Punjab

StateCommission

FA/12/750

M/s Diamond Weaving Factory - Complainant(s)

Versus

Reliance General Insurance - Opp.Party(s)

S.K.Mahajan

03 Jun 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.750 of 2012

 

                                                          Date of Institution: 05.06.2012

                                                          Date of Decision : 03.06.2015

 

M/s Diamond Weaving Factory, Katra Ahluwalia, Amritsar through its Partners Sh. Satish Khanna S/o Sh. Tilak Raj Khanna r/o 224, Green Avenue Amritsar.                                                                                                                                                                                                                                                                                                                                                                              …..Appellant/Complainant

         

                                      Versus

 

Reliance General Insurance having its H.O at Mumbai and Regional Office at SCO No.212, Sector 34-C, through its Regional Manager.

                            

                                                          …..Respondent /Opposite Party

 

First Appeal against order dated 12.03.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri.Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                     :         Sh.S.K.Mahajan, Advocate

          For the respondent                    :         Sh.R.S.Joshi, Advocate  

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the opposite party

in the complaint), challenging order dated 12.03.2012 of District

Consumer Disputes Redressal Forum Amritsar, dismissing the  complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant M/s Diamond Weaving Factory through its partner Sh. Pawan Khanna has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that complainant purchased Tata Indigo Car on 11.04.2006 for Rs.489063/- for personal use and comfort of its partners bearing registration no.PB02-AT-269, Engine No.39163 and Chasis No.46237. The said vehicle was insured with OP through its local agent Mrs. Vandana. The said vehicle was stolen and Sh. Pawan Kumar lodged the report its theft with the police on 17.11.2008, vide FIR No.522 under Section 379 IPC at Police Station Civil Lines Amritsar. Untraced report regarding the theft of the vehicle was submitted by the police. The complainant lodged claim with OP for theft of the car, which was got verified and OP demanded the documents like untraced report/certificate and notarized document from the complainant. However, no claim was paid to the complainant by the OP. The complainant admitted claim in terms of letter dated 12.08.2009 and 14.09.2009 and sought consent from the complainant to settle the claim of Rs.3,42,343/-, but no claim was paid to the complainant till date. The complainant has alleged deficiency in service on the part of OP. The complainant has, thus, filed the present complaint by directing the OP to pay insurance the claim of Rs.3,42,343/-  to complainant, besides Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as costs of litigation.

3.      Upon notice, OP filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint filed by the complainant is not maintainable. The complainant has not lodged the claim with the OP for considerable period and hence claim is inadmissible. No DDR was lodged by the complainant regarding theft. Even FIR lodged by the complainant is vague and was clubbed with some other cases. The complainant has committed fundamental breach of terms and conditions of the policy, as he intimated to OP after 128 days from the date of alleged theft of the vehicle. The claim of the complainant is liable to be repudiated on account of breach of the terms and conditions of the policy on this point. The OP admitted this fact that vehicle of the complainant was insured against premium. OP alleged that complainant has committed fundamental breach of terms and conditions of the policy by not lodging the claim regarding his theft of vehicle with OP. It was further averred that there has been delay of 128 days in lodging the claim by the complainant Hence, the claim of the complainant is not admissible and hence OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, copy of invoice of car Ex.C-2, copy of RC Ex.C-3, copy of FIR Ex.C-4, copy of No Trace Certificate Ex.C-5, copy of verification report of OP Ex.C-6, copy of untraced certificate Ex.C-7, English translation Ex.C-8, copy of letter dated 12.08.2009 of OP admitting the claim Ex.C-9, copy of letter dated 14.09.2009 of OP Ex.C-10, copy of consent of complainant as demanded by OP Ex.C-11.  As against it, OP tendered in evidence affidavit of Sh.Krishan Kant, Deputy Manager Legal in Reliance General/OP, copy of cover note along with Reliance Private Package Policy Ex.R-2, copy of FIR Ex.C-3, copy of certificate showing date of intimation dated 24.3.2009 Ex.R-4, copy of vigilant detective report Ex.R-5, copy of detailed report Ex.R-6, copy of affidavit of Sh. Satish Khanna son of Sh. Tilak Khanna and Pawan Khanna Ex.R-7, copy of letter dated 6.4.2010 Ex.R-8, copy of letter dated 12.08.2009 Ex.R-9, intimation letter Ex.R-10. On conclusion of evidence and arguments, the District Forum, Amritsar, dismissed the complaint of the complainant by virtue of order dated 12.03.2012. Dissatisfied with the order of the District Forum Amritsar dated 12.03.2012, the complainant now appellant has preferred this appeal against the same.   

5.      We have heard learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us on the record to decide the controversy between the parties. The complainant tendered the affidavit of Pawan Khanna its partner Ex.C-1 is on the record. He swore on oath that the insured vehicle was stolen and he lodged the report with the police on 17.11.2008, vide FIR No.522 under Section 379 of IPC. He further stated on oath that he lodged the claim with the OP and the theft was duly got verified by the OP. The OP admitted the claim of the complainant in terms of letters dated 12.08.2009 and 14.09.2009 and sought the consent from the complainant to settle the claim at Rs.3,42,343/-, which consent was sent by the complainant through Xerox copy. The OP abruptly repudiated the claim of the complainant, Ex.C-2 is tax invoice, Ex.C-3 is copy of registration certificate of the vehicle in the name of the complainant, Ex.C-4 is copy of FIR and it is evident from document Ex.C-4 that the Tata Indigo Car NoPB02 AT 269, Engine No.39163, Chasis No.46237 was stolen. This intimation was given by Pawan Khanna, partner of the complainant to police on 17.11.2008, Ex.C-5 is the untraced certificate, Ex.C-6 is the document of Vigilant Detective Bureau of OP, Ex.C-7 is untraced report submitted by the police regarding not tracing the offender in this case, Ex.C-8 is copy of translation of police report, Ex.C-9 is letter from OP to complainant to the effect that as per India Motor Tariff the correct IDV of insured vehicle is Rs.3,42,343/-. Ex.C-10 is the letter addressed to complainant by OP calling for the documents from the complainant, Ex.C-11 is the consent letter submitted on the stamp paper by the complainant. The OP tendered in evidence the affidavit of Krishan Kant, Deputy Manager Legal /OP Ex.R-1 on the record. He deposed in this affidavit that there is 128 days delay in lodging the claim by the complainant and in not intimating about this theft of the vehicle to the insurer by the insured, hence it is fundamental breach of terms and conditions of the policy justifying the repudiation of the claim of the complainant. Ex.R-2 is the verification of the registration document, Ex.R-3 is copy of the FIR, Ex.R-4 is date of intimation of theft to the OP on 24.03.2009 . The vital document on the record, as relied upon by the OP, is the Vigilant Detective Bureau is Ex.R-5. This is the  document of the OP and OP cannot back out of this document. This document has proved it on the record that instant claim is genuine one, as lodged by the complainant. It is recommended that liability of the same be settled/accepted under the rules. Even Detective Bureau was appointed by the OP and it found the theft case of the vehicle of the complainant as genuine. The OP cannot disown this document, which has been tendered on record by the OP, as it is its own evidence. Claim Form is Ex.R-6. Affidavit of Satish Khanna is Ex.R-7, Ex.R-8 is document calling for submission of the registration certificate, Ex.R-9 is document asking the complainant to submit the registration certificate, police final report and original key of the vehicle. Ex.R-10 is claim intimation.

6.      From appraisal of the above-referred evidence on the record, we find that complainant lodged the intimation with the police regarding the theft of the vehicle without any intervening delay. The copy of the FIR is Ex.C-4 is on the record, which is not disputed by either of the parties. The most reliable document in this case tendered by OP is Vigilant Detective Bureau report Ex.R-5 on the record and the theft case of the complainant was found genuine by the Detective Bureau appointed by the OP to look into the matter. It further adds to the strength of the case of the complainant.

7.      On the point of breach of the condition of the insurance policy, the counsel for the OP now respondent in this appeal submitted that it is fundamental breach of the policy terms and conditions, as complainant has failed to intimate the OP/insurer within the required time from the date of theft of the vehicle. The contract of insurance stood invalidated and repudiated on this point, as was urged by counsel for OP now respondent in this appeal. On the other hand, counsel for the complainant now appellant contended that there is no fundamental breach of the terms and conditions of the policy in not intimating in time, which is otherwise a genuine claim as per the Vigilant Detective Bureau report of the OP and hence the parties are entitled to settle the claim on the basis of non-standard basis. Reliance was placed on the law laid down by Punjab & Haryana High Court  in "Oriental Insurance Company Ltd.. Vs. Viceroy Car Rental Private Limited and another " reported in 2014(1) CPC 376, wherein Hon'ble Punjab & Haryana High Court has held that "petitioner repudiated a valid claim on the only ground that respondent had failed to give information of theft of insured vehicle within 48 hours of the theft. The authorities below rightly deducted 15% of the total claim for delay on the part of the respondent. He cannot be denied total claim particularly when theft of vehicle is well proved." The counsel for appellant then referred to law laid down by Apex Court in "National Insurance Company Ltd… Vs. Nitin Khandelwal, reported in 2008(3) CPC  Page 559," wherein it has been held that in this authority that "claim was repudiated on the ground that terms and conditions of the policy were violated in not intimating robbery of the theft. The Apex Court, thus, held that claim could not be repudiated for breach of the policy condition, as nature of use of vehicle cannot be taken into consideration. Order for settlement of the claim on non-standard basis and to pay 75% of the claim amount was affirmed in this case by the Apex Court." Reliance was also placed upon law laid down by our own Commission in "National Insurance Company Limited, Regional Office, SCO No.332-334, Sector 34-A Chandigarh Vs. Daljit Singh" in First Appeal No.1508 of 2005, Date of Institution : 23.11.2005 and Date of Decision : 01.09.2010  to the effect, settled the claim on the basis of non-standard basis of the claim amount in case of theft of the vehicle, when it was not reported to insurer within time.

8.      On the other hand, counsel for OP referred to law laid down by Apex Court in Silver Sons… Vs.  Oriental Insurance Company, reported in 2012(12) SCC Page 522, we find that the controversy before Apex Court in the citied authority was not parimeteria  with factual controversy of the case in hand. The ratio decidendi of law laid down in the above referred authority by the Apex Court is not attracted to the factual matrix of this case.  "National Insurance Company Ltd… Vs. Nitin Khandelwal, reported in 2008(3) CPC  Page 559 (supra)   by Apex Court is more apposite in this case and ratio-decidendi of this case is fully applicable to the facts of the case on hand. Consequently, OP cannot derive much mileage from the cited authority in this case.

9.      In view of our above discussion as recorded above, we accept the appeal of the appellant and set aside the order of the District Forum Amritsar dated 12.03.2012, we accept the complaint of the complainant by directing the OP to pay 75% of the insured declared value of the vehicle i.e Rs.3,53,520/- on non-standard basis to the complainant in this case.

10.    Arguments in this appeal were heard on 27.05.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

           

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                               

                                                                    (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

 

                                                               (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

June 3,     2015.                                                             

(ravi)