DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .
Complaint No. 224
Instituted on: 07.05.2018
Decided on: 06.02.2024
Gurdeep Singh aged about 34 years son of Surjit Singh resident of H.No.119, village Kheri Chandwan, P.S.Sadar Sangrur , Tehsil & District Sangrur.
…. Complainant.
Versus
1. TATA AIG General Insurance Company Limited, 301-308, 3rd Floor, Aggarwal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema Rani Bagh, Pitampura, New Delhi through its Regional Manager.
2. Kotak Mahindra Bank, SCO 9 &10, Kaula Park, Sangrur through its Branch Manager.
….Opposite parties
QUORUM
JOT NARANJAN SINGH GILL: PRESIDENT
SARITA GARG : MEMEBR
KANWALJEET SINGH : MEMBER
For the complainant : Shri Udit Goyal Advocate
For the OP No.1 : Shri Ashish Garg,Advocate
For the OP No.2 : Shri Hitesh Jindal, Advocate
ORDER
KANWALJEET SINGH, MEMBER
1. The complainant has alleged in this complaint that he has got financed his truck bearing no. PB-13AL-3252 from the OP no.2 for a sum of Rs.6,50,000/- . The OP no.2 who is the agent of OP no.1 got the vehicle insured from OP no.1 for an amount of Rs.8,50,000/- and paid the premium of Rs.30,000/-. The OP no.2 did not supply the terms and conditions of the policy. On 09.11.2015 the vehicle developed a defect and the same was taken to the workshop of Mistri Kaka Singh at Sunam Road, Sangrur. On 21.11.2015, the partner of the complainant took the vehicle after repair and went to his village Kheri and parked the vehicle under key and locked on the main road near the house of his uncle. On the next day at about 6 a.m. Jagraj Singh shocked to see that the truck was not there. Jagraj Singh immediately informed the complainant and both of them searched the vehicle, but they failed to trace out the vehicle in question. The complainant immediately submitted a written application dated 22.11.2015 to the PS, Sadar Sunam. The complainant also gave intimation to the OP no.2 regarding the theft of truck. The police station Sunam lodged the FIR no.124 dated 28.12.2015 under Section 379 IPC. The OP no.1 appointed an investigator for the claim of the complainant. The complainant submitted all the documents to the investigator. The complainant approached the OP no.2 many times with regard to release his claim. Then OP no.2 told that the claim shall be paid by OP no.1. The complainant was shocked to receive the repudiation letter dated 24.02.2017. The Police Station Sadar Sunam after investigation filed the cancellation report in the court which was accepted on 08.02.2017. Earlier the complainant filed an application before the Permanent Lok Adalat, Sangrur which was withdrawn on 18.04.2018 with the permission to file the same before the District Consumer Commission, Sangrur. The complainant has lastly prayed that the Ops may kindly directed to pay an amount of Rs.8,50,000/- alongwith interest @18%per annum from the date of theft of the vehicle in question till realization and to pay Rs. 100000/- on account of mental agony and harassment and Rs.22000/- as litigation expenses.
2. Upon notice of this complaint, the opposite parties appeared and filed written version separately. In reply of OP no.1, it is pleaded that risk truck in question was insured for a sum of Rs.8,50,000/- with the OP no.1 which was valid from 30.03.2015 to 29.03.2016 subject to terms and conditions of the policy. It is denied that the OP no.1 did not supply the policy documents to the complainant. The complainant informed the loss to the OP no.1 on 17.08.2016 after a gap of 270 days though the vehicle was reportedly stolen on 21.11.2015 and the FIR was lodged after 37 days of theft of the truck. Despite repeated requests and letter dated 19.08.2016 the complainant did not provide the necessary documents to the OP no.1. The insured violated the condition no.1 and 8 of the policy. The claim of the complainant was rightly and legally repudiated. The remaining allegations are denied by the Op no.1 and prayed that the complaint of the complainant may kindly be dismissed.
3. In reply of OP no.2 taking preliminary objections that the complainant got financed his vehicle in question from Op no.2. As per the agreement in case of vehicle theft or total loss the claim amount should lie in favour of the bank. On merits, the OP no.2 financed an amount of Rs.6,66,649/- as loan to the complainant and not an amount of Rs.6,50,000/- . The loan amount has been used by complainant for purchasing the truck in question for his commercial purpose. The OP no.2 reserve his right to initiate legal proceedings against the complainant due to non-payment of its loan amount and also imposed penalty. The OP no.2 is entitled to claim Rs.15,20,161.77 which are still pending against the complainant upto 25.06.2018. The remaining allegations are denied by the Op no.2 and prayed that the complaint of the complainant may kindly be dismissed.
4. In support to prove his case the complainant tendered into evidence his affidavit Ex.C-1 and some other documents which are Ex.C-2 to Ex.C-9 and closed evidence.
5. On the other hand, to rebut the case of the complainant, the opposite party no.1 has produced in their evidence some documents i.e Ex.Op1/1 to Ex.Op1/8 and self attested affidavit Ex.Op1/9 and closed evidence. Similarly, the OP no.2 has tendered into evidence Ex.R-1 to Ex.R-3 as Ex.OP2/1 to Ex.OP2/3, Ex.OP2/4 affidavit and Ex.OP2/5 copy of agreement.
6. We have heard the learned counsel for parties and gone through the record file carefully with the valuable assistance of the learned counsel for the parties. During arguments the contentions of both the parties are similar to their respective pleadings, so there is no need to reiterate the same to avoid repetition.
7. Now, come to major controversy, whether the complainant is liable for relief as claimed by him in his prayer or not?
8. Learned counsel for the complainant during arguments has argued that the claim of the complainant has been wrongly repudiated by the OP no.1 on 24.02.2017 on the ground of delay in intimation. The vehicle in question was stolen on the intervening night of 21/22.11.2015 and intimation was immediately lodged by the complainant on 22.11.2015 with the PS, Sadar, Sunam. In para no.3 (c ) of complaint, complainant specifically stated that intimation regarding the same was also given to OP no.2. The OP no.2 in their reply did not deny the factum of intimation has not been received from the complainant. The complainant placed on record Ex.C-4 emails dated 8.2.2016, 11.02.2016 and 17.03.2017 wherein official of OP no.2 sent an email to their claim team. From Ex.C-4, it is clearly proved that the complainant gave the intimation to OP no.2 regarding theft of his vehicle. The OP no.2 is an agent of OP no.1 which is duly proved from the insurance policy Ex.C-3wherein the agent broker name is clearly mentioned as Kotak Mahindra Bank Limited then it deemed to have been given to the principal as well. The OPno.2 did not deny to send the said email, so OP no.1 cannot put blame upon the complainant having late intimation. Once the investigator mentioned in his report that the vehicle was stolen so it is clearly concluded about the theft of vehicle.
9. Per contra, during arguments learned counsel for OP no.1 argued that the insured informed the loss of the vehicle in question to the OP no.1 on 17.08.2016 after a gap of 270days while the vehicle was stolen on 21.11.2015 and FIR was lodged after 37 days of theft of the vehicle. The complainant did not file a written complaint dated 22.11.2015 to the PS, Sunam. The police complaint for intimation of theft by complainant has no value in the eyes of law being without receiving dairy number. The police complaint is fictitious and false document and same has been procured by the police officials to cover the delay regarding intimation of theft of the vehicle to the police. Further, the learned counsel for the OP no.1 contended that the complainant informed the police regarding theft on 28.11.2015 and to the company on 17.08.2016. The act of the complainant for reporting the alleged theft of vehicle to the police and the insurance company stands in violation of policy condition no.1. This Commission has gone through minutely the terms and conditions of the policy which is Ex.OP1/2 page 5, the relevant portion of the terms and conditions of the policy is reproduced as under:-
Condition 1. “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall required. ”
10. The learned counsel for OP no.2 during arguments contended that the OP no.2 financed the truck in question of Rs.6,66,649/- to the complainant and the truck was used for commercial purpose. The copy of RC reflecting the name of OP no.2 as financer. As per agreement between the complainant and OP no.2 was agreed that in case of vehicle theft or total loss the claim amount should be payable strictly as per terms and conditions of agreement. The OP no.2 has reserve his right to initiate legal proceedings against the complainant for recovery of its due amount which was financed by Op no.2 qua the complainant. The OP no.2 being a financer of the truck in question as a hypothecated owner of the vehicle.
11. It is not disputed that the OP no.1 issued the insurance policy to the complainant which was valid from 30.03.2015 to 29.03.2016. As per Ex.C-3, the complainant paid premium of Rs.29443/- . As per Ex.OP1/1, it is an admitted fact that the truck of complainant bearing registration no. PB-13 AL- 3252 the insured declared value assessed by the OP no.1 for a sum ofRs.8,50,000/-. In para no.3 (a), the OP no.1 pleaded this factum in his reply. In para no.3 (a) the truck was used by the complainant for earning his livelihood as per pleadings of complaint the complainant has mentioned. The OP no.1 has not denied from the dictum the theft of truck in question. From the perusal of Ex.OP1/4 investigation report, the investigator mentioned in his report at page no.4, as per the insured statement his driver parked his truck outside his partner’s house on 21.11.2015 but when he came back on next morning the truck was found missing. Further, it is mentioned in the report of investigator on page no.5 verification at the spot-during the visit of investigator at the theft spot and he found where the vehicle was parked in the open parking area on below of residential apartment. Many unknown people visited there, so it commits the crime easier. It is pertinent to mentioned here, in the report of investigator he specifically mentioned that the photograph of the spot enclosed with the report. At this juncture, we feel that OP no.1 has failed to produce the photograph on record which could be helpful to this Commission for proper adjudication of the case. Further, investigator mentioned in his report at page no.8 from the bottom that as per insured statement, complainant immediately visited the police station and intimated theft but police advised to the complainant to trace the vehicle as such after 37 days FIR was lodged. It transpires from the perusal of Ex.OP1/5 the statement of complainant at page 2 it is specifically mentioned that the complainant visited the police station and the report was registered but they asked to the complainant to trace the vehicle first, as such the report was lodged much late. The complainant further stated in his statement that immediately after the theft the complainant informed to his agent about the theft, after that no action has been taken then complainant visited to Ludhiana and gave intimation on 17.08.2016. The complainant and investigator also put their signatures on the statement of complainant. This Commission has the considered view that the complainant intimated on 17.08.2016 to OP no.1 this factum also pleaded by OP no.1 in his reply para no.3 (c).
12. On the other hand, As per report of investigator page no. 8 of Ex.Op.1/4 the investigator specifically mention the date of visit to the spot on 05.05.2016. From this angle, how can it is possible for investigator to visit the spot on 05.05.2016, while the intimation has been given by the complainant on 17.08.2016. As per pleading of reply of Op.1 in para no. 3 ( c ) specifically mention the intimation of the theft to Op.1 has been given by complainant on 17.08.2016. Meaning thereby, investigator visited the spot of theft of the truck i.e. 05.05.2016 more than 3 and half month advance of intimation by insured. From the dictum, the stand of Op.1 creates suspicion with regard to visit the spot by the investigator on 05.05.2016. " A man can lie, but document can't". To trace out the varsity of truth, whether the complaint intimated under policy condition no. 1 as per Ex.C-7 to the police and the insurance company immediately or not? This Commission has the considered view that the purpose of immediate information to the police and insurance company can trigger and activate various authorities to use efforts timely to find out the stolen vehicle. It transpires from the perusal of written arguments of Op.1 in para no. 2 pleaded that the complainant has neither approached to the police station Sadar Sunam on 22.11.2015 nor submitted alleged written application dated 22.11.2015. The alleged application has no value in the eyes of law being without receiving/Dairy Number. The said application is fictitious and false document and the same has been procured from the police officials ante-dated in order to cover delay intimation regarding theft of vehicle in question. To solve this issue, this Commission has examined an utmost important document which Ex.C-2 an application dated 22.11.2015 moved by the complainant to the station house officer, police station, Sunam. It is pertinent to mention here that the complainant specifically mentioned that the vehicle in question was parked on the main road on 21..11.2015. On next morning when it was checked the vehicle was not at the said spot. It was tried to trace the vehicle but it could not be traced. As such, complainant has filed an application with regard to enquire the matter and take action. From the perusal of vital document Ex.C-2 complainant has put his signature on the application dated. 22.11.2015. On the same day chief Officer of the police station marked the application to ASI Sherwinder Singh and directed to after investigation take necessary action. However, the concerned police officer put his signature and embossed the designation stamp. Furthermore, another round stamp of police station Sunam, District Sangrur also embossed on the application. Per contra, investigation report which is Ex.Op.1/4 on page no. 6 middle portion it is specifically mentioned by the investigator which is reproduced as under:- " Yes, as per over verification, police report stands verified and they have affixed a round stamp on copy of FIR". From this angle, the stand of Op.1 is in itself contradictory. It is writ large on the file that in the light of Ex.Op.1/3 to Ex.Op.1/6 the occurrence of theft of truck was occurred on 21.11.2015. We hold that the complainant intimated to Police station, Sunam in writing on 22.11.2015 is well in time. The cause of delay to lodge the FIR as per the statement of complainant which is Ex.Op.1/5 properly justified the reason for delay in lodge the FIR. The concerned police officials asked to the complainant to try to trace the vehicle first and then came to them. As such the report was much late. From the whole scenario, it is crystal clear the insured having no fault at all to intimate the theft of truck to the police.
13. Now come to another issue regarding cause of delay in intimation to the insurance company by complainant mentioned in his statement which is Ex.OP no.1/5 that immediately after the theft of the truck the complainant had informed to his agent about the occurrence of theft. After that no action was taken. Then complainant visited Ludhiana and gave intimation on 17.08.2016. From the perusal of written reply of OPs or any other material, reliable, and trustworthy cogent evidence the Op.1 had failed to rebut the intimation letter Ex.C-2 nor specifically denied the factum of giving information to the insurance company i.e. Op.1 with regard to theft of the truck. Moreover, as per Ex.C-1 an affidavit of complainant pleaded on auth in para. No. 7 that Police Station Sadar, Sunam after investigation filed the cancelation report in the court which was duly accepted on 08.02.2017. Reply of Op.1 (para. No. 3 (g) did not denied specifically this factum regarding cancellation report accepted by the court on 08.02.2017. It is incumbent upon the complainant to produce the cancellation report on the record, but the complainant did not do so. The complainant placed on record Ex.C-4 emails dated 8.2.2016, 11.02.2016 and 07.03.2017 wherein official of OP no.2 sent an email to their claim team. From Ex.C-4, it is clearly proved that the complainant gave the intimation to OP no.2 regarding theft of his vehicle. It is considered view of this Commission is that the complainant intimated to OP no.2 through email in the light of Ex.C-4 on 8.2.2016, 11.02.2016 and 07.03.2017. From this angel, the stand of OP no.1 with regard to intimation to insurance company delay of 270 days as per reply of OP no.1 in para no.3 (c ) is not believable. The person who seeks equity must do equity.
14. Learned counsel for the OP no.1 during arguments has more focused on the judgments namely Reliance General Insurance Company Vs. Ranjit Singh Revision Petition No.2149 of 2017 decided on 05.02.2020 ( NC) wherein it has been held by the Hon’ble National Commission that purpose of requiring a prompt lodgment of FIR with a Police Station in a case of theft is to ensure that the concerned Police Station is able to make an effort to trace the vehicle at the time when there is some possibility of the vehicle being traced by the Police. Such an opportunity is lost when there is such an abnormal delay in lodging an FIR with the concerned Police Station. Repudiation justified. In this context, at the very outset, it is significant to note that the case in hand, the complainant on the very next day moved an application in writing dated 22.11.2015 to the Police Station, Sunam which is Ex.C-2 regarding the intimation of theft of truck in question. Therefore, the benefit of the decision of the Hon’ble National Consumer Commission in Reliance General Insurance Company (supra) in our opinion is not available to the OP no.1.
In Another case, titled as Kanwarjit Singh Kang Vs. ICICI Lombard General Insurance Company Limited, 2022 (3) ACJ 1647 the Hon’ble Supreme Court of India held that the insurance company repudiated the claim on the grounds (1) delay of 8 days in lodging of F.I.R. (2) delay of 16 days in giving information to insurance company. (3) key was theft inside the truck therefore sufficient care was not taken to safeguard the truck. Leaving the vehicle unattended with keys inside the vehicle will operate against the insured. Whether insurance company was justified in repudiating the claim-Yes.
A careful reading of the judgments relied upon by the learned counsel for OP.1 in this context, the facts of the referred cases are different as compare to the present complaint in hand. The key was left inside the truck in the case titled as Kanwarjit Singh Kang Vs ICICI Lombard Gen. Ins. Co.Ltd & another, while in the present complaint as per Ex. Op.1/4 it is specifically mentioned in report of the investigator at page no. 9 that insured was having one key of the truck as per his statement another key was not provided by previous owner. This factum also mentioned in Ex.Op.1/5 the statement of complainant. Rather the boot is on the other foot.
15. The Hon'ble Apex court in one of its celebrated judgment of case titled as Gurshinder Singh Vs Shriram General Insurance Company Ltd & another in civil appeal no. 653 of 2020(arising out of S.L. P ( c) No. 24370 of 2015) Decided on 24.01.2020 held that insurance claim-Delay in intimation insurance company about occurrence of theft no ground to deny claim.
16. We feel that the insurance company received huge amount by way of premium and issue the insurance policy to the innocent consumer frequently. On the other hand, the Phenomenon is toward the insurance companies are avoiding by one pretext another to pay the liability of insurance claim to the aggrieved consumers, we feel that an insurance contract is known as a contract of "uberrima fides" based on "utmost good faith" which is fully applicable in the present complaint. This is a fit case to redress the grievances of the complainant. This Commission has no hesitation to hold that op. 1 is liable to pay the insured declared value of the stolen truck in question to the complainant of Rs. 8,50,000/- after deducting Rs.1000/- as compulsory deductible under section I in the light of Ex.OP1/1 which is certificate of insurance and policy schedule form 51 of the Central Motor Vehicle Rules, 1989.
17. Resultantly, keeping in view of the facts and the peculiar circumstances of the case in hand and with careful analysis of the evidence available on record and in the light of the decision of the Hon’ble Supreme Court of India, we partly allow the complaint and direct the OP no. 1 to pay to the complainant an amount of Rs.8,49,000/- alongwith interest @7% from the date of filing the complaint till realization. Further, the OP no.1 is directed to pay a consolidated sum of Rs.10,000/- as compensation and litigation expenses. This order of ours shall be complied within 45 days from the receipt of copy of the order.
18. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
19. Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.
Announced.
February 06, 2024
( Kanwaljeet Singh) (Sarita Garg) (Jot Naranjan Singh Gill)
Member Member President
BBS/-
