Uttarakhand

StateCommission

A/14/296

The New India Assurance Company Limited - Complainant(s)

Versus

Sh. Jagdish Kumar Kampani - Opp.Party(s)

Sh. M.N. Mishra

12 Aug 2015

ORDER

ORDER

 

(Per: Mr. D.K. Tyagi, Member):

 

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 17.11.2014 passed by the District Forum, Dehradun in consumer complaint No. 123 of 2013. By the order impugned, the District Forum has allowed the consumer complaint and directed the opposite party to pay to the complainant a sum of Rs. 6,38,549/- against insured amount, Rs. 55,000/- as compensation and Rs. 5,000/- towards cost of litigation within one month from the date of order, failing which the complainant shall be entitled to get interest @ 7% per annum from the date of filing the consumer complaint till the date of payment.

 

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Jagdish Kumar Kampani is a registered owner of vehicle No. UK07-TA-4347 Mahindra Xylo, model 2010.  This vehicle was registered as Taxi for which the complainant had obtained permit and it was duly financed by Mahindra & Mahindra Financial Services. This vehicle was insured with the opposite party No.1-The New India Assurance Co. Ltd. with insurance policy No. 32170231100100007944 for the period from 10.02.2011 to 09.02.2012 for a sum of Rs. 6,47,549/-. On 06.06.2011, the driver of the said vehicle booked this Taxi for Himachal Pradesh for the period of 10 days.  On 06.06.2011and 07.06.2011, the complainant tried to contact the driver on his mobile phone, but his mobile phone was found switched off and due to doubt of any mis-happening, the complainant contacted the police of Police Station, Raipur and information in writing was given to SHO, Raipur immediately.  The insurance company was also informed.  On several visits to Police Station, Raipur, the police told the complainant that they are taking necessary steps in the matter and advised him to wait for 10 days.  The complainant again visited the Police Station with the family members of driver Sh. Rajakumar alias Wazid Ali.  After ten days, on 16.06.2011, the complainant went to Himachal Pradesh for searching of driver and vehicle, but despite of his efforts at various possible places, neither the vehicle nor the driver can be traced out.  On 21.06.2011, the complainant alongwith family members of the driver, went to Police Station, Raipur, but SHO of P.S. Raipur did not lodge FIR.  On 22.06.2011, after protest and dharna and shouting slogan against the police by the family members of the driver at P.S. Raipur, SHO of P.S. Raipur agreed to order to lodge FIR.  On 23.06.2011, complaint of the complainant was accepted by the police of Raipur and copy of the same was provided to the complainant with date and seal of Police Station, Raipur.  The complainant submitted the copy of the complaint/FIR in the office of insurance company-opposite party No. 1 on the same day.  The opposite party No. 1 appointed M/s Royal Associates as investigator on the intimation given by the complainant.  On the basis of intimation dated 07.06.2011, investigator found the incident correct and submitted its investigation report with the insurance company.  The complainant had also moved an application before the Chief Secretary, Uttarakhand/District Magistrate, Dehradun and S.S.P., Dehradun to expedite the matter and District Magistrate, Dehradun had also directed to SHO, P.S. Raipur to take necessary action.  Copy of this order was also submitted in the office of the insurance company.  On 27/28.06.2011, the complainant had completed necessary formalities for the claim.  Mr. Zaidi, employee of the insurance company, had filled the printed form and directed the complainant not to put the date on the form.  On 10.08.2011, the complainant signed over some printed form on which Claim Intimation Letter and Loss/Damage Intimation Letter was printed.  Thereafter the insurance company sought some explanation from the complainant by its letter dated 30.08.2012 and 03.10.2012, which were replied on 31.08.2012 and 09.10.2012.  On 30.08.2012, the complainant visited the office of the insurance company, where Sh. Naveen Jain, assistant to Sh. Anil Kumar Khullar had told the complainant that in case if the complainant wants his claim sanctioned, then he should write an explanation “he had intimated the insurance company about the said accident to the insurance company only on telephone and he had presented his claim form on 27/28.06.2011.  On the basis of said intimation on telephone and the investigator was also appointed on the said intimation.  He had never intimated the insurance company in writing”.  Sh. Naveen Jain had obtained this information on the explanation by fraud. The insurance company thereafter made this information as basis for repudiation of claim.  The insurance company has repudiated the claim in collusion with the opposite party Nos. 2 & 3 and committed fraud against the complainant. Whenever the complainant moved any application before the insurance company, no acknowledgment was provided to the complainant, but in case some documents were presented before the insurance company, then it was returned after putting the seal of the insurance company.  The complainant had informed the insurance company about the incident orally as well as in writing within time and police was also informed and intimated about the incident within no time.  Due to repudiation of his claim, the complainant could not repay the loan amount, therefore, finance company imposed on the complainant a heavy interest of 3% per month on the loan amount.  The complainant arranged money by selling his three-wheeler (vehicle) as well some loan from his near relation and paid the loan amount to the finance company.  The complainant came to know about the murder of the driver as well as loot of the vehicle only on 12.12.2011 when Police Station Dharampur, Himachal Pradesh informed P.S. Raipur, Dehradun.  On the information of police of P.S. Dharampur, Himachal Pradesh, the complainant went there alongwith family members of driver and it was confirmed on the basis of photograph and other items of driver that the driver was murdered and vehicle was looted.  The vehicle is still untraceable and after investigation, the police had submitted final report.  The complainant has pleaded that Branch Office and Divisional Office of the insurance company have found the claim correct, but higher official Sh. Anil Khurana had repudiated the claim on some imaginary and false grounds.  The opposite party Nos. 2 & 3 have not performed their duties and, therefore, committed deficiency in service.  The insurance company took 1½ years to repudiate the genuine claim of the complainant.  The insurance company never raised objection in their letter dated 03.10.2012 regarding police report and intimation.  Certain documents of the complainant misplaced from the file and the insurance company did not provide copies of these documents, even under Right to Information Act.  It shows the malafide of the insurance company and the opposite party Nos. 2 & 3, who repudiated the complainant’s claim after 1½ years. 

 

3.       The opposite party No. 1-insurance company has filed the written statement before the District Forum and has pleaded that it is true that the complainant was the owner of the vehicle No. UK07-TA-4347 and this vehicle was financed by Mahindra & Mahindra Financial Services.  It is true that the vehicle was insured with the answering opposite party for the period from 10.02.2011 to 09.02.2012 on the terms and conditions of the policy.  The answering opposite party has denied that on 06.06.2011, when the complainant tried to contact his driver and he could not contact, he had lodged an FIR with the police on 07.06.2011.  It is true that M/s Royal Associates were appointed by the answering opposite party as investigator to investigate the matter. It is denied that the complainant has informed the company on 07.06.2011. It is denied that on 27/28.06.2011, the complainant has completed all the formalities of the answering opposite party.  It is also denied that some printed forms were got signed from the complainant by Sh. Zaidi.  It is true that the complainant visited the office of the answering opposite party on 30.08.2012.  It is denied that any talk, as is mentioned in para-13 of the consumer complaint, took place between the complainant and Sh. Anil Kumar Khullar.  It is denied that the answering opposite party has played any fraud with the complainant.  It is also denied that the complainant has no knowledge of law.  It is also denied that the claim of the complainant was repudiated by the answering opposite party on false and frivolous ground.  It is denied that no receipt was issued by the answering opposite party with regard to handing over the documents by the complainant.  It is denied that the complainant has informed the answering opposite party with regard to theft of the vehicle within time.  It is denied that the complainant has complied with all the terms and conditions of the policy.  It is denied that there is no negligence on the part of the complainant. The claim was rightly repudiated by the answering opposite party, as not payable according to the terms and conditions of the policy.  It is denied that the complainant for the first time came to know on 12.12.2011 that his driver has been murdered.  It is true that the complainant’s claim was repudiated by the answering opposite party on the ground mentioned in the repudiation letter dated 03.10.2012. It is denied that the terms and conditions of the policy were not written on the policy document supplied to the complainant. It is denied that the objections raised by the answering opposite party on 03.10.2012 were removed by the complainant.   In additional pleas, the opposite party No. 1 has pleaded that the consumer complaint of the complainant is not legally maintainable and the same is barred by time.  The insured for the first time has given the intimation to the insurance company about the theft of the vehicle by submitting the claim form on 10.08.2011, after a period of about two months.  That as per the terms and conditions of the policy, it was the duty of the complainant to inform the company immediately on the occurrence of the incident, failing which the claim was not payable. The FIR was lodged in District Solan, P.S. Dharampur on 09.06.2011 at about 9:25 hours by one Sh. Chintamani, in which he has clearly mentioned that a person was murdered. The Postmortem of the deceased driver was conducted on 11.06.2011in Indira Gandhi Medical College, Shimla, as an unidentified male.  The legal heirs of the deceased driver have confirmed that the person of which the postmortem was conducted on 11.06.2011 in Indira Gandhi Medical College, Shimla was of the deceased driver.  The contention of the complainant that he met the opposite party Nos. 2 & 3 on 30.08.2012 and they told the complainant to give in writing, as is mentioned in para-13 of the consumer complaint, is incorrect.  The consumer complaint is liable to be dismissed. 

 

4.       The District Forum, on an appreciation of the facts and circumstances of the case, has partly allowed the consumer complaint     No. 123 of 2013 vide order dated 17.11.2014 in the above terms.  Aggrieved by the said order, the opposite party No. 1-insurance company has filed the present appeal.

 

5.       We have heard learned counsel for the parties and perused the material placed on record.

 

6.       Learned counsel for the appellant-insurance company has submitted before this Commission that the order of the Forum below is against the law, facts and merits of the case.  The District Forum has not considered the evidence filed by the appellant and has not considered the fact that the policy is a contract in between both the contracting parties, i.e. insured and insurer and both the parties are abided by the terms and conditions of the policy.  The District Forum has wrongly allowed Rs. 6,38,549/- to the complainant-respondent without any evidence and also has wrongly allowed the compensation of Rs. 55,000/- to the respondent.  Learned counsel has also argued that the complainant violated the terms and conditions of the policy and filed the consumer complaint on the false and fabricated facts.

 

7.       Learned counsel for the respondent has submitted that the driver   Sh. Wazid Ali went to Himachal Pradesh via Rishikesh with some passengers on 06.06.2011. His mobile phone was switched off when contacted by the respondent-complainant, then due to some apprehension, the respondent visited the Police Station, Raipur on 07.06.2011 and submitted a complaint (paper No. 88) and he also informed the appellant regarding apprehension of some mis-happening to the driver on 07.06.2011.  Learned counsel has also argued that on the basis of intimation, the insurance company appointed investigator, who submitted report to the insurance company-appellant. Investigator M/s Royal Associates had also sent a letter dated 28.07.2012 (paper No. 90) to the insurance company, in which the investigator had referred his investigation report as well as subsequent letter dated 19.06.2011 of insurance company.  Learned counsel also argued that Senior Divisional Manager, Divisional Office, The New India Assurance Co. Ltd. had found complainant’s claim to be genuine, as per letter dated 05.08.2012 (paper No. 111).  Senior Divisional Manager of the insurance company had also sent a letter to the Technical Department, Regional Office, Dehradun with recommendation for the approval of claim vide letter dated 10.09.2012 (paper No. 112).  Even then the claim of the respondent was repudiated by the insurance company-appellant.

 

8.       There is no dispute that the respondent–Sh. Jagdish Kumar Kampani was the registered owner of the vehicle No. UK07-TA-4347 Mahindra Xylo Model, 2010. There is also no dispute that this vehicle was insured with the appellant-insurance company for the period from 10.02.2011 to 09.02.2012.  From the evidence on record, it is also not disputed that the respondent came to know about the murder of the driver and looting of the vehicle on 12.12.2011 for the first time, as the dead body of the driver was disposed of by the police of Police Station, Dharampur, District Solan, Himachal Pradesh after postmortem, as an unidentified man and family members of the driver identified the photographs and cloths of deceased driver.  The police, after investigation, had submitted final report in the Court. 

 

9.       Learned counsel for the appellant-insurance company has cited various judgments of the Hon’ble National Commission, which are as follows:-

a) New India Assurance Co. Ltd. vs. Ram Avtar;            I (2014) CPJ 29 (NC)

b) Prahlad & Anr. vs. Oriental Insurance Company Ltd.; IV (2012) CPj 770 (NC)

c) New India Assurance Company Ltd. vs. Trilochan Jane; IV (2012) CPJ 441 (NC)

d) Devendra Singh vs. New India Assurance Co. Ltd. & Ors.; III (2013) CPJ 77 (NC)

e) Jagdish Prashad vs. ICICI Lombard General Insurance Co. Ltd.; Revision Petition No. 1996 of 2012, decided on 14.05.2013.

 

          In case of New India Assurance Co. Ltd. vs. Ram Avtar (supra), the Hon’ble National Commission has held that 35 days delay in intimation to insurance company about theft of vehicle.  Insured was required to immediately inform Insurance Company about theft.  Repudiation justified. In the case of Prahlad & Anr. vs. Oriental Insurance Company (supra), the Hon’ble National Commission has held that insurance company was informed about two months from the date of incident, in which vehicle was taken away forcibly-Delay in intimation-Intimation should have been given immediately-Repudiation justified. In case of New India Assurance Company Ltd. vs. Trilochan Jane (supra), the Hon’ble National Commission has held that delay of 9 days to inform insurer would be a violation of condition of policy, as it deprives insurer of a valuable right to investigate as to commission of theft and to help in tracing the vehicle.  State Commission erred in holding that complainant had reported theft of vehicle within a reasonable time.  Order under challenge is set aside and the complaint is ordered to be dismissed.  In case of Devendra Singh vs. New India Assurance Co. Ltd. (supra), the Hon’ble National Commission has held that theft of vehicle reported to police after 4 days and to Insurance Company after about a month – Repudiation of claim by the insurance company at violation of policy terms, justified.  Lastly, in case of Jagdish Prashad vs. ICICI Lombard General Insurance Co. Ltd. (supra), the Hon’ble National Commission has held that the vehicle was stolen on 14.04.2007 and the insurance company was informed on 23.04.2007.  Therefore, since the two Fora below have given cogent reasons in their order which does not call for any interference.  Accordingly, the present revision petition is not maintainable being devoid of any merits and is dismissed with cost. 

 

10.     With due respect to the citations presented before us, these citations are not applicable in the present case.  The appellant-insurance company has repudiated the claim of the respondent vide its letter dated 03.10.2012 with remarks that as per the terms and conditions of the policy, the respondent was required to inform the incident to the company immediately upon occurrence, whereas the respondent has not immediately informed the company about the incident.  The matter was reported to the police on 06.07.2011 and to the company on 10.08.2011, whereas the date of missing of the vehicle has been alleged as 06.06.2011.  From the perusal of the evidence filed by the respondent-complainant specially complaint dated 07.06.2011 presented by the respondent to SHO, P.S. Raipur, Dehradun (paper No. 88), which indicates that the driver of the respondent named Sh. Wazid Ali alias Rajakumar went to Himachal Pradesh on 06.06.2011 at 6.00 a.m. by vehicle Mahindra Xylo registration No. UK07-TA-4347 for 10 days booking, whose mobile number is 9758824775, but respondent could not contact his driver, as his mobile was switched off.  The respondent has also informed in writing by application dated 07.06.2011 to the Branch Manager, The New India Assurance Co. Ltd. 9, Subhash Road, Dehradun indicating that his said vehicle is insured with the insurance company.  Since yesterday, i.e. 06.06.2011 the respondent is trying to contact his driver on his mobile, but no contact has been made so far.  He has apprehension of some mis-happening with his driver, therefore, he had also intimated SHO, P.S. Raipur regarding his driver.  The respondent’s driver went to Himachal Pradesh on 10 days booking.  This application bears seal of insurance company, which proves that the respondent had informed the appellant-insurance company on 07.06.2011 about missing of his driver as well as vehicle and about apprehension of some unwanted incident.  The respondent has also filed copy of letter dated 28.07.2012 of investigator in which investigator had written to the insurance company that “Please refer to our investigation report and subsequent letter dated 19.06.2011 written by your office”.  This letter (paper Nos. 90 to 91) also indicates that after receiving intimation of the incident of missing of driver and vehicle of respondent, the appellant–insurance company appointed M/s Royal Associates as its investigator who after investigation submitted investigation report to the insurance company before 19.06.2011.  In this way, the appellant-insurance company cannot say that the respondent has not intimated the insurance company about the incident within time. Certain other papers filed on the record are also indicating that Divisional Manager of appellant-insurance company found the claim of the respondent genuine and wrote letters to the Regional Office with recommendations for approval of the claim amount. The appellant–insurance company has not filed copy of investigation report on the record, which proves that the appellant has not come before this Commission with clean hands.  Evidence on record proves that the driver of the vehicle was murdered in the area of Police Station, Dharampur, District Solan, Himachal Pradesh for which an FIR under Section 302 of I.P.C. was lodged and police of Police Station, Dharampur recovered dead body of the driver and was cremated by the police. The family members of the driver identified cloths and photographs of the deceased shown by the police of Himachal Pradesh. The police could not recover the vehicle, which was looted from the deceased driver and they submitted final report.  

 

11.     In these circumstances, we are of the view that the District Forum has properly considered all the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference.  The appeal being devoid of merit is liable to be dismissed.

 

12.     For the reasons aforesaid, the appeal is dismissed.  The impugned judgment and order dated 17.11.2014 passed by the District Forum, Dehradun in consumer complaint No. 123 of 2013 is hereby confirmed.  No order as to costs.

 

(MRS. VEENA SHARMA)                             (D.K. TYAGI)                            (JUSTICE B.C. KANDPAL)