Complainant Harpinder Singh vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to make payment of full insured amount i.e. Rs.10.5 lacs qua his claim immediately in terms of the insurance policy alongwith interest @ 18% P.A. from the date of theft of the vehicle till actual realization. Opposite party be further directed to pay compensation amounting to Rs.1,00,000/- on account of mental agony, physical harassment and deficiency in service alongwith Rs.3,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he is owner of Truck make TATA Model 2008 bearing Registration No.HR-38-P-6134, Chassis No.4260 31 HRZ 0146114 Engine No.80H 62700411. He was plying this vehicle by means of self employment exclusively for earning his livelihood and family members. He has no other source of income. His vehicle was financed from Shriram Transport Finance Company Ltd. The vehicle was fully insured with the opposite party vide policy/cover note No.36050331100100000588 valid from 10.6.2010 to Mid night of 9.6.2011. The vehicle was insured for Rs.10,50,000/-. The policy is comprehensive and covers all risks. As such he is consumer of the opposite party. He has next pleaded that on 5.5.2011 driver of the vehicle i.e. Sh.Joginder Singh son of Darshan Singh his father was coming back to village Athwal after unloading Wheat at Markfed Batala. Abovesaid Joginder Singh was not feeling well so in the way he parked the vehicle in front of the bank on Wadala Banger Road and went for taking medicines from Amandeep Hospital after locking the doors of the abovesaid truck at about 7 P.M. After about 30-35 minutes when driver of the vehicle came back, he saw that the vehicle was missing and someone has stolen the same. He immediately called his sons and searched for the vehicle. He and his father continuously searched for his vehicle, but no information regarding the same was received. Matter was reported to the police of P.S.Kalanaur and the police registered criminal case vides FIR No. 36 dated 6.5.2011 U/s 379 IPC against unknown persons on the statement of abovesaid Joginder Singh. He also informed the opposite party Insurance Company regarding the theft of the vehicle. Regarding the theft he lodged claim to the opposite party and also supplied all the requisite documents as demanded by the opposite party from time to time but the opposite party continue to put the matter with one or the other excuse. Although a period of more than 4 years has been elapsed from the date of theft. He has further pleaded that the opposite party directed him to submit No Traceable Report vide letter dated 29.8.2014 which he obtained from the concerned Police Station and submitted the same to the opposite party. But the opposite party instead of making payment of the insured amount again started putting the matter with one or the other pretext by demanding such kind of documents which are out of his reach and till today did not pay the insured amount. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.
3. Upon notice, the opposite party insurer appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable as the complainant has filed this complaint against the terms and conditions of the insurance policy. The complainant informed the police after 1 day of the alleged theft and intimated the opposite party after 5 days of the alleged theft of his Truck make TATA model 2008 bearing Registration No.HR-38-P-6134 which is against the terms and conditions of the Insurance Policy. As by delaying the information of theft to the police, the complainant/insured had acted against the interest of insurance company/opposite party and this violation of condition is fundamental to the loss caused. Therefore the opposite party cannot be held liable to pay any insurable benefit in respect of alleged theft of vehicle Truck make TATA model 2008 bearing Registration No.HR-38-P-6134; the complaint is without any cause of action, hence liable to be dismissed. On merits, it was admitted that vehicle No. Truck make TATA model 2008 bearing Registration No.HR-38-P-6134 was insured with respondent for the period from 10.06.2010 to 09.06.2011. After the intimation by the complainant on 10.05.2011 the opposite party has written a letter dated 10.05.2011 to complainant for sending claim form duly signed by him as earlier intimation letter was not signed by the complainant. Thereafter the complainant provided the opposite party with intimation letter dated 16.05.2012 duly signed by him. Thereafter the opposite party sent a reminder dated 31.05.2011 to the complainant for providing certified copy of FIR and claim form duly filled and signed by the complainant. Thereafter again the opposite party sent a reminder dated 14.06.2011 and final reminder on 29.06.2011 to the complainant for providing certified copy of FIR and claim form duly filled and signed by the complainant. But the complainant did not submit the required documents with the opposite party. Thereafter the opposite party closed the claim file of complainant as NO CLAIM on 12.09.2011 for non compliance of claim formalities. Thereafter the complainant served a legal notice dated 3.05.2012 upon the opposite party through his Advocate Baljinder Singh, District Court Gurdaspur. Thereafter the opposite party replied to the notice of the complainant on 21.05.2012 through their advocate Mr.Pradeep Narayan Khanna, District Court Amritsar by which it was advised to the complainant to supply the requisite documents as demanded by the opposite party and notice served by the complainant is without cause of action and premature one. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Complainant tendered into evidence his own affidavit Ex.C1 along with the other documents exhibited as Ex. C2 to Ex.C7 and closed the evidence.
5. On the other hand, Sh.Shiv Lal Branch Manager of the opposite party tendered into evidence his own affidavit Ex.OP1, alongwith the other documents Ex.OP2 to Ex.OP25 and closed the evidence.
6. We have carefully examined the documents/evidence produced on record (along with the scope of ‘adverse inference’ for that ignored to be produced) to support/prove their respective ‘claims’ as pleaded by the present litigants in the light of the arguments as put forth by their learned counsels, while adjudicating the present complaint. We find that the insured Truck in question was allegedly stolen in the evening (after 07:00 PM) of 05.05.2011 and thus the related FIR # 36 (Ex.C4) of 06.05.2011 (at PS Kalanaur) shall not be termed as ‘delayed’ FIR and also the ‘undated’ theft intimation letter (Ex.OP3) produced by the OP insurers along with its acknowledgement (Ex.OP4) & receipted copy (Ex.OP5) negate the allegation of ‘delay’. Somehow, though an apparently misplaced contention, the OP insurers are still addressing the impugned insurance claim as ‘Pre-Mature’ in their written reply & the affidavit Ex.OP1 of 24.02.2016 alleging non-receipt of the requisite documents/papers from the complainant whereas he has duly proved on the record of the proceedings having delivered the ‘available’ documents requisite for settling the insurance theft claim. In the meantime, the stolen Truck has been continuously attracting interest upon the amount duly financed by the financers namely: Shri Ram Transport Finance Co. Ltd., and thus incurring additional burden upon the complainant who has already been deprived of his Truck Income for of the theft. The OP insurers must realize that they are much better placed and much more resourceful than the ‘subservient’ complainant to procure the ‘theft-related’ documents requisite to settle the impugned claim. By the time, it has been an almost a settled law (by virtue of a plethora of superior court judgments) that ‘once’ the insured successfully lodges the FIR of ‘theft’ with the ‘police’ the requisitioned documents such as: NCRB Report, Un-trace Report and others alike will be managed/ arranged by the insurers (may be at the expense of the complainant). Moreover, documents like ‘Un-trace Report’ with the duly ordered statutory ‘closure’ shall be outside the comprehension and purview of the ‘complainant’ till ‘final-orders’ of the competent court. The repeated ‘deferments’ to claim settlement on such feasible issues do indicate ‘deficiency in service’ coupled with an ‘unfair/restrictive trade practices’ at the OP end. We are also not convinced with the Investigator’s Report (Ex.OP12) of 17.12.2012 who was somehow deputed only at the face of the complainant’s legal notice. We find the said Investigation Report (Ex.OP12) to be based on ‘hear-say’ evidence only sans even the requisite deposition of the investigator. The report itself states that the non-affirmative police investigation (subsequent to filing of FIR) has not been approved by the SSP office and re-investigation has been ordered into.
7. Presently, we find that the OP insurers have not been able to justify the concurrent ‘delay’ and could have settled the ‘claim’ as of ‘now’ during the ‘pendency’ of the present complaint to show/exhibit its bonafide intentions but it chose otherwise and thus we hold it guilty of ‘deficiency in service’.
8. In the light of the all above, we partly accept the present complaint and thus ORDER the OP Insurers to pay the full IDV of the insured Truck (under the related Policy) to the complainant within 30 days of the receipt of the copy of these orders along with Rs.5,000/- as compensation besides Rs.3,000/- as cost of litigation, otherwise the aggregate award amount shall attract interest @9% PA from the date of filing of the complaint till actually paid.
9. Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
April 21, 2016 Member
*MK*
