STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 18.05.2017
Date of final hearing: 25.08.2023
Date of pronouncement: 03.11.2023
First Appeal No.607 of 2017
IN THE MATTER OF:-
United India Insurance Company Limited, Regional Office SCO No. 123-124, Sector 17B, Chandigarh through its Deputy Manager (Consumer), Chandigarh. ....Appellant
Versus
- Vikas Jain S/o Sh. Nand Kishore, Ram Leela Maidan Hodal, Tehsil Hodal, District Palwal.
- Indus Bank Ltd. through its Manager, G.T. Road, Palwal, Tehsil & Distt. Palwal. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. V.Ramswaroop, counsel for appellant.
Sh. Manoj Vashishtha, counsel for respondent No.1.
None for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 50 days in filing of present appeal stands condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this Appeal No. 607 of 2017 is invited by United India Insurance Company Ltd./insurer to the legality of order dated 20.02.2017 passed by District Consumer Disputes Redressal Forum-Palwal (In short “District Consumer Commission”) in Complaint Case No.112 of 2016, vide which, complainant’s complaint has been allowed.
3. Complainant alleged that: he, being registered owner of Truck 2516 bearing No. HR-73-3290, Model-2012 got it insured, vide Policy No. 082981/31/15/01/00000042 for period of 10.04.2015 to 09.04.2016 from OP No. 1/appellant, which was hypothecated with OP No. 2-Indus Bank Ltd. Insured vehicle was stolen by unknown person on 22.04.2015 from Anaj Mandi at Nanak Dairy Road-Hodal, District: Palwal. He searched for it, here and there, but when he could not locate it; he lodged FIR bearing No. 365/2015 on 23.06.2015 U/s 379 IPC in Police Station-Hodal. He informed opposite party being insurer, through its local office, telephonically as well as, registered post on same day. Thereafter, he lodged claim; submitted documents i.e. Insurance Policy, Registration Certificate, Untraced report, FIR, ID Card, Vehicle Enquiry Report issued by National Crime Record Bureau, Final Report U/s 173 Cr.P.C and other documents required for settlement of claim to office of OP No.1, which are lying in its custody. OP-insurer, in respect of theft of vehicle appointed Sh. H.S. Tomar-Surveyor for investigation about theft; for settlement of claim. He (complainant) was shocked, when OP-insurer denied/declined the claim and repudiated it, on false and frivolous grounds. He (complainant) sent legal notice through counsel asking them, “Why they did not settle the claim in question?” OP-insurer did not give any response. He (complainant), as per plea suffered mental tension, economic loss, pain & agony, due to poor service of OPs. He has filed complaint seeking directions against respondents: to settle his claim of Rs. 12 Lacs (IDV insured Value of Truck No.HR 73-3290) along with interest @ 24% p.a.; pay him Rs.1.00 Lacs for causing him mental tension, agony and harassment; pay him Rs.50,000/- as litigation expenses.
4. OP No. 1 /insurer/appellant in its defence has pleaded in preliminary objections that: complainant has no cause of action, no locus standi and is estopped by his own Act, Conduct, Admission, Omission, Commission, Acquiescence and waiver. Complaint is based on false and frivolous grounds and is malafide. Complainant has suppressed true and material facts and failed to submit required documents such as: Court accepted Untraced Report, Loan Account Statement, Non Possession Certificate from Financer, NCRB Report. Keys of vehicle were to be surrendered. Claim in respect of Truck No. HR 73-3290; was processed and investigated by appointing surveyor, investigator and loss assessor Sh.C.P.S. Tomar who found that claim is not admissible as complainant had sold Truck in question to Sh. Mohan, two years prior to alleged theft. Permit and Registration Certificate were not transferred in the name of Sh. Mohan. These facts were disclosed by Mr. Prehlad S/o Mohan to investigator. Investigator also took statement of Sham Singh, Kalu, Hari Chand who confirmed that incident of stolen of Truck is fake. Under investigation, it has also come that Vikas Jain stated name of driver as Dal Chand, but it was found that Ram Gopal of Jabalpur was driver. As per statement of Vikas Jain; Wheat was loaded on 21.04.2015 at Jai Guru Aadat-Hodal to unload it at Suruchi Factory on 22.04.2015, but there is no evidence of loading and unloading with Vikas Jain. FIR has also been lodged by Vikas Jain after 2 months of theft, who failed to provide log book, Diesel receipts, Keys of Vehicle, Finance details and GR etc. to surveyor. Lodging of FIR No. 365 on 23.06.2015 is a matter of record, but false FIR has been lodge in connivance with police after two months of occurrence and no reason for delay has been explained. It is pleaded in para 7 of written version by OP/appellant/insurer that: claim was still under process, as complainant failed to comply with formalities. Claim was still pending for decision, but complainant without waiting for decision of company filed this complaint, which is pre-mature. In contrast, in para No. 10 written statement: OP/appellant/insurer has pleaded that: claimant’s claim was got processed and investigated by appointing Sh. C.P.S. Tomar- surveyor, investigator, loss assessor who submitted his report to appellant/insurer and on that basis; claim of complainant was not found admissible and repudiated. It is pleaded that: there is no deficiency in service of OP/appellant/insurer and complaint be dismissed with costs of Rs.10,000/-.
5. Complainant’s counsel made statement on 06.10.2016 to give up OP No.2-Indus Bank Ltd. as unnecessary party.
6. Parties to this lis viz. complainant, as well as, OP1-appellant/insurer have led their respective evidence, oral as well as documentary. On analyzing rival submissions, pleas and evidence; learned District Consumer Commission-Palwal vide order dated 20.02.2017 has allowed the complaint, thereby directing OP No.1/insurer/appellant to pay Insured Declared Value of Rs.12,00,000/- along with Rs.5,000/- to complainant as compensation for mental tension, agony and harassment, as well as, Rs.5500/- as litigation expenses within 45 days from receipt of copy of order, to complainant, failing which OP No.1/appellant has been further burdened with Rs.10,000/-, along with above awarded amount.
7. Feeling aggrieved there from; OP No.1-appellant/insurance Company has preferred this appeal.
8. I have heard learned counsel for appellant/insurer, as well as learned counsel for complainant at length. With their assistance, record of complaint filed has also been perused.
9. Learned counsel for appellant/insurer has urged that: impugned order dated 20.02.2017 is erroneous on all fronts. Learned District Consumer Commission has ignored surveyor’s report dated 22.08.2015-Ex.R2 which speaks that: complainant’s claim was not admissible in law and it has been rightly repudiated. It is urged that: FIR was lodged on 23.06.2015 whereas incident of alleged theft of Truck No. HR73-3290 took place on 22.04.2015. False FIR Annexure C-2 was recorded on 23.06.2015 i.e. after two months of occurrence. No explanation about this delay is coming from complainant and he has failed to prove that he promptly intimated insurance company/appellant about alleged theft on same day i.e. 22.04.2015. It is urged that: there are varied reasons before insurer/appellant to negate the claim which has been explained in its written version and in duly sworn affidavit-Ex.RW1/A of Sh. Ashok Kumar Pahuja-Administrative Officer of appellant. On these submissions; learned counsel has urged for acceptance of appeal.
10. Per-contra learned counsel for complainant has supported impugned order dated 22.04.2015 of learned District Consumer Commission by urging that it does not warrant any interference in this appeal.
11. Admittedly, appellant is insurer of vehicle No. HR73-3290. Currency of insurance cover is from 10.04.2015 to 09.04.2016. IDV value of Truck has been stated as Rs.12,00,000/- in insurance policy Annexure-C7/Ex.R1. Primary reason of appellant/insurer so weighing for repudiation of claimant’s claim is the delay of two months in lodging of FIR Ex.C-2 by complainant-Vikas Jain. FIR No.365 was registered on 23.06.2015 with Police Station-Hodal. Text of this FIR Ex.C2 recites complainant being stating therein that: “Till now, he had been searching for the vehicle at his own, but could not find it”. Prior thereto, on 22.04.2015 itself, vide document/letter Ex.C-1 so addressed to SHO Police Station-Hodal, complainant Vikas Jain stated that: he is owner of vehicle; he had parked it on 22.04.2015 at 06:00 AM, Near Nanak Dairy Road, Anaj Mandi and could not found it at 10:00 AM. He had also informed insurer/appellant through his letter Annexure-C3 dated 23.04.2015 about theft of his vehicle No.HR73-3290 on 22.04.2015, and having conveyed to police at No. 100 and also through writing at Police Station-Hodal. This communication (Annexure C-3) was addressed to United India Insurance Company Ltd. Komikalan (Mathura), Uttar Pradesh. These overt acts of complainant, done promptly after incident of theft, are the acts of any normal prudent man in the wake of this factual scenario. These would completely belie the tall contention of learned counsel for insurance/appellant that complainant had not promptly intimated to insurer/appellant about theft. This is obviously because: insurer/appellant had not been able to dispute and refute the fact of having received intimation Annexure-C3 dated 23.04.2015 from complainant, by its office at Komikalan (Mathura), Uttar Pradesh.
12. Ratio of law laid down by Hon’ble Apex Court in case titled as “Anil Rishi Vs. Gurbax Singh” 2006(2) PLR 775 has to be borne in mind in the backdrop of above facts and evidence. Therein, the Apex Court has held that: “there is an essential distinction between the concept ‘burden of proof and onus of proof’. Burden of proof lay upon a person, who has to prove the fact and which never shifts, whereas, onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The elementary rule of Section 101 of Evidence Act is inflexible. In terms of Section 102 of Evidence Act; the initial burden is always on the plaintiff. If the plaintiff discharge that onus and makes out a case, which entitles him to relief, then onus shifts upon the defendant to prove those circumstances, which would dis-entitle the plaintiff to the same.” While applying above cardinal principle of Law to facts and evidence of this case it is established that: absolutely no evidence, worth the name, has been led by insurer/appellant to substantiate its contention that there was a deliberate delay of two months, on the part of complainant-Vikas Jain, in registration of FIR Annexure C-2. Matter does not end here. Once, complainant had informed police on telephone (at Helpline No. 100) and also intimated police vide his communication/letter Annexure-C1 on 22.04.2015 itself, then, it was sole prerogative of police to register FIR and in that context; complainant has not role to play.
13. Legal position regarding rejection/repudiation of genuine claim on ground of delayed intimation is no more res-integra. By now, it is well settled through in catena of judgments that: repudiation of claim on the ground of delayed intimation is not justified. Reliance in this regard can be placed upon judgment dated 11.02.2022 of Hon’ble Apex Court passed in Civil Appeal No.1069 of 2022 titled as Jaina Construction Company Ltd. Versus The Oriental Insurance Company Ltd. In the cited judgment it has been held that complainant have lodged FIR immediately after theft of vehicle and when the police after investigation had arrested the accused and filed challan before concerned court and when claim of insured was not found to be not genuine the insurance company could not have repudiated the claim merely on the ground that there was delay in intimating the insurance company about occurrence of theft. In yet another case titled as Trilok Singh versus Manager, Cholamndalam MS General Insurance Company Ltd. and others, Civil Appeal No. 4530 of 2023 (arising out of SLP (Civil) No. 24923 of 2018) decided on 18.07.2023 it has been held by Hon’ble Apex Court in para No. 16 that “In view of the judgment of “Gurshinder Singh V. Shriram General Insurance Co. Ltd.” (supra), our analysis to condition no. 1 fortifies the necessity of immediate action to the police in case of the theft of the vehicle. If immediately, action is taken informing the police and some delay is caused to submit the insurance claim, it cannot be repudiated on the ground of belated information to insurance company indicating violation of condition no. 1 of the policy.” In opinion of this commission aforesaid ratio of judgments clinches the issue involved in the case in this appeal on hand. Intimation to police was given instantly on the day of theft vide document Annexure C-1. Intimation to insurance company was given on the next day of theft vide document Annexure C-3. Surveyor’s report Annexure R-2 reflect that he began investigation on 19/20.05.2015. There was prompt intimation to police as well to insurance company/appellant in this case. Just because, police had registered FIR Annexure C-2 not negate, the otherwise credible claim of complainant.
14. Allied contention of appellant/insurer that: complainant had already sold his vehicle in question (HR73-3290) to one Mohan, two year prior to theft does not weigh with this Commission for obvious reason that: insurance company has admitted the fact in its written statement that: complainant-Vikas Jain is still registered owner of vehicle No.HR73-3290, as per Registration Certificate Ex.C-6. Consequently, complainant Vikas Jain has locus-standi to file this complaint. Other reasons, so quoted by insurance/appellant in its defence, as well as, through duly sworn affidavit Ex. RW1/A of its Administrative Officer Sh. Ashok Kumar Pahuja are bereft of credence to repudiate the claimant’s claim as same has no majestic bearing, even remotely to outscore claimant’s claim. Curiously enough, insurer/appellant has taken variant stand. From pleas taken in written statement, which are equally fortified through duly sworn affidavit-Ex.RW1/A of its Administrative Officer Sh. Ashok Kumar Pahuja, initially (para No.9 of affidavit) it has been testified that complaint of complainant is pre-mature for the reason that his claim was still pending for decision but he, without waiting for decision of company (appellant) has filed this complaint. Subsequently, in para 12 of same affidavit Ex. RW1/A it has been testified that on the basis of surveyor’s report claim of claimant was not found admissible and as such repudiated. It is quite mysterious and mystifying, as to how can insurer/appellant can take to different stand in its defence and in its evidence. More so, surveyor of appellant (C.P.S. Tomar) has not stepped into the witness box to stimulate his report dated 22.08.2015-Ex.R2. Since, insurer/appellant has not led evidence, admissible in law to prove its surveyor’s report-Ex.R2, therefore insurer/appellant cannot form any acceptable base to negates claimant’s claim.
15. As a sequel to above subjective and critical analysis of relevant facets of this case; this Commission has arrived at an inescapable conclusion that: impugned order dated 22.02.2017 passed by District Consumer Commission-Palwal is legally justified, being outcome of meticulous appreciation of facts and evidence brought on file by it. Order dated 22.02.2017 is accordingly affirmed and maintained. This appeal being devoid of merits is hereby dismissed.
16. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant/insurance company against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
17. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
18. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room.
Date of pronouncement: 03rd November, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
