Complaint No: 23 of 2019.
Date of Institution: 24.01.2019.
Date of order: 03.10.2023
Sukhbir Singh Son of Sherbir Singh, resident of Village Ghurala, Tehsil and District Gurdaspur. Pin Code – 143521
…........Complainant.
VERSUS
The New India Assurance Company Ltd. Pathankot, Divisional Office (361600) Dalhousie Road, Pathankot, District Pathankot, Punjab – 145001, through its Divisional Manager.
….Opposite party.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Munishwar Nagpal, Advocate.
For the Opposite Party: Sh.Major Som Nath, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhbir Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against The New India Assurance Co. Ltd. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant is the owner of Truck / Tipper bearing registration No.PB-06-V-4555. It is submitted that the complainant got insured his truck / tipper make Tata model 2014, LPK 2518 TC bearing registration No. PB-06-V-4555, chassis No.MAT448137E3C05587 and engine No. 41C63366702 for an IDV of Rs.18,00,000/- (Rupees Eighteen Lacs) from the opposite party through their agent Mr. Ajit Kumar (NIAAG00054905) and Development Officer Subash Chander Administrative Officer (D), ID 6342181 and to this effect complainant paid the premium of Rs.40,592/- (Rupees Forty Thousand five hundred ninety two only). It is further submitted that the opposite party issued policy schedule cum certificate of insurance (Commercial vehicle package policy) bearing policy No. 36160031160100007223 in the name of the complainant valid from 31.3.2017 to 30.3.2018 from Divisional Office, Pathankot. As such the complainant is the consumer of the opposite party. It is further submitted that on 08.2.2018 at about 8-30 P.M. when the driver of above mentioned truck / tipper was on his way to unload sand at Nadala. The above mentioned truck / tipper were snatched near Gurdwara Manj Sahib. It is further pleaded that the snatchers took away the above said loaded truck / tipper alongwith its driver namely Harpal Singh S/o Mohinder Singh resident of Village Bal, Tehsil and District Gurdaspur by tying the hands of the driver and later on dropped him at Village Kishankot, G.T. Road, Mehta Chowk. It is further submitted that on 09.2.2018 the driver i.e. Harpal Singh when gained consciousness at about 11/12 pm informed the complainant who alongwith his father Sherbir reached at Kishankot and took the driver for his treatment to the nearest hospital as the driver was under the influence of intoxicants / seductive forcibly given to the driver by the snatchers. It is further pleaded that the snatchers took away all the documents of the above truck / tipper alongwith them. It is further submitted that on 11.2.2018 the complainant alongwith his father and the driver got registered FIR No. 0017 dated 11.2.2018 U/s 379-B, 34 IPC at police station Sri Hargobindpur, Police District Batala against unknown persons on the statement of driver of truck / tipper i.e. Harpal Singh. It is further submitted that the complainant immediately informed the opposite party regarding the snatching of his truck / tipper bearing registration No. PB-06-V-4555 and filed the claim with the opposite party. It is further submitted that the police of PS Sri Hargobindpur tried their level best to trace the snatched truck / tipper but till today they could not trace the above mentioned truck / tipper. It is further submitted that the complainant got intractability certificate from the Sub Inspector of Sri Hargobindpur on 8.12.2018 and went to the office of opposite party at Pathankot to submit the intractability certificate and also requested the opposite party to settle the claim of the complainant. It is alleged that the opposite party refused to accept the same and asked the complainant to get intractability certificate from the court. It is further pleaded that the police of police station Sri Hargobindpur have arrested one of the accused and the police have presented the challan in the court of District Judge, Gurdaspur on dated 08.6.2018 which is pending. It is further alleged that the complainant approached the opposite party time and again to settle his genuine claim but the opposite party are putting off the matter on one pretext. or the other and also refused to settle the claim of the complainant till the decision of the criminal trial pending in the District Courts, Gurdaspur which is a clear cut deficiency on the part of the opposite party. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to pay Rs.18 lacs i.e IDV alongwith interest @ 12% per annum from the date of snatching the above said vehicle. The opposite party may also be burdened with Rs.1,00,000/- as mental pain, harassment alongwith litigation expenses of Rs.20,000/- to the complainant, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable because of the act and conduct of the complainant. It is pleaded that the Surveyor and replying opposite party wrote as many as 8 letters and asked the complainant to give certain very vital documents which were essential for processing the claim, but the complainant did not bother to give those documents. It is further pleaded that since the complainant did not bother to reply the letters and also did not give documents demanded from him for the settlement of his claim, the claim file was closed as No Claim / Not pursued by the complainant and the complainant was informed vide letter dated 20.2.2019, but the complainant had filed the present complaint before that. It is further pleaded that the complaint is also not maintainable on the ground that the complainant violated the terms and conditions of the policy. It is further pleaded that as per terms of the policy the complainant was required to inform the Company regarding loss - theft of his vehicle immediately, But he informed the Company on 26.02.2018, whereas the loss had occurred on 08.02.2018 (after 18 days). It is further pleaded that this way, the Company was deprived off its right to investigate the loss. Similarly, information of theft was given to RTA after 3 months and 20 days. It is further pleaded that as per the contract of insurance he was required to inform the loss immediately. It is further pleaded that in case the Hon’ble Commission comes to a conclusion that the claim is payable, in that the opposite party will be entitled to take the possession of the vehicle when the same is recovered by the police as theft property and for that complainant be kindly directed to give an undertaking and also a letter of subrogation in favour of the Company.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavits of Sukhbir Singh, (Complainant) as Ex.CW-1 and Harpal Singh as Ex.CW-2 alongwith other documents as Ex.C-1 to Ex.C-8.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Kuldeep Raj, (Senior Divisional Manager, The New India Assurance Co. Ltd., Pathankot) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-14.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the opposite party but not filed by the complainant.
8. Counsel for the complainant has argued that truck/tipper of the complainant was insured with the opposite party and said truck was snatched by unidentified persons on 08.02.2018. It is further argued that FIR was registered in the said matter. However, on intimation to the opposite party, the opposite party had refused to pay the IDV i.e. Rs.18,00,000/- to the complainant which amounts to deficiency in service. Counsel for the complainant has placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
9. On the other hand counsel for the opposite party has argued that surveyor of opposite party had written eight letters requesting the complainant to supply very vital documents for processing the claim and as such on account of failure of complainant to supply the documents the claim file was closed as 'No Claim' and complainant was informed vide letter dated 20.02.2019. It is further argued that the alleged snatching took place on 08.02.2018 but the opposite party was intimated after 18 days i.e. on 26.02.2018 and RTA was informed after 3 months and 20 days and the claim is not payable on this ground also.
10. We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant is registered owner of truck/tipper bearing registration No.PB-06-V-4555 which is also evident from copy of registration certificate (R.C.) Ex.C1. It is further admitted fact that the said truck was insured with the opposite party vide policy of insurance Ex.C2 with total IDV of Rs.18,00,000/-. The disputed question for adjudication before this Commission is that whether the opposite party was having any right to close the case as 'No Claim' on account of non supply of documents and delay of 18 days in intimation. To prove his case complainant has placed on record copy of R.C. Ex.C1, copy of policy of insurance Ex.C2, copy of FIR Ex.C3, copy of untraceable report Ex.C4, whereas opposite party has placed on record affidavit of Kuldeep Raj Sr.Divisional Manager Ex.OP-1, copies of letters Ex.OP-2 to Ex.OP-10 and copies of statements Ex.OP-11 to Ex.OP-14. The plea of the opposite party regarding non supply of documents has been rebutted by the complainant as per reply Ex.C8 wherein it has been stated that all the required documents have been submitted with surveyor Mr.K.S.Chandok as such we are of the view that closing of file as 'No Claim' for want of documents is totally unjustified on the part of the opposite party. Moreover, opposite party has not been able to explain what was the necessity of the claimed documents in the settlement of claim. By placing reliace upon Judgment of the Honable Apex court. We are also of the view that demand of documents is totally unjustified on the part of opposite party.
11. The second question for adjudication is delay of 18 days in intimation to the insurance company is concerned. Perusal of file shows that truck was snatched on 08.02.2018 and FIR in this respect was registered on 11.02.2018 just after three days copy of which is Ex.C3 and untraceable certificate Ex.C4 is of 08.12.2018 as such we are of the view that since the complainant had intimated the Law Enforcement Agency which is to take action for covering the vehicle was promptly informed a such delay of 18 days in intimation to the insurance company is not material as far as case of theft and snatching is concerned.
12. We, therefore, hold that when 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 accused were also arrested and charge-sheeted, however, the vehicle could not be traced out. Of course, it is true that there was a delay of about 18 days on the part of the complainant in informing and lodging its claim before the Insurance Company, nonetheless, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay and non submission of documents. When the complainant had lodged the FIR immediately after the theft/ snaching of the vehicle, and when the police after the investigation had arrested the accused and also filed challan before the concerned Court, and when the claim of the insured was not found to be not genuine, the Insurance Company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft and for non submisssion of documents.
13. Accordingly, from the facts and circumstances narrated above we have no hesitation in holding that closing of file as 'No Claim' by the opposite party amounts to deficiency in service.
14. Accordingly, present complaint is partly allowed and opposite party is directed to pay the amount of Rs.15,30,000/- to the complainant on non-standard basis i.e. Rs.85% of the IDV i.e. Rs.18,00,000/- alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite party is further directed to pay Rs.15,000/- as compensation on account of mental tension, harassment and agony and also Rs.5,000/- as cost of litigation. It is further held that opposite party will be entitled to take the possession of the vehicle when the same is recovered by the police as case property and the complainant is to give an undertaking in favour the company in this respect and also to execute a letter of subrogation in favour of the Company. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Oct. 03, 2023 Member
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