim of the complainant has been wrongly repudiated in toto whereas we are of the view that claim should be settled on the” NON STANDARD BASIS” as it is clearly evident that complainant has suffered financial loss on account of theft of the car in question. The same view has been expressed by the Hon’ble Supreme Court of India in case titled as National Insurance Company versus Nitin Khandelwal,  2008 (IV) CPJ page 1 Supreme Court  wherein it has been held  “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”.

Even in another case titled as New India Assurance Co. Ltd. Vs. Malti bhikhabhai Bhoya 2013 (3) CLT 178 (NC) it has been held that if there has been any breach of warranty or condition of policy including limitation as to use, insured is entitled to get 75 % of the admissible claim on non-standard basis- The insurance company is not entitled to repudiate the claim in toto.

13                    The Second plea of the OPs Insurance company is also  not tenable that the present complaint has been filed by Smt. Ishwar Rani whereas as per their record the car in question was insured in the name of firm M/s J.R. Road lines because Smt. Ishwar Rani has filed this complaint being a partner of that firm M/s J.R. Road lines which is duly evident from the copy of partnership deed (Annexure C-7) wherein she has been shown as partner along with her husband. Even in the head note of the complaint as well as on the last page of the complaint, it has been mentioned that the present complaint has been filed being a partner of the firm and the seal of the firm with signature being a partner has been affixed. So, we are of the considered view that the OP no.1 Insurance Company cannot deny the claim mere on the technical ground.

14.                   In the circumstances noted above, we are of the considered view that OP no.1 insurance company has wrongly repudiated the claim of the complainant as a whole whereas, the claim of the complainant should be settled on NON-STANDARD BASIS. 

15.                   Resultantly, we partly allow the complaint of the complainant and direct the OP no.1 insurance company to pay Rs. 2, 54,960/- being 75% of the total sum insured of Rs. 3, 39,947/- alongwith interest @ 6% p.a. from the date of filing the present complaint till actual realization subject to submit the NOC from the financer, subrogation letter and indemnity bond and other relevant documents/papers which are necessary to transfer the vehicle in the name of OP Insurance company. As no deficiency in service has been proved against op no.2 so, the complaint qua OP No. 2 is hereby dismissed. This order shall be complied within a period of 30 days from the receipt of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Parties are left to bear their own cost. The parties concerned be communicated with a copy of this order free of cost and the file be consigned to the record room after due compliance.

Announced in open court.02.11.2016.                                                                                               

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER