DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.49 of 2018

                                                Date of institution:  08.01.2018                                                  Date of decision   :  16.10.2019

Jaswant Singh son of Teja Singh, DGP Prison Punjab, SCO 8-9, Sector 17-A, Chandigarh.

…….Complainant

Versus

1.     The Oriental Insurance Company Limited, Branch Office, SCO 20, Phase-1, Mohali through its Branch Manager.

2.     Branch Manager of Oriental Insurance Company Limited, Branch Office, SCO 20, Phase-1, Mohali

                                                         ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Gurjinder Singh Thind, counsel for complainant.

                Shri K.S. Bhangu, counsel for OPs.

Order by :-  Shri G.K. Dhir, President.

Order

                Complainant, registered owner of Activa bearing registration No.CH-01-AV-8599 got the same insured with OPs for period from 20.10.2015 to 19.10.2016 by paying premium. On 26.11.2015 daughter of complainant namely Ms. Ravneet Kaur visited Punjab Engineering College, Sector 12, Chandigarh on said Activa and parked the same at Gate No.1 at about 11.30 a.m. However, when daughter of complainant returned back at about 5.30 p.m. then she found the Activa to be not there. That Activa was stolen by unknown person. Intimation of this theft was given to OP No.1 on 27.11.2015. As daughter of complainant was busy in her studies and as such she was out of station, due to which intimation of theft was given on 24.02.2016 to Police Station West Sector 11, Chandigarh. FIR No.26 dated 24.02.2016 under Section 379 IPC was registered, but the police could not trace out the culprits. Rather untraced report was sent. Complainant even intimated OPs on 25.08.2016 about presentation of untraced report. Despite visits to office of OPs and making requests for paying the claim amount, same has not been done and as such by pleading deficiency in service on part of OPs, prayer made for directing OPs to pay insurance amount as per policy of vehicle alongwith compensation for mental agony and harassment and litigation expenses.

2.             In reply filed by OPs, it is pleaded inter alia as if complaint is not maintainable because complainant has not approached the Forum with clean hands, but has suppressed material facts; in view of detailed evidence being required, the matter deserves to be got decided from civil court of competent jurisdiction; complaint is barred by limitation because theft took place on 26.11.2015, but present complaint filed on 08.01.2018 i.e. beyond period of two years and that this Forum has no jurisdiction. Story regarding theft alleged to be forged and fabricated. Complainant failed to report about occurrence immediately to the police and insurance company.  Delay of 88 days not explained. On account of non reporting of matter at earliest to the police and the insurer, insurer was debarred from availing valuable right of investigating the matter. Possibility of creating false evidence is all the more there, more so when intimation for the first time of theft in writing was given to the police on 24.02.2016. As per condition No.1 and 2 of the policy, notice of event of theft or of accidental loss or damage must be given in writing to the insurer immediately upon occurrence. Even the insured must cooperate with the insurer in securing conviction of offender. Rather report regarding theft was never lodged with the insurer by complainant. Letters dated 27.11.2015 and 25.08.2016 are forged and fabricated because they are meant for creating false evidence. Complainant failed to produce any record regarding receipt of these letters by insurance company. In view of non lodging of claim, registration of claim was not done by insurer. Complainant estopped by his act and conduct from filing the complaint because of non abiding to terms and conditions of insurance policy. Even police hurriedly filed untraced report at the time when intimation was not given to OPs by complainant. Without obtaining any written consent from insurance company, complainant suffered statement before the court of JMIC, Chandigarh that he is satisfied with the investigation of police and does not want any further investigation. By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 and affidavit of his daughter Ms. Ravneet Kaur Ex.CW-1/2 alongwith documents Ex.C-1 to Ex.C-5 and thereafter closed evidence. On the other hand counsel for OPs got recorded statement of HC Shamsher Singh of Police Station Sector 11, Chandigarh regarding registration of FIR No.26 dated 24.02.2016 and of submission of untraced report etc.  Counsel for OPs then tendered in evidence affidavit of Shri A.P. Singh, Sr. Deputy Manager Ex.OP-1/1 and documents Ex.OP-1 to OP-6 and thereafter closed evidence.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             From perusal of insurance cover note Ex.C-1 certainly it is made out that Activa in question was got insured by complainant with OPs for period from 20.10.2015 to midnight of 19.10.2016 by paying premium and that fact even not denied. Theft of this Activa as per claim of complainant took place on 26.11.2015 and knowledge of this theft even got by complainant and his daughter on 26.11.2015 itself, but FIR No.26 was lodged on 24.02.2016 as revealed by copy of FIR Ex.C-3. Certainly there is delay of 88 days atleast in reporting the matter to the police. When there is such a delay in reporting the matter to the police, then virtually the insurer is denuded of its right of pursuing the matter or of investigating the circumstances leading to alleged theft. On account of denial of valuable right to the insurer to investigate the matter at earliest, certainly insurer was prejudiced in his right of not pursuing the case properly before the police or investigating the matter.      

6.             It is vehemently contended by counsel for complainant that intimation regarding theft was given through letter Ex.C-2 dated 27.11.2015 to Branch Manager and further through letter  Ex.C-5 dated 25.08.2016, but counsel for OPs vehemently contends that these letters never received by insurance company. Submission of counsel for OPs in this respect certainly has force because of endorsement of receipt of these letters in the hands of any officials of insurance company is not there and nor postal receipts produced to show about dispatch of these letters to the insurance company. Being so, case of OPs fully believable that virtually intimation regarding theft was never given by complainant to OPs and nor any claim lodged by complainant with OPs.

7.             Perusal of order dated 22.08.2016 shows that report of untraceability was presented by SHO concerned police station and as such certainly report of untraceability was presented without proper investigation because perusal of Ex.C-4 reveals that case was sent as untraced on 11.04.2016 with the approval of senior officers.  If FIR was registered on 24.02.2016, then act of sending untraceability report on 11.04.2016 enough to show as if police even not investigated the matter properly. Rather police acted in haste in submitting untraced report. In such circumstances non submission of intimation by complainant with insurer certainly deprived the insurer of its right of conduct of due investigation or of calling upon the police to do needful for tracing the culprit.

8.             After going through Clause 1 (ii) of terms and conditions of policy Ex.OP-1, it is made out that insurer liable to reimburse insured regarding loss or damage to the vehicle in the event of burglary/house breaking or theft and as such certainly insurance claim payable, but other terms and conditions of insurance policy also have to be taken into consideration for finding as to whether claim actually payable by insurer or not.

9.             After going through condition No.1 available at Page-5 of Ex.OP-1, it is made out that notice in writing to the insurance company must be given immediately on occurrence of any accidental loss or damage and thereafter insured will give all such information and assistance as the insurance company requires. Further as per this Clause-1 in case of theft or criminal act, which may be the subject of any claim under the policy, the insured shall give immediate notice to the police and should cooperate with the insurance company in securing conviction of offender. Purpose of giving immediate information in writing is to enable the insurer to take the matter to logical end by way of securing conviction. As this intimation immediately not given,  and claim not lodged and as such certainly complainant violated terms and conditions of the insurance policy.  OPs called information from its office regarding lodging of claim and thereafter found through email correspondence Ex.OP-3 as if no intimation regarding claim was received by SVC and that is why no claim was registered qua the policy in question. Contents of Ex.OP-3 cannot be ignored and as such in view non lodging of any claim by complainant with OPs, entitlement of complainant for any amount is not there. Ex.OP-2 is same thing as is Ex.C-1 whereas Ex.OP-4 is copy of order dated 11.04.2016 vide which permission got by SHO of PS Sector 11, Chandigarh regarding submission of report of untraceability. Ex.OP-5 is copy of FIR and as such these documents virtually are the same as have been produced by complainant.

10.            As per ratio of case titled as Oriental Insurance Company Ltd. Vs. Jaina Construction Company Ltd., 2017(4) CPJ 243 (NC) in case there is delay of 5 months in giving intimation of theft of insured truck to the insurer, then repudiation of claim is justified because the insurer was deprived of its legitimate right to get the inquiry conducted into the alleged incidence of theft of vehicle. Even as per case of Reliance General Insurance Company Ltd. Vs. Naresh Walia, 2016 (3) CPJ 408  (NC) in case intimation to the insurance company not given of occurrence of theft etc. immediately, then repudiation of insurance claim is justified, more so when complainant concerned failed to produce any record to show dispatch of written intimation. Same is the position in the case before us, as discussed in detail above. Ratio of both these cases fully applicable to the facts of the present case. Even ratio of cases titled as Prabhat Khanna (Deceased) through LRs. Vs. New India Assurance Co. Ltd. 2017(1) CPR 480 (NC), Kotak Mahindra Prime Ltd. Vs. Rajaram 2017 (2) CPJ 210 (NC); Ravinder Singh Vs. Oriental Insurance Co. Ltd., 2017 (4) CPJ 327 (NC);  Universal Sompo General Insurance  Company Ltd. Vs. Roop Lal Dangi, 2017(2) CPJ 83 (NC); Bhartiya Samajik Vikas Samitee Vs. National Insurance Company Ltd. 2017(3) CPJ 49 (NC) lays the same proposition that delay in giving intimation of theft to the insurer is fatal to the case of complainant. Ratio of these cases fully applicable to the facts of the present case in view of above discussion and as such present complaint merits dismissal, more so when documents Ex.C-2 and Ex.C-5 seems to be fabricated just for creating evidence of giving of intimation regarding theft, but without adducing proof of their being dispatched to the insurer.

11.            As a sequel of above discussion, complaint dismissed without any order as to cost. Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 16, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member