Haryana

Ambala

CC/03/2014

AMARJIT KAUR - Complainant(s)

Versus

ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED - Opp.Party(s)

RANBIR SINGH

16 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 03 of 2014

                                                          Date of Institution         : 01.01.2014

                                                          Date of decision   : 16.08.2017

 

          Mrs. Amarjeet Kaur wife of Sh. Paramjeet Singh resident of house No.22,         Ram Nagar, Ambala City.

 

……. Complainant.

 

1. Royal Sundram Alliance Insurance Company Ltd; Claims Departments Sundram Towers, 45-46, whites road, Chennai-600014.
2. Royal Sundram Alliance Insurance Company Ltd. (issuing office), Signature Towers, 9^th floor, Tower-2, south City-1, N.H.-8, Gurgaon-122001.
3. M/s Metro Motors, 106,Railway Road, Ambala Cantt.
4. M/s Tata Motors Finance Ltd. C/o Metro Motors, Railway Road, Ambala Cantt.

 

 ….…. Respondents.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                   

                   MS. ANAMIKA GUPTA, MEMBER       

 

Present:       Sh. Ranbir Singh, counsel for complainant.

                   Sh. Mohinder Bindal, counsel for OPs No.1 and 2.               

                   Sh. Keshav Sharma, counsel for Op No.3.

                   OP No.4 already exparte v.o.d. 28.02.2014.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had purchased the Tata Indigo Lx Dicor Car from OP No.3 on 19.02.2017 bearing engine No.16391 and same was got financed from OP No.4 at the time of its purchase on 19.02.2007 vide loan & Hypothecation Agreement No.500067414 dt. 19.02.2017. Further submitted that the said car was comprehensively insured with OP o.1 and 2 for Rs.4,20,000/- vide cover Note No.LUN.0910946 dt. 18.02.2009, the corporate agent of No.3 and policy No.VPCO 118587000100 is valid upto 18.02.2010 and the above said car was parted in front of his house of driver Sh. Isham Singh son of Sh. Bir Singh in Hira Nagar, Ambala City in the night of 06.07.2009 after properly locking it but next morning i.e. on 07.10.2009, he did not find the car parked in front of his house and found that some unknown persons have stolen the car alongwith RC, Insurance, Pollution certificate and other relevant papers in original and  Sh. Isham Singh reported the matter to the complainant regarding the theft of car being its original owner. Further submitted that the complainant alongwith Sh. Isham Singh went to the police station Ambala city to lodge the report on 07.10.2009 and the police took an application from said Isham Singh and told that the FIR will be registered after investigation. Complainant further submitted that on the receipt of the application by the police, the police assured to register the FIR and the Copy of the FIR Will be supplied at the earliest and on the receipt of the application, the surveyor appointed by OPs No.1 and 2 visited the complainant and asked for the copy of the FIR, registration Certificate and policy of the vehicle. The complainant told that all the relevant papers in original were in the car and they have only the photostate copies of the documents regarding the car and further told the OP No.2 that the copy of the FIR will be supplied after the receipt of the copy of the FIR from the Police. The complainant visited the police station Ambala City on 22.10.2009 and requested for the copy of FIR but the police told that the FIR not registered so far as the police was searching the vehicle of the complainant at its own sources and informers. On this, the police recorded the statement of Sh. Isham Singh after taking a fresh application from him and a formal FIR was registered vide FIR No.317 dated 22.10.2009 , under Section 379 IPC in Police State Ambala City and the police was failed to trace the vehicle and ultimately, the SHO, police Station Ambala City sent the cancellation report to the CJM, Ambala for cancellation of the FIR on 28.01.2010 and same was accepted on 31.08.2010. Thereafter the complainant again sent all the relevant documents to the OPs and requested for compensation as per the value of the insured vehicle and the required documents were handed over to the Ops inspite of the receipt of the all documents by the OP, the OP failed to make the payment of the insured amount. Further submitted that OP No 4 had demanded outstanding amount of Rs.1,17,010.50p.s. and other accrued overdue charges and expenses etc. on account of monthly loan installments from complainant. The agreement regarding Hypothecation between the complainant and OP No.4 stands terminated on the date of theft of car in question and the theft matter was reported to Op No.1 and 2 but the claim was not sanctioned by the OPs No.1 and 2. Hence, the present complaint.

2.                 Upon notice, OPs No. 1, 2 and 3 appeared and contested the complaint by filing their separate replies, however, OP No.4 did not join the proceedings of the case and was proceeded against exparte v.o.d. 28.02.2014.  OP No. 1 and 2 in their joint written statement submitted that the present complaint is not maintainable in view of the claim being barred under Section 24-A of the CP Act, 1986 as the complaint has been filed by the complainant after two years from the date of loss i.e. when the case of action arose and the claim of the complainant was denied on 31.1.2011 and the complainant for the same has been filed on 17.01.2014.  Further submitted that the complainant very causally intimated about the theft of the vehicle on 03.11.2009 i.e. after lapse of 27 days to OP, while the policy terms expressly states that notice of loss or damage shall be given to the company immediately upon happening of any loss and the complainant also informed the police about the theft belatedly on 22.10.2009 i.e. after a lapse of 15 days as the theft occurred on 06.10.2009. Further submitted that the policy terms strictly provide that all loss or damages shall be intimated immediately to the OP and to the Police, however here the complainant breached the policy terms by belated informing about the theft to the OP and police. So, OP No.1 and 2 has prayed for dismissal of the present case.

                   OP No.3 in written statement submitted that the present complaint is totally false, not a consumer dispute, no liability, no jurisdiction. It is a case of theft of the car which relates to OP No.1, 2 and 4 and OP No.3 has nothing to do with the said complaint. So, there is no deficiency in service or any unfair trade practice on the part of Op No.3 in any manner and OP No.3 has prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-16 and close his evidence. On the other hand, counsel for the OPs No.1 and 2 has also tendered affidavit as Annexure R-1 alongwith documents as Annexure R-2 to R-5 and close his evidence and counsel for OP No.3 has also tendered affidavit as Annexure R3-X and closed his evidence.

4.                We have heard counsel for the parties and carefully gone through the case file. Admittedly, the car is insured with OP No.1 and 2 from 18.02.2010 (midnight). The case of the complainant is that the car in question was stolen during the intervening night of 06/07.10.2009 when it was parked in front of the house of driver Sh. Isham Singh alongwith RC, Insurance, Pollution Certificate and other relevant papers in original by unknown person and FIR in this regard has been lodged on 22.10.2009 bearing FIR No.317 after a delay of more than 15 days Annexure C-11. Counsel for the complainant has also drawn out attention the law laid down by the Hon’ble Supreme Court titled as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), Hon’ble Supreme Court has observed thus:

                        “In the present 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 and another judgment of Hon’ble State Commission, Pandri, Raipur titled as M/s Bhagwati Trading Co. Vs. The Oriental Insurance Co. Appeal NO. FA/13/350. Counsel for complainant has argued that if, this Forum come to this conclusion, there is any breach of the conditions of the policy, this Forum can decide the claim of the complainant on non-standard basis as per the judgment of Hon’ble Supreme Court title as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C).

                        On the other hand, counsel for OP has firstly argued that the present complaint is time barred under Section 24A of CP Act as the claim of the complainant was repudiated on 31.01.2011 and the present complaint has been filed on 01.01.2014. Perusal of Annexure C-7 reveals that the complainant had earlier filed a complaint before this Forum on 25.04.2011 and the same was withdrawn on 25.11.2013 on technical ground with permission to file afresh complaint on the same cause of action before appropriate Authorities/Court. The certified copy of the order dated 25.11.2013 was delivered on 29.11.2013 and  the complainant again filed the complaint on 01.01.2014 within two months after withdrawing the previous complaint. Since, the present complaint has been filed within stipulated period, therefore, Section 24A of CP Act does not apply in the present complaint. Accordingly this plea is rejected.

                Counsel for OPs has further argued that the complainant has  intimated to the OPs regarding theft of the vehicle in question on 03.11.2009 after a delay of more than 27 days and the claim of the complainant has been rightly rejected on the ground mentioned in Repudiation letter Annexure R-4 as under:

                -“We observed from the claim papers that there has been a delay in intimation the loss to the company by 27 days and to the police authorities by 15 days thereby violating condition No.1 of the policy.            

                Condition No.1 reads as follows:-     

                Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage.

                In case of theft or criminal act which may be the subject of claim, the insured shall give immediate notice to the police.

                Hence, we regret our inability to entertain the claim.  

                 

5.                    Counsel for complainant has drawn our attention towards circular Ref: IRDA/HLTH/MISC/CIR/216/09 /2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority, it has been mentioned that genuine claims should not be rejected on account of delay in intimation and that the insurer’s decision to reject a claim must be based on sound logic and valid grounds. In this case, although the insurance company has pleaded that there was delay of 27 days in giving intimation to the OP No.1 and 2 but to prove the same no evidence worth the name has been led. It is proved from the file that the vehicle in question was stolen on 06/07.10.2009 and has not been traced out and finally the police submitted untraced report Annexure C-13 before IIIaqa Magistrate, Ambala which was accepted on 31.08.2010 (Annexure C-14) that the police could not trace out the accused despite efforts. Therefore, untraced report is accepted and file be sent to quarter concerned after due compliance and may be taken up as and when the identity of accused is known or he is arrested or surrender in Court. Even otherwise the OPs have not disclosed in the written statement whether the Surveyor was appointed to investigate about the theft of the vehicle as well as to verify the version narrated in the FIR by recording the statement of complainant and any other person which shows that the vehicle in question was actually stolen by unknown person. Counsel for the complainant has also relied upon the order of Hon’ble State Commissioner case title as Shri Ram General Insurance Co. Vs. Joginder Singh 2014 (2) CLT Page No.604 has been laid down that Consumer Protection Act, 1986 Section 2(1) (g)- Insurance claim vehicle theft – FIR lodged and un-traced report filed by police – held-FIR is the best piece of evidence to prove the theft of complainant’s vehicle- on the other hand, the Insurance Company has failed to produce any evidence worth the name that the vehicle in question was not stolen – Insurance Company cannot wriggle out from the responsibility to pay the loss of the complainant on flimsy grounds. So, the question of breach of trust by will not affect the right of the complainant, who lost his vehicle in question. From the above said facts and circumstances of the case, it is clear that the complainant has properly explained the delaying of the FIR regarding stolen of the vehicle in question. We observed that it is not a fault of the complainant regarding delaying the registration of the FIR. Usually, it has been seen that the police did not take the immediate action regarding the cases of the theft. Counsel for complainant has also relied upon the judgment of Hon’ble Punjab and Haryana High Court case title Bharti AXA General Insurance Company limited Vs. Ms. Monu Yadav Vol. CLXXVI-(2014-4) Page 861 has laid down that Insurance –Theft of car –delay in lodging claim with Insurance Company of 54 days – Instructions dated 20.09.2011, issued by Insurance Regulatory and Development Authority to all the insurance Companies- As per the said instructions, this condition should not prevent the settlement of genuine claims particularly when there is delay in giving intimation or in submission of documents due to unavoidable circumstances – The companies were advised that they must not repudiate such claims on the ground of delay, especially when the policy has been promptly informed in this regard.

5.                    Keeping in view of the totality of the fact & circumstances of the present case and law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), it would be appropriate that if we allow the present complaint by giving 75% of the insured amount to the complainant on non-standard basis. Hence,  the present  complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and OP No.1 and 2 are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)        To pay the 75% of Insured Declared Value (Annexure R-2) of vehicle in question from the date of complaint alongwith interest @ 9% till its realization.

(ii)       Also to pay a sum of Rs.5,000/- on account of litigation charge, mental harassment & agony alongwith cost of litigation.

                        Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on:16.08.2017                                          (D.N. ARORA)

                                                                                       PRESIDENT

 

 

                                                                                                               (PUSHPINDER KUMAR)

                                                                                        MEMBER

 

                                                                        (ANAMIKA GUPTA)

                                                                                          MEMBER