The complainant Bhupinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against National Insurance Co. Ltd., (here-in-after referred to as opposite party).
Briefly stated the case of the complainant is that he is the owner of vehicle bearing Regd. No. PB-13-Y-8895 and the said vehicle was duly hypothecated with Fullerton India Credit Company Limited at the time of theft, but at the time of filing of complaint, the vehicle was not hypothecated and in this regard, financer issued Form No.35 regarding cancelation of hypothecation. That the above said vehicle is comprehensively insured (Package Policy) vide Insurance Certificate No. 404200/31/15/63830000 w.c.f. 17.08.2015 to 30.05.2016 with the opposite party for the IDV of Rs.13,00,000/-.
It is alleged that in the intervening night of 26/27.11.2015 the said vehicle of the complainant was parked at Cattle Fair Ground, opposite Truck Union, Rampura, but in the morning i.e. 27.11.2015, the said vehicle was not there. It was stolen by unknown and unidentified person(s). The complainant immediately approached the Police, but the Police of PS City Rampura stated that they will not register the case immediately as firstly they will try to trace the vehicle and thereafter if the vehicle could not be traced then they will register the complaint. The complainant as per instructions of the Police, tried to trace the said vehicle, but all in vain and finally the Police registered DDR No.14 dated 03.12.2015 at P.S. City Rampura in connection with the theft of Truck of the complainant. The complainant demanded the FIR from the Police but they registered DDR only. The complainant approached high officials of the Police, then the Police of PS City Rampura finally recorded the statement of the complainant again and merged the DDR in the FIR No. 65 dated 24.08.2016, after 9 months of the theft. The said merger is not done by the Police itself and they stated that they register one FIR of many vehicles as per their rules.
The complainant further alleged that he intimated the opposite party regarding theft and they appointed Mr. Satish Kumar Bansal as investigator to investigate the theft case. On 26.12.2015, the alleged investigator obtained all the documents from complainant. Investigator of the Insurance Co./opposite party reported that the theft was genuine one. The complainant submitted all the necessary papers i.e. photocopy of RC, Insurance Certificate, Original Non-Traceable Certificate, DDR, FIR, Key and duly filled and signed claim form etc. to the opposite party through Mr. Satish Kumar Bansal, Investigator.
It is alleged that thereafter opposite party raised objection regarding submission of one Key. The complainant and his father gave statement to Mr. Satish Kumar Bansal, Investigator, that the complainant purchased the second hand vehicle and at the time of purchase, the previous owner gave him only one key of the vehicle. In this regard complainant also gave the affidavit.
The complainant further alleged that thereafter opposite party appointed Mr. Ankur Jindal as another Investigator against the rules who investigated regarding the theft and key of insured vehicle. He visited with the complainant Truck Union at Rampura Phul, Police Station at City Rampura, M/s. Chawla Motors,Sangrur and M/s Krishna Auto, Sangrur and he gave findings that "As per the information gathered, the enclosed Key type of the insured vehicle is genuine type of the Key, which is matched with the other vehicles of the same model. The said Truck having Registration No.PB-13-Y-8895 belonging to complainant was stolen from the Truck Union of Rampura Phul. The DDR, FIR and untraced report are genuine. As per insured, he purchased this insured vehicle from a Re-seller with the Single Key, only and he already gave an affidavit regarding the same". At the end Mr. Ankur Jindal concluded that the claim is genuine.
The complainant also alleged that thereafter the opposite party, to decline the legal claim of the complainant, raised objection that why the complainant has taken untraceable report against FIR No.65, while as per DDR No.14 the said theft was clubbed with FIR No.63. The complainant submitted reply to the opposite party that firstly the police clubbed the matter with FIR No.63 and thereafter when complainant visited the police again and again, they again took the statement of the complainant and registered another FIR No. 65 dated 24.08.2016. The Police first registered DDR, then clucbbed/merged the DDR with FIR No.63 and finally the Police registered the independent FIR No.65 in connection with the theft of Vehicle No. PB-13-Y-8895 of the complainant.
It is further alleged that theft took place on 26/27.11.2015 and claim is still pending with the opposite party even after lapse of three years whereas both investigators declared that the theft/claim is genuine one. That GIC and NIA already issued circular on 24.02.2012 on the basis of circular of IRDA that if there is delay in intimation of theft, the claim is payable under non standard i.e. 75% , if the same is found to be genuine. The opposite party illegally and on flimsy ground sitting on the legal claim of Rs.13,00,000/- (IDV) of the complainant by using illegal clause regarding Keys, Police Reports etc., whereas in this case, Investigator of the opposite party concluded that the claim is genuine. Moreover, the opposite party never communicated such type of Clause nor produced any insurance policy till date. That due to the non-payment of the claim of Rs.13,00,000/-, the complainant has suffered mental agony and pains, for which he claims compensation to the tune of Rs.2,00,000/-.
On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay total loss amount of Rs. 13,00,000/- with interest @ 18% p.a with damages to the tune of Rs. 2,00,000/- besides Rs. 1,00,000/- as litigation expenses.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply raising legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act'. That the complainant is not consumer of the opposite party. That the complainant has no locus standi or cause of action to file the present complaint. That the complainant has concealed material facts from this Commission as well as opposite party.
It has been pleaded that the complainant has concealed the fact that intimation to the police and to the Insurance company was given late in violation of mandatory provisions of terms and conditions of the policy. The loss has been alleged to be of 26/27.11.2015, whereas DDR is of date 3.12.2015 i.e. late by five days and intimation to the Insurance company is also late. Further, FIR No.63 relied upon by the complainant has no relation with DDR No.14 as the said FIR is of a date prior to the date of alleged loss and thus it does not find mention of even the vehicle number. The complainant lodged FIR No.65 after a considerable delay i.e. on 24.8.2016. The opposite party wrote letters dated 17.10.18, 18.12.18, 15.11.18, 23.10.18, to police authorities to provide the relation between DDR No.14 and FIR No.63 as both were stated to be investigated together to explain the gap of 9 months in registering the FIR No.65. Similarly letters dated 03.07.18, 27.06.18, 15.6.18, 07.06.18 were written to the complainant to explain that as per DDR No. 14 dated 03.12.2015 it was clubbed with FIR No.63 then why he submitted untraceable certificate with respect to FIR No.65 dated 28.08.2016 and why not with respect to FIR No.63. The complainant was also asked to submit second key and non traceable certificate vide letters dated 01.12.17, 30.8.17, 01.03.2017 & 18.08.17. Further, the opposite party has not yet decided the claim and thus the complaint is premature.
On merits, the opposite party has pleaded that complainant mentioned the value of vehicle as Rs. 9,00,000/- in FIR No.65 and thus cannot claim anything more than Rs.9,00,000/- Lacs at all, even if any amount is held payable. The opposite party admitted that they appointed Ankur Jindal as Investigator who conducted the investigation and submitted the report. It has been pleaded that the opposite party represents a public institution and has to satisfy itself fully regarding genuineness of the claim before making any payment. In this case, the claim is still pending decision and thus the complaint is premature. The opposite party denied that the police firstly registered DDR and then clubbed the same with FIR No.63 as alleged and that claim is payable on non-standard basis at 75%.
It has been pleaded that there is catena of judgments to the effect that delay in intimation to police and insurer deprives valuable right of opposite party to conduct detailed investigation, effects recovery of vehicle and arrest of culprit. The complainant was supposed to supply both the keys of the vehicle. In this case there is a high probability that a Key was left in the vehicle itself leading to theft of the vehicle. In further reply, the opposite party reiterated its version as taken in legal objections and detailed above. After controverting all other averments of the complainant, the opposite party prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 7-12-2018 (Ex. C-1), photocopy of Form No. 35 (Ex. C-2), photocopy of R.C. (Ex. C-3), photocopy of Insurance certificate (Ex. C-4), photocopy of DDR (Ex. C-5), photocopy of FIRs (Ex. C-6 & Ex. C-7), photocopy of non-traceable certificate (Ex. C-8), photocopy of claim form (Ex. C-9), photocopy of affidavit (Ex. C-10), photocopy of investigation report (Ex. C-11), photocopy of letter (Ex. C-12) and photocopy of circulars (Ex. C-13 & Ex. C-14).
In order to rebut the evidence of complainant, the opposite party tendered in to evidence affidavit dated 30-1-19 of N K Sachdeva (Ex. OP-1/1), photocopy of letters (Ex. OP-1/2 to Ex. OP-1/12), photocopy of Insurance policy alongwith terms and condition (Ex. OP-1/13), photocopy of Investigation Reports (Ex. OP-1/14 & Ex. OP-1/15) and photocopy of letter (Ex. OP-1/16).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heard learned counsel for the parties and gone through the record.
There is no dispute between the parties that Truck bearing registration No. PB-13-Y-8895 is insured with the opposite party vide Insurance Policy No. 404200/31/15/63830000 w.c.f. 17.08.2015 to 30.05.2016 for the IDV of Rs.13,00,000/- (Ex OP-1/13). The said vehicle of the complainant was stolen away in the intervening night of 26/27.11.2015. The complainant intimated the loss to police as well as to the opposite party. The claim of the complainant has not yet been decided by the opposite party.
The submission of learned counsel for the complainant is that complainant intimated the police immediately when theft came to his notice, but the police did not register the complaint/case on the ground that firstly they will try to trace the vehicle. Thereafter DDR No. 14 dated 3-12-2015 was registered which was clubbed/merged with FIR No. 63 dated 30-6-2015 but on repeated visits of the complainant to the police, the police registered another FIR No. 65 dated 28.8.2016. The complainant submitted all the required documents inlcuding untraceable report with the opposite party but the opposite party did not settle and paid the claim despite the fact that investigators deputed by the opposite party also concluded that claim of the complainant is genuine.
The submission of the learned counsel for the opposite party is that the theft of vehicle in question took place on 26/27.11.15 whereas DDR No. 14 is of 3.12.2015. FIR No. 63 has no relation with DDR No. 14 as the said FIR is of a date prior to the date of alleged loss. The complainant submitted untraced report against FIR No. 65 whereas DDR No. 14 was clubbed with FIR No. 63. Moreover, complainant has not submitted second key of the vehicle in question. Hence, the claim is not payable.
Ex. OP-1/14 & Ex. OP-1/15 are the Investigation Reports of Investigators deputed by the opposite party to investigate the genuiness of the claim of the complainant. Ex. OP-1/14 is the investigation Report dated 28-12-2015 of Sh. Satish Kumar Bansal. Under the heading “Observation and Remarks” the said Investigator has mentioned that :
“Under the circumstances as mentioned above, I find that 3118 Truck Trailer No. PB-13Y-8895 Model 2011 owned by Bhupinder Singh was stolen by thieves in the intervening night of 26/27.11.2015 alonwith 440 Ultratech Cement Bags from the Cattle Fare ground, Opposite Truck Union, Rampura and it was properly locked at the time of parking. The original RC and other papers of the Truck Trailer are stolen alongwith 3118 Truck Trailer. The various records pertaining to the captioned theft claim case are verified which includes police and other records and found in order. The insured informed the police of PS City Rampura on 27-11-2015 and they attached the theft claim case of 3118 Trailer with FIR No. 63 dated 30-6-2015 U/s 457/379 IPC vide DDR No. 14 dated 3-12-2015. I also collected the various records pertaining to the captioned theft claim case from the insured which includes GR and invoice etc., So, the claim may be dealt in accordance with the insurance policy terms and conditions, after completion of the formalities required in the theft claim case.”
Ex. OP-1/15 is the Investigation report dated 17-3-2018 of Sh. Ankur Jindal. After thorough Investigation, below mentioned findings were given by the said Investigator :-
i) As per the information gathered, the enclosed key type of the Insured vehicle is genuine type of the key, which is matched with the other vehicles of the same model.
ii) The said Truck having registration No. PB-13Y-8895 belonging to Sh. Bhupinder Singh S/o Sh. Karam Singh was stolen from the Truck Union of Rampura Phul.
iii) The DDR, FIR and untraced report are genuine, which are enclosed herewith.
iv) As per the insured, he purchased this insured vehicle from a Re-seller with the Single Key only and he already gave an Affidavit regarding the same, which is enclosed herewith.
Keeping in view the above said facts, the claim is genuine and the company may take the decision as per terms and conditions of the issued policy.”
Therefore, the above findings given by Two Investigators deputed by the Insurance Company/opposite party itself makes the position crystal clear that there is not even a single point/document which comes under any doubt. FIRs, untraced report, key of insured truck, theft, everything has been found by the Investigators as genuine.
The I.R.D.A has issued circular regarding delay in claim intimation/documents submissions. For the sake of convenience, the circular is being reproduced as under :-
“ Ref No. IRDA/HLTH/MISC/CIR/216/09/2011 Dated 20-09-2011
C I R C U L A R
To : All life insurers and non-life insurers.
Re : Delay in claim intimation/documents submission with respect to
i) All life insurance contracts and
ii) All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The Insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers' stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured."
From the perusal of aforesaid circular/letter, it is clear that delay in intimation should not prevent settlement of genuine claim.
Hon'ble Supreme Court in the case titled Gurshinder Singh Vs. Shriram General Insurance Co. Ltd., & Anr (2020 (1) Apex Court Judgements (SC) 266 has held :-
“Insurance Claim – Delay in intimating insurance company about occurence of theft no ground to deny claim.
Consumer Protection Act – Theft of vehicle – Delay in intimating to Insurance Company – Denial of Insurance claim – 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 surveyor/investigator 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 – Held lodging of FIR on same day theft occurred – Therefore, denial of claim set aside.”
The observations of Hon'ble Apex Court in para No. 11 in the case Om Parkash Vs. Reliance General Insurance & Another IV(2017) CPJ 10 (SC) are as under :-
It is a common knowledge that a person who lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. The condition regarding delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the 'Act'.”
A perusal of aforesaid observations reveals that Insurance Companies are not justified to reject the claims on purely technical grounds in a mechanical manner and the condition regarding delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine and in this case even reports of Investigators of the opposite party itself proves the case of the complainant as genuine, then too opposite party failed to honour the claim of the complainant. Thus, there is deficiency in service on the part of opposite party in repudiating the genuine claim of the complainant without any reason. Hence, the complainant is entitled to the Insured's Declared Value (IDV) of the vehicle in question as per insurance policy with interest.
In view of what has been discussed above, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite party is directed to pay to complainant an amount of Rs. 13,00,000/- (Rupees Thirteen Lacs only) being the IDV of vehicle with interest @8% p.a. w.e.f. 26-3-2016 (i.e. three months after submission of insurance claim dated 26-12-2015 Ex. C-9) till realization.
The complainant is directed to sign the documents, if any, required by opposite party and complete the other formalities, if any, required by law for release of claim .
The compliance of this order be made by opposite party within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
29-4-2022
(Kanwar Sandeep Singh)
President
(Shivdev Singh)
Member
(Paramjeet Kaur)
Member
