Punjab

Patiala

CC/16/174

Harbans Singh - Complainant(s)

Versus

U II Co. Ltd Branch office - Opp.Party(s)

Vikas Mittal

02 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Consumer Complaint No. 174 of 29.4.2016

                                                          Decided on:            02/11/2018

 

Harbans Singh son of S.Harchand Singh, resident of House No.111, Street No.21, Bhakhra Enclave, Mallo Majra, Patiala.

                                                                   …………...Complainant

                                      Versus

United India Insurance Co. Ltd., Branch office Leela Bhawan Market, Patiala through its Manager.

                                                                   …………Opposite Party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Neelam Gupta, Member

                                      Sh.Kanwaljeet Singh, Member         

ARGUED BY

                                       Sh. Vikas Mittal Advocate, counsel for complainant.

                                      Sh. D.P. S. Anand Advocate, counsel for OP.                       

 ORDER

                                    M. P. SINGH PAHWA, PRESIDENT

          This is the complaint filed by Sh.Harbans Singh (hereinafter referred to as the complainant) against  United India Insurance Co. Ltd.(hereinafter referred to as the OP).

2.       Briefly, the case of the complainant is that he is the owner of vehicle make  Truck-Tralla AMW-4018 bearing registration No.PB-11-AR-9869.He got it insured with the OP after paying huge premium , for the period from 11.12.2014 to 10.12.2015, vide policy No.1110063114P107656022. It is further pleaded that on the intervening night of 31^st Aug. 2015/1^st September,2015, the truck-trallo was stolen from petrol pump at village Panjeta. Intimation in this regard was verbally given to local office of the OP personally by the complainant, visiting on the next day. After conducting enquiry the case FIR No.163 dated 9.9.2015 was lodged. After registration of FIR, the copy of the FIR and other necessary documents were supplied to the OP by the complainant. Later on, the OP appointed Investigator. He obtained signatures of the complainant and other persons on various papers by writing statement at his own and without disclosing the contents of the documents with the promise that the insurance claim has been processed and shall be released to the complainant soon. Thereafter, complainant approached and requested OP to pay insurance amount as per terms and conditions of the policy but the OP has been putting off the matter since long. No amount has been paid to the complainant. It is alleged that at the fag end, the OP told the complainant that they have repudiated the claim vide letter dated 31.3.2016. No reason was assigned for repudiation of the claim.Finding no other alternative,  the complainant got served legal notice dated 12.4.2016 through counsel requesting OP to release the amount with interest @18% per annum w.e.f. date of theft till realization and Rs.1,00,000/- as compensation for mental agony, tension, harassment, humiliation and inconvenience and Rs.5500/- towards the cost of legal notice. But to no response.     On this background of the facts, the complainant has alleged that the OP is indulging in mal practice and unfair trade practice, which also amounts to deficiency in service on its part. Hence this complaint with the prayer for direction to the OP to release the insurance amount with interest @18% per annum, Rs.one lac compensation and Rs.11,000/- litigation expenses.

3.       Upon notice, OP appeared through counsel and contested the claim by filing written reply. In the reply, the OP raised preliminary objections that the complaint is not maintainable as the claim of the complainant has already been repudiated as the truck was allegedly stolen on 31.8.2015 and intimation of loss was given on 16.9.2015, which amounts to violation of condition No.1 of the policy. The insured was to intimate the loss in writing immediately. Moreover, the complainant has concealed the correct facts of the mode of loss.As  per FIR, the insured vehicle was stolen while parked at a petrol pump of village Panjeta but in fact the truck was taken away by the driver of the complainant, which amounts to violation of terms and conditions of the policy.That the complainant has no cause of action and locus standi to file the complaint. Complaint does not qualify ingredients of a valid complaint as envisaged in Section 2(1) (c) of C.P.Act because there is not a single allegation which leads the OP to either deficiency of service or unfair trade practice. That the complicated questions of facts and law are involved in the complaint which can only be decided by the civil court. The OP float the Insurance Scheme for the public in general, after prior approval of the Insurance Regulatory and Development Authority (IRDA) and all the terms and conditions of the respective insurance policies are set by the IRDA under the IRDA Act 1999 and Insurance Act,1938; that complicated questions of the law and facts are involved for which civil court is competent to try the dispute.

4.       On merits, it is asserted that the complainant is not a consumer of the OP as defined under the C.P.Act. It is denied that the complainant is the owner of the truck in question. However, it is admitted that the truck –trolla in question was insured with the OP for the period from 11.12.2014 to 10.12.2015 for a sum of Rs.16lac in the name of the complainant but the liability is denied. It is denied that on 31.8.2015, the insured truck was stolen from the petrol pump of village Panjeta.

          It is revealed that on receipt of intimation of loss, immediately the OP deputed M/s BEE VEE Investigating agency, Patiala, approved Investigator to investigate the case. Investigator in his report dated 8.10.2015, found  that no theft of insured truck was taken place but it has been taken away by the driver of the complainant as per statement of the owner of the petrol pump Sh. B. L. Ranga but unfortunately the Investigator could not proceed further  with the report as he was threatened by the complainant to commit suicide if the investigator recommends to reject the claim. Resultantly another investigator Sh.Ashok Kumar was deputed. He in his report dated 18.2.2016 also found that the truck was not stolen as reported. In fact it was taken away by the driver of the complainant. It is pleaded that the  police  had registered a false FIR dated 9.9.2015 Under Section 379 IPC, P.S.Sadar, Patiala at the instance of the complainant as no theft of the insured truck has taken place. It is denied that the complainant has supplied all the documents. It is denied that the Investigator obtained signatures of the complainant on various papers and recorded the statement of his own. It is denied that the investigator promised that complainant will get the claim by giving his signature and signatures of other people. It is also asserted that the claim of the complainant has been thoroughly investigated. It was repudiated as per terms and conditions of the policy. Complainant has been informed vide letters dated 31.3.2016 and 17.4.2016. The receipt of the legal notice is not denied but it is stated that it was duly replied vide letter dated 22.4.2016. All  other  averments of the complainant have been denied. In the end, the OP prayed for the dismissal of the complaint.

5.       The parties were afforded opportunity to produce their evidence.

6.       In support of the complaint, the complainant tendered in to evidence his affidavit, Ex.CA, copy of the policy, Ex.C1, copy of FIR, Ex.C2, copy of letter dated 31.3.2016, Ex.C3, copy of legal notice, Ex.C4, postal receipts, Ex.C5,  copy of untraced report,Ex.C6,, copy of order dated 29.4..2016, Ex.C7 and closed the evidence.

7.       In rebuttal, the OP has tendered in evidence affidavit of Sh.Uma Dhir, Ex.OPA, copy of the policy Ex.OP1, copy of claim intimation slip Ex.OP2, copy of report dated 1.10.2015 Ex.OP3, copy of slip Ex.OP4, copy of report dated 18.2.2016 Ex.OP5, copy of letter dated 13.10.2015 Ex.OP6, copy of application moved by the complainant Ex.OP7, copy of FIR Ex.OP8, copy of reply to legal notice Ex.OP9, copy of letter dated 17.4.2016 Ex.OP10, copy of registered cover Ex.OP11, copy of letter dated 17.4.2016 Ex.OP13, copy of letter dated 31.3.2016 Ex.OP14, copy of letter dated 17.4.2016 Ex.OP15  and  closed the evidence.

8.       We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.

9.       The ld. counsel for the complainant has reiterated his stand as taken in the complaint. It is further submitted that it is not disputed that the vehicle in question was got insured from the OP. Copy of policy Ex.C1 also proves this fact. The IDV of the vehicle was Rs.16lac. Covered period was 11.12.2014 to 1.12.2015. Theft of the vehicle took place on 1.9.2015 i.e. within covered period. Matter was reported to the police vide FIR dated 9.9.2015 (Ex.C2). Although there is some delay in getting registered the FIR but the complainant made search for the vehicle at his own level and thereafter he reported the matter to the police. The delay is fully explained. No prejudice has been caused to the OP for this delay. The OP got investigated the matter firstly through M/s BEE VEE Investigating agency and then through Ashok Kumar, the approved investigator. Both the investigation reports are relied upon by the OP as Exs.OP3 & OP5. H.S.Bedi, Investigator has not come to any conclusion although he has alleged that complainant threatened to commit suicide if the report is made against him but there is nothing to corroborate this fact.

Ashok Kumar, in his report Ex.OP5 has concluded that truck has been stolen/taken away by the driver but he has also concluded that the factum of theft has been confirmed by neighbour. The Investigator also recommended for settlement of the claim subject to the terms and conditions of the policy. The Investigator has no where recommended for repudiation of the claim. From the report of Investigator also it is clear that no prejudice has been caused to the OP for delay in reporting the matter to the OP. The OP has repudiated the claim vide letter dated 31.3.2016,Ex.C3, on the ground of violation of condition no.1 of the policy and concealment of facts. Condition No.1 requires notice to the OP immediately upon  occurrence of the accident, loss or damage. As no prejudice has been caused to the OP for delay in intimation and delay is properly explained, therefore, the repudiation of the claim is not sustainable and is liable be to setaside.

It is also submitted by the ld. counsel for the complainant that when the matter was already reported to the police vide FIR, the OP was not to appoint any Investigator to investigate the fact which is already under investigation by the police. From all angles the repudiation is not justified.

To support this submission, the ld. counsel for the complainant has cited 2018(1)RCR 43 Om Parkash Versus Reliance General Insurance an d Anr., III(2008) CPJ 459 Ridhi Gupta versus National Insurance Co. Ltd.,

10.     On the other hand, the ld. counsel for the OP has submitted that the claim is based on insurance policy, copy of which is Ex.C1. The OP has also filed on record  complete copy of policy, Ex.OP1. It also contains terms and conditions . When the claim is based on policy, parties are bound by the terms and conditions.  

        The claim is on the basis of alleged theft, which took placed on the intervening night of 31^st August/1^st September,2015. Matter was reported to the police on 9.9.2015 i.e. after a delay of 9 days. The claim was lodged with OP on 16.9.2015. As per condition No.1 of the terms and conditions, notice was required to be given in writing to the OP immediately upon the occurrence of the loss. Therefore, the complainant has breached the basic condition of the policy, As such, the complainant was not entitled to any claim.

          It is further submitted by the ld. counsel for the OP that the complainant has also not approached the Forum with clean hands. He has also concealed the material facts. Complainant has relied upon FIR. As per this FIR, the vehicle was found stolen on the next morning by some un-known person. But during investigation by the investigator it was concluded that the vehicle was stolen by the driver of the complainant. Therefore, there was concealment of material facts by the complainant. The repudiation of the claim on this ground is also justified.

 To support these submissions, the ld. counsel for the OP has cited

(i)      “IV(2018) CPJ 93(NC) New India Assurance Co. Ltd. versus Neerja Singh”

(ii)     “II(2015)CPJ 727(NC) Jaspal Kaur & Anr. Versus New India Assurance Company Limited”

3.     “II(2017) CPJ 83(NC) Universal Sompo General Insurance Company Limited versus Roop Lal Dangi”

(iv)    “IV (2017) CPJ 243(NC) Oriental Insurance Company Limited Versus Jaina Construction Company & Anr.”

(v)     “IV(2017) CPJ 327(NC) Ravinder Singh versus Oriental Insurance Co. Ltd. & Anr.”

(vi)    “IV(2017) CPJ 142(NC) Bhushan Kumar Versus National Insurance Co. Ltd. & Ors.”

(vii)   “2017(1) CLT 375 Virendra Singh Raghuvanshi versus Oriental Insurance Co. Ltd.”

11.     We have given careful consideration to the submission and the case law, relied upon by the ld. Counsel for the parties.

12.     The admitted facts are that the complainant being owner of the vehicle No.PB- 11-AR -9869, got insured the same from the OP vide policy,Ex.C1. The covered period was 11.12.2014 to 10.12.2015.IDV of the vehicle in question is Rs.16lac.

 As per complainant the theft took place on the intervening night of 31^st August/1^st September/2015. Claim was lodged with the OP and the OP repudiated the claim vide letter Ex.C3 dated 31.3.2016. A perusal of this letter reveals that the claim has been repudiated for violation of condition No.1 and concealment of the facts, which is stated to be breach of utmost  good faith. Concealment of facts is not briefed in the letter but from the written version it emerges that the vehicle was not stolen but it was taken away by the driver of the complainant.

13.     Firstly coming to the point of effect of delay. The complainant has brought on record copy of FIR, Ex.C2. It is dated 9.9.2015. In this FIR, complainant has reported that till that time he was making search of the vehicle and his driver but to no effect. In this way the complainant has explained the delay in reporting the matter to the police. Even otherwise it is settled proposition that in case of theft of such likes vehicles, no person immediately go to lodge the claim and the first attempt is to make search of the vehicle at his own level.

          The Hon’ble Supreme Court, in the case of Om Parkash Vs. Reliance General Insurance and Anr., CPJ 10(SC), has also explained the effect of delay in lodging the claim. The observation given in paragraph 11 is relevant. The same is being reproduced as under

“11. It is common knowledge that a person who lost his vehicle may not straightway go to the Insurance company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in imitation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs to emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act”.

Therefore, it is held by the Hon’ble Supreme Court also that if reason for delay is satisfactory explained and the claim is not to be rejected which had already been verified and found to be correct by the investigator.

At the cost of repetition, the complainant has explained the reason of delay in FIR. The OP has appointed investigator. The reports of the Investigators are Exs.OP3 and OP5. Report, Ex.OP3 is inconclusive but not due to any delay in reporting the matter. The investigator has avoided to submit the report for the reason that complainant allegedly threatened to commit suicide in case the report is made  against him.But there is no material on record to prove any alleged threat by the complainant.

          The OP also appointed another investigator Ashok Kumar. His report is on file as Ex.OP5. In his report, he has  recorded findings/conclusion, wherein he has also confirmed from neighbour the factum of theft of the vehicle as reported by the complainant. Of course ultimately  the surveyor has opined  that the truck had been stolen/taken away by the driver of the complainant on the afternoon of 1.9.2015 and had not been stolen by some un known person during the intervening night of 31.8.2015/1.9.2015, but his opinion is based on statement of B. L. Ranga who is not an eye witness to the loss either of un known person or by driver. In the end, the investigator has also recommended that the claim lodged by the complainant may be settled subject to terms and conditions of the policy. He has no where referred to breach of any terms and conditions. There is also nothing to show that any prejudice has been caused to the OP for delay in information. In these circumstances, observations of Hon’ble Supreme Court are also fully applicable.. The  repudiation on the ground of delay is not justified.

          The OP has also alleged mis-statement of facts but there is nothing to prove any mis statement of facts. Even otherwise the loss is established either by un- known person or by the driver. In the case of IV(2018) CPJ 93(NC) New India Assurance Co. Ltd. versus Neerja Singh, it was observed that cause of malicious act by the driver will also be covered under the insurance policy, taken by the owner of the vehicle. From both angels, repudiation of the claim is not justified.

14.     Now coming to the amount for which the complainant can be held entitled in the case of theft.

          The IDV of the vehicle was Rs.16 lac. It is well settled that in case of theft the IDV remain unchanged for the covered period. Therefore, the complainant is entitled to Rs.16lac, being IDV of vehicle. The OP has repudiated the claim without any justification.Therefore, the complainant is also entitled to interest @9% per annum from the date of repudiation i.e. 1.4.2016.

          The claim is based on insurance policy,Ex.C1.Although the complainant has not revealed the fact of hypothecation but the policy reveals that the vehicle was financed by SBOP, branch Patiala. Therefore, the first charge on this amount will be of SBOP branch. Out of this amount, the amount due against the complainant with the financer i.e. SBOP branch, Patiala has to be payable and the remaining amount if any is to be paid to the complainant.

15.     For the reasons recorded above, the complaint is partly accepted with costs of Rs.10,000/-. The complainant is held entitled to claim of Rs.16 Lac with interest @ 9% from the date of repudiation i.e. 31/03/2016 till payment.  However out of due amount payable to the complainant, the amount due against the complainant to the financer of the complainant i.e. State Bank of Patiala branch Patiala is payable first and thereafter the remaining amount if any be paid to the complainant.

                   It is further made clear that the OP will be entitled to get executed the documents from the complainant if any required for subrogation of the ownership of the vehicle in question in their names.

 The compliance of the order be made by the OP within a period of 45 days from the date of receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:2.11.2018       

 

  Kanwaljeet Singh                  Neelam Gupta             M. P. Singh Pahwa

       Member                                 Member                                      President

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Consumer Complaint No. 174 of 29.4.2016

                                                          Decided on:            02/11/2018

 

Harbans Singh son of S.Harchand Singh, resident of House No.111, Street No.21, Bhakhra Enclave, Mallo Majra, Patiala.

                                                                   …………...Complainant

                                      Versus

United India Insurance Co. Ltd., Branch office Leela Bhawan Market, Patiala through its Manager.

                                                                   …………Opposite Party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Neelam Gupta, Member

                                      Sh.Kanwaljeet Singh, Member         

ARGUED BY

                                       Sh. Vikas Mittal Advocate, counsel for complainant.

                                      Sh. D.P. S. Anand Advocate, counsel for OP.                       

 ORDER

                                    M. P. SINGH PAHWA, PRESIDENT

          This is the complaint filed by Sh.Harbans Singh (hereinafter referred to as the complainant) against  United India Insurance Co. Ltd.(hereinafter referred to as the OP).

2.       Briefly, the case of the complainant is that he is the owner of vehicle make  Truck-Tralla AMW-4018 bearing registration No.PB-11-AR-9869.He got it insured with the OP after paying huge premium , for the period from 11.12.2014 to 10.12.2015, vide policy No.1110063114P107656022. It is further pleaded that on the intervening night of 31^st Aug. 2015/1^st September,2015, the truck-trallo was stolen from petrol pump at village Panjeta. Intimation in this regard was verbally given to local office of the OP personally by the complainant, visiting on the next day. After conducting enquiry the case FIR No.163 dated 9.9.2015 was lodged. After registration of FIR, the copy of the FIR and other necessary documents were supplied to the OP by the complainant. Later on, the OP appointed Investigator. He obtained signatures of the complainant and other persons on various papers by writing statement at his own and without disclosing the contents of the documents with the promise that the insurance claim has been processed and shall be released to the complainant soon. Thereafter, complainant approached and requested OP to pay insurance amount as per terms and conditions of the policy but the OP has been putting off the matter since long. No amount has been paid to the complainant. It is alleged that at the fag end, the OP told the complainant that they have repudiated the claim vide letter dated 31.3.2016. No reason was assigned for repudiation of the claim.Finding no other alternative,  the complainant got served legal notice dated 12.4.2016 through counsel requesting OP to release the amount with interest @18% per annum w.e.f. date of theft till realization and Rs.1,00,000/- as compensation for mental agony, tension, harassment, humiliation and inconvenience and Rs.5500/- towards the cost of legal notice. But to no response.     On this background of the facts, the complainant has alleged that the OP is indulging in mal practice and unfair trade practice, which also amounts to deficiency in service on its part. Hence this complaint with the prayer for direction to the OP to release the insurance amount with interest @18% per annum, Rs.one lac compensation and Rs.11,000/- litigation expenses.

3.       Upon notice, OP appeared through counsel and contested the claim by filing written reply. In the reply, the OP raised preliminary objections that the complaint is not maintainable as the claim of the complainant has already been repudiated as the truck was allegedly stolen on 31.8.2015 and intimation of loss was given on 16.9.2015, which amounts to violation of condition No.1 of the policy. The insured was to intimate the loss in writing immediately. Moreover, the complainant has concealed the correct facts of the mode of loss.As  per FIR, the insured vehicle was stolen while parked at a petrol pump of village Panjeta but in fact the truck was taken away by the driver of the complainant, which amounts to violation of terms and conditions of the policy.That the complainant has no cause of action and locus standi to file the complaint. Complaint does not qualify ingredients of a valid complaint as envisaged in Section 2(1) (c) of C.P.Act because there is not a single allegation which leads the OP to either deficiency of service or unfair trade practice. That the complicated questions of facts and law are involved in the complaint which can only be decided by the civil court. The OP float the Insurance Scheme for the public in general, after prior approval of the Insurance Regulatory and Development Authority (IRDA) and all the terms and conditions of the respective insurance policies are set by the IRDA under the IRDA Act 1999 and Insurance Act,1938; that complicated questions of the law and facts are involved for which civil court is competent to try the dispute.

4.       On merits, it is asserted that the complainant is not a consumer of the OP as defined under the C.P.Act. It is denied that the complainant is the owner of the truck in question. However, it is admitted that the truck –trolla in question was insured with the OP for the period from 11.12.2014 to 10.12.2015 for a sum of Rs.16lac in the name of the complainant but the liability is denied. It is denied that on 31.8.2015, the insured truck was stolen from the petrol pump of village Panjeta.

          It is revealed that on receipt of intimation of loss, immediately the OP deputed M/s BEE VEE Investigating agency, Patiala, approved Investigator to investigate the case. Investigator in his report dated 8.10.2015, found  that no theft of insured truck was taken place but it has been taken away by the driver of the complainant as per statement of the owner of the petrol pump Sh. B. L. Ranga but unfortunately the Investigator could not proceed further  with the report as he was threatened by the complainant to commit suicide if the investigator recommends to reject the claim. Resultantly another investigator Sh.Ashok Kumar was deputed. He in his report dated 18.2.2016 also found that the truck was not stolen as reported. In fact it was taken away by the driver of the complainant. It is pleaded that the  police  had registered a false FIR dated 9.9.2015 Under Section 379 IPC, P.S.Sadar, Patiala at the instance of the complainant as no theft of the insured truck has taken place. It is denied that the complainant has supplied all the documents. It is denied that the Investigator obtained signatures of the complainant on various papers and recorded the statement of his own. It is denied that the investigator promised that complainant will get the claim by giving his signature and signatures of other people. It is also asserted that the claim of the complainant has been thoroughly investigated. It was repudiated as per terms and conditions of the policy. Complainant has been informed vide letters dated 31.3.2016 and 17.4.2016. The receipt of the legal notice is not denied but it is stated that it was duly replied vide letter dated 22.4.2016. All  other  averments of the complainant have been denied. In the end, the OP prayed for the dismissal of the complaint.

5.       The parties were afforded opportunity to produce their evidence.

6.       In support of the complaint, the complainant tendered in to evidence his affidavit, Ex.CA, copy of the policy, Ex.C1, copy of FIR, Ex.C2, copy of letter dated 31.3.2016, Ex.C3, copy of legal notice, Ex.C4, postal receipts, Ex.C5,  copy of untraced report,Ex.C6,, copy of order dated 29.4..2016, Ex.C7 and closed the evidence.

7.       In rebuttal, the OP has tendered in evidence affidavit of Sh.Uma Dhir, Ex.OPA, copy of the policy Ex.OP1, copy of claim intimation slip Ex.OP2, copy of report dated 1.10.2015 Ex.OP3, copy of slip Ex.OP4, copy of report dated 18.2.2016 Ex.OP5, copy of letter dated 13.10.2015 Ex.OP6, copy of application moved by the complainant Ex.OP7, copy of FIR Ex.OP8, copy of reply to legal notice Ex.OP9, copy of letter dated 17.4.2016 Ex.OP10, copy of registered cover Ex.OP11, copy of letter dated 17.4.2016 Ex.OP13, copy of letter dated 31.3.2016 Ex.OP14, copy of letter dated 17.4.2016 Ex.OP15  and  closed the evidence.

8.       We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.

9.       The ld. counsel for the complainant has reiterated his stand as taken in the complaint. It is further submitted that it is not disputed that the vehicle in question was got insured from the OP. Copy of policy Ex.C1 also proves this fact. The IDV of the vehicle was Rs.16lac. Covered period was 11.12.2014 to 1.12.2015. Theft of the vehicle took place on 1.9.2015 i.e. within covered period. Matter was reported to the police vide FIR dated 9.9.2015 (Ex.C2). Although there is some delay in getting registered the FIR but the complainant made search for the vehicle at his own level and thereafter he reported the matter to the police. The delay is fully explained. No prejudice has been caused to the OP for this delay. The OP got investigated the matter firstly through M/s BEE VEE Investigating agency and then through Ashok Kumar, the approved investigator. Both the investigation reports are relied upon by the OP as Exs.OP3 & OP5. H.S.Bedi, Investigator has not come to any conclusion although he has alleged that complainant threatened to commit suicide if the report is made against him but there is nothing to corroborate this fact.

Ashok Kumar, in his report Ex.OP5 has concluded that truck has been stolen/taken away by the driver but he has also concluded that the factum of theft has been confirmed by neighbour. The Investigator also recommended for settlement of the claim subject to the terms and conditions of the policy. The Investigator has no where recommended for repudiation of the claim. From the report of Investigator also it is clear that no prejudice has been caused to the OP for delay in reporting the matter to the OP. The OP has repudiated the claim vide letter dated 31.3.2016,Ex.C3, on the ground of violation of condition no.1 of the policy and concealment of facts. Condition No.1 requires notice to the OP immediately upon  occurrence of the accident, loss or damage. As no prejudice has been caused to the OP for delay in intimation and delay is properly explained, therefore, the repudiation of the claim is not sustainable and is liable be to setaside.

It is also submitted by the ld. counsel for the complainant that when the matter was already reported to the police vide FIR, the OP was not to appoint any Investigator to investigate the fact which is already under investigation by the police. From all angles the repudiation is not justified.

To support this submission, the ld. counsel for the complainant has cited 2018(1)RCR 43 Om Parkash Versus Reliance General Insurance an d Anr., III(2008) CPJ 459 Ridhi Gupta versus National Insurance Co. Ltd.,

10.     On the other hand, the ld. counsel for the OP has submitted that the claim is based on insurance policy, copy of which is Ex.C1. The OP has also filed on record  complete copy of policy, Ex.OP1. It also contains terms and conditions . When the claim is based on policy, parties are bound by the terms and conditions.  

        The claim is on the basis of alleged theft, which took placed on the intervening night of 31^st August/1^st September,2015. Matter was reported to the police on 9.9.2015 i.e. after a delay of 9 days. The claim was lodged with OP on 16.9.2015. As per condition No.1 of the terms and conditions, notice was required to be given in writing to the OP immediately upon the occurrence of the loss. Therefore, the complainant has breached the basic condition of the policy, As such, the complainant was not entitled to any claim.

          It is further submitted by the ld. counsel for the OP that the complainant has also not approached the Forum with clean hands. He has also concealed the material facts. Complainant has relied upon FIR. As per this FIR, the vehicle was found stolen on the next morning by some un-known person. But during investigation by the investigator it was concluded that the vehicle was stolen by the driver of the complainant. Therefore, there was concealment of material facts by the complainant. The repudiation of the claim on this ground is also justified.

 To support these submissions, the ld. counsel for the OP has cited

(i)      “IV(2018) CPJ 93(NC) New India Assurance Co. Ltd. versus Neerja Singh”

(ii)     “II(2015)CPJ 727(NC) Jaspal Kaur & Anr. Versus New India Assurance Company Limited”

3.     “II(2017) CPJ 83(NC) Universal Sompo General Insurance Company Limited versus Roop Lal Dangi”

(iv)    “IV (2017) CPJ 243(NC) Oriental Insurance Company Limited Versus Jaina Construction Company & Anr.”

(v)     “IV(2017) CPJ 327(NC) Ravinder Singh versus Oriental Insurance Co. Ltd. & Anr.”

(vi)    “IV(2017) CPJ 142(NC) Bhushan Kumar Versus National Insurance Co. Ltd. & Ors.”

(vii)   “2017(1) CLT 375 Virendra Singh Raghuvanshi versus Oriental Insurance Co. Ltd.”

11.     We have given careful consideration to the submission and the case law, relied upon by the ld. Counsel for the parties.

12.     The admitted facts are that the complainant being owner of the vehicle No.PB- 11-AR -9869, got insured the same from the OP vide policy,Ex.C1. The covered period was 11.12.2014 to 10.12.2015.IDV of the vehicle in question is Rs.16lac.

 As per complainant the theft took place on the intervening night of 31^st August/1^st September/2015. Claim was lodged with the OP and the OP repudiated the claim vide letter Ex.C3 dated 31.3.2016. A perusal of this letter reveals that the claim has been repudiated for violation of condition No.1 and concealment of the facts, which is stated to be breach of utmost  good faith. Concealment of facts is not briefed in the letter but from the written version it emerges that the vehicle was not stolen but it was taken away by the driver of the complainant.

13.     Firstly coming to the point of effect of delay. The complainant has brought on record copy of FIR, Ex.C2. It is dated 9.9.2015. In this FIR, complainant has reported that till that time he was making search of the vehicle and his driver but to no effect. In this way the complainant has explained the delay in reporting the matter to the police. Even otherwise it is settled proposition that in case of theft of such likes vehicles, no person immediately go to lodge the claim and the first attempt is to make search of the vehicle at his own level.

          The Hon’ble Supreme Court, in the case of Om Parkash Vs. Reliance General Insurance and Anr., CPJ 10(SC), has also explained the effect of delay in lodging the claim. The observation given in paragraph 11 is relevant. The same is being reproduced as under

“11. It is common knowledge that a person who lost his vehicle may not straightway go to the Insurance company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in imitation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs to emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act”.

Therefore, it is held by the Hon’ble Supreme Court also that if reason for delay is satisfactory explained and the claim is not to be rejected which had already been verified and found to be correct by the investigator.

At the cost of repetition, the complainant has explained the reason of delay in FIR. The OP has appointed investigator. The reports of the Investigators are Exs.OP3 and OP5. Report, Ex.OP3 is inconclusive but not due to any delay in reporting the matter. The investigator has avoided to submit the report for the reason that complainant allegedly threatened to commit suicide in case the report is made  against him.But there is no material on record to prove any alleged threat by the complainant.

          The OP also appointed another investigator Ashok Kumar. His report is on file as Ex.OP5. In his report, he has  recorded findings/conclusion, wherein he has also confirmed from neighbour the factum of theft of the vehicle as reported by the complainant. Of course ultimately  the surveyor has opined  that the truck had been stolen/taken away by the driver of the complainant on the afternoon of 1.9.2015 and had not been stolen by some un known person during the intervening night of 31.8.2015/1.9.2015, but his opinion is based on statement of B. L. Ranga who is not an eye witness to the loss either of un known person or by driver. In the end, the investigator has also recommended that the claim lodged by the complainant may be settled subject to terms and conditions of the policy. He has no where referred to breach of any terms and conditions. There is also nothing to show that any prejudice has been caused to the OP for delay in information. In these circumstances, observations of Hon’ble Supreme Court are also fully applicable.. The  repudiation on the ground of delay is not justified.

          The OP has also alleged mis-statement of facts but there is nothing to prove any mis statement of facts. Even otherwise the loss is established either by un- known person or by the driver. In the case of IV(2018) CPJ 93(NC) New India Assurance Co. Ltd. versus Neerja Singh, it was observed that cause of malicious act by the driver will also be covered under the insurance policy, taken by the owner of the vehicle. From both angels, repudiation of the claim is not justified.

14.     Now coming to the amount for which the complainant can be held entitled in the case of theft.

          The IDV of the vehicle was Rs.16 lac. It is well settled that in case of theft the IDV remain unchanged for the covered period. Therefore, the complainant is entitled to Rs.16lac, being IDV of vehicle. The OP has repudiated the claim without any justification.Therefore, the complainant is also entitled to interest @9% per annum from the date of repudiation i.e. 1.4.2016.

          The claim is based on insurance policy,Ex.C1.Although the complainant has not revealed the fact of hypothecation but the policy reveals that the vehicle was financed by SBOP, branch Patiala. Therefore, the first charge on this amount will be of SBOP branch. Out of this amount, the amount due against the complainant with the financer i.e. SBOP branch, Patiala has to be payable and the remaining amount if any is to be paid to the complainant.

15.     For the reasons recorded above, the complaint is partly accepted with costs of Rs.10,000/-. The complainant is held entitled to claim of Rs.16 Lac with interest @ 9% from the date of repudiation i.e. 31/03/2016 till payment.  However out of due amount payable to the complainant, the amount due against the complainant to the financer of the complainant i.e. State Bank of Patiala branch Patiala is payable first and thereafter the remaining amount if any be paid to the complainant.

                   It is further made clear that the OP will be entitled to get executed the documents from the complainant if any required for subrogation of the ownership of the vehicle in question in their names.

 The compliance of the order be made by the OP within a period of 45 days from the date of receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:2.11.2018       

 

  Kanwaljeet Singh                  Neelam Gupta             M. P. Singh Pahwa

       Member                                 Member                                      President