Delhi

North East

CC/103/2015

Priyanka - Complainant(s)

Versus

The New India Assurance Co. Ltd - Opp.Party(s)

11 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  103/15

 

In the matter of:

 

	Mrs. Priyanka W/o Shri Amit Kumar Tanwar R/o: C-12/457, 1st floor Yamuna Vihar, Delhi-110053	Complainant
	Versus
	The New India Assurance Co. Ltd. Through its Manager Divisional Office Divisional Ofifce: 320200, C-30, Community Centre, Naraina, New Delhi-110028   Also at:- DRO-II, Scope Minar Laxmi Nagar, Delhi   Registered and Head Office: New India Assurance Building, 87, Mahatma Gandhi Marg, Fort Mumbai-400001	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

24.03.2015 11.06.2020 11.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane for disposal of the present complaint are that the complainant being a registered owner of vehicle Maruti Esteem LX BS 3M bearing registration no. DL 5CC 8182 had got the said vehicle insured with OP vide Private Vehicle Package Policy bearing  no. 31260031130101295617 w.e.f. 08.02.2014 to 07.02.2015 for a total IDV of Rs. 1,53,400/- on payment of premium of Rs. 5,355/- made to OP which risk covered loss or damage, burglary and theft etc. the subject vehicle got stolen by some unknown person in the intervening night of 28.06.2014-29.06.2014 from outside the house of the complainant where it was parked and in this connection an FIR bearing no.  815/2014 was got registered by complainant’s husband with PS Bhajanpura, North East District, Delhi on 29.06.2014  u/s 379 IPC. Intimation of theft was given by the SHO of concerned PS to Director NCRB on 08.07.2014 for maintaining look out. Subsequently, since the subject vehicle could not be recovered, therefore untraced report dated 18.08.2014 and final report u/s 173 Cr.PC was filed in the concerned court on 11.09.2014 by the IO and Officer in charge of the concerned police station. The complainant, on gaining knowledge of the theft had immediately contacted the concerned police station through PCR and also informed OP through her insurance agent M/s T.R. Sawhaney which had got the insurance done. Further, the husband of the complainant also sent a written intimation of theft dated 30.06.2014 to OP via Trackon Courier and the complainant also gave personal hand written reminder letter dated 28.07.2014 to OP duly received by OP on the same date. After persistent request and visits made by complainant’s husband to OP’s office for consideration of claim, OP appointed an investigator / surveyor to whom the complainant submitted a duly filled motor claim form  on 18.08.2014 detailing the particulars pertaining to the theft and hand written intimation to OP by the complainant. On OP’s demand to the complainant to furnish some additional documents for process of her theft claim, the complainant’s husband again sent certain documents to OP on 10.09.2014 via On Dot Courier. However despite submission of all documents and several follow up visits by complainant’s husband to OP’s office for settlement of claim, no satisfactory response came forth from OP which did not pay any heed with respect to the theft claim. OP vide letter dated 13.10.2014 to the complainant observed therein that there was delay in intimation of one month from the date of theft given by the complainant asking her to justify the said delay and also asked complainant to submit both the car keys in original as also original final report u/s 173 Cr.PC and NCRB report. The complainant vide reply dated 12.11.2014 to the said letter, informed the OP that the theft intimation was given to OP vide written communication dated 30.06.2014 and prior to that via telephonically made on 29.06.2014 to its insurance against TR Sawhaney for due intimation to OP as calls made to OP’s office were not attended too. Further complainant attached original final report and latest NCRB report with the said reply alongwith insurance policy. However, the OP did not processes the claim of the complainant causing lot of hardship, mental torture and mental harassment due to such act of deficiency of service and was therefore compelled to file the present complaint against the OP praying for issuance of direction against the OP to pay insurance claim amount of Rs. 1,53,400/- (IDV) alongwith interest @ 18% p.a. and also compensation of  Rs. 1,00,000/- for mental tension and physical harassment and Rs. 21,000/- towards cost of litigation.
2. Complainant has attached copy of RC, copy of certificate of insurance obtained from OP, copy of FIR, copy of written intimation dated 30.06.2014 by complainant to OP of theft alongwith courier AWB, copy of NCRB information dated 08.07.2014, copy of theft intimation letter dated 28.07.2014 by complainant to OP, copy of untraced report dated 18.08.2014, copy of final report dated 11.09.2014, copy of motor claim form dated 18.08.2014 submitted by complainant with OP alongwith hand written letters dated 18.08.2014 to OP by complainant and her husband pertaining to theft of insured vehicle, copy of two original keys of insured vehicle, copy of On Dot Courier AWB dated 10.09.2014 by complainant to OP’s surveyor, copy of letter dated 13.10.2014 by OP to complainant seeking explanation for delay in intimation and asking for submission of keys, original final report and NCRB report and reply dated 12.11.2014  by complainant to OP attaching the copy of final report and latest NCRB report.
3. Notice was issued to the OP on 30.03.2015. OP entered appearance and filed its written statement vide which it took the preliminary objection of this Forum having no territorial jurisdiction to entertain the present complaint as OP has not been doing any business within its jurisdiction which is reflected from its address given in the memo of parties. OP, while admitting the factum of the subject vehicle having been got duly insured with it by the complainant for the period 08.02.2014 to 07.02.2015 and was stolen on 28.06.2014, resisted the complaint on grounds that the complainant had given written statement of the said theft to OP on 28.07.2015 i.e. after a delay of one month from the date of the loss and therefore the late intimation was a clear violation of condition no. 1 of the policy terms and conditions which stipulated that notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim and submitted that had the complainant given timely intimation of the theft, the offender could have been brought to the book. OP urged that the complainant has not provided the mandatory documents required for process of claim despite several letters dated 03.12.2014 and 13.03.2015 written by OP to the complainant asking for these documents as well as courier receipt dated 30.06.2014 in support of complainant’s claim having informed OP about the theft a day later. OP submitted that the courier receipt for the said date filed by the complainant alongwith the complaint is false and fabricated and filed with ulterior motive to get the theft claim amount from OP. OP further contended that it did not receive any intimation of theft from the complainant immediately after the loss of the insured vehicle and the complainant may have been in constant touch with M/s TR Swahaney but was not in touch with OP in this regard. Lastly, OP submitted that for all the reasons as stated above, the claim of the complainant was repudiated vide repudiation letter and prayed for dismissal of the complaint for want of cause of action and no deficiency of service on its part.
4. Rejoinder in rebuttal to the defence taken by OP in its written statement was filed by the complainant vide which complainant submitted that the OP is running its business within the territorial jurisdiction of this Forum and had also received the amount of premium in cash through its authorized agent / broker M/s TR Sawhaney therefore the insurance certificate issued by OP is under the stamp and seal of M/s TR Sawhaney. Complainant submitted that her husband had immediately informed the concerned police about the theft of the insured vehicle on 29.06.2014 and also informed OP through its insurance agent M/s TR Sawhaney telephonically as well as written communication and denied any delay in intimation of 30 days as alleged by OP in violation of condition no. 1 of the policy. Complainant further submitted that she had got the FIR of theft of the insured vehicle immediately registered with the concerned police station Bhajanpura Delhi and set the police machinery in motion for investigation complainant denied the allegation of OP of not having submitted the requisite documents and denied having received any such letter dated 03.12.2014 and / or  13.03.2015 from OP. complainant further urged that no repudiation letter from OP was ever received by the complainant that OP has not even filed the same alongwith its written statement. Therefore complainant prayed for relief claim.
5. Evidence by way of affidavit was filed by the complainant exhibiting the documents filed alongwith the complaint as Ex CW1/1 to CW1/11.
6. Evidence by way of affidavit was filed by the OP through its administrative officer placing on record copy of hand written letter / reminder dated 03.12.2014 and 13.03.2015 to the complainant sent by its senior division manager exhibited as Ex RW1/1 and 2 alongwith copy of terms and conditions of policy as exhibited RW1/4.The OP referred to a repudiation letter as exhibit RW1/3 but did not file the same.
7. Written arguments were filed by the complainant in which she raised the argument that the OP has neither disputed the ownership of the vehicle in question nor has raised any dispute over the insurance policy issued by the OP granting coverage to the said vehicle complainant further argued that OP has also not disputed the factum of theft of the vehicle, FIR, investigation done by Delhi Police and untraced report filed by the concerned PS Bhajanpura Delhi with which the FIR pertaining to theft of the vehicle was lodged bit OP did not approve the theft claim on grounds of delay in intimation since it has disputed the receipt of information vide letter dated 30.06.2014 and non-submission of mandatory documents by the complainant as also objection of territorial jurisdiction in rebuttal to which the complainant submitted that the OP duly informed about the theft on 30.06.2014 through written intimation, the intimation alongwith the courier receipt dated 30.06.2014 being ample proof thereof and that the OP had not disputed to the intimation to the police and FIR lodged in this regard. Complainant urged that the object of theft intimation to insurance company is only to provide an opportunity to get an investigation conducted into the theft and in this case complainant had informed the police as well as OP immediately on gaining knowledge of the theft and therefore OP cannot content that it was not provided the opportunity to investigate the theft. Complainant placed reliance on judgment of Hon’ble Delhi SCDRC in Ridhi Gupta vs NIC III (2008) CPJ 459 DEL and judgment of Hon’ble Punchkula SCDRC in Sukram Pal Vs National Insurance Co. Ltd. in FA. No. 66/2014 decided on 09.05.2014 in this regard complainant further relied upon the IRDA circular no. IRDA / HLTH / MISC /CIAR / 216 / 09 / 2011 dated 20.09.2011 in which it was ruled inter alia that with respect the delay in claim intimation / document submission that insurer must not repudiate such claims unless and until the reason of delay are specifically ascertained, recorded and the insurer should satisfy themselves that the delayed claim would have otherwise been rejected even if report in time and therefore it was clearly laid down vide said circular that the insurance co. cannot repudiate bonafide claims on technical grounds like delay in intimation and non-submission of required documents since rejection of claim on purely procedural grounds in a mechanical fashion will result in policy holder losing confidence in the insurance industry, giving rise to excessive litigation. Complainant placed reliance upon judgment of two Judges Bench of Hon'ble Supreme Court in Om Prakash Vs Reliance General Insurance 2017 AIR SC 4836 in Civil Appeal no. 15611/2017 decided on 04.10.2017 and judgment of Hon’ble NCDRC in United India insurance Co. Ltd. Vs Rahul Kadian 2018 (1) CPR 772 in RP no. 1680/2016 decided on 01.02.2018 in which it was held that delay in intimation shall not be a shelter to repudiate genuine insurance claim.  Complainant submitted that no letters from OP were even received by the complainant asking for documents and OP has not even filed any postal / courier receipt as proof of its dispatch.  In so far as the objection to territorial jurisdiction raised by OP was concerned, complainant urged that OP has its Regional Office-II within the jurisdiction of this Forum
8. Written arguments were filed by OP in reiteration of its defence taken and relied upon judgment of Hon’ble NCDRC in National Insurance Co. Ltd. Vs Shravan Singh I (2016) CPJ 450 (NC) where in Hon'ble National Commission following the ratio laid down by Hon'ble Supreme Court in Oriental insurance Co. Ltd. Vs Parvesh Chander Chadha 2010 (CPJ Soft) 1 SC held delay in intimation of theft of about a month was a violation of policy condition and dismiss the complaint. OP filed copy of IRDA circular no. Motor / HO / CIR No. / 2012 / 08 dated 24.02.2012 pertaining to delay by insured in giving intimation to insurer in case of theft the vehicle insured in which circular, ROs were advised inter alia to either repudiate or pay non standard basis (75% of claim amount) in cases of delay in intimation for act of negligence by the insured.
9. During the course of preliminary arguments held in hearing dated 20.02.2019, counsel for OP submitted that there was an inadvertent error in the written statement as well as evidence by way of affidavit wherein there was mention of repudiation letter as annexure C as Ex RW1/3 respectively and clarified that the claim was never repudiated by OP.
10. We have heard the arguments addressed by the complainant. The counsel for OP telephonically informed the office of this Forum of his inability to attend court due to COVID-19 pandemic and requested to consider the pleadings and citation placed on record for the purpose of arguments / defence taken. We have given bestowed our anxious consideration to the documentary evidence and judgments relied upon by both sides. The factum of the insurance cover granted to the complainant by OP qua the subject vehicle and its theft on 28.06.2014-29.06.2014 is not disputed as also the FIR, NCRB intimation, untraced report and final closure report in this regard as also the motor claim form submission by complainant to OP on 18.08.2014. The dispute strictly pertains to the alleged delay in intimation as defence taken by OP for non consideration of theft claim since OP disputing receipt of any letter dated 30.06.2014 from complainant and relies upon intimation dated 28.07.2014 by the complainant to it about the theft which intimation was a belated one i.e. sent after one month of theft and also non submission of requisite documents allegedly asked for from the complainant by OP vide letters dated 03.12.2014 and 13.03.2015. We observe that in so far as the correspondence is concerned, the complainant has placed on record copy of letter dated 30.06.2014 by complainant to OP alongwith courier receipt as annexure C-5 and C-6 with complaint exhibited as CW1/5 and CW1/6. On the contrary, OP has not placed on record any proof of dispatch / postal receipt / courier counter foil for dispatch of letters dated 03.12.2014 and 13.03.2015 exhibited as RW1/1 and RW1/2 alongwith its evidence. Therefore this issue is decided in favaour of the complainant and merely disputing the authenticity of the courier receipt AWB No. 393222782 dated 30.06.2014 by OP calling the same fake and fabricated of no relevance without proving to the contrary. Let us examine the core question for adjudication which is whether OP was justified in non consideration of theft claim of the complainant on ground of delayed intimation following the judgment of Hon'ble Supreme Court in Parvesh Chander Chadha (Supra) or whether the case of the complainant, placing reliance upon the judgment of Hon'ble Supreme Court in Om Prakash (Supra) merited relief in terms of theft claim being genuine notwithstanding the delay in intimation. The Hon'ble Supreme Court in the recent landmark three Judge Bench judgment of Gurshinder Singh Vs Shriram General Insurance Co. Ltd. I (2020) CPJ 57 (SC) decided on 24.01.2020 has settled the law in finality with regard to the question whether delay in informing the occurrence of the theft of the vehicle to the insurance company, thought the FIR was registered immediately, would disentitle the claimant of the insurance claim given the conflicting judgment of its two Judge Bench in Om Prakash (Supra) and Pravesh Chander Chadha (Supra) for which reason the matter was referred to this larger bench on 09.01.2018. In the case before Hon'ble Supreme Court, the FIR for theft of the insured tractor was lodged on the very same day of its theft but the intimation to the insurance company was given belatedly after 52 days and the DCDRF Jalandhar as well as SCDRC Punjab had allowed the complaint directing insurance company to pay the full IDV of the insured vehicle but the Hon'ble National Commission had set aside the orders of both the foras below giving rise to the present civil appeal. The Hon'ble Supreme Court dealt with the condition no. 1 of the policy of immediate intimation to insurance company in the event of theft in which regard there were conflicting judgments of its two Judge Bench in Parvesh Chander Chadha (supra) and Om Prakash (supra). In the latter judgment, the Hon'ble Supreme Court found that the word “immediately” cannot be construed narrowly so as to deprive claimant the benefit of settlement of genuine claim, particularly when the delay was explained and further held that if the reasons for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on grounds of delay as it would not be fair and reasonable to do so.  It observed that Consumer Protection Act aims at providing better protection of the interest of the consumer and is a beneficial legislation that deserves a liberal and pragmatic construction. The Hon'ble Supreme Court in Gurshinder Singh (supra) judgment observed that the second part of condition no. 1 of the policy deals with ‘theft or criminal act other than the accident’ and provides that in such a case, the insured shall give immediate notice to the police and cooperate with the insurance company in securing the conviction of the offender and the object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In case of theft therefore the insurance company or its surveyor would have a limited role. It is the police, who acting on the FIR of the insured will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company at the most, could ascertain the factum regarding the theft of the vehicle. The Hon'ble Supreme Court further observed that it is only when the police is not in a position to trace and recover the vehicle and the final report is lodged for untraced, the insured would be in a position to lodge his claim for compensation. It referred to its Two Bench judgment of Om Prakash (supra) in this regard in which it had observed that a person who has lost his vehicle would immediately lodge an FIR and is expected to assist the police in search of the same and therefore registration of FIR regarding theft of the vehicle and final report of the police post its untrace would substantiate the claim of the claimant of theft. The Hon'ble Supreme Court in this land mark judgment of Gurshinder Singh (supra) observed that mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authority cannot amount to breach of ‘duty to cooperate’ of the insured. Therefore, the Hon'ble Supreme Court in Gurshinder Singh (supra) judgment concurred with its view taken in case of Om Prakash (supra) that a genuine theft claim cannot be denied merely on ground of a hyper technical view of some delay in intimation to the insurance company and set aside judgment of Hon’ble NCDRC which had over ruled the judgment of the fora below and upheld the judgment of DCDRF Jalandhar allowing full IDV to the complainant.
11.  In light of the land mark judgment of Gurshinder Singh (supra) a larger three judge bench ruling which has put to rest the conflicting decisions of the two judge bench in Parvesh Chander Chadha (supra) decided on 17.08.2010 and Om Prakash (supra) decided on 04.10.2017 settling the law on delay in intimation as no longer  being res integra, the ratio being squarely applicable to the present case in hand in which the FIR for the theft of the insured vehicle was lodged without any delay i.e. on the very date on which the knowledge of theft was acquired and also given that the complainant has placed on record proof of immediate intimation of theft to OP vide letter dated 30.06.2014 alongwith accompanying courier receipt which the OP has failed to negate / falsify, its stand of non consideration of genuine theft claim on ground of delay in intimation is wholly unjustified even if we consider the defence taken by OP of alleged delay in intimation by complainant given on 28.07.2014 as even such ground cannot be entertained in case of genuine theft claim. We therefore hold OP guilty of deficiency of service in having failed to honor and approve the genuine theft claim of the complainant, the veracity of which is amply proved by the factum of FIR, untraced report and final closure report and therefore direct OP to pay the IDV of the subject vehicle i.e.Rs. 1,53,400/- alongwith interest @ 6% p.a. from the date of filing of the complaint till realization to the complainant. We further direct OP to pay Rs. 10,000/- to the complainant for mental and physical harassment and Rs. 5,000/- towards cost of litigation. Let the order be complied with by the OP within 30 days of receipt of copy of this order.
12. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
13.  File be consigned to record room.
14.  Announced on  11.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member