BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.190 of 2014

Date of Instt. 10.6.2014

Date of Decision :01.01.2015.

Munish Goyal aged about 40 years Partner M/s Goyal Motors, Malsian Road, Shahkot, Jalandhar.

..........Complainant

Versus

The United India Insurance Company Ltd, Branch Office, Opposite Bus Stand, Nakodar, District Jalandhar through its Senior Manager.

.........Opposite party

Complaint Under Section 13 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.AK Sharma Adv., counsel for complainant.

Surinder Mohan Adv., counsel for opposite party.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint under section 13 of the Consumer Protection Act against the opposite party insurance company on the averments that the complainant is having an agency of Bajaj Auto Limited for the sale and service of the motor cycle Bajaj Pulsar at M/s Goyal Motors, Malsian Road, Shahkot, Jalandhar. The complainant got insured his showroom and all the contents lying in the showroom with opposite party under shopkeepers insurance policy scheme and the insurance policy number of the firm of the complainant is 200503/48/12/34/00000071 and the period of the insurance is from 11.6.2012 to 10.6.2013 and the complainant has deposited the insurance premium of Rs.20,320/- with the office of opposite party. The insurance policy covers the burglary also. On 15.1.2013 at about 3.30 PM, a Hindu young man came to the showroom of the complainant and he showed his willingness to purchase of Pulsar motor cycle and he selected a Pulsar motorcycle colour black 135 CC having chasis No.MD-2-A-17-CZ4CWJ01025 and engine No.JEZWCJ04570. The said young man asked for a test drive and the employee of the complainant namely Jyoti Parkash tried to sit behind him but all of a sudden, the said young man started the motorcycle and ran away from the spot. The employees of the complainant chased him but the said young man managed to escape. The intimation regarding the theft of the motorcycle was given to the police of Police Station Shahkot District Jalandhar, on the same day i.e 15.1.2013 and the entry regarding the theft was entered by the police in the DDR register vide entry No.3 dated 15.1.2013 and the investigation of the same was entrusted to ASI Charanjit Singh. The police assured the complainant that they will soon arrest the person and will get recover the above said vehicle at the earliest. The police have later on registered a FIR No.42 dated 29.3.2013 at PS Shahkot District Jalandhar under section 379/420 of IPC against an unknown person in this regard. The police have not traced the above said vehicle till date. The complainant has also filed a claim with the office of opposite party but the opposite party have declined or repudiated the valid claim of the complainant vide letter dated 24.10.2013 without any reasonable cause. The complainant has also got issued a legal notice dated 5.5.2014 through registered post to the opposite party. But the opposite party has not replied the said notice despite the service of the notice. The opposite party failed to make the payment of the valid claim of the complainant. On such like averments, the complainant has prayed for directing the opposite party to pay him Rs.60,559/- i.e price of the above said motorcycle alongwith interest. It has also claimed compensation and litigation expenses.

2. Upon notice, opposite party insurance company appeared and filed a written reply pleading that the complainant did not give the immediate intimation/notice of the loss, if any, to the insurance company/opposite party, as such the complainant has deprived the opposite party of its right to depute immediately the surveyor to investigate the true facts of the case. The complainant also did not lodge forthwith a complaint with the police. There is delay of more than 75 days in giving the information to the police, the complainant gave intimation to the opposite party on 12.4.2013 after about 85/86 days of the alleged incident which shows that the alleged incident is totally false and concocted story. As such there is violation of the terms and conditions of the insurance policy. So the present complaint is liable to be dismissed. The loss, if any, was on account of the willful the gross negligence of the complainant/insured. It is necessary to mention here that the insured has failed to take all reasonable steps to safeguard the property insured against any loss or damage. It is further wrong, incorrect and specifically denied that the intimation regarding the theft of the motorcycle was given to the police of police station Shahkot District Jalandhar, on the same day i.e 15.1.2013 and entry regarding the theft was entered by the police in the DDR register vide entry No.3 dated 15.1.2013, the said entry is totally false and fabricated and result of fraud and misrepresentation. It is further submitted that the complainant has no legal right to approach the opposite party because the claim of the complainant is not genuine and totally false and baseless, same is not sustainable in the eyes of law, there is violation of terms and conditions of the insurance policy, as such the opposite party has repudiated the false claim of the complainant for the valid reasons after application of the proper mind judiciously vide letter dated 24.10.2013. They denied other material averments of the complainant.

4. In support of his complaint, learned counsel for complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to C8 and closed evidence.

5. On the other hand, learned counsel for opposite party has tendered affidavits Ex.OP/A and Ex.OP/B alongwith copies of documents Ex.OP1 to Ex.OP4 and closed evidence.

6. We have carefully gone through the record and also heard learned counsel for the parties.

7. Counsel for the complainant contended that on 15.1.2013 at about 3.30 PM, a Hindu young man came to the showroom to purchase a Pulsar motor cycle and selected one Pulsar motorcycle. He further contended that the said person asked for a test drive and the employee of the complainant firm tried to sit behind him but all of a sudden, the said person started the motorcycle and fled away from the spot. He further contended that employees of the complainant firm tried to chase him but he managed to escape. He further contended that intimation regarding the theft of the motorcycle was given to the police of Police Station Shahkot District Jalandhar, on the same day i.e 15.1.2013 and the entry in the DDR register was made and investigation of the case was entrusted to ASI Charanjit Singh. He further contended that police later on registered a FIR No.42 dated 29.3.2013 at PS Shahkot District Jalandhar under section 379/420 of IPC against an unknown person in this regard but police have failed to trace the above said vehicle till date. He further contended that complainant has lodged the claim with the opposite party but the opposite party has repudiated the claim of the complainant vide letter dated 24.10.2013 without any reasonable cause. On the other hand, it has been contended by learned counsel for the opposite party that FIR was registered after more than 75 days and further the complainant given intimation to the opposite party insurance company on 12.4.2013 after about 85/86 days of the alleged incident, which constitute violation of the terms and conditions of the insurance policy. He further contended that loss, if any, was on account of gross negligence on the part of the complainant firm as it failed to take reasonable steps to safeguard the insured property against the loss or damage. He further contended that copy of document Ex.C-3 is forged and fabricated one. He further contended that FIR Ex.C-4 was registered on 29.3.2013 after inordinate delay. He further contended that intimation to the insurance company was also given belatedly and in case the intimation has been given to the insurance company without any delay then insurance company might have coordinated with the police to trace the motorcycle. Counsel for the complainant contended that from the letter Ex.O2 it is evident that intimation was given to the insurance company on 23.1.2013. On the other hand, counsel for the insurance company contended that this letter was given to the insurance company on 12.4.2013 and this date is mentioned on the above said letter. He further contended that even if the letter was given on 23.1.2013, there is inordinate delay of 8 days in reporting the matter to the insurance company which constitute violation of the terms and conditions of the policy. We have carefully considered the contentions advanced by learned counsels for both the parties. The alleged occurrence or theft of the motorcycle took place on 15.1.2013. In the complaint, the complainant has not mentioned the date of giving intimation to the insurance company. In para No.4 of the complaint, it has been pleaded that complainant has also filed the claim with the office of opposite party but the opposite party has declined or repudiated the valid claim of the complainant vide letter dated 24.10.2013 without any reasonable cause. Ex.OP2 is letter of intimation to the insurance company. On the top of the letter date of 23.1.2013 is mentioned but it is shown to have been received by opposite party on 12.4.2013. This date is mentioned on the above said letter. The opposite party has produced the letter of repudiation dated 24.10.2013 Ex.OP4 wherein it is mentioned that this has referrence to the complainant, claim intimation dated 23.1.2013 regarding theft of the vehicle on 15.1.2013. So date of intimation is taken as 23.1.2013. So the loss was intimated to the insurance company after a delay of about 8 days. Ex.C-5 is shopkeeper insurance policy produced by the complainant himself. Condition no.5 lays down as under:-

5. Claim Procedure:-

(i) The insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under the policy:-

(a) in the event of theft, lodge forthwith a complaint with the police and take all practiables steps to apprehend the guilty person or persons and to recover the property lost.

(b) give immediate notice thereof to the company and shall within fourteen(14) days thereafter furnish to the company at his own expense, detailed particulars of the amount of the loss or damage together with such explanation and evidence to substantiate the claim as the company may reasonably require".

7. So as per condition No.5 of the policy the complainant was required to give intimation regarding theft of the motorcycle immediately to the insurance company but it was given after 8 days. The parties are bound by the terms and conditions of the insurance policy.

8. In M/s V.K.Kariyana Store Vs. The Oriental Insurance Co.Ltd & Others, 2014(3) CLT, it has been held as under:-

"It is well settled principle of law that the parties are bound by the terms and conditions of the insurance policy, and none of the parties can seek any relief beyond those terms and conditions. In this regard reference may be made to the recent observation made by the Hon'ble Supreme Court of India in case cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd Vs United India Insurance Co.LTd, & Anr, 2011(a) CLT 485(SC)=2011 CTJ 11 (SC) (CP) wherein the Division Bench of the Hon'ble Apex Court consisting of Hon'ble Mr.Justice D.K.Jain and Hon'ble Mr.Justice T.S.Thakur, held that:-

"22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity."

9. Further in Bachan Singh Vs. The Oriental Insurance Co.Ltd, 2014(3) CLT 103, Hon'ble National Commission has held as under:-

"We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. It is clear from the material on record that there has been delay in lodging the FIR and in giving intimation to the insurance company about the alleged incident. The FIR has been registered on 26.6.2005, whereas the incident is stated to have occurred on 4.6.2005. On this score, we are in agreement with the observations of the State Commission made in the impugned order that if the FIR was not registered by the police, even then the complainant should have moved some application to set the law in motion regarding the theft. Further, the learned counsel for the petitioner admitted during admission hearing that formal intimation was given tot he insurance company on 4.7.2005, i.e after a lapse of one month of the incident. The investigator appointed by the insurance company has commented adversely on the working of the Branch Manager, A.K.Wadhwa and Development Officer-Pardeep Dhingra, recommending action against them. In view of the position brought out during the investigation, it is clear that the intimation was not promptly given to the insurance company. The State Commission have rightly relied upon the order passed by this commission in New India Insurance Company Vs. Trilochan Jane, F.A.No.321 of 2005, decided on 9.12.2009h, saying that the claim was not payable in the present case. In the case quoted above, FIR was lodged two days after the theft and insurance company was given intimation after nine days and the said delay was found fatal to the payment of claim. We therefore, agree with the State Commission that the complaint is liable to be dismissed on the ground of the late registration of FIR and late intimation to the insurance company".

10. Further in Lakhan Pal Vs. United India Insurance Co.Ltd, 2013(3) CLT 77, the Hon'ble National Commission has held as under:-

"It is an admitted case that vehicle was stolen on the intervening night of 14/15.3.2004. FIR No.198 was lodged on 21.3.2004, i.e after 7 days of theft and intimation to OP/respondent was given on 7.4.2004, i.e after 23 days of occurrence. Learned State Commission has rightly observed that there was violation of the conditions of the policy, as the complainant has failed to inform the insurance company immediately after the alleged theft. Learned State Commission has not committed any error in allowing appeal and dismissing complaint on the basis of judgment passed by this commission in Devendra Singh Vs. NIA and Ors-III(2003) CPJ 77(NC).

This commission in F.A.No.321 of 2005 New India Assurance Co.Ltd VS. Trilochan Jane dismissed the complaint on the ground that there was delay of 2 days in lodging FIR and delay of 9 days in giving intimation to insurance company.

In the present case, as there was delay of 7 days in lodging FIR and delay of 23 days in intimating the insurance company, learned State Commission has not committed any error in allowing appeal.

11. Further in Oriental Insurance Co.Ltd Vs. K.K.Valsalan, 2014(3) CLT 169, the Hon'ble National Commission has held as under:-

"Learned counsel for the petitioner submitted that admittedly, complainant's driver left both the ignition keys alongwith vehicle's documents in the vehicle and left the vehicle unattended and violated condition no.5 of the policy. Condition No.5 of the policy runs as under:-

Condition No.5:-

"The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".

Perusal of aforesaid condition makes it clear that driver was under an obligation to take ignition key of the vehicle with him while going to nearest hotel to take tea. Admittedly, he returned after half and hour and found that the vehicle was missing. Leaving both the ignition keys in the vehicle and going to hotel in the mid-night for taking tea and returning after half an hour can be said that complainant's driver left the vehicle unattended without proper precautions and thus, has violated condition No.5 of the insurance policy and learned District Forum committed error in allowing complaint".

13. The ratio of above cited authorities is applicable on the facts of the present case. Firstly, there is delay of 8 days in intimating the theft to the insurance company. As already observed above, insured was under obligation to intimate to the loss to the insurance company immediately. In case the insured had intimated the loss or theft to the insurance company immediately it might have coordinate with the police to recover the stolen motorcycle and further might have appointed the surveyor or investigator to verify the genuineness of the occurrence. FIR in this case was also registered after inordinate delay. Further the complainant failed to take reasonable precautions to prevent loss or theft as the motorcycle was given to a stranger for test drive without any employee accompanying him. Even the name of the person to whom the motorcycle was given for test drive is not known. His ID Card or mobile number was not kept. The version of the complainant that Jyoti Parkash an employee of the company try to sit behind the said unknown person but all of sudden he started the motorcycle and ran away from the spot can not be accepted. Affidavit of said Jyoti Parkash has not been tendered. So failure to take reasonable steps to safeguard the insured property also constitute violation of the condition of the policy. Further as per insurance policy the name of the insured is M/s Goyal Motors but the present complaint has been filed by Munish Goyal Partner of M/s Goyal Motors. The complaint was required to be filed by M/s Goyal Motors through its partner. So complaint is also not properly framed.

14. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

01.01.2015 Member President