JASWINDER SINGH   vs.   Oriental Insurance Company Ltd..

(Complaint No.132 of 2010)

Date of Order : 03.05.2011

DISSENTING  ORDER

PER MADHU MUTNEJA, MEMBER

1]                 I have had the privilege to go through the order dated 25.4.2011 passed by Ld. Member Sh.Ashok Raj Bhandari and duly agreed upon by the Ld.President Sh.Lakshman Sharma, wherein the complaint has been dismissed. 

                    However, I do not agree with this view of the Ld.Member.  Before going into the points of difference let us examine the facts as put forth by the parties:-

As per Complainant:

i)             The complainant purchased a new Tata Indica Car on 22.1.2007.  The car was insured with OP on the same day.  The car still had a temporary number on the date of theft.

ii)            The car was stolen from the residence of the complainant at Kansal, Mohali (Punjab) in the intervening night of 5/6-6-2007.  The complainant approached the concerned police station immediately to registered a case of theft but unfortunately the Police registered the case F.I.R. only on 14.7.2007; that too when during the intervening period Six more vehicles were also stolen from the same area.  The details of the stolen vehicles and the date of theft of the car of the complainant have clearly been mentioned in the Untraced Report U/s 173 Cr.P.C. submitted by the Police Station Naya Gaon before the concerned court on 28.1.2008. 

iii)          The complainant had applied to the OP for his claim after registration of F.I.R. The OP on 30.7.2007 appointed a Surveyor. 

iv)         The Untraced Report issued by the court of Ld.S.D.J.M., Mohali on 14.3.2008.

v)           The complainant while handing over the Untraced Report to the OP once again submitted all necessary & relevant documents as demanded. 

vi)         The OP asked the complainant to submit documents again on 26.2.2009 (Ann.P-4).  This is 1 year & 7 months after lodging claim. 

vii)        An employee of OP Company collected the documents from the complainant on 21.5.2009 (no proof of this collection is available).

viii)       Demand for documents made again on 12.6.2009.

ix)          Claim repudiated by  the OP vide letter dated 23.12.2009 on the following grounds:-

“1. Claim has been reported under theft.  As per claim form insured’s statement and investigation report theft has occurred on 05/06.06.2007, however, in F.I.R. it is mentioned as 06/07.06.2007.

2. F.I.R. has been registered on 14/07/2007 i.e. After more than a month of theft.

3.    Information has been given in the office on 30/07/2007 i.e. after nearly two months from the date of loss.

4.    Vehicle was not registered at the time of theft.  Its temporary registration had expired on 21/02/2007 whereas date of loss is 05/06.06.2007 which contravenes the provisions of M.V.Act.”

 As per OP

i)        The OP has taken preliminary objection that the claim was considered and found not payable due to breach of Motor Vehicle Act as temporary registration of the vehicle had expired on 21.2.2007.  Intimation of loss was given to the OP after about 2 months i.e. on 30.7.2007 as mentioned in Para No.3 of Written Statement.  F.I.R. was also registered late. Date of theft is not clear.

ii)           After submission of claim, an Investigator was appointed by the OP to assess the loss on 30.7.2007.

iii)          The complainant failed to provide documents for taking final decision for the claim, therefore, final reminder sent on 26.2.2009.  Receipt of papers from the residence of complainant on 21.5.2009 also denied by the OP.  Investigator also contacted complainant vide letter dated 12.6.2009 to provide documents.

iv)         After the report of Investigator, the claim was finally repudiated on 23.12.2009

It is very important to note here that both parties have failed to give the date when the complainant filed/informed the OP of his claim.

2]                 On perusal of all the facts, we find that the complainant’s car was stolen in the intervening night of 5/6.6.2007 but the F.I.R. was written by the police only on 14.7.2007 as is revealed from the Untraced Report dated 18.1.2008 prepared by the concerned police and submitted to the court.

3]                 As per the version of the complainant, he intimated the police immediately after the theft but the police registered the F.I.R. only on 14.7.2007 when 6 more vehicle were stolen from the same area between the period from 6.6.2007 to 14.7.2007.  the theft of these 6 vehicles on different dates is also mentioned in the police report.  The complainant in his complaint has stated that he was continuously requesting the police to lodge the F.I.R. from the date of actual theft.  If the police failed to lodge his report, it is not his fault.  It is evident that the police took action and lodged an F.I.R. only when Six vehicles were stolen from the same area during the intervening period and that F.I.R. was registered for all six vehicles including that of complainant. 

4]                 The copy of actual F.I.R. registered on 14.7.2007 is not available with either of the parties to show what the police has written.  It is evident that the Police has not handed over a copy of the F.I.R. to the complainant but their Untraced Report U/s 173 Cr.P.C. submitted before the court concerned clearly states that the F.I.R. was lodged on 14.7.2007.

5]                 The complainant contacted the OP to inform them of the theft forthwith but neither the complainant nor the OP has placed on record any letter to show the lodging of claim, so the actual date when the claim was lodged is still ambiguous.  The date was definitely before 30.7.2007 because the Investigator was appointed on this date.  The complainant has said that when he went to the OP to lodge his claim, they kept asking him to bring the Untraced Report.  He could provide this report to the OP only after it was issued by the court on 14.3.2008.

6]                 The claim submitted by the complainant has not been placed on record by either of the parties. No other correspondence, if any, exchanged between the parties, is there on the file by either of the parties till the OP asked for the documents again vide their final reminder dated 22.2.2009 and another reminder dated 12.6.2009.  These documents have been placed on record.  Why did the OP ask for documents from the complainant, if the delay in filing claim, was not acceptable to them. In my opinion, the appointment of Investigator and demand for documents by the OP can definitely be presumed to mean acceptance/condonation of delay by the OP.                

7]                 The complainant has also said that he has supplied the documents to the OP more than once.  The claim was finally repudiated on 23.12.2009 on the ground of delay alone.  Is this not deficiency in service and unfair practice of the OPs.

                    Does it take an insurance company of such a stature so long to find that the filing of claim is delayed and hence not acceptable. Should such repudiation be permissible on grounds of estoppel. Should not one presume that when they are continuously asking for documents, the delay if any being pointed out by  them, at this stage, had been condoned.  The claim was made between 14.7.2007 to 30.7.2007 by the complainant but the OP have taken 2 years & 5 months to tell him that his claim is disallowed because he has informed them about the theft late. Should this contention of theirs’ be permitted to be allowed by this Forum.  The Ld.Member has dismissed the complaint by agreeing with this version of the OP.  I disagree with this view. 

8]                 The objection of delay, taken by the OP, is nothing but a fait accompli to dismiss a valid claim and at the same time to sweep their own delay in processing the claim under the carpet.  The Forum cannot be unmindful of such a gross delay in deciding a claim.  The OP clearly has not provided proper service as was expected from an insurance company.  

9]                 The judgment of the Hon’ble National Commission (New India Assurance Company Limited vs. Trilochan Jane, First Appeal No.321 of 2005, decided on  9.12.2009) cited by the ld.Member while dismissing the case, would not apply to the facts of this case primarily because the date of submission of claim in that case was clearly mentioned in the judgment and the claim had been negated within a reasonable time on this issue. 

                    But in the present case neither has the claim been decided in a reasonable time nor has the date of submission of claim been mentioned.  Only the date of appointment of Surveyor i.e. 30.7.2007 is sought to be taken by the insurance company to reach the ‘ground’ of ‘delay’.

10]               Even the role of the police in delaying the lodging of F.I.R. is a pointer to the harassment faced by the common man by employees of the police and semi-government organizations such as the OP in their casualness in dealing with complaints of the common public.  The present case is one such example.  Namely, despite a proper policy, and the complainant crying hoarse for the theft of his vehicle and seeking to get his rightful claim, all sorts of technicalities have been thrown at him to counter the claim.  All the technicalities are used primarily to defeat, if not to delay the claim and thereby to defeat its very purpose. 

11]               The order of Ld.Member is a dismissal of the claim of the complainant on the ground of delay alone. By the above discussion I have chosen to differ.

12]               Before coming to the final conclusion, I must add that besides the ground of delay, the OP has also repudiated the claim on the ground that the vehicle was not registered at the time of theft and its temporary registration had expired on 21.2.2007 while date of loss is 5/6-06-2007. 

13]               the Motor Vehicles Act provides for temporary registration of vehicle and states that temporary registration would be valid only for a period not exceeding one month.  However,  the Motor Vehicles Act further provides that in case the owner of the vehicle has failed to renew/obtain permanent registration of the vehicle, the lapse may be condoned and he may be permitted to register his vehicle after payment of the required fine as provided by the statutory authority.

                    The insurance document issued by the OP to the complainant has been placed on record by the OP alone.  A perusal of this document at Ann.R-1 shows the validity of insurance from 22.1.2007 to 21.1.2008.  The private car insurance package policy attached along with is undated with no account number or issuance particulars.  It is also unsigned.  Can the Insurance Company take reliance of this blank policy in repudiating the claim. 

                    Further there is no clause in the policy which says that the policy would lapse after one month in case the insurer had not obtained proper registration of vehicle.  The OP has no where on any date cancelled the insurance due to non-registration of the vehicle. Even when they were sending reminders to the complainant and asking for documents, they have not asked for the permanent registration number of the vehicle.

14]               Before coming to the final conclusion, I would like to refer to certain important recent judgments of various courts whereby the Insurance Company has been directed to make payment to the insured.  The same are as under:-

i)             Oriental Insurance Co. Ltd. Vs. Kandha Nayak, IV(2009) CPJ 96 – Orissa State Commission wherein it has been held that :-

“Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Vehicle stolen – Intimation to police and insurer delayed – Claim repudiated by insurer – Deficiency in service alleged – Complaint allowed by Forum – Hence appeal – Consumer Protection Act, a beneficial Act, claim should not be repudiated only on hypertechnical grounds – Repudiation on technical ground unjust, arbitrary, made to defeat spirit of legislation – order of Forum upheld.

ii)           Oriental Insurance Co. Ltd. & Ors. Vs. Parvesh Chander Chadha, 2009(1) CPC 55 – National Commission, New Delhi wherein it has been held that:-

“Consumer Protection Act, 1986 – Section 2(1)(b) – Insurance claim – Theft of vehicle – Insured vehicle was stolen – Insurer repudiated the claim with the plea that intimation of theft to insurer was delayed – District Forum allowing the complaint on non standard basis awarded payment of 75% of insured amount – Order being well reasoned interference in revision declined.” 

iii)          Oriental Insurance Co. Ltd. Vs. Om Prakash Gupta & Anr., I(2009) CPJ 183 (NC) wherein it has been held that:-

“Consumer Protection Act, 1986 – Section 2(10(g) – Insurance – Vehicle stolen – Claim repudiated by insurer – Once police registered the case under Section 379 IPC, loss comes within definition of theft – Question of breach of trust will not affect right of person, who lost the vehicle – Insurer liable under policy.”

iv)         Nobel Grain India Pvt. Ltd. Vs. New India Assurance Co. Ltd., 2008(2) CPC 45 (N.C.) wherein it has been held that:-

“….Delayed information to insurer cannot be made a ground of repudiation of claim – acting upon the guideline for the settlement of non standard claim of 75% claim is allowed.”

          AND

v)      Oriental Insurance Company Limited, Chandigarh Vs. Khursheed and another, Civil Writ Petition No.3996 of 2011 of Hon’ble Punjab & Haryana High Court, decided on 22.3.2011, wherein it has been held that :-

“…Insurance Companies are charging hefty premium for insuring the vehicles. Once the question of liability arises, the companies resort to one technical objection and the other.  These Companies really chase people and literally promise everything at the time of selling policy.  It is usual to see people struggle to run after agents and surveyors to get their rightful claims.  Such agents then look other way and make insurers to make rounds to Company offices.  Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other.  No one really is made to read the terms while making him to sign on the printed forms for selling policies.  This attitude must change. Atleast, the Courts should not be burdened with this uncalled for litigation”

15]               It is a clear case where the complaint deserves to be allowed and the role of the insurance company needs to be depreciated in stringent terms.  The complaint in my opinion is thereby allowed.  The OP should pay the IDV value of the vehicle to the complainant as per the Insurance Policy i.e. Rs.3,73,300/-. This amount should be paid along with interest at the rate of 9% per annum from the date of repudiation 23.12.2009 till its actual payment.  The Opposite party should also pay Rs.20,000/- to the complainant for deficiency in service and for causing so much mental tension and harassment.  The OP shall also pay Rs.7000/- towards cost of litigation.

                    The aforesaid order be complied with by the OP, within a period of 45 days from the date of receipt of its certified copy, failing which OP shall pay the amount of Rs.3,73,300/- along with interest @12% per annum from the date of repudiation 23.12.2009 and Rs.20,000/- along with interst @12% p.a. from the date of this order, till the actual payment to the complainant besides making payment of Rs.7000/- as litigation cost.

15]               Certified copies of this order be communicated to the parties, free of cost. After compliance file be consigned to record room.

Announced

03.05.2011                                                                     

                                                             (MADHU MUTNEJA)

MEMBER