Haryana

Karnal

CC/536/2021

Sh. Harjinder Singh - Complainant(s)

Versus

The Manager,Iffco Tokio General Insurance Compnay Limited - Opp.Party(s)

Surender Chauhan

27 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                      Complaint No. 536 of 2021

                                                      Date of instt. 30.09.2021

                                                      Date of Decision:27.10.2023

 

1. Shri Harjinder Singh son of Shri Ajit Singh, resident of village Bairsal, Tehsil Nilokheri, District Karnal.

 

2. Shri Sunny Kumar son of Shri Randhir Singh, resident of house no.736, Dayalpura, Karnal.

                                               …….Complainants.

                                              Versus

 

1. The Manager, Iffco Tokio General Insurance Co. Ltd. registered office: office Sadan, C-1, District Center, Saket, New Delhi-110017.
2. The Manager, Iffco Tokio, General Insurance Co. Ltd. SCO 19-20, Part-I, Sector-12, Karnal.

 

…..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

  

Argued by:  Shri Surender Chauhan, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OPs.

 

                    (Jaswant Singh, President)

ORDER: 

                        

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant no.1 is the registered owner of vehicle no.HR-05AV-8414 and the same is insured with the OPs, vide policy no.1E2UCN63 P400 Policy# MD754106, valid from 23.04.2020 to 23.04.2021. The complainant no.1 sold the said motorcycle to complainant no.2 alongwith entire rights of the motorcycle including the insurance policy etc. and on dated 04.11.2020 handed over the possession to complainant no.2. On 07.11.2020, the said vehicle was stolen and in this regard an FIR no.438 dated 10.11.220 under section 379 IPC in Police Station, Civil Lines, Karnal was registered. Intimation was also given to the OPs regarding the theft of the vehicle. The OPs assured to the complainants that claim of motorcycle in question will be sanctioned in the name of the complainants but OPs have not paid the insured amount to the complainants. Complainants requested the OPs so many time to pay the claim amount but OPs did not pay any heed to the request of complainant. Then complainant sent a legal notice dated 04.02.2021 to the OPs but till date OPs did not pay any amount to the complainants and has given wrong reply to the complainant no.2 for not transferring the motorcycle in the name of complainant no.2. Complainant no.1 sold the motorcycle to complainant no.2 on 04.11.2020 and the same was stolen on 07.11.2020 and FIR was registered on 10.11.2020. Therefore, within 2-3 days the motorcycle could not be transferred due to non-availability of the documents, because the documents were kept in the tool box of motorcycle. 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 OPs received intimation regarding the theft of the vehicle after about 25 days, in violation of condition no.1 of the insurance policy. On receipt of intimation, OPs company appointed an independent investigator Shri Sachin Gulati to investigate the matter, who after thorough investigation, recorded the statement of complainants in writing and collected documents and submitted his detailed investigation report dated 28.03.2021 to the office of OPs. From the contents of FIR, investigation report and written versions of complainant to investigator, it has come to know that the insured Shri Harjinder Singh has already sold the vehicle about one year back prior to theft of the vehicle. The insurable interest of Harjinder Singh ceased upon sale of the vehicle and buyer Mr. Sunny, neither transferred RC in his name nor any request received by the OPs for transfer of insurance policy in the name of Mr. Sunny till the date of theft. Hence, for want of a valid insurance contract in the name of Mr. Sunny, the company is not liable to honour the claim in favour of buyer Mr. Sunny under own damage cover of the insurance policy. OPs are also not liable to settle the claim in favour of Mr. Harjinder Singh who has already lost his insurable interest on the insured vehicle with its sale.  As per GR 17 of the Indian Motor Tariff makes it clear that the transfer of cover is prospective after the transferee of the vehicle has made a request to the insurer for transfer of policy alongwith NOC from the transferor. In the present case, no such request has been received by the OPs either from the transferor or from the transferee till date of loss, thus, OPs company is not liable to pay the claim in favour of Mr. Sunny also.  Thus, the claim of the complainant has rightly been repudiated by the OPs, vide letter dated 28.05.2021. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of aadhar card of Harjinder and sunny complainants Ex.C1 and Ex.C2, copy of legal notice Ex.C3, copy of FIR Ex.C4, copy of auto dealer slip Ex.C5, copy of insurance policy Ex.C6, copy of repudiation letter dated 28.05.2021 Ex.C7, copy of untrace report dated 03.06.2021 Ex.C8, copy of order dated 20.03.2023 passed by Judicial Magistrate 1^st class, Karnal vide which concerned court accepted the untrace report and closed the evidence on 04.05.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Hardeep Singh Deputy General Manager Ex.RW1/A, copy of insurance policy Ex.R1, copy of investigation report Ex.R2, copy of letter dated 28.05.2021 Ex.R3, copy of repudiation letter dated 28.05.2021 and closed the evidence on 28.05.2021 by suffering separate statement.

6.             We have heard the learned counsel for 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 no.1 got insured his motorcycle with the OPs. On 04.11.2020, complainant no.1 sold the said motorcycle to complainant no.2.  On 07.11.2020, the said motorcycle was stolen and in this regard an FIR no.438 dated 10.11.2020, under section 379 of IPC was got registered with Police Station, Civil Lines, Karnal. The intimation was sent to the OPs. On 03.06.2021, the police submitted the untrace report. Complainants approached the OPs alongwith relevant documents including the untrace report and requested the OPs to settle the claim but OPs did not settle the claim till date and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the theft of the vehicle was occurred on 07.11.2020 and intimation was given to the OPs after delay of 25 days. Upon receiving belated intimation of theft, OPs appointed a surveyor to investigate the alleged theft. He further argued that Shri Harjinder Singh has already sold the vehicle about one year back prior to theft of the vehicle. The insurable interest of Harjinder Singh ceased upon sale of the vehicle and buyer Mr. Sunny, neither transferred RC in his name nor any request received by the OPs for transfer of insurance policy in the name of Mr. Sunny till the date of theft. OPs are not liable to settle the claim in favour of Mr. Harjinder Singh who has already lost his insurable interest on the insured vehicle with its sale. He further argued that as per GR 17 of the Indian Motor Tariff the transferee of the vehicle has made a request to the insurer for transfer of policy alongwith NOC from the transferor but no such request has been received by the OPs either from the transferor or from the transferee till date of loss, thus, OPs company is not liable to pay the claim in favour of Mr. Sunny also and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, complainants got insured his motorcycle  with the OPs. It is also admitted that the said motorcycle was stolen during the subsistence of the insurance policy. It is also admitted that the insured declared value of the car in question is Rs.33,000/-. It is also admitted that complainant no.1 has sold the vehicle in question to complainant no.2.

 11.          The claim of the complainant has been repudiated  by the OPs, vide letter Ex.C7/Ex.R3 dated 28.05.2021 on the ground, which are reproduced as under:-

.       The said insurance policy has been issued under the name of Mr. Harjinder Singh.

.       Insured had sold the vehicle before one year (prior to the date of loss), as such the insured lost the insurable interest in the subject vehicle after its sale.

.       Since the claim is preferred by your goodself and the issued motor policy is not transferred in your name, as such your insurable interest is also not existent on the issued policy.

.       The insured under the issued Motor Policy is Mr.Harjinder Singh. The insurance contract would noat respond to the claim lodged by your goodself.

We also did not receive any such request from transferee/ claimant regarding the transfer of comprehensive package policy as on date of loss.

You will appreciate that the settlement of claim has to be in accordance with the terms and conditions of the issued policy and we, sincerely regret having lost the opportunity of servicing you and hope to serve your better in future.

In view of the above, we regret to inform you that your claim is not tenable and stands repudiated”.

12.           In the present complaint, vehicle in question was stolen on 04.11.2020 and complainants immediately intimated to the police but police lodged the First Information Report (FIR) Ex.C4 dated 07.11.2020 after four days. 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. 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 claimant 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 complainants in lodging the FIR.  Thus, the plea taken by the OPs that there is delay of 25 days in intimation regarding the theft of the vehicle in question by the complainants to 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 Appeal no.1069 of 2022 date of decision 11.02.2022.

13.           OPs have alleged that complainant no.1 has no insurable interest in the vehicle in question and buyer Mr. Sunny i.e. complainant no.2, neither transferred the RC in his name nor any request received by the OPs for transfer of insurance policy in his name till the date of theft. Hence, for want of a valid insurance contract in the name of Mr. Sunny, the company is not liable to honour the claim in favour of buyer Mr. Sunny under own damage cover of the insurance policy. OPs are also not liable to settle the claim in favour of Mr. Harjinder Singh, who has already lost his insurable interest on the insured vehicle with its sale.

14.           Complainant no.1 sold the motorcycle to complainant no.2 on 04.11.2020 and the same was stolen on 07.11.2020 i.e. within four days. The motorcycle could not be transferred due to non-availability of the documents, because the documents were kept in the tool box of motorcycle. As per the Indian Motor Tariff there should exist insurable interest as well as insurance on tract at the time of taking policy and at the time of loss/theft. The transferee shall apply within 14 days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, the date of transfer of the vehicle, the previous number of the vehicle and the number and date of the insurance policy so that the insured may make the necessary changes in his record and issue fresh certificate of the insurance but in the present case, complainant no.1 sold the motorcycle to complainant no.2 on 04.11.2020 and the same was stolen on 07.11.2020  i.e. before the completion of the 14 days time. Hence, 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, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while repudiating the claim of the complainant amounts to deficiency, which is otherwise proved as genuine one. 

17.           As per insurance policy Ex.C6, the insured declared value of the vehicle in question is Rs.33000/-. Hence the complainants are entitled for the said amount alongwith interest, compensation for mental pain and agony and litigation expenses etc.

18.           In view of the above discussion, we allow the present complaint and direct the OPs to pay Rs.33,000/- (Rs. thirty three thousand only) as insured declared value (IDV) of the vehicle to the complainants alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 28.05.2021 till its realization. We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. However, the complainants are also directed to complete all the formalities with regard to cancellation of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:27.10.2023     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member