DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:717 of 2010] Date of Institution : 02.11.2010 Date of Decision : 06.09.2011 --------------------------------------- Sh. Charan Dass son of Sh. Dwarka Dass resident of House No.599, Phase IX, Industrial Area, SAS Nagar, Mohali. ---Complainant. V E R S U S 1. The Oriental Insurance Company Limited, SCO No.109-111, Sector 17-D, Chandigarh through its Branch Head/Manager. 2. Swami Automobiles Pvt. Ltd., 32, Industrial Area, Phase-I, Chandigarh through its Director/Managing Director. ---Opposite Parties. BEFORE: SHRI LAKSHMAN SHARMA PRESI DENT SMT. MADHU MUTNEJA MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Vikas Sagar, Advocate for the complainant. Sh. Navin Kapur, Advocate for OP No.1. OP No.2 already exparte. PER LAKSHMAN SHARMA, PRESIDENT Sh. Charan Dass has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein for the following reliefs:- i) To pay a sum of Rs.5,17,750/- being the insured value of the vehicle along with interest @18% from the date of loss; ii) To pay a sum of Rs.1,00,000/- compensation for mental agony and harassment; iii) To pay a sum of Rs.22,000/- as costs of litigation. iv) To pay any other relief, which the Forum deems fit. 2. In brief, the case of the complainant is that he was owner of Bolero LX (LMV) Model 2009 Color Silver Fuel (Diesel) bearing Regd. No.PB-65-H-8910. He got the said vehicle insured with OP No.1 vide Cover Note (Annexure C-4) for a period from 03.04.2099 to 02.04.2010. The Insured Declared Value of the said vehicle was Rs.5,17,750/-. According to the complainant, on 4.12.2009, he had parked his car in the evening at his residence. On the next morning, when he got up, he found the car missing. Unfortunately, the same was stolen in the night intervening 04/05.12.2009. F.I.R. No.544 was lodged on 05.12.2009 with Police Station, Sector 5, Panchkula. The complainant supplied the copies of FIR and the Untraceable Report to OP No.2, from whom the car was purchased, for information and to get the claim settled with OP No.1 Insurance Company. When nothing was heard from OP No.2, the complainant wrote separate letter dated 3.9.2010 to OP No.1 and intimated about the loss. The complainant also requested OP No.1 to intimate him the documents required from him for settling his insurance claim. Along with his claim application, he also submitted the copies of FIR, Untraceable Report and Insurance Cover Note. However, according to complainant, OP No.1 vide letter dated 24.9.2010 arbitrarily repudiated the claim on the ground that there is inordinate delay of 10 months on the part of the complainant in intimating about the theft of vehicle. It has further been pleaded that the complainant never received the copy of the insurance policy. The complainant issued legal notice to OP No.1 on 05.10.2010 but to no avail. According to the complainant, repudiation of claim in such circumstances by OP No.1 amounts to deficiency in service. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the reply filed by OP No.1, it has been admitted that the vehicle in question was comprehensively insured with it for the period from 03.04.2009 to 02.04.2010. It has been pleaded that policy along with complete terms and conditions was supplied to the complainant by OP No.1 through courier, which was duly received by him. According to OP No.1, the complainant was trying to manipulate the factual position. It is pleaded that no intimation about the theft of vehicle was given by the complainant to the answering OP prior to 03.09.2010. According to OP No.1, it is only on 3.9.2010 that the complainant intimated to it about the theft of the vehicle. According to OP No.1, there is no deficiency on its part in repudiating the claim of the complainant and the complaint deserves dismissal. 4. OP No.2 refused to accept the summons sent through Process Server. Since, refusal was a good service, OP No.2 was ordered to be proceeded against exparte vide order dated 27.12.2010. 5. We have heard the learned counsel for the complainant and the learned counsel for OP No.1 and have gone through the documents on record. 6. Admittedly, the car was stolen on the intervening night of 04/05.12.2009. F.I.R. (Annexure C-5) is also dated 05.12.2009. The claim was filed with OP No.1 vide letter dated 03.09.2010 (Annexure C-7). 7. It is not disputed that the intimation to the police was give on 05.12.2009 i.e. immediately the next day of the occurrence. The claim of the complainant has been repudiated by OP No.1 on the sole ground that it failed to intimate the Insurance Company immediately after the theft took place and has thus violated the terms and conditions of the Insurance Policy. The case of the complainant is that he was never supplied the copy of the insurance policy along with complete terms and conditions and therefore, was not aware of the terms and conditions of the insurance policy. Admittedly, theintimation regarding theft of the car was received by the Insurance Company for the first time on 03.09.2010. 8. Clause (1) under the head “CONDITIONS” of the Insurance Policy reads as under: - “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediately notice to the police and co-operate with the Company in securing the conviction of the offender.” 9. As per Condition (1) reproduced above, the complainant was required to intimate the police as well as Insurance Company immediately after the theft of the car. In case titled New India Assurance Company Vs. Trilochan Jane, First Appeal No.321 of 2005 decided by Hon’ble National Commission on 09.12.2009, the Hon’ble National Commission has held as under: - “In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.” 10. In the above cited case, the Hon’ble National Commission has held that delay of 9 days in reporting the matter to the Insurance Company amounts to violation of condition of the policy. In the present case, though the complainant has intimated the police immediately on 05.12.2010, yet there is a delay of approximately ten months on his part in intimating the Insurance Company (OP No.1). 11. Faced with this situation, it was argued vehemently by the learned counsel for the complainant that the terms and conditions of the policy were not conveyed to him, so, he is not bound by the terms and conditions of the policy reproduced above. In support of his contention, the learned counsel cited the case titled M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. reported as I (2000) CPJ 1 (SC) wherein the Hon’ble Supreme Court has held as under: - “8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose .ill material facts in their knowledge since obligation of good faith applies to both equally. 9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” 12. It has been asserted by the complainant in Para No.2 of the complaint that the copy of the insurance policy was not sent to him nor was he made aware of the terms and conditions of the policy in question. On the other hand, the case of OP – Insurance Company is that the copy of the insurance policy was sent to the complainant through courier and it was duly received by him. OP No.1 has failed to place on record the Proof of Delivery Slip (POD) on record. In the absence of such document, it is not proved that the copy of the insurance policy was actually sent to the complainant through courier and it was received by him. As the OP No.1 has specifically pleaded that the copy was sent and received by the complainant, it was for OP No.1 to prove this fact. In these circumstances, the deposition made by the complainant to this effect that he has not received the copy of the insurance policy is to be accepted. Therefore, OP No.1 cannot claim the benefit of the above said clause to repudiate the claim. 13. Since, the insurance claim is to be paid by OP No.1 – Insurance Company, the complaint qua OP No.2 – Swami Automobiles, from where the complainant purchased the vehicle in question, is liable to be dismissed. Accordingly, the complaint qua OP No.2 is dismissed. 14. In view of the above findings, this complaint is allowed with the following direction to OPs (Insurance Company): - (i) to pay an amount of Rs.5,17,700/- to the complainant being the Insured Declared value of the vehicle;. (ii) to pay a sum of Rs.50,000/- to the complainant as compensation for harassment and mental agony. (iii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 15. This order be complied with by OP No.1 within 30 days from the date of receipt of its certified copy, failing which OP No.1 shall be liable to refund Rs.5,67,750/- i.e. (Rs.5,17,750 + Rs.50,000) to the complainant along with penal interest @18% p.a. from the dates of filing the complaint i.e.02.11.2010 till its realization besides payment of Rs.7,000/- as costs of litigation. 16. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 6th September 2011. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
C.C.No.717 of 2010 Present: None. --- The case was reserved on 01.09.2011. As per the detailed order of even date recorded separately, this complaint has been allowed qua OP No.1 only and the same has been dismissed qua OP No.2. Announced. 06.09.2011 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
