Punjab

Moga

CC/16/75

Kamlesh Rani - Complainant(s)

Versus

The Manager/Responsible Person United India Insurance Co. Ltd. - Opp.Party(s)

Sh. Jagdish Bawa

05 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                                C.C. No. 75 of 2016

                                                                                    Instituted on: 03.03.2016

Decided on: 05.07.2016

 

Kamlesh Rani w/o Vinod Kumar r/o Nihal Singh Wala Road, Baghapurana, Tehsil Baghapurana, District Moga.

                                                                             ……….   Complainant 

Versus

 

The Manager/Responsible Person, United India Insurance Company Limited, Branch Office, Khati Bazar, Rampura Phul, District Bathinda.

 

                                                                           ………. Opposite Party

 

 

Complaint under Section 12 of the Consumer Protection Act, 1986.

 

 

 

Quorum:   Sh. Ajit Aggarwal, President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

Present:       Sh. Jagdish Bawa, Advocate Cl. for the complainant.

                   Sh. Pawan Kumar Sharma, Advocate Cl. for the opposite party.

 

ORDER :

(Per Ajit Aggarwal, President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986  (hereinafter referred to as the 'Act') against The Manager/Responsible Person, United India Insurance Company Limited, Branch Office, Khati Bazar, Rampura Phul, District Bathinda (hereinafter referred to as the opposite party) for directing them to pay the insurance amount of Motorcycle bearing registration no. PB-29-M-2109, amount of Motorcyle i.e. Rs. 25,000/-. Further opposite party may be directed to pay Rs. 50,000/- as compensation on account of harassment, agony and damages and deficiency in service alongwith interest @ 12% p.a. till the final decision of the case or any other relief which this Forum may deem fit and proper.

2.                Briefly stated the facts of the case are that opposite party is a branch office of United India Insurance Company Limited. The complainant had purchased a motorcycle bearing registration no.PB-29-M-2109 and the said motorcycle was insured with opposite party vide policy no. 2004043114P109824272, which was valid for the period 11.02.2015 to 10.02.2016 and premium regarding the said policy was paid by complainant. Unfortunately, the said motorcycle of the complainant was stolen on 18.03.2015. Thereafter, for some days, the complainant tried to find the motorcycle on its own, but when the said motorcycle was not found, the complainant moved an application before police official and on this, a FIR no.30 dated 27.03.2015 u/s 379 IPC, PS Baghapurana was lodged regarding the theft of the said motorcycle and after lodging of the said FIR, the complainant informed the opposite party regarding the said incident. The police official has sent a report to opposite party regarding missing of the said motorcycle and they also reported to opposite party that the said motorcycle could not be recovered. After that the complainant requested opposite party to make payment of the insurance of the said motorcycle, who assured the complainant that payment of said motorcycle will be made within few days. Thereafter, the complainant requested opposite party numerous times to make payment his claim. But all in vain. On dated 20.11.2015, opposite party sent a letter to the complainant, in which, the opposite party refused to make the payment of insurance on the ground that the complainant have given the intimation regarding theft of insured vehicle very late and by doing so the complainant has violated the terms and conditions of the policy. The complainant also got issued legal notice dated 13.01.2016, through his counsel to opposite party, but to no effect. Due to unofficial behaviour of the opposite party, the complainant has suffered huge mental agony and harassment and by not paying the insurance claim, the opposite party defrauds the complainant. Hence this complaint.

3.                Upon notice, opposite parties appeared through his counsel and filed written reply taking certain preliminary objections inter alia that the complaint is not maintainable; that the complainant is estopped by his own act and conduct; that the complainant has not complied with the terms and conditions of the insurance policy; that there is no deficiency in service on the part of opposite party; that this Forum has got no jurisdiction to try the present complaint. The vehicle no.PB 29-M-2109 was insured with United Insurance Co. Khati Bazar, Rampura Phul, District Bathinda vide policy no.2004043114P109824272. Thus, the Forum has got no jurisdiction; that the complaint kindly be dismissed for non-joinder and mis-joinder of necessary parties; that the complainant has not come to this Forum with clean hands and she has concealed, suppressed and mis-stated the material facts from this Forum. The true facts are that the Motorcycle bearing registration no. 29M-2109, Engine no.25903 and Chasis no.13641 was insured with the opposite party/United India Insurance Co., Branch office Rampura Phul, District Bathida vide policy no. 2004043114P109824272 effective from 11.02.2015 to 10.02.2016. As per claim intimation form received on 30.03.2015 by opposite party, the aforesaid motorcycle was stolen on 18.03.2015 while the same was lying parked outside the shop of complainant at Nihal Singh Wala Road, Baghapurana, regarding which FIR no.30 dated 27.03.2015 was lodged in PS Baghapurana, District Moga u/s 379 IPC against unknown person on the statement of Vikram Garg s/o Vinod Garg. The claim of the complainant was repudiated by the opposite party vide letter dated 20.11.2015 on the ground that the complainant has failed to give intimation/notice in writing to the opposite party immediately upon the occurrence of any accident or loss or damage and in the event of any claim which is violation of terms and conditions of the insurance policy which reads as under:-

          "Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured."

                   The theft of motorcycle took place on 18.03.2015, the FIR was lodged on 27.03.2015 and claim intimation was given on 30.03.2015, therefore, there is a delay of about 10 days in lodging FIR and a delay of about 12 days in giving intimation to the opposite party. On account of delayed intimation the opposite party was deprived of its legitimate right to get an inquiry conducted into alleged theft of the motorcycle and make an endeavour to recover the vehicle which is a clear cut violation of terms and conditions of the insurance policy. Thus, the claim is not payable and opposite party repudiated the claim on the above mentioned grounds. Therefore, there is no deficiency in service on the part of opposite party and the claim was repudiated after thorough investigation. The complainant is not entitled to any claim. On merits, the all other allegations made in the complaint have been denied.

4.                In order to prove the case, complainant Kamlesh Rani tendered in evidence her duly sworn affidavit Ex. C-1 and copies of documents Ex.C-2 to Ex.C-8  and closed the evidence. 

5.                In rebuttal, the opposite party tendered in evidence duly sworn affidavit of Sh. Baldev Singh, Senior Divisional Manager, United India Insurance Company, G.T. Road, Moga Ex. OP1 and copies of documents Ex. OP-2 to Ex. OP-5 and closed the evidence.

6.                We have heard the learned counsel for the parties and have carefully gone through the record placed on file.

7.                Ld. Counsel for the complainant argued that the complainant had purchased a Motorcycle  bearing registration no. PB-29M-2109, copy of the RC is Ex C-5. The complainant got his said vehicle insured from OP which was valid from 11.02.2015 to 10.02.2016, copy of the insurance certificate is Ex C-7. The said motorcycle of the complainant was stolen by some unknown person on 18.03.2015. The complainant tried to find his motorcycle on its own for some day. But when the said motorcycle not found then he reported the matter to the police who record the FIR no.30 dated 27.03.2015 U/s379 IPC in the police station Bagha Purana against unknown persons. Complainant also gave intimation regarding this incident to the OP. Copy of FIR is Ex C-6. After investigation the police filed untraced report. The complainant submitted all required documents to OP for processing his claim as police file untraced report so the complainant is entitled for the insurance amount. He approached to the office of the OP many times requesting them to pay the insurance claim but officials of the OP putting up the matter on one pretext or the other and now they finally refused to pay the claim of the complainant vide letter dated 20.11.2015 Ex.C-8. The OP is liable to pay the insurance claim along with interest. The complainant also issued a legal notice dated 13.01.2016 to the OP requesting them to pay his claim but to no effect. Copy of the notice is Ex C-2.  All these acts of the OP amounts to deficiency in service and trade mal practice on their part. The complainant suffered huge financial loss as well as mental harassment and agony. The Complainant is entitled for the insurance claim of his lost vehicle. The OP may be directed to pay the insurance claim of the complainant along with interest, compensation and litigation expenses.

8.                To controvert the arguments of the complainant, the Counsel for the OP argued that the present complaint is not maintainable. The complainant has no locus standi and cause of action to file the present complaint. However, they admitted that the alleged vehicle of the complainant was insured with them. They further admitted that the complainant intimated regarding the theft of his vehicle. The Counsel for the OP argued that complainant has concealed material facts from Hon’ble Forum, in this case the vehicle in dispute was stolen on 18.03.2015 as intimated by him to the OP and also stated by him in the FIR lodged by him with the police. Copy of the same is Ex C-6 produced by the complainant himself. From it is clear that the vehicle was stolen on 18.03.2015 where the FIR was lodged with the police on 27.03.2015 with a delay of 9 days. Further the complainant gave intimation to the OP on 30.03.2015 i.e. about 13 days later. There is delay in FIR and intimation to the OP, which has prejudiced possibilities of recovery of the vehicle. This constitutes serious breach of conditions no.1 and 9 of the Insurance policy, as per condition no.1, the complainant was bound to give immediate notice to the police and OP regarding the alleged theft/criminal act, but the complainant gave intimation to the police with a delay of 9 days and to OP with a delay of 13 days which is clearly violation of the terms and conditions of the policy. The copy of the terms and conditions is Ex OP-5. Therefore the claim of the complainant was rightly repudiated vide its letter dated 20.11.2015. Copy of the letter is Ex OP-3, as per Ruling of the Hon’ble Apex Court  that the terms and conditions of the policy are binding on both insurer and insured and the further the delay in intimation to the police and insurer clearly debars the right of the insurer to investigate the matter and to make efforts to recover the vehicle/loss. The terms of the policy are not directory rather mandatory in nature. The delay in lodging FIR is gross breach of policy and its effect on recovery of vehicle, arrest of culprit and sale and dismantling of vehicle. The complainant is not entitled to any claim for the loss of his motorcycle. The OP rightly repudiated his claim vide letter dated 20.11.2015, the complainant is not entitled for any claim. He filed false and frivolous complaint against the OP and same may be dismissed with costs.

9.                We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he was owner of motorcycle which was duly insured with the OP and during insurance period his motorcycle was stolen by someone and he gave intimation regarding it to police as well as OP, but the OP did not give his insurance claim and repudiate the claim of the complainant.

10.              On the other hand, the OP admitted that the alleged motorcycle was insured with them and the complainant gave intimation regarding the theft of the alleged motorcycle to them, but they argued that as per FIR and intimation given to the OP, the motorcycle of the complainant was stolen on 18.03.2015, whereas he gave information to the police and lodged FIR with police on 27.03.2015 with delay of 9 days and gave intimation to OP on 30.03.2015 with a delay of 13 days which is fundamental breach of the terms and conditions of the policy, as per condition no.1 of the policy, the complainant was required to give immediate information to police and the OP and by not giving the information regarding it on time, it is violation of the terms and conditions of the policy and they are rightly repudiated the claim of the complainant. The Counsel for the OPs put reliance on the citation 2009 (4) CLT 313 tilted as Vikram Greentech (I) Ltd. Vs New India Assurance Co. Ltd.  decided by Our Hon’ble Apex Court whereas the Hon’ble Court held that Insurance Act 1938 Section 64, Insurance Contract- an Insurance contract is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of Insurance, there is requirement of uberimma fides. He further put reliance on the citation 2016 (2) CPJ 448 titled as Gurlal Singh Vs National Insurance Co. whereas Our Hon’ble National Commission New Delhi held that there was a delay of 7 days in reporting the theft of the vehicle to the policy and 21 days delay in reporting the theft to the insurer. The Ld. Counsel for the complainant/insured submits that the police did not register the FIR, when approached immediately after the theft. We however, cannot accept the contention since there is no evidence of the complainant. It has to be kept in mind that the requirement, of reporting the theft to the insurer immediately it comes to the notice, is not a mere formality, the purpose of the requirement being to enable the insurer to carry out an independent investigation into the matter and the make efforts to trace the vehicle in coordination with the concerned police station. This purpose cannot be sufficiently achieved if the insurer is not informed immediately after the theft, since valuable evidence may be lost due to the delay in reporting the matter to the insurer. Therefore, the insurer was fully justified in repudiating the claim on account of the aforesaid delay in giving intimation to it. He further put reliance on the citation 2015 (2) CLT 6 titled as Saurashtra Chemicals Ltd. Vs National Insurance Co. Ltd.  Whereas Our Hon’ble National Commission, New Delhi held that the purpose of requiring the insured to give immediate intimation of the loss/damage to the insurance company is to give an opportunity to the insurer to investigate the claim without any loss of time and before an unscrupulous insured gets opportunity to temper with the evidence which is available immediately on occurrence of the loss/damage. The possibility of tempering with the evidence cannot be rules out in a case where there is an abnormal delay in intimating the loss/damage to the insurance company and at the same time, there is no plausible explanation for the said delay.  He further put reliance on the decision of Our Hon’ble National Commission, New Delhi  dated 09.12.2009 passed in First Appeal no.321 of 2005 titled as New India Assurance Co. Ltd. Vs Trilochan Jane where Hon’ble National Commission, held that in case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours otherwise valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the Commission of the theft and to trace/help in tracing the vehicle.

                   Whereas in the present case there is a delay of 9 days in lodging the FIR and further a delay of 13 days in reporting the matter to the Insurance Company, which is fatal and the insurance claim cannot be allowed. He further argued that the present complaint even cannot be allowed on the non-standard basis, to consider it violation of agreement. On it he put reliance on 2016 (1) CLT 163 titled as National Insurance Co. Ltd. Vs Shravan Singh whereas our Hon’ble National Commission, New Delhi held that Consumer Protection Act, 1986 Section 2 (1) (g) Insurance Claim-Delayed intimation to insurance company-State Commission after coming to the conclusion that intimation of the theft was given after one month has erred in allowing the insurance claim to the Respondent on non standard basis-Impugned order is in direct conflict with the law laid down by the Hon’ble Supreme Court- Impugned order set aside.

                   He argued that the present complainant is not entitled for any claim, as he breach of the insurance contract.

11.              We have gone through the file and arguments and case produced by the Counsel for the OPs. From the above discussion and in the light of case law produced by the OPs, we are of considered opinion that by not giving the intimation of the theft to the police and insurance company immediately and by giving the intimation of the incident by delay of 9 days to police and with delay of 13 days to insurance company. The complainant breaches the conditions of the insurance contract.

13.              We are fully convinced with the evidence, arguments and case law produced by the opposite parties. The insurance company rightly repudiated the claim of the complainant. There is no deficiency in service and trade mal practice on the part of the opposite parties. We find no merit in the present complaint and the present complaint is hereby dismissed. Parties are left to bear their own costs. Copy of the order be supplied to parties free of cost. File be consigned to the record room. 

Announced in Open Forum

Dated: 05.07.2016

 

 

                        (Bupinder Kaur)           (Vinod Bala)                  (Ajit Aggarwal)

                              Member                   Member                         President