DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                                Complaint No.  42

                                                Instituted on:    30.01.2017

                                                Decided on:       18.05.2017

Nirmala Devi W/o Pawan Kumar, Resident of H.NO.570-B, Farid Nagar, Street No.5, Outside Nabha Gate, Sangrur.

                                                        …Complainant

                                Versus

United India Insurance Company Limited, Divisional Office, Dhuri Road, Sangrur now at Railway Road, Sangrur through its Divisional Manager/Authorised Signatory.

                                                        ..Opposite party.

For the complainant  :       Shri Ramit Pathak, Adv.

For Opp.party          :       Shri G.S.Sibia, Adv.

Quorum:   Sukhpal Singh Gill, President

                Sarita Garg, Member

                Vinod Kumar Gulati, Member

Order by : Sukhpal Singh Gill, President.

1.             Smt. Nirmala Devi, complainant (referred to as complainant in short) has preferred the present complaint against the opposite party (referred to as OP in short) on the ground that the complainant got insured his tralla tipper bearing registration number PB-13-AA-8061  from the OP for Rs.13,50,000/- vide insurance policy number 1117003114P100814329 for the period from 3.5.2014 to 2.5.2015  by paying the requisite premium of Rs.34,829/-.  It is further averred that during the subsistence of the insurance policy, the vehicle in question was stolen on the intervening night of 28/29.3.2015 when the said vehicle was parked at Shankar Scale (Kanda) near Chopra Crane Office, Gobindgarh and the vehicle was properly locked at that time.  It is further averred that the intimation of theft of the vehicle was immediately given to the OP on phone by the husband of the complainant and a written information was given to the police of PS Mandi Gobindgarh by the husband of the complainant on 29.3.2015, of which FIR number 61 dated 12.4.2015 was also recorded in PS Gobindgarh Mandi.  It is further averred that the complainant tried his best to find out the vehicle, but the same was not found. In the present case, the grievance of the complainant is that the OP wrongly repudiated the claim of the complainant without any basis.  As such, alleging deficiency in service on the part of the OP, the complainant has prayed that the OP be directed to pay to the complainant the insurance claim of Rs.13,50,000/-  along with interest @ 18% per annum from the date of theft of the vehicle till realisation and further claimed compensation and litigation expenses.

2.             In reply of the complaint, legal objections have been taken up on the grounds that the complainant has unnecessarily dragged the OP into unwanted litigation, that the complainant has got no locus standi and cause of action to file the present complaint and that the complainant has not come to the Forum with clean hands.  On merits, it is admitted that the vehicle in question was insured with the OP under the policy in question. It is further admitted that the above said vehicle was stolen on the intervening night of 28/29.3.2015, but the complainant intimated the OP on 15.4.2015 and the complainant even failed to intimate the police within the stipulated time, which is a clear cut violation of the terms and conditions of the policy. Lastly, it has been stated that the claim has rightly been repudiated by the OP. The other allegations levelled in the complaint have been denied in toto.

3.             The learned counsel for the complainant has produced Ex.C-1 affidavit, Ex.C-2 copy of repudiation letter, Ex.C-3 copy of challan, Ex.C-4 copy of form regarding summary, Ex.C-5 copy of DL, Ex.C-6 copy of the order dated 12.12.2015, Ex.C-7 copy of payment receipt, Ex.OP-8 copy of RC, Ex.C-9 copy of FIR, Ex.C-10 copy of affidavit and Ex.C-11 to Ex.C-15 copies of documents and closed evidence. On the other hand, the learned counsel for the Op has produced Ex.OP-1 copy of intimation letter, Ex.OP-2 copy of certificate of witness, Ex.OP-3 copy of insurance policy, Ex.OP-4 copy of terms and conditions, Ex.OP-5 copy of letter, Ex.OP-6 copy of repudiation letter, Ex.OP-7 affidavit and closed evidence.

4.             We have carefully perused the complaint, version of the opposite parties and evidence produced on the file and also heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits part acceptance, for these reasons.

5.             It is an admitted fact between the parties that the complainant got insured his vehicle in question with the OP for Rs.13,50,000/-, as is evident from the copy of the insurance policy which is on record as Ex.C-13 and it further reveals that the complainant paid an amount of Rs.34,829/- as premium.  It is also not in dispute that the vehicle in question was stolen on the intervening night of 28/29.12.2015, of which FIR number 61 dated 12.4.2015 was recorded in PS Gobindgarh, a copy of which on record is Ex.C-3.  However, in the present case, the dispute is only about the late submission of the intimation about theft of the vehicle to the OP and late intimation of loss of vehicle to the police.

6.             Ex.C-13 is the copy of insurance policy, whereas  Ex.C-9 is the copy of FIR lodged with the police of PS Gobindgarh regarding the theft of the vehicle in question. In the present case, the repudiation of the claim has been done by the OP on the ground that notice was to be given to the OP immediately upon the occurrence of any accidental or loss or damage, whereas the complainant has intimated the OP after a delay of about thirteen days, whereas the case of the complainant is that the intimation was given to the OP immediately about the theft of the vehicle in question. The learned counsel for the complainant has contended that since the complainant was finding the vehicle here and there, and when he did not found the same, he lodged the FIR with the police.  Now, the question for determination before us is whether the complainant is entitled to get the claim amount or not.  It is on the record that the complainant tried his best to find out the vehicle here and there and intimated the Op immediately on telephone,  whereas the Op has stated that the complainant intimated it only on 12.4.2015, but no such document is on record that the Op was intimated on 12.4.2015, whereas the FIR was lodged on 12.4.2015. It is worth mentioning here that the complainant had to intimate the police and it is the police only who had to lodge the FIR at their own and in this respect, the complainant is unable to take any action to lodge the FIR.  To support the contention that the complainant immediately intimated the Op, the complainant has produced on record a copy of the application dated 29.3.2015 submitted to the Station House Officer, Police Station Gobindgarh Mandi, wherein it has been clearly mentioned that the vehicle in question was stolen on 28/29.3.2015 when it was parked at Shankar Kanda, Near Chopra Crane Office, Mandi Gobindgarh and was in locked condition.     The learned counsel for the complainant has cited Shriram General Insurance Company Limited versus Rajesh Kumar 2014(2) CLT 390 (HR), wherein it has been held that the insurance company cannot repudiate the bonafide claims on technical grounds like delay in intimation and submission of some required documents.  Further the learned counsel for the complainant has cited Sukhram Kashyap versus National Insurance Company Limited, FA/13/272, decided on 11.4.2013 by the Chhattisgarh State Commission, wherein the judgment of the Hon’ble Apex Court in the matter of National Insurance Company Limited versus Nitin Khandelwal IV (2008) CPJ  1 (SC) has been relied upon, wherein it has been held that the matter of theft of vehicle, breach of conditions of policy was not germane and also held further “the appellant insurance company is liable to indemnify the owner of the vehicle when the insurer had obtained comprehensive policy to the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance company ought to have settled the claim on ‘non standard basis”.   Further we find that the OP is also deficient in rendering service by not considering the merits of the claim and in repudiating the whole claim of the complainant. To support such a contention further, reliance can also be placed on The Oriental Insurance Company Limited versus Ashish Kumar Chauhan, Appeal No.FA/12/110, instituted on 29.2.2012, decided on 19.7.2012 by the Chhattisgarh State Consumer Commission, wherein in similar circumstances of the case, the Hon’ble State Commission ordered the insurance company to pay 75% of the claim amount.   The learned counsel for the complainant has further cited the decision pronounced by the Hon’ble Punjab and Haryana High Court in CWP No.16701 of 2013 decided on 26.11.2013 in case titled The Oriental Insurance Company Limited versus M/s. Viceroy Car Rental Private Limited and another ,  wherein it has been held that since the claim of the complainant was found to be justified and the vehicle was admittedly insured with the petitioner-company, which was stolen and the incident of theft was immediately reported to the police, as noticed hereinabove. It has never been the case of the insurance company that the claim of the respondent was either bogus or fraudulent. Only objection raised was that the claim was lodged after three months and 9 days and not within the stipulated period of 48 hours, as such, it was held that the delay was not fatal in the circumstances of the case, still further 15% deduction from the total amount of compensation was rightly ordered by Permanent Lok Adalat and that was only because of delayed claim.   Now law to the contrary has been cited.  It is worth mentioning here that the untraced report was also accepted by the National Lok Adalat, Amloh on 12.12.2015 and the certified copy of the order was issued to the complainant on 4.1.2016, a copy of which on record is Ex.C-6. In the circumstances of the case, we feel that the ends of justice would be met  if the claim of the complainant is settled on non standard basis. Admittedly, in the present case the vehicle in question is insured for Rs.13,50,000/-, as such, we feel that if calculated 75% of the amount, it comes to Rs.10,12,500/-.

7.             The insurance companies are in the habit to take these type of projections to save themselves from paying the insurance claim. The insurance companies are only interested in earning the premiums and find ways and means to decline claims. The above said view was taken by the Hon’ble Justice Ranjit Singh of Punjab and Haryana High Court in case titled as New India Assurance Company Limited versus Smt. Usha Yadav and others 2008(3) R.C.R. 9 Civil) 111.

8.             It is worth mentioning here that a bare perusal of the copy of registration certificate, Ex.C-8 of the vehicle reveals that the complainant had taken the loan and the vehicle was financed from Kotak Mahindra Bank Limited. As such, we feel that the first right on the claim amount is of financer i.e. Kotak Mahindra Bank Limited and after recovery of the loan amount from the claim amount, the remaining amount be paid to the complainant. There is no explanation from the side of the complainant that why she did not array the finance company as a party.

9.             Accordingly, in view of our above discussion, we allow the complaint and direct the OP to pay to financer of the vehicle i.e. Kotak Maindra Bank Limited/complainant an amount of Rs.10,12,500/- along with interest @ 9% per annum from the date of acceptance of untraced report by the court i.e. 4.1.2016 till realisation. The complainant shall also be bound to submit the subrogation letter to the OP, if not already submitted.  We further order the OP to pay to the complainant an amount of Rs.10,000/- in lieu of consolidated amount of compensation and further an amount of Rs.5500/- on account of  litigation expenses.

10.           This order of ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of cost. File be consigned to records.

                        Pronounced.

                        May 18, 2017.

                                                        (Sukhpal Singh Gill)

                                                                President

                                                                (Sarita Garg)

                                                                    Member

                                                        (Vinod Kumar Gulati)

                                                                    Member