Haryana

Yamunanagar

CC/532/2008

Pardeep Kumar S/o des raj - Complainant(s)

Versus

United India Insurance Company ltd. - Opp.Party(s)

Pardeep Rathore

27 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No.  532  of 2008.

                                                                                    R.B.R. No. 10 of 31.12.2013.

                                                                                    Date of institution: 10.12.2008.

                                                                                    Date of decision: 27.3.2015

Pardeep Kumar Goel son of Shri Des Raj Goel, resident of Jaroda Gate, Jagadhri, District Yamuna Nagar, proprietor of M/s Madho Parshad & Sons, Jaroda Gate, Jagadhri.  

 

                                                                                                …Complainant.

                                                Versus

 

1. United India Insurance Company Limited, Jagadhri Road, Yamuna Nagar, near Telephone Exchange, Yamuna Nagar, through its Branch Manager. 
2. State Bank of Patiala, SSI, Near Madhu Hotel, Yamuna Nagar through its Branch Manager.

 

                                                                                           …Opposite parties. 

 

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Pardeep Rathore, Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for OP No.1.

              Sh. Mukesh Sehgal, Advocate, counsel for OP No.2.

 

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the complainant is the proprietor of M/s Madho Parshad and sons situated at Jaroda Gate, Jagadhri and is dealing in the manufacture of brass sheets. The complainant has taken CC limit from the OP No.2 Bank and OP No.2 had got the stock lying in the premises  of the aforesaid firm insured against theft etc. from the OP No.1 from time to time. It is averred in his complaint that OP No.2 had obtained an insurance policy for the complainant from OP No.1 bearing No. 110101/46/6/4/00000697 for the period from 25.3.2007 to 24.3.2008 on payment of premium of Rs. 3143/-. That in the intervening night of 11/11.11.2007, a theft took place in the factory premises by some unknown miscreants and they took away 815 Kgs. Of finished brass sheets at the rate of Rs. 275/- per Kg of the value of Rs. 2,24,125/-, unfinished brass sheet 145 Kgs. @ Rs. 260/- per Kgs. Worth Rs. 37,700/-, Brass built ( Gulli) 92 Kgts @ Rs. 85/- per Kg. of the value of Rs. 7820/-, brass scrap 53 Kgs. @ Rs. 51/- per Kg of the value of Rs. 2703/-. Was taken away by the thieves and in this regard an FIR No. 396 dated 15.11.2007 under section 457, 380 IPC was got registered with P.S. City  Jagadhri against the unknown thieves. The complainant had also intimated the OPs about the theft of abovesaid brass sheets etc. and completed all the formalities as per the demand of OP No.1 for settlement of his claim. On this, OP No.1 appointed the surveyor for inspecting the damages who submitted his report to the OP company. In this way, complainant suffered huge loss amounting to Rs. 3,17,231/-. It is further averred by the complainant that after making of several requests, OP No.1 did not settle the claim of the complainant and ultimately repudiated the claim of the complainant by sending a letter dated 28.8.2008. As such, there is deficiency of services on the part of the OPs. Hence, this complaint for directing the OPs to pay Rs. 3,17,231/- with interest on account of claim for the loss suffered by him, to pay Rs. 50,000/- with interest as compensation for mental agony and harassment and Rs. 5000/- for litigation expenses.

2.                     Upon notice, Ops appeared through their counsel and filed written statement separately. OP No.1 urged that an intimation dated 20.11.2007 was received from the complainant that a theft has taken place in his factory in the intervening night of 10.11.2007, it is also averred by the answering OP that the alleged date of theft is 10.11.2007, whereas the intimation to the police was given on 15.11.2007 and intimation to insurance company was given on 20.11.2007 and both these delays are unexplained and there is very possibility of concoction. Moreover, the complainant has given false figures regarding the type, weight and rate of the items. So there is a gross violation of the policy conditions, and on account of the said facts the claim is not payable, therefore the answering OP legally and justifiably repudiated the claim of the complainant vide its letter dated 28.8.2008. The complainant is without any merit and the same is liable to be dismissed.

3.                     OP No.2 averred in his written statement that the present complaint is not maintainable and complainant has intentionally and deliberately dragged the answering OP in this litigation as the matter of settlement of claim is between the complainant and OP No.1 only. Hence, there is no deficiency of service on the part of OP No.2 and the same is liable to be dismissed with costs.  

4.                     To prove his case, complainant has tendered his affidavit  as Annexure CX alongwith documents as Annexures C-1 to C-9 and closed his evidence. On the other hand, counsel for the OP No.1 has tendered affidavit of Ajay Sareen Assistant Manager, UIIC as Annexure RX and affidavit of Rajan Sharda Surveyor & Loss Assessor as Annexure RY  and documents as Annexure R-1 to R15 and closed the evidence.

5.                     We have heard the learned counsels for both the parties and have gone through the pleadings as well as documents placed on file wherefrom it transpires that the Ops have repudiated the claim of the complainant on the ground that the theft had taken place in the intervening night of 10/11.11.207 and FIR was lodged on 15.11.2007 and intimation to the insurance company was given on 20.11.2007 i.e. after about 9 days from the date of theft which is a clear cut violation of condition No.1 mentioned in the policy and draw the attention of this Forum towards the authority passed by our Hon’ble  National Consumer Disputes Redressal Commission in the first appeal No.321 of 2005 titled as New India Assurance Company Limited Vs. Trilochan Jane which was decided on 9.12.2009 wherein it has been held that the OPs did not care to inform the insurance company about the theft for a period of 9 days which could be fatal to the investigation. The delay in lodging the FIR after two days of coming to know of the theft and 9 days to the insurance company can be fatal as in the meantime the car could have travelled a long distance or may have been dismantled by that time and sold to Kabadi (scrap dealer). Similarly the Hon’ble State Commission, Haryana Panchkula in first appeal No. 2598 of 2003 titled as National Insurance Company Versus Chuhar Singh has held that the facts cannot be ignored as there was a delay of 5 days in lodging of the FIR regarding theft of vehicle and the repudiation of complainant claim cannot be held to be illegal and unjustified. The Hon’ble Supreme Court in case titled as Suraj Mal Ram Niwas Oil Mills Versus United India Insurance, 2011 CTJ page 11 (Supreme Court) (C.P) has held that in construing the terms of a contract or insurance the words used therein must be given paramount importance. It is not open for the courts to add, delete or substitute any words. It is a settled proposition of law that a stranger to a contract cannot alter the legal obligations of the parties to the contract.

                        As per version of the complainant, Ops used to issue cover notes to the complainant firm without any terms and conditions and thereafter neither the insurance policies nor any terms and conditions thereof were ever supplied to the complainant firm till date whereas on the other hand, OP-Insurance Company have tendered special conditions as Annexure R-15 in their evidence but it does not mention to whom these were ever supplied and any proof for sending these terms and conditions or policy to complainant has been filed.

                        To further substantiate the aforesaid version, the complainant’s counsel submitted various case laws reported in 1(2000) CPJ page 1 Supreme Court titled as Modern Insulators Vs. OIC exclusion clause, 2005(3) CPR page 24 NC titled as Atlas vs. NIA Exclusion cause,2013 (1) CLT page 589  (National Commission), titled as NIA versus Pabhati Sridevi etc. and 2014(2) CLT page 305 (National Commission) titled as The Oriental Insurance Company vs. Satpal Singh wherein it has been held that “ when the terms and conditions have not been supplied/ communicated to the consumer, it cannot be invoked against the consumer. When the exclusion clause never disclosed to the insured, insurance company cannot take the benefit of the said clause. Insured/consumer cannot be affected by such exclusionary clause”.

                        To further substantiate the aforesaid version, the complainant’s counsel submitted the case law reported in case titled as Mohammad Ejaj Versus United India Insurance Company Ltd. & Others, 2014(4) CLT page 161 wherein it has been held that “Insurance Claim-Repudiation- on the ground that there was delay of 15 days in lodging the FIR and 36 days in giving information to the Insurance Company-IRDA have given direction to the insurance companies not to reject genuine claims simply because of late registration of FIR and late intimation to the Insurance Company- Held-IRDA is the controlling authority of all Insurance Companies and being a statutory body, is competent to frame guidelines and issue instructions to Insurance Companies which are binding upon them. Appeal accepted.”

                        In view of the aforesaid discussion we are of the confirmed view that the OPs have failed to prove the case by cogent documentary evidence that they have supplied the terms and conditions to the complainant. The authorities (supra) tendered by the counsel for OPs is not disputed but not identical to the facts and circumstances of the case whereas on the other hand, the authorities (supra) tendered by the counsel for complainant is identical to the facts and circumstances of the case.  So, in view of the detailed facts narrated above, we are of the confirmed view that the OPs are admittedly deficient in providing proper services to the complainant and are also guilty of committing unfair trade practice by wrongly repudiating the genuine claim of the complainant. Hence in these circumstances, we have no option except to allow the present complaint and thus we direct the OP insurance company to comply with the following directions within 30 days from the communication of this order:-

1. To release the insurance claim amounting to Rs. 3,17,231/- to the complainant which has been suffered by the complainant due to theft alongwith simple interest @ 9% per annum from the date of institution of complaint to the date of decision.
2. To pay Rs. 20,000/- as compensation on account of harassment & mental agony etc. caused to the complainant for a long period of about 4 years (i.e. from the date of loss to till the date of decision) by the negligent act of the insurance company.
3. To pay Rs. 20,000/- as punitive damages on account of unfair trade practice committed by the OP insurance company by wrongly repudiating the claim of the complainant firm.
4. To pay Rs. 11,000/- as costs for unwanted litigation including the advocates fee etc.  

                  The aforesaid directions must be complied with by the OP-Insurance Company within the stipulated period otherwise all the aforesaid awarded amounts shall fetch further simple interest @ 12% per annum for the period of default. The complaint is decided accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 27.3.2015