DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Vivek Mahajan, R/o Spangal Condos, Flat No.179, Block-H, Village Gazipur, P.O. Dhakoli, Distt. SAS Nagar, Mohali.

              ---Complainant

Vs

The New India Assurance Co. Ltd., Regional Office: SCO No. 36-37, Sector 17-A, Chandigarh, through its Deputy Manager, Claim HUB.

---- Opposite Party 

BEFORE:    SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Sunil K. Dixit, Counsel for Complainant.

Sh. R.K. Bashamboo, Counsel for Opposite Party.

PER MADHU MUTNEJA, MEMBER

1.          The Complainant was the owner of a TATA Tipper bearing Regn. No. HR-68-9629 insured with the Opposite Party (Policy Annexure C-1). The said Tipper was stolen on the intervening night of 30.06.2011/ 01.07.2011. All documents such as R.C., Insurance Policy, Route Permit, Fitness certificate and other relevant documents were also stolen with the Tipper. The Complainant immediately informed the Police Station at P.S. Lalru vide F.I.R. No. 110, dated 02.09.2011 under Section 379 IPC. The Complainant also contacted the Opposite Party and filed his claim vide Claim No.31/11/82. M/s Royal Associates were appointed as Investigator by the Opposite Party to verify the genuineness of the claim. The Complainant has stated that he supplied each and every document to the Investigator as and when demanded. The Opposite Party again vide letter dated 30.4.2012 demanded documents from the Complainant. The Complainant vide his reply dated 7.5.2012 clarified that all requisitioned documents had already been supplied to the Investigator (Annexure C-4 and C-5). The Complainant thereafter again received a letter from the Opposite Party requisitioning the documents. The Complainant in reply again clarified the details and re-submitted the documents (Annexure C-6 and C-7). However, the claim was not paid. The Complainant thereafter, also issued legal notice through his Counsel dated 05.07.2012, demanding settlement of his dues. As the claim has still remained unpaid, the Complainant has filed the instant complaint alleging deficiency in service and unfair trade practice. The Complainant has prayed for Rs.13,25,000/- which is the actual price o the TATA Tipper, along with compensation for mental harassment, unfair trade practice, deficiency in service and costs of litigation.       

2.          Notice of the complaint was sent to Opposite Party seeking its version of the case.

3.          The Opposite Party in its reply has submitted that the representative of the insured informed the Opposite Party on 01.07.2011 that the insured vehicle had been stolen on 26.06.2011. He was requested to submit intimation on the proforma of the company, which was supplied only on 18.07.2011 (Annexure R-1, R-1A and R-2). Thereafter, the Opposite Party appointed an Investigator to find out the genuineness of the claim. The Investigator wrote a letter dated 23.07.2011 to the insured to supply the relevant documents. In the meantime, the Investigator also contacted the concerned persons to record their statements. The report of the Investigator has been placed on record as Annexure R-5. As per this report, the Investigator has pointed out that the vehicle was not locked at the time of theft as locks of both the windows were out of order, which is in violation of the terms and conditions of the Policy. It is maintained that the Complainant had failed to take reasonable steps to safeguard the vehicle and as per Condition No. 5 of the policy, the insured was required to take reasonable steps for the safety of the vehicle. The Opposite Party has further stated that they wrote to the Complainant to supply the documents to enable them to process the claim. However, the Complainant did not make all the documents available. The Opposite Party has also maintained that they have been writing to the Complainant again and again to complete the formalities and supply the documents for processing of the claim. Also, the Opposite Party has got the route permit verified from the Investigator and it has been found that there was permit for the States of Punjab, Haryana, Chandigarh and Himachal Pradesh and the permit was valid only upto 25.03.2011. Thus, according to the Opposite Party the Complainant has violated the terms and conditions of the policy and has not coordinated with the Opposite Party for determination of his claim. The delay in informing the police also disentitles the Complainant for the compensation.

          On merits, besides admitting the factual position, the Opposite Party has stated that the Complainant has still not submitted all the relevant documents, due to which his claim has remained unpaid. Denying all other contentions of the Complainant, Opposite Party have prayed for dismissal of complaint.  

4.          Parties were permitted to place their respective evidence on record in support of their contentions.

5.          We have heard the learned counsel for the parties and have perused the record.

6.          The case of the Complainant is that despite providing all the relevant documents to the Opposite Party as well as the Investigator well in time his claim has remained unpaid. The Opposite Parties has contended that the Complainant has not provided timely information to it or to the police and has now also failed to provide requisitioned documents hence the claim has remained unpaid. A perusal of the documents on record show that the Opposite Party had asked the Complainant to provide the F.I.R., letter to the RTA intimating them about the theft of the vehicle, NCRB report confirming theft of the vehicle, second key of vehicle, besides duplicate copies of documents i.e. R.C., fitness certificate, permit, tax details etc. It is evident from Annexure C-7 which is a letter dated 20.06.2012 written by the Complainant to the Opposite Party that all the requisitioned documents have been sent. Annexure C-9 is the intimation to the police. Also as per the opening sentence of the reply of the Opposite Party, the representative of the insured has informed the Opposite Party on 01.07.2011 that the insured vehicle has been stolen on 26.06.2011. Hence the delay in giving information either to the police or to the Opposite Party can definitely not be attributed to the Complainant to disentitle him from the claim. Annexure R-5 is the report of the Investigator placed on record by the Opposite Party in which the date of intimation to the insurance company has been given as 3.7.2011. The Investigator has opined as under: -  

“Opinion:

On the basis of above said findings, we are of the opinion that time, date and place of theft seems to be genuine. The insurance company was informed about the theft of vehicle on 03.07.2011. Particulars of the vehicle as mentioned in the F.I.R., RC and Insurance Policy are same. Police investigation is over and untraced report already been issued. Veh. was not locked at the time of theft as locks of both window were out of order which is breach of policy condition. Insurer may deal with claim as per terms and conditions of policy, keeping in view of above said findings. This report is issued without prejudice.”

          This opinion is based on the finding that the vehicle was not locked at the time of theft and locks of both the windows were not working. Also, the insured has one original key. All original papers were stolen with the vehicle. Also, the insured has not informed the Registering Authority about the theft of his vehicle. Condition No. 5 of the Policy reads as under:-

“5.       The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

7.          The objections taken by the Opposite Party are fortified by the contents of the letter sent by the Complainant and placed as Annexure C-7, wherein all papers requisitioned have been sent.  The delay by the Opposite Party in settling the claim of the Complainant is thus unexplained. The Hon’ble Punjab and Haryana High Court in case titled as Oriental Insurance Company Limited, Chandigarh Vs. Khursheed and another, Civil Writ Petition No.3996 of 2011, decided on 22.3.2011, has held as under :-

“…Insurance Companies are charging hefty premium for insuring the vehicles. Once the question of liability arises, the companies resort to one technical objection and the other.  These Companies really chase people and literally promise everything at the time of selling policy.  It is usual to see people struggle to run after agents and surveyors to get their rightful claims.  Such agents then look other way and make insurers to make rounds to Company offices.  Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other.  No one really is made to read the terms while making him to sign on the printed forms for selling policies.  This attitude must change. Atleast, the Courts should not be burdened with this uncalled for litigation”

8.          Further, the Hon’ble National Consumer Disputes Redressal Commission in case titled as National Insurance Company Limited Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), while relying on a catena judgments of the Apex Court has held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further that the Appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained a comprehensive policy to the loss caused to the insurer.

          It was held that the loss caused ought to have been settled by the insurance company on non-standard basis. This view has also been taken by the Hon’ble Apex Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC), wherein it has been held as under: -

12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC)=2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC)=2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:

 “......The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis.”

13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.

14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:

          The Hon’ble Apex Court thus allowed the claim in terms of the above cited guidelines. 

9.          Relying on the decisions given above, we also are of the opinion that the claim needs to be paid by the Insurance Company on non-standard basis. As the quantum of claim has not been decided by the Opposite Party and they are continuing to demand documents from the Complainant, which have already been provided, we give directions to the Opposite Party to make payment on non-standard basis to the Complainant in terms of the judgments cited above.

10.        The Opposite Party is accordingly directed to make payment to the Complainant for the loss at 75% of the admissible claim. The Opposite Party is also directed to pay Rs.25,000/- as compensation for unnecessary delaying the payment of claim. Opposite Party will also pay Rs.10,000/- as costs of litigation. 

11.        This order be complied with by the Opposite Party within 45 days from the date of receipt of its certified copy, failing which, the Opposite Party shall be liable to pay further interest @ 9% p.a. on the decreed amount from the date of this order, till it is paid, besides the cost of litigation. 

12.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

13.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28^th February, 2013.                                                 

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

“Dutt”