Haryana

Yamunanagar

CC/340/2014

Deepak Saini S/o Mohan Lal - Complainant(s)

Versus

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

J.S.Nagla

15 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 340 of 2014.

                                                                                          Date of institution: 12.08.2014  

                                                                                          Date of decision: 15.11.2016

Deepak Saini aged about 24 years son of Shri Mohan Lal, resident of Ram Nagar Colony, Gulab Nagar, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.                              

              …Complainant.

                                    Versus

 

The Oriental Insurance Company Ltd. Branch Office: Hindu Girls College, Old Court Road, Jagadhri, District Yamuna Nagar, through its Branch Manager.

                                                                                                                        …Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. J.S. Nagla, Advocate for complainant.

                Sh. Naveen Kaushal, Advocate for respondent.

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act. 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is registered owner of motor cycle Hero Honda Splendor Plus, bearing Registration No.HR02-Z-7455 , Model 2012 and the above said motor cycle was insured with respondent (herein after referred as OP Insurance Company) vide insurance policy bearing No.261701/31/2014/2098 valid w.e.f. 24.05.2013 to 23.05.2014 for a sum of Rs. 37,800/-. On 13.08.2013, the complainant had gone to MLN College Yamuna Nagar at 12.00 noon for obtaining DMC of BA Final and after locking the motorcycle outside the gate of college, had gone inside the college and at about 2.00 pm  when he came back, the aforesaid motor cycle was not there. The complainant made search here and there but of no use. The insurance policy, RC and Pollution papers were in the motor cycle. The complainant gave an application to OP Insurance Company regarding theft of motor cycle but the same was returned on the pretext to get lodge FIR. The complainant moved an application to Police Station City, Yamuna Nagar and thereafter an FIR bearing No.437 dated 21.08.2013 under Section 379 IPC was lodged in Police Station City Yamuna Nagar. After obtaining the Copy of FIR, other relevant/required documents immediately made claim No.261701/31/2014 /000182 with the OP and completed all formalities and OP Insurance Company also obtained the signatures of the complainant on some blank papers and printed forms. After waiting for a quite long time, complainant received a letter dated 04.02.2014 by virtue of which, the OP Insurance Company repudiated the claim of the complainant on the ground that there is delay in informing the OP Insurance Company regarding theft of motor cycle. Lastly, prayed for directing the OP Insurance Company to pay the insured amount of Rs. 37,800/- alongwith interest on account theft of motorcycle and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as the present complaint is not maintainable; the complainant has got no locus standi; no cause of action to file the present complaint; the present complaint is false, frivolous and vexatious and has been filed by the complainant with mala fide intentions just to harass; complainant has not approached to this Forum with clean hands and has concealed the true and material facts from this Forum; complainant is estopped from filing the present complaint by his own act and conduct and on merit it has been admitted that motor bearing registration No. HR02Z-7455 was comprehensively insured vide insurance policy bearing No. 261701/31/2014/2098 valid w.e.f. 24.05.2013 to 23.05.2014 for a sum of Rs. 37,800/-. However, the claim of the complainant has been rightly repudiated by the OP Insurance Company vide letter dated 04.02.2014 as the complainant has lodged the FIR after a delay of 8 days i.e. on 21.08.2013 and intimated to the OP Insurance Company on 20.09.2013 i.e. after a gap of 37 days which was clear cut violations of terms and conditions of the insurance policy on the part of complainant and lastly prayed for dismissal of complaint.

4.                     In support of case, complainant tendered into evidence his affidavit as Annexure CW/A, attested copy of Registration Certificate as Annexure C1, attested copy of Insurance Policy as Annexure C2, photocopy of Letter to Manager, Oriental Insurance Company as Annexure C3, photocopy of letter to SHO Yamuna Nagar as Annexure C4, certified copy of FIR as Annexure C5, attested copy of repudiation letter dated 04.02.2014 as Annexure C6 and closed his evidence.

5.                     On the other hand, learned counsel for the OP Insurance Company tendered into evidence affidavit of Ashish Bhatnagar, Branch Manager OIC as Annexure RW/A and documents such as photo copy of insurance policy as Annexure R-1, Photo copy of claim form as Annexure R-2, Photo copy of FIR as Annexure R-3, Photo copy of repudiation letter dated 04.02.2014 as Annexure R-4 and closed the evidence on behalf of OP Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is not disputed that the motorcycle bearing registration No. HR-02Z-7455 was not insured with the OP Insurance Company vide insurance policy bearing No. 261701/31/2014/2098 valid w.e.f. 24.05.2013 to 23.05.2014 for a sum of Rs. 37,800/- which is duly evident from copy of insurance policy Annexure C-2/R-1. It is also not disputed that the motorcycle in question was not stolen on 13.08.2013 near M.L.N. College, Yamuna Nagar, which is duly evident from copy of FIR Annex. C-5/R-3.

8                      The OP Insurance company  is contesting the claim of the complainant only on the ground that the complainant had violated the terms and conditions of the Insurance policy as the theft had taken place on 13.08.2013 and FIR was lodged on 21.08.2013 i.e. after a delay of 8 days and further the intimation was given to the OP Insurance Co. on 20.09.2013 i.e. after a gap of 37 days, hence the claim of the complainant was rightly repudiated and there was no deficiency in service on the part of OP Insurance Company. In the policy, it has been specifically mentioned that claim for theft of the vehicle not payable if theft not reported to the company within 48 hours of its occurrence. Ld counsel  for the OP Insurance company also referred the case law titled as Om Parkash vs. National Insurance company Ltd. 2012(III) CPJ Page 59(N.C) wherein it has been observed that “ Insurance-theft of vehicle-Delay in intimation-Claim repudiated-alleged deficiency in service-District Forum allowed complaint- State Commission allowed appeal- Hence revision- terms and conditions of insurance policy are required to be strictly construed and no exception can be made on the ground of equity-Even delay of few days in not intimating Insurance Company about incident of theft is fatal-insured loses its right to be indemnified when he himself is not vigilant about his rights and his obligations in regarding to compliance of terms and conditions of policy-impugned order upheld”.

             Further, also referred another case law titled as Shri Ram General Insurance Co. Ltd. Versus MahenderJat, 2015(1) CLT page 543 wherein it has been held that Insurance Claim-theft of vehicle- Delay in intimation- The intimation of theft was given  to the insurance company 21 days after the theft- Held- Thus, finding of the State Commission allowing the claim by the respondent is not justified- Petition allowed and also referred the case titled as New India Assurance Company Ltd. vs. Trilochan Jane IV(2012) CPJ page 441 NC, wherein ithas been observed that in the case of theft “where no bodily injury has been caused to the insured, it is incumbent upon the insured 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 vehicle. Delay in reporting to the insurer about the theft of the vehicle for 9 days, would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”  

9                      On the other hand, counsel for the complainant argued that the motorcycle in question was stolen on 13.08.2013 during the subsistence of the policy which is evident from copy of FIR No. 437 dated 21.08.2013(Annexure C-5/ R-3) registered in police station City Yamuna Nagar and intimation was also given to the OP Insurance Company but the claim lodged by the complainant was not honoured by the opposite parties. Learned counsel for the complainant further argued that the complainant requested the OP Insurance Company to settle the claim of the complainant but they did not pay any heed to the genuine request of the complainant. Lastly prayed for acceptance of complaint and referred the case law titled as Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, reported in 2014(4) CLT page 161and also referred the case law titled as Manager New India Assurance Co. Ltd. Vs. Yadram 2014(2) CLT page 386 Hon’ble State Commission in which it has been 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”. Further referred the case law titled as Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, 2014(2) CLT page 390 Hon’ble State Commission Haryana, Panchkula wherein it 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 does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. Further referred the case law titled as National Insurance Company Ltd. Versus Nitin Khandelwal, 2008(3) CPC page 559 wherein it has been held that Consumer Protection Act, 1986-Section 14(1)(d)- Insurance Claim- Insured vehicle stolen- Claim was repudiated on the ground that terms and condition of policy were violated- State Commission settled claim on non-standard basis directing Insurance Company to pay 75% of claim amount which was upheld- National Commission giving rise to present civil appeal- Held, claim cannot be repudiated for breach of policy condition as nature of use of vehicle cannot be taken into consideration- Order passed by Consumer Fora upheld.

10.                   After hearing both the parties, we are of the considered view that the plea of the OP insurance company that the complainant has given late intimation to the OP insurance company as well as police is not tenable as the IRDA has clearly mentioned in the instructions conveyed vide letter date 20.09.2011 that the insurer cannot reject the claims amount for delay in intimation”  The Authorities (supra) referred on behalf of  OP insurance company  are not disputed but not helpful in the present case whereas on the other hand case law referred by the counsel for the complainant titled as Manager New India Assurance Co. Ltd. Vs. Yadram (Supra), Shriram General Insurance Company Ltd. Vs. Rajesh Kumar, (Supra) are fully applicable to the facts of the present case.  However, the claim of the complainant has been wrongly repudiated in toto whereas we are of the view that claim should be settled on the” NON STANDARD BASIS” as it is clearly evident that complainant has suffered financial loss on account of theft of the motorcycle in question. The same view has been expressed by the Hon’ble Supreme Court of India in case titled as National Insurance Company versus Nitin Khandelwal,  2008 (IV) CPJ page 1 Supreme Court  wherein it has been held  “in the case of theft of vehicle, breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

Even in another case titled as New India Assurance Co. Ltd. Vs. Malti bhikhabhai Bhoya 2013 (3) CLT 178 (NC) it has been held that if there has been any breach of warranty or condition of policy including limitation as to use, insured is entitled to get 75 % of the admissible claim on non-standard basis- The insurance company is not entitled to repudiate the claim in toto.

11.                   In the circumstances noted above, we are of the considered view that OP insurance company has wrongly repudiated the claim of the complainant as a whole whereas, the claim of the complainant should be settled on NON-STANDARD BASIS. 

12.                   Resultantly, we partly allow the complaint of the complainant and direct the OP insurance company to pay Rs. 28,350/- being 75% of the total sum insured of Rs. 37,800/- alongwith interest @ 6% p.a. from the date of filing the present complaint till actual realization subject to submission of subrogation letter, indemnity bond and other relevant documents/papers which are necessary to transfer the vehicle in the name of OP Insurance company. This order shall be complied within a period of 30 days from the receipt of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Parties are left to bear their own cost. The parties concerned be communicated with a copy of this order free of cost and file be consigned to the record room after due compliance.

Announced in open court.

Dated: 15.11.2016.                                                                                         

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER