Haryana

Ambala

CC/163/2020

Gurnam Singh - Complainant(s)

Versus

United India Inss Co Ltd. - Opp.Party(s)

Ravinder Pal Singh

05 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	163  of 2020
Date of Institution	:	27.08.2020
Date of decision	:	05.08.2024

 

1. Gurnam Singh, aged about 50 years, son of Sh.Kali Ram, resident of Village Umri Tehsil and District Kurukshetra.
2. Vikas Saini, aged about 33 years, son of Sh. Pardeep Kumar, resident of House No.1065/1, Kaith Majri, Ambala City.

          ……. Complainants

                                                Versus

1. United India Insurance Company Ltd. Bal Bhawan Road, Polytechnic Chowk, Ambala City through its Branch Manager/ Manager.
2. United India Insurance Company Ltd. Regd. Head office 24 Whites Road, Chennai 600014 Through its authorized signatory.

                                                                                                                                                                    ….….Opposite parties

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Ravinder Pal Singh, Advocate, counsel for the complainants.

                     Shri R.K. Vig, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay insurance amount of Rs.14.50 lacs alongwith upto date interest.
2. To pay Rs.4,00,000/- as compensation for the mental agony and physical harassment suffered by the complainants.  .
3. To pay cost of litigation of Rs.22,000/-.

Or

Grant any other relief which this Hon’ble Commission may deem fit.

2.             Brief facts of the case are that complainant no.1-Gurnam Singh is the registered owner of the vehicle/ Truck i.e. TATA Motors LPT 3118 Open body Tyre bearing registration No.PB-11-BU-2401 Chassis No.MAT No. 466416B5D21404 Engine No.11M63214088. The said vehicle was insured by the OPs under policy NO.1101023116P110580948 valid from 4.11.2016 to 3.11.2017. In the year 2016, the complainant no.2-Vikas Saini had purchased the said truck from the complainant no.1-Gurnam Singh through an agreement and took possession of the same. Lastly, the said truck was run by complainant no.2-Vikas Saini. To purchase the said truck he paid some amount to complainant no.1-Gurnam Singh and some amount is still pending. On 19.9.2017 the said truck was parked at Shani Mandir Road Manmohan Nagar, Ambala City. On 22.9.2017 at about 9.00 complainant no.2-Vikas Saini saw that the said truck was found missing. Thereafter the complainants also searched the said truck at various places, but the same was not found. Finding no alternative the complainants approached to the police and got registered FIR NO.0363 dated 15.10.2017 under section 379 IPC, Police Station Baldev Nagar. Thereafter, the police also searched the said vehicle of the complainants, but all in vain and ultimately on 10.8.2018 the police filed the untraced report of the said vehicle to the complainants. Thereafter, the complainants approached the OPs for making payment of claim amount i.e. the IDV of the insured vehicle and also supplied all the necessary documents i.e copy of FIR, Aadhar Card, Cancellation report etc but they kept on lingering on the matter and finally  closed the said claim on false grounds. Under those circumstances, the complainants served legal  notice dated 19.6.2020 upon the OPs in the matter but to no avail.  Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version raising preliminary objections to the effect that the present complaint filed by the complainants is false, frivolous & vague in nature; the claim of the complainants is not payable as the claim was repudiated only after proper application of mind by the OPs; there is no negligence in service provided by the OPs; no cause of action has ever arisen to file the present complaint against the OPs etc. On merits, it has been stated that Gurnam Singh s/o Sh. Kali Ram sold his Truck No. PB-11-BU-2401 in favor of Vikas Saini s/o Sh. Pardep Kumar on 13.05.2017 as per Notary attested affidavit duly signed by him. The Truck in question was in the name of Gurnam Singh & from the perusal of FIR & the statement made to Investigator by both Gurnam Singh & Vikas Saini, it is clear that Truck in question was sold out by Gurnam Singh to Vikas Saini on 13.05.2017 which has not been disputed by them. In terms of IMT i.e. Sec-17 Transfers: "on transfer of ownership, the Liability only cover, either under a liability only Policy or under a Package Policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer". The vehicle in question was insured with the Insurance Company w.e.f. 04.11.2016 to 03.11.2017 under the policy in question but the terms and conditions of the policy are binding upon the parties, and as such, if any of the party violates the same, the same is to be treated as violation of policy and decision as per law shall have to be taken, which may go against the complainants also. The complainants very causally intimated about the alleged theft loss to the vehicle on 22.09.2017 ie. after a lapse of 27 days to the Company, while the policy terms expressly states that notice of loss or damage shall be given to the company immediately upon happening of any loss. FIR No.0363 dated 15.10.2017 u/sec 379 IPC was lodged in Police Station Baldev Nagar, District Ambala on the written complaint of Vikas Saini & the explanation offered by him for not reporting the matter for 24 days is not satisfactory. There is no justification why he has not lodged the matter to the Police well within the time when infact theft had taken place on 22.09.2017. The information to the Insurance Company regarding the loss of Truck was received on 24.10.2017. The OPs, consequent upon the information, appointed approved IRDA Investigator/Surveyor Ms. Sonia Madaan who in her detailed report dated 30.01.2018 submitted that Gurnam Singh sold the Truck in question to Vikas Saini on 13.05.2017; but the Truck has not been transferred in the name of Vikas Saini. The OPs wrote letters dated 26.09.2018, 11.10.2018 & 22.10.2018 in connection with the claim in question and asked Gurnam Singh to submit the requisite information to the Company. On a careful perusal of the claim documents & after independent inquiry, it was inferred that because  the Truck No. PB-11-BU-2401 has been sold to Vikas Saini before date of theft i.e. 22.09.2017, the complainants were not having any insurable interest in the vehicle at the material time of theft & thus the company repudiate the claim vide letter dated 05.12.2018. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint.
4.            Learned counsel for the complainant tendered affidavit of complainant No.1 as Annexure C-A alongwith documents as Annexures C-1 and C-6 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the  OPs  tendered affidavit of Shrija Jain, Assistant Manager of the OPs-The United India Insurance Co. Ltd., as Annexures OP-1/A and also of Ms.Sonia Madaan, Insurance Surveyor/Investigator, House No.70, Ekta Vihar, Ambala Cantt. Annexure OP-1/B, alongwith documents as Annexure OP-1/1 to OP-1/27 and closed evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have carefully gone through the case file and also written arguments filed by the learned counsel for the OPs.
6.           Learned counsel for the complainants submitted that the vehicle in question was stolen on 22.09.2017 and an FIR was got registered with the police. The vehicle in question could not be traced by the police and as such a claim was lodged with the OPs which was closed vide letter dated 05.12.2018, Annexure OP1/26, basically for non-supply of documents.  He further submitted that the original RC could not be provided because it got stolen alongwith the vehicle in question. From the report dated 30.01.2018, Annexure OP1/6, it is quite clear that the complainant No.1 is the registered owner of the vehicle in question. He further submitted that after repeated requests complainants could not get the untrace report and they received the same under RTI Act, 2005 on 20.12.2018, i.e after the closing of the claim by the OPs and they have placed on record the same as Annexure C-4.  He further submitted that by not paying the IDV of the vehicle in question despite the fact that theft of the said vehicle took place during currency of the insurance policy in question, the OPs are deficient in providing service and indulged into unfair trade practice.
7.           On the other hand, learned counsel for the OPs submitted that since there was a material deficiency and violation of fundamental terms and conditions of the policy in question on the part of the complainants in lodging the FIR after inordinate delay and also at the same time, there was no insurable interest either in the name of complainant no.1 or complainant no.2 because complainant no.1 had sold the vehicle to complainant no.2 but complainant no.2 neither got the RC transferred in his name nor the insurance policy was got transferred. Not only this, the requisite documents were also not provided by the complainants and as such, the claim in question was rightly closed/repudiated by the OPs. In support of his contention, the learned counsel for the OPs has placed reliance on M/s Complete Insulations (P) Ltd. Vs. New India Assurance Company Limited, I(1996) CPJ 1(SC) decided by the Hon’ble Supreme Court of India, New Delhi and V.A.Sreekumar Vs. Senior Divisional Manager, New India Assurance Company Limited & Others 2018 (2) CLT 513 decided by the Hon’ble National Consumer Disputes Rederssal Commission, New Delhi.
8.            It is not disputed that issuance of insurance policy in  question in favour of the vehicle in question owned by complainant no.1-Gurnam Singh  was valid for the period from 4.11.2016 to 3.11.2017. In the year 2017, the complainant no.1-Gurman Singh sold the said vehicle to complainant No.2- Vikas Saini, who took the possession of the same. On 19.9.2017 the said vehicle was parked at Shani Mandir Road Manmohan Nagar, Ambala City and on 22-9.2017 at about 9.00 it was found missing. The complainants got registered an FIR NO.0363 dated 15.10.2017 under section 379 IPC, Police Station Baldev Nagar, Ambala. The claim of the complainants was closed by the OPs vide letter dated 05.12.2018, Annexure OP1/26.
9.           Thus, the moot question which falls for consideration is, as to whether, the complainants are entitled to get any relief in the matter or not. It is evident from letter dated 26.09.2018, Annexure OP-1/22, reminder-I dated 11.10.2018, Annexure OP1/23 and final reminder dated 22.10.2018, Annexure OP1/24 that the OPs, from complainant No.1 demanded Original RC, Final Untraceable Report and also original keys which have allegedly been not provided to them. It may be stated here that the claim in question stood closed by the OPs vide letter dated 05.12.2018, Annexure OP-1/26, for non-supply of aforesaid documents.
10.           First coming to non supply of original RC and Final Untraceable Report, it may be stated here that the learned counsel for the complainants has contended that original RC could not be provided because of the theft of the same alongwith vehicle in question. On perusal of report dated 30.01.2018, Annexure OP1/6, submitted by Ms. Sonia Madaan, B.A., L.L.B(Advocate) it is evident that the RC of truck No. PB-11-BU-2401, was got verified from RTO Patiala, and it was found that the Gurnam Singh was the registered owner of the vehicle in question. As far as Final Untraceable Report from police is concerned, from the perusal of the untrace report, Annexure C-4, it is evident that same was issued by Learned JMIC, Ambala on 10.08.2018. As per complainants, they received the untrace report on 20.12.2018, on filing of an application under RTI Act i.e after the closing of the claim by the OPs. It may be stated here that this report can easily be obtained by the OPs from the Police Station concerned.  
11.           Now coming to non providing of the set of keys of vehicle,  it may be stated here that  a similar issue wherein the insured could not provide the keys of the vehicle was decided by the Hon’ble Supreme Court in 2023 LiveLaw (SC) 587 : 2023 INSC 659 Ashok Kumar versus New India Assurance Co. Ltd, in favour of the insured, wherein it was held as under:-
    •  

Insurance - Theft of Vehicle - Mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. (Para 9, 10)

Insurance - Theft of Vehicle - Insurer had repudiated the claim by saying that the driver had left the vehicle unattended in the public road with the key on the ignition. The time gap between the driver alighting from the vehicle and noticing the theft, is very short. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle. Even if there was some carelessness, it was not a fundamental breach of condition for totally denying the insurance claim altogether. Therefore, a claim up to 75% must be awarded on a nonstandard basis. (Para 15 - 18)…”

 

12.           As far as plea taken by counsel for the OPs that because the vehicle in question stood sold by complainant no.1 to complainant no.2, which fact is not disputed, but neither RC nor insurance was got transferred by complainant no.2 in his name, thus, the complainants have no insurable interest in the vehicle in question. It is clearly coming out from Motor OD Claim Note dated 17.09.2018, Annexure OP-1/25 that it was recommended by the Branch Manager of the OPs namely Manjit Singh that the claim of the complainants should be repudiated only on the ground that since the sale of the vehicle in question had already taken place but the insurance policy was not transferred so there is no insurable interest.  It may be stated here that a similar issue wherein the RC of the vehicle was not got transferred by the purchaser of the vehicle, was decided by the Hon’ble Supreme Court in Surendra Kumar Bhilawe vs The New India Assurance Company Ltd. AIR 2020 SUPREME COURT 3149, AIRONLINE 2020 SC 596,  wherein, it was held as under:-

“……52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another delay in intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims.

53. In our considered opinion, the National Commission erred in law in reversing the concurrent factual findings of the District Forum and the National Commission ignoring vital admitted facts as stated above, including registration of the said truck being in the name of the Appellant, even as on the date of the accident, over three years after the alleged transfer, payment by the Appellant of the premium for the Insurance Policy, issuance of Insurance Policy in the name of the Appellant, permit in the name of the Appellant even after three years and seven months, absence of ‘No Objection’ from the financier bank etc. and also overlooking the definition of owner in Section 2(30) of the Motor Vehicles Act, as also other relevant provisions of the Motor Vehicles Act and the Rules framed thereunder, including in particular the transferability of a policy of insurance under Section 157.

 

54. In view of the definition of ‘owner’ in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari.

 

55. The judgment of this Court in Oriental Insurance vs. Sony Cheriyam was rendered in the context of liability of an Insurer in terms of the insurance policy and is not attracted in this case, where the claim of the insured has not been rejected on the ground of the same not being covered by the policy of insurance, but on the ground of purported transfer to a third party by entering into a sale agreement.

 

56. We have not dealt with the judgments of the National Commission and/or other Fora under the Consumer Protection Act, 1986, relied upon by the parties, as they are factually distinguishable and are in any case, not precedents binding on this Court. In any case, we have considered and dealt with the submission of the respective parties at length.

 

57. The judgment and order of the National Commission is unsustainable. The appeal is, therefore, allowed. The impugned order of the National Commission under appeal is set aside and the order of the District Forum is restored. The Insurer shall pay to the Appellant a sum of Rs.4,93,500/- as directed by the District Forum with interest as enhanced by this Court to 9% per annum from the date of claim till the date of payment. The sum of Rs.5,000/- awarded by the District Forum towards compensation for mental agony and Rs.2,000/- awarded towards the cost of litigation, is in our view grossly inadequate. The Insurer shall pay a composite sum of Rs.1,00,000/- to the Appellant towards costs and compensation for the agony caused to the Appellant by withholding his legitimate dues. The amounts as directed above shall be paid to the Appellant within six weeks from date of the judgment and order.……”

 

13.           Now coming to the plea taken by the OPs that there was delay in lodging FIR, as the theft of vehicle took place on 19-22.09.2017 and matter was reported to the police on 15.10.2017, it may be stated  here that this similar issue has also been dealt with by the Hon’ble Supreme Court in Ravi vs. Badrinarayan and others - AIR 2011 SC 1226 in para 20 & 21 and it has been held as under:

“………[20] It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground….”

 

14.           As far as reliance placed by the OPs on judgments, referred to above are concerned, it may be stated here that it is settled law that when two different view/observation between any judgments are found, the law which goes into the favour of the consumer/insured should be taken into consideration.
15.           Complainant no.2 is not entitled to get any relief, because neither he is registered owner of the vehicle in question, nor he is insured under the policy in question. The case against complainant no.2 is accordingly dropped.
16.            In view of above, it is held that by closing the claim of the complainant no.1, who is the registered owner of the vehicle in question, for want of documents referred to above and also the grounds taken by the OPs as discussed above, the OPs are deficient in providing service to the complainant no.1. The complainant no.1 is therefore held entitled to get claim amount to the extent of 75% of the IDV of the vehicle in question (non-standard basis) in view of the law cited above i.e. Ashok Kumar versus New India Assurance Co. Ltd (supra). From the policy document Annexure C-1, it is evident that the vehicle in question was insured for an IDV of Rs.14,50,000/-. Thus complainant No.1 is entitled to get an amount of Rs.10,87,500/- (Rs.14,50,000/- X 75%).
17.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-  
    1. To pay Rs.10,87,500/- i.e. 75% of the IDV of the vehicle to the complainant no.1 (registered owner of the vehicle in question).
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant No.1.
    3. To pay Rs.3,000/- as litigation expenses, to the complainant No.1.  

        The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

   Announced:- 05.08.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President