Punjab

StateCommission

FA/12/614

OIC Ltd. - Complainant(s)

Versus

Sanjay Devi - Opp.Party(s)

Vinod Chaudhri

05 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.614 of 2012                                                    

             Date of institution  :    17.05.2012

Date of decision     :    05.03.2015

 

1.      Oriental Insurance Company Limited, SCO No.109-111, Sector       17-D, Chandigarh, through its Deputy Manager.

2.      Oriental Insurance Company Limited, through its Branch         Manager, near Grain Market, Talwandi Road, Zira, District     Ferozepur.

…….Appellants/Opposite Party

Versus

Sanjay Devi, aged 35 years, daughter of Sohan Lal, R/o Village & Post office Ghall Khurd, Tehsil and District Ferozepur.

                                                                  …Respondent/Complainant 

First Appeal against the order dated 04.04.2012 of the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Baldev Singh Sekhon, Member

                        Mrs. Surinder Pal Kaur, Member

 

Present:-

 

          For the appellants       : Shri Vinod Chaudhary, Advocate

          For the respondent       : Shri Sandeep Khunger, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    This appeal has been preferred by the appellants/ opposite party-Insurance Company against the order dated 04.04.2012 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, “District Forum”), vide which the complaint filed by Sanjay Devi, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and the opposite party was directed to pay the sum of Rs.4,45,000/-, as the insurance claim, along with interest @ 9% per annum from the date of repudiation of the claim till the actual payment of that amount, within 30 days of the receipt of the copy of the order.

2. The complainant alleged, in her complaint, that she purchased one car make Tata Indigo CS, for a sum of Rs.4,69,018/- and got the same insured with the insurance company, vide cover note No.CHD-C 374869 dated 05.02.2010, after the payment of Rs.11,985/-. However, no policy was supplied to her nor the terms and conditions were conveyed to her. On 12.04.2010, her father-in-law and other family members had gone to Ludhiana for shopping on this car, which was being driven by her father-in-law Ashok Kapoor. The same was parked in a vacant space near University point and was duly locked. When her father-in-law came there after half an hour, the car was missing from that place and had been stolen by some unknown persons. The insurance company was informed about the theft, but it advised to lodge the FIR first. Thereafter, she lodged the FIR No.109 dated 13.04.2010 in Police Station Sarabha Nagar, Ludhiana. She lodged her claim with the insurance company and she completed all the requisite formalities and also submitted the documents; as required by it, including the “Untraceable Report”. However, her claim was repudiated, vide letter dated 28.09.2011, on the ground that the car was not registered with the Registering Authority on the date of theft and there was delay in giving information. It was not the pre-condition of the insurance company to get the vehicle registered before the insurance thereof, as the engine and chassis numbers were duly mentioned in the cover note. Such a condition was not brought to her notice at any point of time. In fact, the car was purchased by taking loan from the bank and, as such, the time was taken to arrange the amount for the registration of the car. The information about the theft of the car was given to the insurance company immediately on the telephone. Thus, it was not competent to repudiate her claim. On account of repudiation thereof; she suffered mental pain, agony, tension, harassment and financial loss; for which she is entitled to Rs.20,000/-, as compensation and Rs.5,500/-, as litigation costs. She prayed for the issuance of directions accordingly to the insurance company, in addition to the direction to pay Rs.4,69,012/-, along with interest @ 12% per annum from the date of the insurance till the payment of that amount.
3. The complaint was contested by the insurance company, which filed written reply before the District Forum. In the written reply, it admitted that the complainant got insured the car with it and that the claim made, claiming the insurance amount after the theft of the car, was repudiated by it. While denying the other allegations made in the complaint, it pleaded that all the insurance documents were supplied to the complainant and she fully knew the terms and conditions of insurance, as those were duly explained to her by its representative at the time of purchase of the insurance policy. The intimation of theft was sent to it after 48 hours of the alleged theft, as according to the complainant, the vehicle was stolen on 12.04.2010 and the intimation was given to it on 23.04.2010. Thus, there was clear violation of the terms and conditions of the policy. The car could not have been left unattended, by parking the same at a place, where it could not have been legally parked. That also amounted to the breach of the terms and conditions of the policy. There was no registration certificate on the date of the alleged theft. It was in view of the breach of the terms and conditions of the policy that the claim was rightly repudiated. There was no deficiency in service or unfair trade practice on its part. The complainant has not come to the District Forum with clean hands and has concealed and suppressed the material facts from it. It prayed for the dismissal of the complaint with special costs; being false, frivolous and vexatious to the knowledge of the complainant.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have also carefully gone through the records of the case.
6. It was submitted by the learned counsel for the insurance company that the District Forum committed an illegality, while recording the findings in favour of the complainant and allowing the complaint, by totally ignoring the evidence produced on the record for proving that there was breach of the fundamental conditions of the insurance policy. The car was not parked at the place, meant for parking the same and, thus, the complainant did not take reasonable precautions to safeguard the car. As per the terms and conditions of the policy, the complainant was required to intimate the insurance company about the theft, within 48 hours of the theft, but she failed to do so. The third breach on the part of the complainant was that there was no registration certificate of the car at the time of theft, which not only violated the terms and conditions of the insurance policy, but also the mandatory provisions of the Motor Vehicles Act. The District Forum committed an illegality, by invoking the provisions of circular of I.R.D.A. (Circular No.IRDA/HLTH/MISC/CIR/216/09 /2011 dated 20.09.2011). This circular was applicable only in case the insurance company intended to repudiate the claim of the complainant, only on the ground of delayed intimation. Therefore, the order passed by the District Forum is liable to be set aside.
7. On the other hand, it was submitted by the learned counsel for the complainant that after carefully going through the averments of the parties and the evidence produced by them, the District Forum came to the correct conclusion that the claim made by the complainant under the policy was wrongly repudiated by the insurance company. It was also correctly concluded that the insurance company had failed to supply the terms and conditions of the insurance policy to the complainant, as the onus was upon the insurance company to prove that terms and conditions were supplied and it failed to discharge that onus. It was correctly concluded by the District Forum that in these circumstances, the terms and conditions of the policy could not have been invoked by the insurance company for repudiating the claim of the complainant.
8. The complainant proved on record the cover note Ex.C-2, vide which she got insured the car with the insurance company on 05.02.2010. While deposing about the allegations, made in the complaint, the complainant deposed in her affidavit Ex.C-1 that no insurance policy was supplied to her, nor the terms and conditions thereof were brought to her notice.
9. The opposite party-Insurance Company proved on record the insurance policy as Ex.R-4. As per the terms and conditions incorporated therein, the claim for theft of the vehicle was not payable, if the theft had not been reported to the insurance company, within 48 hours of the occurrence. It is very much clear from the cover note Ex.C-2 itself that the complainant got the car insured with the insurance company, as a private car under the terms of the Company’s usual form of Package. That fact is clearly mentioned in the cover note. In these circumstances, the complainant was supposed to have knowledge of the terms and conditions of the package insurance policy. It was held by the Constitutional Bench of the Hon’ble Supreme Court in a judgment reported in AIR 1966 Supreme Court 1644 (General Assurance Society Limited Vs. Chandmull Jain & Another) that a person, purchasing a particular insurance policy, is supposed to know the terms and conditions thereof. That judgment was totally ignored by the District Forum, while recording the findings in favour of the complainant.
10. The letter of repudiation, vide which the claim of the complainant was repudiated, was proved on the record as Ex.R-3. The claim was repudiated on two grounds; (1) there was no valid registration of the vehicle on the date of theft; (2) the theft was not reported to the insurance company within 48 hours of the theft. The registration certificate was proved on the record by the complainant as Ex.C-13. A perusal thereof shows that the registration certificate was issued on 13.07.2010, but was to be valid from 10.02.2010 to 09.02.2025. On the basis thereof, it was submitted by the counsel for the complainant that for all intents and purposes, the car is supposed to have registration certificate on the date of theft. This contention of the learned counsel is of no use to the complainant. It is a fact that there was no registration certificate of the car on the date of theft and the same was issued on 13.07.2010. The effect and consequences of non-registration of the vehicle were discussed in detail in the recent judgment of the Hon’ble Supreme Court reported in 2014 (4) R.C.R. (Civil) 272 (Narinder Singh Vs. New India Assurance Company Ltd. & Ors.). In that case, the vehicle had met with an accident and at the time of accident, the same was without any valid registration, as contemplated by the provisions of Section 39 and Section 43 of the Motor Vehicles Act. After going into the provisions of those two sections, it was held by the Hon’ble Supreme Courtthat using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act, but also a fundamental breach of the terms and conditions of the policy contract. Upholding the rejection of the claim by the insurance company on account of non-registration of the vehicle was upheld by the Hon’ble Supreme Court. The question arises, whether such a proposition can be invoked in case of theft of the vehicle? It becomes very much clear from the latest judgment of the Hon’ble National Commission reported in I (2015) CPJ 220 (Saleena Rani Vs. United India Insurance Company Ltd. & Anr.) that the position will be same, even if the loss of the vehicle was on account of the theft. In that case, Saleena Rani, complainant got her car insured with the opposite party-Insurance Company.Temporary registration number was issued, which was valid from 09.06.2011 to 08.07.2011. On 05.05.2012, the car was taken to Delhi by her husband and was parked in front of guest house. On the next day, the car was found missing from that place. The claim was lodged by the complainant, which was repudiated by the insurance company, on the ground that the car in question was not registered with any Registering Authority on the date of theft.After interpreting the above said Sections 39 and 43 of the Motor Vehicles Act, it was held by the Hon’ble National Commission, that where the car had been used by the complainant as also by her husband, wholly and completely in violation of the mandatory provisions of Section 39, the insurance company could have repudiated the claim on that ground legally and validly. The Hon’ble National Commission relied upon Narinder Singh’s case (supra), while recording that finding.
11. It was mentioned in the above said letter of repudiation that the vehicle was stolen on 12.04.2010, whereas the information was given to the insurance company on 23.04.2010, i.e. after 48 hours of the alleged theft. It was for the complainant to prove that she had given such information within 48 hours. In Para No.4 of the complaint, she stated that the information about the theft was given immediately. She proved that fact by making her deposition to that effect in her affidavit Ex.C-1.
12. On the other hand, the insurance company is relying upon the affidavit of S.K. Sharma, Divisional Manager Ex.R-1 in support of the fact that the intimation was given after the period of 48 hours. No other evidence was produced by it in support of that fact. This affidavit Ex.R-1 is no affidavit in the eyes of law, as only the written reply filed by the opposite party has been given the form of an affidavit. The deponent has not specifically deposed about the facts. Thus, this affidavit cannot be treated as evidence. Therefore, the evidence produced by the complainant that intimation about the theft was given to the insurance company immediately after the theft, has remained unrebutted. Thus, the insurance company was not justified in repudiating the claim of the complainant, on the ground of delayed intimation. However, it was justified in repudiating the claim of the complainant, on the ground that there was no registration certificate of the car at the time of theft. In these circumstances, the finding recorded by the District Forum, to the contrary, is set aside.
13. Accordingly, the appeal is allowed with Rs.11,000/-, as costs. The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
14. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant No.1
15.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

1.  

    

    

                                                           (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT  

                                                            

    

    

                                                           (BALDEV SINGH SEKHON)

                                                                            MEMBER

                                                            

    

    

                                                             (SURINDER PAL KAUR)

   March 05, 2015                                            MEMBER

   (Gurmeet S)