Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 293
Instituted on : 18.06.2019
Decided on : 24.08.2023
Rajesh Kumar Sharma age 43 years son of Narain Dutt Sharma, resident of House No. 591/33, Ward No. 23, Ram Nagar, Kath Mandi, Rohtak.
.......................Complainant.
Vs.
- Universal Sompo General Insurance Company Ltd., SCO-9, First Floor, above Central Bank of India, Sector-10, Panchkula, through its Manager.
- Central Bank of India, Branch office, LPS, Hissar Road, Rohtak through its Manager. …………...Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh. Devender Singh, Advocate for complainant.
Sh. Gulshan Chawla, Advocate for Opposite party No. 1.
Opposite party no. 2 exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that he is the registered owner of the vehicle car bearing registration no. HR-12W-2333 which was got insured with opposite party no. 1 vide policy no. 2311/57848109/00/800 for the period of 25.11.2017 to 24.11.2018 having IDV Rs.4,50,000/- as per insurance policy. The said vehicle was got financed by the opposite party no. 2. On 08.07.2018(date amended vide order dated 06.02.2023 of this Commission), the complainant had gone to village Samargopalpur District Rohtak on the said vehicle and while returning back to his house, the engine of the car started giving smoke near Gurukul Singhpura. Then complainant stopped the car and parked the said vehicle by taking all the precautions and went in search of mechanic. Due to late night, complainant went to his house. In the morning at about 6:30 AM, the said vehicle was not found there. He intimated to police control room, Rohtak immediately regarding the theft of his vehicle. Police also could not find out the said vehicle and FIR no. 0353 dated 09.07.2018 under Section 379 IPC was registered regarding theft of the said vehicle by the police. The complainant also intimated to official of the opposite party no. 1 within time verbally as well as in writing about the theft of his vehicle and lodged his claim alongwith all the required documents. Official of the opposite party no. 1 assured the complainant to disburse the claim amount within short period. Thereafter complainant visited the office of the opposite party no. 1 many times to get his genuine claim but the opposite party no. 1 did not disburse the same. Opposite party no. 1 by issuing letter dated 24.08.2018 showed inability to consider the claim of the complainant mentioning therein in arbitrary and illegal facts. On receiving the said letter, complainant visited to the opposite party no. 1 and requested to withdraw the said letter and to pay the genuine claim amount to him but opposite party refused to disburse the claim amount of the complainant. As such, there is deficiency in service on the part of opposite parties. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the IDV of the vehicle i.e. Rs.4,50,000/- alongwith interest, to pay Rs.1,50,000/- as compensation and Rs.11,000/- as litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No. 1 in its reply has submitted that claim intimation was made on 11.07.2018, whereas the theft of vehicle was occurred on 08.07.2018. They registered the claim of the complainant as claim no. CL18042517. It is further submitted that as per the contents of the FIR no. 353 dated 09.07.2018, the complainant has parked his vehicle by the road side alongwith original documents of the vehicle in the vehicle itself including Original registration certificate and on the next morning when he reached the spot, vehicle was not found there. Hence, the claim of the complainant was rightly repudiated under intimation to complainant vide letter dated 24.08.2019, as the complainant failed to take reasonable care of the vehicle in question as prudent man, which is in violation of terms and conditions of the policy. On receiving the intimation of the claim of the complainant, the opposite party had appointed Mr. Amit Kumar, an independent investigator to investigate the alleged theft. The said investigator submitted its report on 25.07.2018 and concluded that the said vehicle was stolen due to sole negligence of the owner cum driver of the said vehicle as the time and circumstances are not cleared by the insured as he left all the papers including RC, insurance policy in the vehicle at the night of the incident. Also the site of the stolen vehicle is a highway and there is a large foot fall on the road at night and day and the incident took place at night which is not possible as the road is busy one as there is a huge traffic on the road and he carelessly left the vehicle at night of the incident date. It is further submitted that complainant could have called police for help, could have towed the vehicle with the help of passerby to the safest place, could have called any of the his friends/relative for help or could have called at 24X7 toll free number but the complainant opted to park on road side without any precautions and opted to move to his house, paving the way for theft the vehicle. Thus the claim of the complainant was repudiated/no claim vide letter dated 24.08.2019. All the other contents of the complaint were stated to be wrong and denied by the answering opposite party and prayed for dismissal of complaint. On the other hand, Kesho Ram Gupta, Branch Manager of opposite party no. 2 appeared and submitted its reply that Rupees 60,537/-(Rs. Sixty thousand five hundred thirty seven) is outstanding in loan account. Thereafter opposite party no. 2 not appeared before this Commission and was proceeded against exparte vide order dated 12.04.2022 of this Commission.
3. Ld. Counsel for the complainant in his evidence has tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C8 and closed his evidence on dated 19.10.2021. Learned counsel for the complainant also tendered affidavit Ex. CW-1/B in his additional evidence and close the same on dated 06.02.2023. Learned counsel for opposite party No. 1 tendered affidavit Ex.RW-1/A, documents Ex. RW1/1 to RW1/5 and closed the same on dated 12.04.2022.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint the date of incident has been wrongly mentioned by the complainant in complaint as 07.08.2018 and the same date has been repeated in the affidavit also, which has been placed as Ex.CW1/A on dated 19.10.2021. Thereafter an application has been moved by the complainant to rectify the date of incident as 08.07.2018 instead of 07.08.2018. Therefore affidavit Ex.CW1/B has been filed by the complainant on dated 06.02.2023. The perusal of documents shows that vehicle of the complainant become defective during intervening night of 8/9.7.2018 and complainant went to call the mechanic when he returned on the spot on the next day morning at 6.30P.M., the vehicle was not found there. So the complainant filed the claim with the opposite party No.1 but the same has been repudiated by the company vide its letter dated 24.08.2018 on the ground that : 1).You had parked the vehicle unattended alongwith documents at roadside and someone had stolen the vehicle from there, 2) This is the violation of policy condition no.4 stating “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition”, 3) NOC of the financer, 4) Untraced Report from the police station, 5) Clarification in delay of 20 days in intimation to company.”
6. Regarding the NOC, complainant has placed on record No Dues Certificate issued by the opposite party No.2 as Ex.C6. The main contention of the insurance company is that respondent was informed by the complainant after a delay of 20 days. In this regard we have placed reliance upon the law of Hon’ble Supreme Court of India in Civil Appeal no.1069 of 2022 decided on 11.02.2022 titled as Jaina Construction Company Vs. Oriental Insurance Company, Civil Appeal no.5705 of 2021 decided on 13.09.2021 in case titled as Dharamender Vs. UIIC, as well as Civil Appeal no.653 of 2020 decided on 24.01.2020 in case titled as Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr., Hon’ble Apex Court has observed that: “When insured lodged FIR immediately after theft of a vehicle occurred and when police after investigation have lodged a final report after vehicle was not traced and when surveyors/investigators appointed by insurance company found claim of theft to be genuine, then mere delay in intimating insurance company about occurrence of theft cannot be a ground to deny claim-Lodging of FIR on same day theft occurred-Therefore, denial of claim set aside”. The law cited above, are fully applicable on the facts and circumstances of the case as in the present case also, FIR was lodged on the very next day of theft i.e. 09.07.2018. As per FIR Ex.C4, the date of FIR mentioned on first page is 09.07.2018 but on the second page it is wrongly written as 07.08.2018, which is a clerical mistake. The other contention of the opposite party is that the complainant had parked the vehicle unattended alongwith documents at roadside but as per FIR Ex.C4 it is mentioned that the complainant had properly closed the window and locked the car. Hence it is proved that the complainant had taken all the reasonable steps to safeguard the vehicle. The other plea is regarding the untraced report, which is placed on record and annexed with the document Ex.C5. Hence the opposite party has repudiated the claim on false grounds and there is deficiency in service on the part of opposite party No.1. As such opposite party No.1 is liable to pay the claim amount to the complainant.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 to pay the IDV of vehicle i.e. Rs.450000/-(Rupees four lac fifty thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.18.06.2019 till its realization and shall also pay Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to complete the formalities i.e. to submit the signed form no.29-30, indemnity bond and subrogation letter in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 25.08.2023 of this Commission. Complainant is also directed to send a letter to the RTO for cancellation of R.C.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
24.08.2023.
................................................
Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
………………………………..
Vijender Singh, Member.
