Haryana

Yamunanagar

CC/366/2013

Kemta Alias Suman W/o Anil Kumar - Complainant(s)

Versus

The Oriental Insurance Comapany Ltd. - Opp.Party(s)

Pardeep Rathore

10 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

 

                                                                     Complaint No. 366 of  2013.
                                                                     Date of institution: 15.05.2013.
                                                                     Date of decision: 10.08.2017.

 

Smt. Kemta alias Suman wife of Late Sh. Anil Kumar resident of Village & P.O. Ghathera, Tehsil Rampur, Distt. Saharanpur.                                                                                           

                                                                                                       …Complainant.
                                  Versus

The Oriental Insurance Company Limited, Opp. Madhu Petrol Pump, Yamunanagar, through its Branch Manager.

                                                                                                      

                                                                                                     …. Respondent.
        

BEFORE    SH. DHARAMPAL, PRESIDENT
                 . S.C.SHARMA, MEMBER.
                   SMT. VEENA RANI SHEOKAND, MEMBER.     

 

Present:      Sh. Pardeep Rathore, Advocate, counsel for complainant.    
                  Sh. Rajiv Gupta, Advocate, counsel for OP

 

ORDER    (DHARAMPAL PRESIDENT)

 

1.        Complainant Kemta @ Suman has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date (the respondent hereinafter shall be referred as OP).  

2.        Brief facts of the complaint, as alleged by the complainant, are that the complainant is the legal heir of the deceased Anil Kumar who was registered owner of Truck No. HR 58-6077, which was insured with the OP company vide insurance cover Note No. 261700/31/POL/2008/MIG/3720/001 as a transport vehicle for a sum of Rs. 6,00,000/- for the period from 17-01-2008 to 09-07-2008 and OP had charged a sum of Rs. 2500/-. It is submitted that in the midnight of 12/13-02-2008, the aforesaid truck met with an accident with Truck at national high way, near village P.S.  Milak, Rampur, in which the husband of the complainant died and in this regard a FIR No. 138/08 under Sections 279/337/338/304-A, 427 IPC was registered with Police post, P.S. Milak, and the post mortem of the husband of the complainant was also got conducted at hospital, Rampur. In the said accident, the body of the truck was completely damaged. At the time of accident, the husband of the complainant was holding a valid and effective Driving License bearing No. A-2509/SRE/96 and the said truck was fully insured with the OP company. The complainant gave due intimation to the OP company. upon which surveyor of the OP inspected the damaged truck and it was found by the surveyor that there was a total loss of insured vehicle and it was told by the surveyor to the complainant that the company shall settle the claim on total loss and the entire amount of insurance shall be paid shortly. At the time of submission of claim form and documents, the complainant submitted to the insurance company the driving license of Anil Kumar son of Sh. Seth Pal Singh, copy of Registration Certificate of Truck No. HR 58-6077, copy of insurance, copy of FIR and the surveyor also obtained the signatures of the complainant on some blank printed performas for the purpose of payment of claim amount to the complainant. Thereafter, the complainant requested to make the payment of the claim but they always postponed the matter on one pretext or the other.  Thereafter, the complainant got served a legal notice dated 17-03-2009 to the OP company, which was duly received by the OP but in vain. As such it is prayed that the complaint of the complainant may kindly be accepted and OPs be directed to pay Rs. 6,00,000/- as insured amount along with interest @ 18 % per annum, to pay Rs. 75,000/- on account of mental agony, harassment, and to pay Rs. 20,000/- on account of litigation expenses.  

3.            Upon notice, OP appeared and filed his written statement by taking some preliminary objections such as complaint is not maintainable, complainant has not come to this form with clean hands and there is concealment of the facts. It is submitted that in the present case, a belated intimation dated 20-02-2008 was given to the insurance company vide which it was intimated by Sh. Seth Pal that the truck bearing registration No. HR 58-6077 owned and insured in the name of Sh. Anil Kumar son of Sh. Seth Pal has met with an accident. On receipt of this information, the OP deputed his surveyor. The representative of the insured was desired by the OP company to submit necessary documents for processing of the claim. Besides this, the OP also deputed Harmender Singh and company, Independent surveyor and loss assessor, resident of F-15 Pankaj Central Market, IP Extension, Patpar Ganj, Near Plato Public School Delhi to survey and asses the loss to the damaged vehicle if any. The surveyor discussed the claim with the representative of the insured and after negotiations, the surveyor vide his report dated 15-11-2008 assessed the loss on "NET of the Salvage Value" to the tune of Rs. 4,48,500/- subject to the terms and conditions of the insurance policy after deducting a sum of Rs. 1,50,000/- as salvage value to be retained by the insured's family and after deducing a sum of Rs. 1,500/- on account of excess clause.

        On receipt of the report of the surveyor, the claim in question was processed further and the OP vide its letter dated 13-01-2009 addressed to Sh. Seth Pal, the person who had given intimation about the accident desired him to submit fitness certificate in original for verification. Besides this, the OP company also intimated to him that on going through the registration certificate of the truck in question, the name of the father of the insured is Tejpal Singh, whereas as per driving licence the name of the father is Satpal Singh, whereas as per Route permit copy the same is Seth Pal Singh and company sought clarification in this regard but there was no response from the other side and neither the desired document was supplied to the insurance company nor any clarification of the letter dated 13-01-2009 was given. It is further submitted that the OP company found that it was a case of late intimation also which is in violation of the terms and conditions of the insurance policy. It is further submitted that the insurance is not a blanket insurance but it is subject to its specific terms and conditions. Furthermore, the IDV of Rs. 6,00,000/- does not ipso facto entitles complainant to the complete amount of IDV which again is subject to terms and conditions of the insurance policy. Rest of the averments made by the complainant are wrong, hence denied. Lastly, prayed for dismissal of complaint.

4.        To prove his case, complainant tendered into evidence her affidavit as Annexure CW/A and documents such as copy of FIR as annexure C-1, document regarding case FIR as Annexure C-2, document regarding MACT case as Annexure C-3, photocopy of written statement in MACT case as Annexure C-4, copy of written statement on behalf of the Reliance General Insurance Co. in MACT case as Annexure C-5, copy of judgment in MACT case as Annexure C-6 and closed the evidence.  

5.        On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Sh. N.K. Goel, Sr. DM as Annexure RA and documents such as photocopy of Motor claim form as Annexure R/1, copy of surveyor report as Annexure R/2, photocopy of letter issued by the OPs for requirement of compliance by the complainant as Annexure R-3, photocopy of registration certificate as Annexure R-4, photocopy of verification of RC of Vehicle NO. HR 58-6077 as Annexure R-5, photocopy of form driving licence (Form No. 6) as Annexure R-6, photocopy of letter to licencing authority as Annexure R-7, photocopy of authorization (Form No. 4) as Annexure R-8, photocopy of Form N.P. Pu.C as Annexure R-9, copy of policy as Annexure R-10 and closed the evidence on behalf of OP.

 
6.        We have heard learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely and carefully. Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance, whereas the counsel for the OP reiterated the averments made in the reply and prayed for its dismissal.

9.        Counsel for the complainant has argued that the complainant is the legal heir of the deceased Anil Kumar who was registered owner of the Truck bearing No. HR 58-6077 which was insured with the OP company vide insurance cover Note No. 261700/31POL/2008/ MIG/3720/001 for a sum of Rs. 6,00,000/- for the period from 17-01-2008 to 09-07-2008 and in the midnight of 12/13-02-2008 the aforesaid truck met with an accident with Truck, in which the husband of the complainant died and in this regard a FIR No. 138/08 under Sections 279/337/338/304-A, 427 IPC was registered as Annexure C-1. It is argued that in the said accident the body of the truck was completely damaged and the complainant gave due intimation to the OP company, upon which surveyor of the OP inspected the damaged truck and it was found by the surveyor that there is a total loss of insured truck. But, the complainant requested to make the payment of the claim but they always postponed the matter on one pretext or the other.

10.          On the other hand counsel for the OP has argued that on receipt of information regarding accident, the OP deputed his surveyor and also deputed Harmender Singh and company, Independent surveyor and loss assessor, to survey and asses the loss to the damaged vehicle. On which, the surveyor vide his report dated 15-11-2008 assessed the loss on NET of the Salvage Value to the tune of Rs. 4,48,500/- subject to the terms and conditions of the insurance policy after deducting a sum of Rs. 1,50,000/- as salvage value to be retained by the insured's family and after deducing a sum of Rs. 1,500/- on account of excess clause. He further argued that on receipt of the surveyor report, the claim in question was processed further and the OP vide its letter dated 13-01-2009 addressed to Sh. Seth Pal, the person who had given intimation about the accident desired him to submit fitness certificate in original for verification and also intimated to him that on going through the registration certificate of the truck in question, the name of the father of the insured is Tejpal Singh, whereas as per driving licence the name of the father is Satpal Singh, whereas as per Route permit copy the same is Seth Pal Singh and company sought clarification in this regard but there was no response from the other side and neither the desired document was supplied to the insurance company nor any clarification of the letter dated 13-01-2009 was given.

11.         In view of the above said discussion, we are of the opinion that at this stage, no question should be arisen about the name of father of the insured upon the registration certificate and route permit as it was the duty of the OP company to check the same at the time of issuing the insurance policy.

12.         The question is to be decided by this Forum is, whether the Opposite party/insurer committed any deficiency in service? From the above, it is clear that the complainant had submitted the required documents as desired by the OP but the claim of the complainant has not been decided till date, which amount to deficiency in service on the part of OP.

13.        Further the arguments advanced by the counsel for the OP on the point of delayed intimation is not tenable as the IRDA has clearly mentioned in the instructions that the insurer cannot reject claims amount for delay in intimation" We have relied upon the case law rendered by Hon'ble Delhi State Commission, New Delhi in case titled as Ridhi Gupta Vs. NIC, 2008(3) CPJ page 459 has held that theft information to the police in any form, including DD report, sufficient requirement-Once report lodged with the police in any form, Insurance Company barred from appointing investigator to investigate, whether theft took place or not. Even in another case titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon'ble State Commission has also held that " in case of theft of vehicle, breach of policy condition is not germane- A delay of 15 days is not significant in such a case". As per case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon'ble State Commission Haryana, Panchkula has held that " Delay of 12 days in intimation to the insurance company- there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine". Even Hon'ble Punjab & Haryana High Court in case titled as "National Insurance Company Ltd. Vs. Ravi Dutt Sharma, 2011 (I) PLR"  has held that "merely because there was a delay on the part of the insured to inform petitioner-Company would not be a reason enough to decline or repudiate the claim and it is further held that Insurance Companies are not acting fairly in all such matters after charging huge premium- Intention is always to repudiate the claim on one ground or the other" 

         
14.         Resultantly we are of the considered opinion that delay in deciding the claim itself amount to deficiency in service on the part of the OP. The complaint of the complainant is, hereby, disposed of with the following directions :-

i.     The OP is directed to make the payment of Rs. 4,48,500/- as assessed by the surveyor vide his report Annexure R/2, to the complainant.

ii.     To pay Rs. 5,000/- as compensation on account of harassment and mental agony.  

iii.    To pay Rs. 5,000/- as cost of litigation.

        Order be complied within a period of 30 days, failing which the OP is liable to pay interest @ 9 % per annum on the amount mentioned at Sr. No. i of directions. Copies of this order be supplied to the parties free of cost. File be consigned to the record room after due compliance.
Announced in open court. 10.08.2017

 

                                                            ( DHARAMPAL)
                                                            PRESIDENT
                                                           D.C.D.R.F.YAMUNA NAGAR
                                                           AT JAGADHRI

 

 

   (VEENA RANI SHEOKAND)     (S.C.SHARMA)
   MEMBER                                      MEMBER

 

Note:    Each and every page of this order has been duly signed by me.

                                                  ( DHARAMPAL)
                                                  PRESIDENT
                                                  D.C.D.R.F.YAMUNA NAGAR
                                                 AT JAGADHRI