BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.300 of 2017

      Date of Instt. 23.08.2017

      Date of Decision: 30.10.2019

M/s D.D. Khosla Transport Pvt. Ltd., 3, Domoria Pul, Jalandhar City through its Director Shri Anil Khosla.

..........Complainant

Versus

1.       The New India Assurance Company Ltd., Branch B.M.C. Chowk, Jalandhar City through its Senior Branch Manager.

2.       The Senior Branch Manager, The New India Assurance Company Ltd., Branch B.M.C. Chowk, Jalandhar City

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. Gulshan Arora, Adv Counsel for the Complainant.

Sh. R. K. Sharma, Adv Counsel for the OPs No.1 & 2.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that the complainant is the registered owner of Tralla bearing Registration No.PB-08-AZ-9842 which was got insured with the OP No.2 at Jalandhar, vide Insurance Policy No.36090131140100000175 from 10.04.2014 to 10.04.2015 for a sum of Rs.8,50,000/-. The said vehicle was stolen on the intervening night of 01/02.08.2014 at Bindra Complex, Ludhiana. Due intimation was given to the OPs regarding theft of the vehicle and the matter was also reported to the Police and FIR No.273 dated 16.09.2014 was registered with P. S. Focal Point, Ludhiana under Section 379 IPC.

2.                That thereafter, the complainant has been approaching the OPs for settlement of its insurance claim, but the OPs have been dilly dallying the matter in order to harass the complainant and further asking the complainant to fulfill un-necessary formalities. The complainant has fulfilled all the formalities for settlement of the insurance claim and has submitted all the documents with the OPs. The OP No.2 asked the complainant to submit the documents, vide letter dated 23.03.2016 and the complainant submitted all the documents with the OPs duly received by them and the complainant had been cooperating the Investigator in all respect. But till date, the OPs have not paid the insurance claim to the complainant. The OPs have been un-necessary harassing the complainant and are not making payment of the insurance claim, which they are liable to pay to the complainant as per insurance policy. At the time of insurance of the vehicle, the OPs made all claims regarding the services of the company, but at the time of passing of the claim, they have changed colors. The complainant also served a legal notice dated 08.01.2016 for redressal of its grievances, but it also did not evoke any positive response and as such, the act and conduct of the OP in the above matter is clear cut unfair trade practice, deficiency and negligent in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the insurance claim of Rs.8,50,000/- and further, OPs be directed to pay compensation of Rs.5,00,000/- for causing mental tension and harassment and be also directed to pay cost of litigation.

3.                Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed their joint written reply, whereby contested the complaint by taking preliminary objections that the complaint of the complainant is vague, ambiguous and does not disclose any cause of action qua OP No.1 and as such, the same is not maintainable against the OP No.1 either on facts or in law and is liable to be dismissed with special costs. It is further averred that the complainant cannot take advantage of his own wrongs. It is an admitted fact that the complainant has lodged FIR on 16.09.2014 u/S 379 IPC PS, Focal Point, Ludhiana after period for about 45 days from the date of alleged loss of the vehicle in theft on intervening night of 01/02.08.2014. Even there is an inordinate delay in intimating the loss to the OPs on 19.09.2014 after delay of 48 days from the date of alleged loss. The intimation of theft was required to be given to the OP with immediate effect as per terms and conditions of the insurance policy. The delayed intimation of loss always adversely affect the chances of effective investigation and takes away the right of the insurer to act promptly. However, the OP on intimation of loss on 19.09.2014 deputed approved investigator namely Er. K. S. Chandok to conduct the investigation of the theft, who conducted the investigation and submitted investigation report on 07.05.2015 and Addendum Investigation Report dated 01.09.2015 with the insurance company. During investigation, the Investigator sent number of letter and reminders to the complainant, vide letters dated 06.01.2015, 22.02.2015 and 08.04.2015, thereby demanding the documents and to join the driver Kanwaljit in the investigation, but Kanwaljit did not appear nor produced his driving licence. OP also sent reminders dated 04.02.2015, 10.03.2015, but of no avail. During investigation, the investigator recorded the statement of Mukesh Garg, Manager of the complainant company, wherein he stated that on 01.08.2015, after parking the vehicle near Bindra Complex, Phase-5, Focal Point, Ludhiana, the driver left the documents and keys in the Tralla and slept in the other vehicle, as there being no fan facility in the said stolen vehicle. The vehicle was parked unlocked with other vehicle and that there was no second driver/cleaner on the vehicle and the same was stolen on the intervening night of 01/02.08.2014 by some un-identified persons and that police was informed, but on advise of police, he continued searching the vehicle and on not finding the same lodged FIR No.273 dated 16.09.2015 u/S 379 IPC, PS Focal Point, Ludhiana. He further stated that the documents and keys were stolen with the vehicle and no watchman was deployed in the said area. The statement of Mukesh Garg, Manager of the Complainant company is attached with the Investigation Report dated 07.05.2015. Thereafter, the complainant company wrote a letter to the insurance company that Kanwaljit Singh driver of the insured vehicle, who had left his service from the company has rejoined and requested to take his statement, whereupon the investigator recorded the statement of driver Kanwaljit Singh on 27.08.2015, wherein he has given different version than the given by Manager Mukesh Garg, stating that vehicle was locked and keys were with him and has given the keys to the owner improving upon the version of the Manager of the complainant company. He further stated that he has submitted his driving licence for renewal which falsify his statement as it is evident from the copy of his DL, which was valid upto 24.01.2016. As the claim of the complainant is not payable as per terms and conditions of the insurance policy, as such, claim of the complainant was repudiated rightly, vide letter dated 17.01.2017 and the complainant was informed accordingly. It is further averred that there is neither any negligence nor any deficiency in service or unfair trade practice on the part of the OP No.1. On merits, it is admitted that the vehicle in question was got insured by the complainant and claim was also submitted, but the same was legally repudiated. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CW1/A along with some documents Ex.C-1 to Ex.C-17 and closed the evidence.

5.                Similarly, counsel for the OPs No.1 and 2 tendered into evidence affidavit of Poonam Sharma as Ex.OA along with some documents Ex.O-1 to Ex.O-17 and closed the evidence.

6.                We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7.                After considering the over all circumstances as put forth by both the parties in their respective pleading, which reveals that the ownership of the Tralla, bearing registration No.PB-08-AZ-9842 stands in the name of complainant company, is not disputed. Further, it is also admitted fact that the said Tralla was got insured by the complainant with the OPs, regarding that Insurance Schedule is available on the file Ex.C-5 and further, the said Tralla was stolen on the intervening night of 01/02.08.2014 at Bindra Complex, Ludhiana and regarding that theft, matter was reported to the police and FIR No.273 dated 16.09.2014 was lodged and copy of the FIR is Ex.C-9. Further, it is also admitted fact that the complainant submitted an insurance claim in regard to theft of the vehicle in question with the OP and the said insurance claim was repudiated by the OP, vide repudiation letter dated 17.01.2017, copy of the same is available on the file Ex.O-17. The main ground for repudiation of the insurance claim is that the complainant lodged FIR after delay of 45 days of the theft and further intimation qua the theft of the vehicle was given to the insurance company on 19.09.2014 i.e. after 48 days from the date of theft and by applying the terms and conditions of the policy, the claim of the complainant repudiated.

8.                Now, question before us is only whether the insurance claim of the complainant has been repudiated by the OP wrongly or not, for that purpose, it is very much required to go through the pleading as well as documents. The complainant alleged in the complaint that the intimation in regard to theft of the vehicle was given to the OP insurance company as well as to the police immediately, but this submission of the complainant have been refuted by the OP by way of documentary evidence, for that purpose, the copy of FIR Ex.C-9 is available on the file and in the said FIR Column No.3(b) shows the intimation was given to the police on 16.09.2014, whereas the Tralla in question was stolen on 01.08.2014, means there was a delay of 45 days and further, as per Claim Intimation Letter Ex.O-3, the information of theft was given to the insurance company on 19.09.2014, means again there was a delay of 48 days and even the intimation regarding theft was given to District Transport Officer on 18.09.2014, which is self explanatory from letter Ex.C-14. So, one thing is apparently established on the file that there was a delay of 45 days regarding intimation to the police, whereas as per terms and conditions, copy of the same is available on the file Ex.O-2, under the heading “Conditions”, it is categorically mentioned that “In case of theft or criminal act the insured shall give immediate notice to the police”, but in the instant case, there is a violation of the terms and conditions, which is inter se contract between the parties and both the parties are bound to obey the terms and conditions of the policy and if there is any violation of terms and conditions, then the insurance company is not liable to pay any claim to the insured and in support of this observation, we like to refer a pronouncement of Hon’ble National Commission, cited in 2018(1) CLT 231, titled as “Shimbhu Singh Shekhawat Vs. Cholamandlam Ms. General Insurance Company Ltd.”, wherein his Lordship held as under:-

“Theft of car- Delay in intimation – District Forum allowed complaint and granted compensation whereas, State Commission set aside the Order of District Forum- Thus, this petition by complainant contending that telephonic message was sent to insurance company on the same day of theft and FIR was lodged the other day – Plea of OP that as per the policy condition, it was an obligation on the part of the complainant to give information in writing immediately upon the occurrence of any loss and also denied about telephonic intimation – Held, the complainant failed to give written information to OP company immediately – There was delay in the intimation to the OP- Moreover, FIR clearly depicts the date but there is no cogent evidence to show that it was presented on the same day and admittedly, it was registered after 4 days – Thus, the repudiation of claim was legal, as per the terms of the policy – Hence, Revision petition dismissed.”

                   On the same point, we further like to refer a pronouncement of Hon’ble National Commission, cited in 2017(2) CPR 539, titled as “United India Insurance Company Vs. Dheeraj Chahar”, wherein his Lordship held as under:-

“Theft of insured car – Claim repudiated by insurance company on ground of delay in intimating theft of vehicle to it – State Commission partly allowed the appeal directing insurance company to make payment to complainant on non-standard basis – Hence, present revision filed by insurance company – Held, insured was under a contractual obligation to intimate the theft of vehicle to the insurer immediately after said theft came to his knowledge – Mere intimating the police or lodging an FIR does not amount to sufficient compliance with the terms and conditions of insurance policy – Since admittedly, there was substantial delay in intimating the theft of the vehicle to the insurance company in both these cases, insurer was entitled to repudiate the claim – Revision petition allowed – Impugned order set aside – Complaint consequently dismissed.”

9.                In view of the above detailed circumstances, the complaint of the complainant fails and accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work. 

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

30.10.2019                                        Member                          President