Haryana

Karnal

CC/135/2020

Vikram - Complainant(s)

Versus

The Manager, the Magma HDI General Insurance Company Limited - Opp.Party(s)

M.R. Bhardwaj

20 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 135 of 2020

                                                        Date of instt.03.03.2020

                                                        Date of Decision:20.01.2023

 

Vikram son of Shri Jagmal resident of house no.64, Kabmbopura District Karnal, age 40 years.

                                               …….Complainant.

                                              Versus

 

1.     The Manager, The Magma HDI General Insurance Co. Ltd. Sector-3, G.T. Road, Karnal.

 

2.     The Manager, the Magma HDI General Insurance Co. Ltd. Development House, 24 Park Street, Kolkata-700016.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Shri Vineet Kaushik……Member

      Dr. Rekha Chaudhary…….Member

                   

Argued by: Shri M.R. Bhardwaj, counsel for complainant

                   Shri Atul Mittal, counsel for the opposite parties.

 

                    (Jaswant Singh President)

 

ORDER:   

                

                The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got insured his tractor (Swaraj 855) bearing registration no.HR-05-AL-8163 with the OPs, vide policy no.P0320400002/4107/118439, valid from 04.06.2019 to 03.06.2020. The said vehicle has been stolen by some unknown person and in this regard an FIR no.524 dated 25.10.2019 U/S 379 IPC has been registered in Police Station Indri. Complainant informed the OPs in this regard and submitted all the relevant documents to settle the claim. Thereafter, complainant visited the office of OPs so many times and requested to settle the claim but OPs did not pay any heed to the request of complainant and lingered the matter on one pretext or the other and lastly refused to pay the claim. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was thoroughly processed by the OPs by way of appointment of Hemraj Napit as Investigator, who submitted his report dated 18.11.2019 and also recorded the statement of complainant and found that the alleged theft occurred on 17.10.2019 but FIR was lodged on 25.10.2019 and company was intimated on 18.10.2019 after a delay of almost day. As per policy condition no.1, the insured was duty bound to inform the theft of the vehicle immediately to the insurer as well as the concerned Police Station after the incident. On account of delayed intimation, the OPs were deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle. It is further pleaded that the insured has not taken all reasonable steps to safeguard the insured vehicle from any loss or damages. The vehicle of the complainant was stolen, when it was left unattended with the key in the ignition socket and this has helped the thieves in their act of stealing the vehicle. It is violation of condition no.5 of the insurance policy. Thus, the claim of the complainant is not payable and it has rightly been closed as No Claim, vide letter dated 09.01.2020. It is further pleaded that complainant has no privity of contract with the OPs as there was no relationship of consumer and service provider amongst the complainant and OPs were not supposed to render any kind of services to complainant and the same fact was communicated to complainant. It is further pleaded that complainant has purchased the vehicle long back but not got the insurance transferred in his name by following due process. It is further pleaded that complainant has not applied for getting permanent registration certificate of the vehicle and at the time of theft of the vehicle, the complaint was not registered accordance with the chapter Section 39 of the Motor Vehicles Act, 1988. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations mentioned in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policies Ex.C1 and Ex.C2, postal receipt Ex.C3, copy of legal notice Ex.C4, copy of reply u/s 174 Cr.P.C Ex.C5 and closed the evidence on 19.04.2022 by suffering separate statement.

5.             On the other hand, learned counsel for OPs has tendered into evidence affidavit of Harbhajan Singh, General Manager Ex.OW1/A, affidavit of Lalit Kumar Investigator Ex.OW2/A, copy of investigation repot Ex.O1 and Ex.O2, copy of repudiation letter dated 09.01.2020 Ex.O3, copy of affidavit of complainant Ex.O4, copy of FIR Ex.O5 and closed the evidence on 04.11.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his tractor with the OPs. The insured declared value (IDV) of the vehicle was Rs.3,50,604/-. On 17.10.2019 the said vehicle of the complainant was stolen. In this regard, complainant intimated to the concerned Police Station immediately but police lodged the FIR no.524 dated 25.10.2019, under section 379 of IPC. Complainant also intimated the OPs on the very next day and submitted his claim and completed all the formalities. Complainant requested the OPs several times to settle the claim but OPs did not do so and lastly repudiated the claim of the complainant, vide letter dated 09.01.2020 on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the theft occurred on 17.10.2019 but FIR was lodged on 25.10.2019 and company was intimated on 18.10.2019 after a delay of one day. On account of delayed intimation, the OPs were deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle. He further argued that the insured has not taken all reasonable steps to safeguard the insured vehicle. At the time of theft complainant was not owner of the vehicle and he had sold the same to one Ankit Kumar. Thus, the claim of the complainant is not payable and it has rightly been repudiated, vide letter dated 09.01.2020 and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the vehicle in question was stolen during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle is Rs.3,50,,604/-.

11.           The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.O3 dated 09.01.2020, which reproduced as under:-

“As per records the policy under which you lodge subject claim is in the name of Mr. Ankit Kumar and not in the name of your goodself.

Thus, in view of No Contract of Insurance entered into by us with your goodself with regard to the subject vehicle, we regret to convey our inability to entertain your claim.

Your subject claims thus stands repudiated.

 

12.           Admittedly, the vehicle in question was stolen on 17.10.2019 but First Information Report (Ex.C5) was registered on 25.10.2019 in Police Station Indri and company was intimated on 18.10.2019.  Generally, the owner/Driver of the vehicle first tries to search the vehicle at his own level, but when he fails to trace out the same, the matter is reported to the police. But in the present case, complainant specifically stated that he had informed the police immediately but police recorded the FIR on 25.10.2019.  It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR. Thus, said plea taken by the OPs, has no force. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

13.           The next plea taken by the OPs is that the complainant has not taken all reasonable steps to safeguard his vehicle from loss or damage. Here OPs have completely failed to explain the act of complainant amounting to negligent behaviour for not safeguarding the vehicle. In this regard, we are of the considered opinion that a common person never wants to let his vehicle for damages or to be stolen. This plea taken by the OPs seems to be a concocted one and has been cooked up only in order to deprive the complainant from his genuine claim. Hence, this plea taken by the OPs has no force at all.

14.           The last plea taken by the OPs is that at the time of theft of the vehicle in question the complainant was not the registered owner of the vehicle as he has sold the vehicle to one Ankit Kumar and claim form also submitted by Ankit Kumar not by Vikram. To prove its version OPs have relied upon the affidavit Ex.O4, but the said affidavit is a blurred photocopy and same is not readable, thus, it cannot be considered in the eyes of law. Moreover, as per the investigation report Ex.O1, the name of the insured and registered owner of the vehicle is Vikram Singh i.e. complainant and as per the opinion of investigator, the theft is genuine. Furthermore, in the investigation report Ex.O2, it is nowhere mentioned that claim form was submitted by Ankit Kumar not by complainant. OPs have also failed to place on file claim form to prove its version. Thus, it has been proved on record that complainant was the registered owner of the vehicle in question at the time of incident. Thus, the plea taken by the OPs has no force.

15.          Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                “It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.    

16.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that acts of the OPs while repudiating the claim of the complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

17.           It is evident from the final report under section 173 Cr.P.C. the vehicle in question could not be traced out. As per insurance policy Ex.C2, the Insured Declared Value (IDV) of the vehicle in question is Rs.3,50,604/-. Hence, the complainant is entitled for the same alongwith interest, compensation and litigation expenses etc.

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.3,50,604/- (Rs. three lakhs fifty thousand six hundred four only) insured declared value (IDV)  to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The complainant is also directed to get all the formalities completed with regard to transfer of vehicle as and when the OPs desire. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:20.01.2023

                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

 

 

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member

 

Sushma

Stenographer