Before the District Consumer Disputes Redressal Forum, Room No. 208 2^nd Floor, District Administrative Complex, Tarn Taran

Consumer Complaint No  : 42 of 2016

Date of Institution                      : 25.05.2016

Date of Decision               : 07.03.2019

Nishan Singh son of Boharh Singh resident of village Panjwar Kalan Tehsil and District Tarn Taran.

                                                ...Complainant

Versus

1. The United India Insurance Co. Ltd. 19 G.T. Road, Jalandhar through its Manager.
2. The United India Insurance Co. Ltd.  Branch office Opposite SSP Office Tarn Taran through its Manager.

…Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

Quorum:               Sh. Charanjit Singh, President

Smt. Jaswinder Kaur, Member

                             Sh. Jatinder Singh Pannu, Member

For Complainant                     Sh. G.S. Walia Advocate

For Opposite Parties               Sh. Kamal Kishore Thakur Advocate

ORDERS:

Charanjit Singh, President;

1        The complainant Nishan Singh has filed the present complaint under Section 12 of the Consumer Protection Act (herein after called as 'the Act') against the United India Insurance Co. Ltd. 19 G.T. Road Jalandhar through its Manager and another (Opposite Parties) on the allegations of deficiency in service and negligence in service on the part of opposite parties with prayer to direct the opposite parties to make the payment of tipper truck of Rs. 19,47,500/- to the complainant besides this the complainant requests for damages and compensation of Rs. 20,000/- and Rs. 20,000/- as costs of litigation.

2        The case of the complainant in brief is that the complainant was owner of Tipper Truck mark Ashok Leyland 2516 model 2014 registration No. PB 46 M 7101. The complainant got the insurance of the said truck from the opposite party on dated 9.6.2016 for the period from 9.6.2014 to 8.6.2015 and also paid the insurance fees/ premium sum of Rs. 38,995/- and the value of truck was accessed by the opposite parties for sum of Rs. 19,47,500/-. The value of chassis was Rs. 14 Lakh and value of Jack tipper was Rs. 5,47,500/-.  Gian Singh real brother of complainant parked the said truck at H.P. Petrol Pump, Bhikhiwind Road, Adda Chabal P.S. Chabal Tehsil and District Tarn Taran on 30.9.2014 at about 8 PM as daily routine. On the next day i.e. 1.10.2014 at about 4 A.M., when the brother of the complainant went to the said petrol pump and found that the truck was not there and he inquired from the Chokidar, who told to the brother of complainant that some unknown persons have committed theft of tipper truck at about 3 A.M.. The complainant and his brother tried to trace out the said tipper truck but no clue was searched out and the report was also lodged with the police but the said truck is not traced out and the police gave the untraced report. The claim was submitted by the complainant in time before the opposite parties. But the opposite parties declined the claim through letter dated 15.3.2016 due to violation of policy condition. The opposite parties without any reason declined the insurance claim / request of the complainant.  Hence complaint was filed.

3        After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Parties appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complainant himself has not complied with the provisions of the terms and conditions of the insurance policy and as such, he is not entitled for any relief as claimed in the present complaint; that the present complaint is not maintainable as there is element of fraud and fabrication in the documents of the complainant and same cannot be decided by this Form and is the subject matter of the Civil Courts. On merits, it was pleaded that the truck in question has been removed by the complainant to some other place/ District with the connivance of other persons just to receive the policy amount which is just a sheer fraud with the opposite parties. Even, from the pleadings of the complainant, it is clearly visible that the complainant has not complied with the provisions of the terms and conditions of the policy. The reasonable precautions for the safety of the truck in question i.e. the subject matter of the claim petition were not taken. The truck in question was not parked by the complainant in his own premises but it was parked somewhere at the open place of petrol pump. The brother of the complainant was never authorized in any capacity to park the truck at the place of occurrence or to take the same in the morning. It cannot be presumed that any vehicle such like a tipper truck is removed/ theft in the presence of chonkidar who says that some unknown persons have taken the truck after starting it and he thought that it was brother of the complainant who had taken the same. It comes out that no chonkidar or any regular driver was employed with any responsibility for the care of the truck in question by the complainant. The complainant had neither reported the matter of alleged theft with the concerned police station on the same day nor immediately informed the insurance company by giving a notice in writing. The complainant had informed the company on 9.10.2014 and to the police authorities on 18.12.2014. The condition No. 1 of the policy clearly says that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require…..” . So it was the duty of the complainant to first of all lodge the report regarding the alleged theft of the truck in question with the concerned police authorities on the same day of alleged occurrence and further to send written notice of it immediately to the office of opposite parties. However, the complainant has failed to perform his duties and also to comply with the terms and conditions of the policy in totality. It is only on 17.12.2014 when the complainant lodged the matter with the police authorities/ SHO Thanka Chabal and the report of the complainant was added with an FIR already registered bearing No. 160/2014. So due to failure of the complainant for complying with the condition No. 1 of the policy, the claim of the complainant was rejected. It is totally wrong that the claim was submitted by the complainant in time before the opposite parties. The claim was quite late and thus was declined due to violation of Policy condition No. 1 and all the other allegations in the complaint have been denied by the opposite parties and prayer was made for dismissal of the complaint with costs. 

4        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant tendered in evidence his affidavit Ex. C-1, affidavit of Gian Singh son of Bohar Singh resident of village Panjwar, Tehsil and District Tarn Taran Ex. C-2, affidavit of Amarjit Singh son of Mohinder Singh resident of village Panjwar Kalan, Tehsil and District Tarn Taran Ex. C-3, affidavit of Avtar Singh Constable No. 1834 of P.S. Chabal Ex. C-4, alongwith documents Ex. C-5 to Ex. C-18 and closed the evidence and thereafter, Ld. counsel for the opposite parties tendered in evidence affidavits of Surinder Singh Senior Divisional Manager Ex. OPs/1,  OPs/1/A alognwith documents Ex. OPs/2 and  O.Ps/3 and closed the evidence.

5        We have heard the Ld. Counsel for the parties and have gone through the evidence and documents placed on the file by the parties.

6        Ld. counsel for the complainant contended that he was owner of Tipper Truck mark Ashok Leyland 2516 model 2014 registration No. PB 46 M 7101. The complainant got the insurance of the said truck from the opposite party on dated 9.6.2016 for the period from 9.6.2014 to 8.6.2015 Ex. C-17 and also paid the insurance fees/ premium sum of Rs. 38,995/- and the value of truck was accessed by the opposite parties for sum of Rs. 19,47,500/- in insurance cover note Ex. C-17. The value of chassis was Rs. 14 Lakh and value of Jack tipper was Rs. 5,47,500/-.  It is further contended that Gian Singh real brother of complainant parked the said truck at H.P. Petrol Pump, Bhikhiwind Road, Adda Chabal P.S. Chabal Tehsil and District Tarn Taran on 30.9.2014 at about 8 PM as daily routine. On the next day i.e. 1.10.2014 at about 4 A.M., when the brother of the complainant went to the said petrol pump and found that the truck was not there and he inquired from the Chokidar, who told to the brother of complainant that some unknown persons have committed theft of tipper truck at about 3 A.M.. The complainant and his brother tried to trace out the said tipper truck but no clue was searched out and the report was also lodged with the police vide application Ex. C5 but the said truck is not traced out and the police gave the untraced report. The claim was submitted by the complainant in time before the opposite parties. But the opposite parties declined the claim through letter dated 15.3.2016 due to violation of policy condition. The opposite parties without any reason declined the insurance claim / request of the complainant and prayed that the resent complaint may be allowed as prayed for in the complaint..

7        On the other hands, the case of Ld. counsel for the opposite parties is that the complainant himself has not complied with the provisions of the terms and conditions of the insurance policy and as such, he is not entitled for any relief as claimed in the present complaint. The present complaint is not maintainable as there is element of fraud and fabrication in the documents of the complainant and same cannot be decided by this Form and is the subject matter of the Civil Courts. It is also contended that the truck in question has been removed by the complainant to some other place/ District with the connivance of other persons just to receive the policy amount which is just a sheer fraud with the opposite parties. The reasonable precautions for the safety of the truck in question i.e. the subject matter of the claim petition were not taken. The truck in question was not parked by the complainant in his own premises but it was parked somewhere at the open place of petrol pump. The brother of the complainant was never authorized in any capacity to park the truck at the place of occurrence or to take the same in the morning. It cannot be presumed that any vehicle such like a tipper truck is removed/ theft in the presence of Chonkidar who says that some unknown persons have taken the truck after starting it and he thought that it was brother of the complainant who had taken the same. It comes out that no Chonkidar or any regular driver was employed with any responsibility for the care of the truck in question by the complainant. The complainant had neither reported the matter of alleged theft with the concerned police station on the same day nor immediately informed the insurance company by giving a notice in writing. It is further contended that the complainant had informed the company on 9.10.2014 and to the police authorities on 18.12.2014. The condition No. 1 of the policy clearly says that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require…..” . So it was the duty of the complainant to first of all lodge the report regarding the alleged theft of the truck in question with the concerned police authorities on the same day of alleged occurrence and further to send written notice of it immediately to the office of opposite parties. It is further contended that the complainant has failed to perform his duties and also to comply with the terms and conditions of the policy in totality. It is only on 17.12.2014 when the complainant lodged the matter with the police authorities/ SHO Thanka Chabal and the report of the complainant was added with an FIR already registered bearing No. 160/2014. It is further contended that due to failure of the complainant for complying with the condition No. 1 of the policy, the claim of the complainant was rejected. The claim was quite late and thus was declined due to violation of Policy condition No. 1 and all the other allegations in the complaint have been denied by the opposite parties. Ld. counsel for the opposite parties has relied upon 2017(2) CLT Universal Sompo General Vs Roop Laal Dangi Page 263, 2016(4) CLT Post Master Vs Kanhaiya Lal Page 343, 2017(1) CLT Shriram General Insurance Vs Ramcharan Dhobi Page 557.and Ld. counsel for the opposite parties prayer was made for dismissal of the complaint with costs.           

8        We have carefully gone through the contentions raised by the Ld. counsel for the parties.

9        The ownership of the Tipper Truck in question by the complainant is admitted fact in this case. It is also admitted fact in this case that the complainant got the Tipper Truck in question insured with Opposite Parties for the relevant period 9.6.2014 to 8.6.2015 vide Ex. C-17. It is also admitted fact that the complainant filed claim with Opposite Parties for the theft of the Tipper in question. The contention of the Opposite Parties-United India Insurance Co. is that the complainant had neither reported the matter of alleged theft with the concerned police station on the same day nor immediately informed the insurance company by giving a notice in writing. The complainant has proved on record affidavit of Chownkidar Amarjit Singh son of Mohinder Singh resident of village Panjwar Tehsil and District Tarn Taran Ex. C-3 in which he stated that he is working as Chowkidar at H.P. Petrol Pump, Bhikhiwind Road, Adda Chabal P.S. Chabal Tehsil and District Tarn Taran. The complainant used to park his tipper truck in question at night as there is no enough space at the house of complainant to park the tipper truck. Sometimes brother of complainant namely Gian Singh used to come to park said truck at Petrol Pump. He also stated in his affidavit that Gian Singh real brother of the complainant parked the said tipper truck at H.P. Petrol Pump, Bhikhiwind Road, Adda Chabal P.S. Chabal, Tehsil and District Tarn Taran on 30.9.2014 at about 8 p.m. daily routine. He further stated in his affidavit that he was present at the Petrol Pump in his room and on 1.10.2014 at about 3 a.m. some unknown persons took away the tipper truck of the complainant and they tried to trace out the said tipper truck but failed.  The complainant has also brought on record one application dated 1.10.2014 Ex. C-5 which clearly shows that the complainant has immediately approached the Police of Police Station Chabal Kalan and information regarding the theft of Tipper Truck bearing its registration No. PB 46-M-7101 was given on 1.10.2014 and to prove this fact, the complainant has also produced affidavit of Avtar Singh Constable No. 1834 PS Chabal Ex. C-4 in which he has brought the record bearing case FIR No. 160/14 Under Section 457, 380 IPC P.S. Chabal relating to theft of Tipper Truck No. PB 46-M-7101 from H.P. Petrol Pump Adda Chabal on 1.10.2014 early morning which is ownership of Nishan Singh son of Bohar Singh resident of village Panjwar Kalan. Avtar Singh also brought alongwith him certified copy of application given by Nishan Singh to SHO PS Chabal dated 1.10.2014 bearing Dairy No. 940 Ex. C-5, another certified copy of application dated 20.10.2014 Ex. C-6, certified copy of application dated 10.11.2014 Ex. C-7, Certified copy of application dated 28.11.2014 Ex. C-8 and certified copy of statement of complainant dated 18.12.2014 Ex. C-9, certified copy of FIR No. 160/2014 Ex. C-10, untraceable report under Section 173 Cr.P.C . This whole of the record has been brought by Avtar Singh Constable P.S. Chabal and the same are certified copies. In this way, the complainant has proved on record that vehicle in question i.e. Tipper Truck has been stolen and immediately the complainant informed the police regarding the said theft and the complainant continuously approached the police through various applications mentioned above. As such, the contention of the opposite parties that the complainant has not informed the police is refuted.  From the above said record of the police official i.e. report under section 173 Cr.P.C. proved the theft of the tipper truck in question.  The Opposite Parties can go through the investigation conducted by the police.

10.     Second point taken by Opposite Parties is that the complainant has informed the opposite parties on 18.12.2014 regarding theft of vehicle in question. It is admitted fact that intimation about theft was given to the Opposite Parties on 18.12.2014 within 9 days from theft. This delay in the opinion of the Forum is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-

“Circular

To:    All Life Insurers and non-life insurers

Re:    Delay in claim intimation/ documents submission with respect to

i)       All life insurance contracts and

ii)      All Non-life individual and group insurance contracts.

          The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

          The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation clause does not work in isolation, and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result  in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have  otherwise been rejected even if reported in time.

The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on  merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.

                                                          J. Harinarayan

                                                            Chairman”:

A bare reading of circular shows that if the claim is otherwise payable then it should not be repudiated or rejected simply on the ground of delay and delay is only to be considered when claim is otherwise not made out and is liable to be rejected even if the matter has been reported in time. In case titled as National Insurance Company Limited Vs. Kulwant Singh 2014(IV) CPJ page 62 (NC) the Hon’ble National Commission  observed that the insurance company should not have repudiated the claim merely on account of delay in giving the information to insurance company particularly when there was absolute no delay in lodging the FIR with the police. In the case in hand also, the theft took place on 1.10.2014 and intimation to the police was also given on the same day i.e. 1.10.2014 and as such, there was no delay at all for giving the intimation to the police. Moreover, in similar case titled as Reliance General Insurance Company Limited- Petitioner Vs. Sri Avvn Ganesh-Respondent 2012(1) CPJ page 176  in case under Consumer Protection Act, 1986 the intimation of death was given to the insurer with delay and claim was repudiated on the ground that death of insured was intimated after 4 months as against stipulated period of one month. The complainant filed complaint on the allegation of deficiency in service by insurance company, but the same was dismissed, but appeal filed by the complainant was allowed by Hon’ble State Commission. On revision, the Hon’ble National Commission, New Delhi observed that all the conditions for acceptance of insurance claim except point of reporting loss within one month of its occurrence had been substantially  fulfilled and delayed intimation of death of insured due to injuries he suffered on account of accident could not be held to be destructive to insurance claim because the facts and circumstances of death were clearly established on the basis of medical on records as well as  deposition of doctor who attended the insured and it was observed that like in case of theft of moveable insured property, delay in intimation was not prejudicial to the insurer because in such cases, Insurance company was not prevented, because of delay, from carrying out any investigation into the facts and circumstances as to whether the accident and consequent loss fell within the substantive condition of insurance policy and no infirmity  was found in the order and revision petition was dismissed. In the case in hand also, the theft of vehicle in question was reported to the police on the same day and as such, the complainant has substantially fulfilled the condition of the policy as intimation to police was immediate and even to the insurance company was only with a delay of 9 days as claimed by the Opposite Parties which is not material in the case in hand for closing or repudiating the claim case of the complainant and as such, the complainant is entitled to claim the insurance amount of the vehicle in question.    

11.     The opposite parties have placed on record one insurance policy Ex. OPs/2 and it shows that the complainant declared the Value of the Tipper Truck in question as Rs.19,47,500/-. The theft took place during the operation of the insurance policy, therefore, the complainant is entitled to the insurance claim.  However, if for arguments sake it is admitted that the complainant has violated condition No. 4, the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. Learned counsel in support of his above contention has relied upon the case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. vs. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency vs. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. vs. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. vs. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court wherein the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), Hon'ble Apex Court held in the matter of theft of a vehicle, breach of condition of the policy was not germane and also held further that : “ the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to, The Hon'ble Supreme Court has further held that; the insurer”. “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on Hon'ble Apex Court in back drop of these features, in these cases, allowed “non-standard basis.” 75% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company  Hon'ble National Commission in the case  Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672  referred to above relying upon the National Insurance Company Limited versus Kamal Singhal law laid down by the Hon'ble Supreme Court has held that;

“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6%  p.a from the date of expiry of six weeks till the date of actual payment”.

Having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire insured amount, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 75% of the claim of the complainant on 'non-standard' basis” i.e. 75% of the IDV of the vehicle in question at the time of insurance of the said vehicle with Opposite party. Moreover, the citations cited by the opposite parties are based on the other facts and circumstances and are not helping the opposite parties.

12      Resultantly, the complaint is allowed with costs and the Opposite Parties are directed to pay 75% amount of the IDV of the vehicle in question at the time of insurance of the said vehicle with Opposite Parties, subject to furnishing the letter of subrogation, power of attorney for transfer of Registration certificate of the vehicle in question.  The complainant is also entitled to Rs.10,000 /- (Rs. Ten thousand only) as compensation on account of harassment and mental agony and Rs 5,000/- (Five thousand only) as litigation expenses. Opposite parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant shall be entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.