Punjab

Ludhiana

CC/14/384

Geeta Devi - Complainant(s)

Versus

Universal Sampo Gen.Ins.Co.Ltd - Opp.Party(s)

24 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                          C.C.No.384 of 19.05.2014

                                                          Date of Decision:24.04.2015

Geeta Devi w/o Sh.Pardeep Poddar resident of Street No.8/5 Ashok Nagar, Salem Tabri, Ludhiana.

                                                                                      … Complainant

                                             Versus

1.Universal Sompo General Insurance Company Limited, Regd. & Corporate Office: Unit 401, 4^th Floor, Sangam Complex, 127 Andheri Kurala Road, Andheri (East), Mumbai-400059, through its Managing Director.

2.Universal Sompo General Insurance Company Limited, through its Regional Branch Manager, Ludhiana Branch Office, 5^th Floor near Oriental Bank, Feroze Gandhi Market, Ludhiana.                                                                                                                       …             Opposite Parties

          Complaint under section 12 of the Consumer Protection Act,1986

Quorum     Sh. R.L.Ahuja, President.

                   Sh.Sat Paul Garg, Member.

                  

Present       Sh.H.R.Sharma, Adv. for complainant.

                   Sh.Rajeev Abhi, Adv. for OPs.

 

                                                ORDER

R.L. AHUJA, PRESIDENT

1.                Present complaint u/s 12 of the Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Smt.GeetaDevi(hereinafter in short to be referred as ‘complainant’) against  Universal Sompo General Insurance Company Limited and others (herein-after in short to be referred as ‘OPs’)- directing them to release the amount of claim for Rs.2,04,697/- of the vehicle of the complainant as per rules immediately alongwith interest as calaculated by the Indusind Bank Limited, Ludhiana on the amount of loan after date of submission of claim thereof which comes to Rs.25,000/- besides Rs.1 lakh as compensation and Rs.22,000/- as litigation expenses to the complainant.

2.                In brief, the case of the complainant is that the complainant purchased one insurance policy No.2314/52976999/00/000 through Kawaljit Kaur intermediary on dated 7.3.2013 and the same was valid from 26.2.2013 to 25.2.2014, as the complainant got her vehicle, one Mahindra Gio Passenger, Passenger vehicle BSIII insured for Rs.2,04,697/- after making the payment of total premium of Rs.16,667/- from the Ops as per the said policy issued by the Ops. The complainant in the very beginning at the time of purchase of the abovesaid vehicle under Hire Purchase/Lease/Hypo by Indusind Bank Ltd from Kohli Auto Company(S) Authorized Dealers: Mahindra & Mahindra Ltd., B.O.Show Room:656, Textile Colony, Industrial Area-A, Bye Pass, Ludhiana vide retail invoice No.SM/0582/12-13 dated 26.2.2013, got the said vehicle insured from the Ops vide the aforesaid policy. Thereafter, the aforesaid vehicle/Four Wheeler No.PB-10-DZ-6855 Mark Mahindra GO was stolen by some unknown persons on 7.9.2013 at about 5:30 AM near village Hari Pur Khalsa from the road side, which was being driven by the husband of the complainant. Complainant’s husband Pardeep Poddar s/o Moti Lal Poddar reported the theft to the police at P.S.Phillaur, District Jalandhar and FIR No.244 dated 9.9.2013 u/s 379 IPC was got lodged and on 18.12.2013, the concerned police officer, P.S.Phillaur, District Jalandhar had issued a copy of untraceable report to the complainant. Thereafter, the complainant submitted the claim of the said vehicle to the Ops vide CL No.13028582 on 14.9.2013 complete in all respect alongwith all documents/bills and receipts etc., in respect of the purchase and insurance expenses etc, of the vehicle incurred by the complainant. The same was duly received by the Ops at their Ludhiana branch office i.e. OP2, for the purpose of settling the claim of the said vehicle of the complainant. The said claim has not been released and the same is still pending with the Ops without any intimation to the complainant till date. Despite several requests and despite serving a legal notice dated 18.4.2014 upon the Ops to release the payment of the claim of the said vehicle of the complainant, but the Ops did not bother to do so. Hence,this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Rajeev Abhi, Advocate and filed their written reply, in which, it has been submitted in the preliminary objections that the present complaint is barred u/s 26 of the Consumer Protection Act and the same is not maintainable since immediately on the receipt of the claim, it was duly registered, entertained and processed. The complainant had obtained passenger carrying package policy which is a contract in itself. It is one of the condition in the policy i.e. condition no.1 and 5 that the complainant shall lodge the claim with the Ops and intimate the police immediately and also that the insured shall take reasonable steps to safeguard the vehicle from loss or damage. The said conditions are reproduced as under:-

“1)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. Even letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.

5)The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

Sh.Dheeraj Soodha, Advocate was appointed as investigator, who had made thorough investigation, recorded the statement and took the documents and thereafter, prepared his report dated 24.10.2013 under his signatures and submitted the same with the answering Ops. The complainant was requested to furnish both the keys of the vehicle in question to enable the answering Ops to proceed on the matter further, but the complainant inspite of verbal and written requests, has failed to submit both the keys of the vehicle. Non submission of both keys of the vehicle establish that the vehicle might have been stolen by using the key of the vehicle which would have been left in the vehicle and keeping the vehicle in a drivable condition tantamount to violation of express policy condition no.5 which put obligation on the insured to take reasonable care on the insured vehicle from occurrence of the loss. Moreover, there is delay in informing the police by two days as the date of loss is 7.9.2013 and the date of FIR is 9.9.2013 which is violation of the policy condition no.1 and there is delay of 7 days in intimating the answering Ops as the complainant had lodged the claim on 14.9.2013. After the receipt of the investigation report and other documents and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of the answering Ops, the claim of the complainant was closed as ‘No Claim’ vide letter dated 18.8.2014 on the ground of non-submission of both the ignition keys of the vehicle and the claim was repudiated vide aforesaid letter and also on account of violation of express policy conditions no.1 and 5 of the insurance policy obtained by the complainant. The ignition keys demanded by the answering Ops is the material requirement for processing of the claim. The present complaint is not maintainable since the complainant is not a consumer as defined under Consumer Protection Act. The complainant is the owner of the commercial vehicle being plied for commercial purposes to earn huge profits and has obtained the insurance policy called passengers carrying package policy in respect of his commercial vehicle and as such, the complainant is no more a consumer and this Hon’ble Forum  has got no jurisdiction to try and decide the present complaint. The complainant is estopped by her own act and conduct from filing the present complaint since she has not come to this Hon’ble Forum with clean hands and has concealed the material facts. The present complaint is not maintainable since complicated question of law and facts are involved which required elaborate evidence both oral and documentary and it is only Civil Court of competent jurisdiction that can try and decide the present complaint and the complaint cannot be decided by this Hon’ble Forum in a summary manner. On merits, the facts regarding insurance of the vehicle in question and payment of premium are admitted. However, it is submitted that the insurance policy is a contract in itself and nothing can be added or subtracted out of it as per law of the land. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complainant being wrong and incorrect, answering OPs made prayer for dismissal of the complaint with costs.

4.                Learned counsel for the complainant in order to prove the case of the complainant tendered into evidence affidavit of complainant as Ex.CA, in which, she has reiterated all the contents of the complaint. Further, learned counsel for the complainant tendered into evidence affidavit Ex.CW2/A of Sh.Pardeep Poddar, who is the husband of the complainant, in which, he has corroborated the allegations of the complainant as taken in the complaint. Further, learned counsel for the complainant has proved on record documents Ex.C1 to Ex.C13.

5.                On the contrary, learned counsel for the Ops adduced evidence by placing on record affidavit Ex.RA of Sh.Piyush Shanker, its Officer, in which, he has reiterated all the contents of written reply filed by OPs and refuted the case of the complainant. Further, learned counsel for the OPs has proved on record documents Ex.R1 and Ex.R8.

6.                We have heard the learned counsel for the complainant as well as learned counsel for the OPs.

7.                Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint and further, it has been submitted that the complainant is the consumer under the provisions of Consumer Protection Act as the complainant had purchased the policy in question from the Ops for the purpose of insuring her vehicle i.e. Mahindra GIO Passenger which was stolen by some unknown person. The same very day, complainant’s husband Pardeep Poddar had reported the theft to the police at P.S.Phillaur, District Jalandhar, immediately, after the theft, on 7.9.2013 but the police lodged FIR on the complaint, after thorough inquiry, vide FIR No.244 dated 9.9.2013 u/s 379 IPC. Similarly, thereafter, on 7.9.2013, complainant’s husband Pardeep Podar had also reported the incident of theft to Ops. The complainant submitted the claim of loss of the said vehicle to the Ops on 14.9.2013 complete in all respect alongwith ignition key and all the documents/ bills and receipts etc. in respect of the purchase and insurance expenses etc., of the vehicle, incurred by the complainant. However, despite that Ops failed to release the amount till date and the same is still pending with the Ops. But the delay in settling the claim is unjustified and as such, is an inordinate delay in the settlement of insurance claim, which is certainly a deficiency in the services undertaken by the insurers. Further, learned counsel for the complainant has relied upon judgments titled as National Insurance Company Ltd. vs. J.Sarveswara Roa-CPC-1992-650(N.C.); M/s S.K.Jewellers and another-1995(2)CPC-194(State Commission); Dr.Vinita Bansal vs. The Oriental Insurance Company Limited-2000(2)CPC-162(State Commission); M/s Oriental Insurance Company Ltd. vs. Raghbir Singh of District Jind-CPC-1994(1)-180(State Commission);National Insurance Co.Ltd. and another vs. track Way Securities and Finance Pvt. Ltd. and another-II(2011)CPJ-132(N.C.); National Insurance Company Limited vs. Nitin Khandewal-IV(2008)CPJ-1(S.C.); National Insurance Company Limited vs. Kamal Singhal-IV(2010)CPJ0297(N.C.) and and New India Assurance Company Limited vs. Pradeep Kumar-2010(1)CPC-387(S.C.)

8.                Learned counsel for the Ops has filed the written arguments, in which, he has reiterated all the averments made in the written reply filed by OP1 and OP2 and further, it has been submitted under the head of “Points of Arguments” that the policy is a contract in itself and the parties are bound by the terms and conditions of the policy. The insured had committed violations of terms and conditions of the policy. The complainant was called upon to furnish both the keys of the vehicle in question to enable the OP to proceed with the matter but the complainant had failed to submit both the keys of the vehicle. Non-submission of both the keys of the vehicle establish that the vehicle might have been stolen by using the key of the vehicle would have been left in the vehicle and keeping the vehicle in drivable condition tantamount to violation of express condition no.5 which put obligation upon the insured to take reasonable care on the insured vehicle from occurrence of loss. Further, there is delay in informing the police by two days as the date of loss is 7.9.2013 and the date of FIR is 9.9.2013 which is violation of the policy condition no.1 and there is delay of 7 days in intimating the answering Ops as the complainant had lodged the claim on 14.9.2013 which is violation of policy condition no.1. Learned counsel for the OPs has also made reference of the documents produced by the OPs in the evidence and further, relied upon judgments titled as New India Assurance Co.Ltd. vs. Rajendra Pal Singh-I(2009)CPJ-492(Uttarakhand State Commission); Ind Swift Ltd. vs. New India Assurance Co,Ltd-IV(2012)CPJ-148(N.C); Lakhan Pal vs. United India Insurance Co.Ltd.-III(2013)CPJ-497(N.C.); Kuldeep Singh vs. Iffco Tokio General Ins.company Ltd.-II(2013)CPJ-189(N.C.); Suman vs.Oriental Insurance Co.Ltd-I(2013)-713(N.C.); Paramjit Kaur vs. Oriental Insurance Co.Ltd-III(2014)CPJ-164(N.C); Devinder Kumar vs.National Insurance Co.Ltd-Revision Petition No.3840 of 2011 decided on 2.4.2012(N.C.) and Oriental Insurance Company Ltd. vs. Shyam Sunder-II(2014)CPJ-567(N.C.).

9.                We have gone through the written arguments alongwith judgments filed by the learned counsel for the parties during the course of arguments and have also perused the record on the file very carefully.

10.              Perusal of the record reveals that it is an undisputed fact between the parties that the complainant is the owner of the vehicle bearing registration No.PB-10-DZ-6865 which was insured with the OPs vide insurance policy No.2314/52976999/00/000 Ex.C4 which was valid from 26.2.2013 to 25.2.2014. Further, the vehicle in question was being driven by Sh.Pardeep Poddar, husband of the complainant and in order to answer the call of nature, he got his vehicle parked on roadside, when some unknown persons had stolen the vehicle of the complainant, to whom the husband of the complainant carried as passengers with him. Further, it is proved that complainant and her husband made search of the vehicle in question after theft of the same and thereafter, lodged the FIR NO.244 dated 9.9.2013 u/s 379 IPC Ex.C8 qua the theft of the vehicle in question. Further, it is a proved fact on record that complainant had lodged the claim with the Ops but the same was repudiated as ‘No Claim’ by the Ops vide their letter dated 18.8.2014 Ex.R7 on the ground that two ignition keys of the vehicle was not handed over and late intimation was given to the insurance company after two days of the theft of the vehicle in question.

11.              Perusal of the evidence of complainant reveals that at the time of theft, the complainant had left the vehicle in question outside the road in order to answer the call of nature which was not under the control of the complainant and in the meantime, the theft of the vehicle in question took place. The complainant has categorically mentioned in her affidavit Ex.CA that efforts were made to trace out the vehicle but when they failed to do so, they lodged the FIR in the concerned police station within two days and thereafter, due intimation was given to the Ops and also lodged the claim well within time. However, Ops had repudiated the claim. Since, the key was with the vehicle, so there is no question of handing over the key to the Ops. Though, Ops had raised plea of violation of terms and conditions of the policy by not taking due care of the vehicle while parking the vehicle. However, it is a well settled principle of law that the claim cannot be repudiated in toto and further, the investigator of Ops had also not denied the fact qua the theft of the vehicle in question. Secondly, Ops had repudiated the claim of the complainant on the ground of late intimation. Since, the complainant had lodged the complaint with the concerned police station after gap of one day. So, it cannot be presumed that late intimation was given to the concerned quarter. So, we are of the opinion that Ops were not competent to repudiate the claim in toto. Rather, they are bound to settle and pay the claim of the complainant on non-standard basis, in case, there is any violation of the terms and conditions of the policy and further, we find force from the judgment placed on record by the learned counsel for the complainant titled as National Insurance Company Limited vs. Kamal Singhal-IV(2010)CPJ0297(N.C.), vide which, it has been observed that driver on its journey picked up three persons and three persons took away car when driver went for nature’s call. Informed OP and police about theft. Investigation officer appointed and claim repudiated on ground of breach of policy, reasonable care not taken. District Forum allowed complaint and appeal dismissed. In the revision petition, it has been observed that driver was not expected to carry key while getting down to answer nature’s call. Claim be settled on ‘non-standard basis’ and order of Fora below upheld.

12.             In view of the above discussion, by allowing this complaint, we hereby direct the Ops to settle and pay the claim of the complainant on non-standard basis, failing which, Ops are directed to pay interest @9% p.a. from the date of lodging of claim till realization. Further, Ops are directed to pay Rs.15,000/-(Fifteen thousand only) as compensation to the complainant on account of mental pain, agony and harassment suffered by her and Rs.2000/-(Two thousand only) as litigation costs to the complainant. Order be complied within 30 days from the date of receipt of copy of this order which be made available to the parties free of costs. File be completed and consigned to record room.

 

                             (Sat Paul Garg)              (R.L.Ahuja)

   Member                      President

 Announced in Open Forum

Dated:24.04.2015

Gurpreet Sharma.