Haryana

Karnal

CC/193/2020

Vikas Kumar - Complainant(s)

Versus

The National Insurance Company Limited - Opp.Party(s)

Dheeraj Sachdeva

21 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 193 of 2020

                                                        Date of instt.03.06.2020

                                                        Date of Decision:21.02.2022

 

Vikas Kumar son of Shri Sat Pal resident of House no.DD519 ward no.4 DAV Colony Kaithal. 136027.

 

                                               …….Complainant.

                                              Versus

 

National Insurance Co. Ltd. Santokh Market, Railway Road Karnal-132001, through its Manager.

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

          

 Argued by: Shri Dheeraj Sachdeva, counsel for complainant.

Shri Pankaj Malhotra, counsel for opposite party.

 

                    (Jaswant Singh President)

ORDER:   

                

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured his vehicle Maruti Swift LDI car bearing registration no.HR-08-X-2031 with the OP, vide policy no.42050331181142724957, valid from 11.12.218 to 10.12.2019. The insured declared value (IDV) of the vehicle was of Rs.4,78,410/-. On 16.11.2019, a person namely Nirmal Singh took the vehicle from garage in the morning and parked before Kapoor hospital, Nissing, District Karnal and went to get a water bottle from the hospital and when he came back, vehicle was not there. The said Nirmal Singh immediately reported to local Police Station Nissing, regarding the theft of the vehicle on the same day and also informed to the complainant/owner of vehicle. The police registered an FIR in regard to the theft of vehicle, vide FIR no.0380 dated 16.11.2019 Police Station Nissing, District Karnal. After that complainant informed to the office of OP at Pehowa Chowk, Kaithal branch regarding the theft of the vehicle/car on 18.11.2019 via an application/letter and requested to accept the claim of theft of car. After some days, when neither the Kaithal office nor the Karnal office did nothing in regard to claim of car, then complainant approached to the office of OP company at Kaithal on 27.11.2019 and enquired about his car’s theft claim, but it was told to complainant that because the report of theft of car is registered at Nissing and because Karnal office is the Head office, therefore, the Karnal office will pass the claim and the application dated 18.11.2019 has been sent to Karnal office for further action. Thereafter, complainant approached to the office of OP on 29.11.2019 and enquired about the application but no satisfactory answer was given by the OP. Then complainant moved an application to Karnal office in regard to his claim and requested to OP to pass the claim of complainant.

2.             It is further averred that the complainant came to know from Police officials that the stolen car has been found lying in the farm at Narwana, District Jind in the farm of some person namely Krishan in damaged condition due to accident. The police has recovered the damaged car and took in their custody vide FARD BARAMDGI dated 07.12.2019 and complainant being the owner of the car took possession of vehicle on superdari, vide order of the court of Shri Mukesh Kumar Ld. Judicial Magistrate First Class Karnal being the Illaqa Magistrate, vide order dated 09.12.2019. Thereafter, complainant got repaired the abovesaid vehicle from Karnal Motors and amount of Rs.2,11,289/-(Rs.206049+Rs.5240/). After getting the said vehicle repaired, the complainant visited to the office of OP alongwith all necessary documents and bills of repair of vehicle etc. and submit the same to the office of OP and requested to disburse the amount which has been spent by the complainant in repairing the said vehicle but OP did not pay any heed to the request of  complainant and postponed the matter on one pretext or the other. Lastly, OP repudiated the claim of the complainant, vide letter dated 23.03.2020 on the ground of delay in intimation. After receiving the said letter, complainant approached the OP and requested that the information was given to the company well in time in the office of OP company at Kaithal on 18.11.2019 and there is no delay in providing information of incident on the part of the complainant. In this way there was deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

3.             On notice, OP appeared and filed written version raising preliminary objections with regard to maintainability. On merits, it is pleaded that complainant has violated the terms and conditions of the insurance policy and the claim of the complainant has been repudiated, vide letter dated 23.03.2020. The OP wrote letters regarding clarification on 26.02.2020, 05.03.2020 and 23.03.2020 but no reply was given by the complainant. It is further pleaded that the vehicle in question was stolen on 16.11.2019 and intimation was given to the office of OP on 03.12.2019 which was 17 days after the occurrence of the theft. The vehicle was recovered by the Narwana Police. As per FIR no.380 dated 16.11.2019, it is clear that the ignition key of the car was left inside and the car was left unattended in start condition which again is in violation of condition no.4 of the policy. Hence, the claim of the complainant has been rightly repudiated by the OP. However, a surveyor was appointed by the company to assess the loss, who had assessed the loss of Rs.1,99,530/-.  There is no deficiency in service while repudiating the claim of the complainant by OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A, copy of registration certificate Ex.C1, copy of insurance policy Ex.C2, copy of FIR Ex.C3, copy of letter dated 18.11.2019 to Kaithal office Ex.C4, copy of letter dated 07.12.2019 to Karnal office Ex.C5, copy of police report of Fard Baramdgi of car Ex.C6, copy of superdari Ex.C7, copy of bill of Rs.206049/- Ex.C8, copy of bill of Rs.52040/- Ex.C9, copy of bill Ex.C10, copy of letter dated 26.02.2020 Ex.C11, copy of letter to Karnal office Ex.C12, copy of repudiation letter dated 23.03.2020 Ex.C13, envelope of letter dated 23.03.2020 Ex.C14 and closed the evidence on 10.02.2021 by suffering separate statement.

6.             On the other hand, OP tendered into evidence affidavit of Reena Basak Administrative Officer Ex.O1/A, insurance policy Ex.O1, copy of FIR Ex.O2, letter dated 5.3.2020 Ex.O3, letter dated 26.02.2020 Ex.O4, terms and conditions of the insurance policy Ex.O5, repudiation letter dated 23.03.2020 Ex.O6, survey report Ex.O7, motor survey report Ex.O8, claim form Ex.O9 and closed the evidence on 05.01.2022 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of insurance policy, the vehicle of the complainant was stolen. Information regarding the theft of the vehicle was also given to OP. During the processing of the claim the vehicle in question has been recovered by the police in the damaged condition due to accident. Complainant took the possession of the vehicle in question on superdari from the court. After receiving the car on superdari, complainant got repaired the said car from Karnal Motors and spent Rs.2,11,289/-. Thereafter, complainant requested the OP for releasing of his genuine claim regarding the vehicle in question but OP did not pay any heed to the request of complainant and lastly repudiated the claim of the complainant on false and baseless ground.  Hence, prayed for allowing the complaint with compensation and litigation expenses etc. Learned counsel for complainant has relied upon the case titled as National Insurance Co. Ltd. Versus Swaran Singh and others (2004) 3 Supreme Court Cases 297; Amalendu Sahoo Versus Oriental Insurance Co. Ltd. (2011) AAC 3058 and Sukhwinder Singh Versus Cholamandlam –MS General Insurance Company Ltd. (2013) 3 CPR 729 (NC).

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the complainant has violated the terms and conditions of the insurance policy and the claim of the complainant has been repudiated, vide letter dated 23.03.2020. The vehicle in question was stolen on 16.11.2019 and intimation was given to the office of OP on 03.12.2019 after seventeen days from the occurrence of the theft. The vehicle was recovered by the Narwana Police. As per FIR no.380 dated 16.11.2019, it is clear that the ignition key of the car was left inside and the car was left unattended in start condition which again is violation of condition no.4 of the policy. Hence, the claim of the complainant has been rightly repudiated by the OP and prayed for dismissal of the complaint. Learned counsel for OP reliance upon the case titled as Bajaj Allianz General Insurance Co. Ltd. Versus Astha Cement Pvt.Ltd. in Revision Petition no.2765 of 2015 date of decision 18.08.2020(NC); Dilbag Singh Versus Oriental Insurance Co. Ltd. in Revision Petition no.474 of 2017 decided on 29.05.2017 and Tata AIG General Insurance Co. Ltd. Versus Maendra Singh and Anr. in Revision Petition no.1239 of 2018 decided on 21.05.2019.

10.           Admittedly, the vehicle in question has been stolen and met with an accident during the subsistence of the insurance policy. It is also an admitted fact that an FIR Ex.C3/Ex.OP2 with regard to theft was got lodged and intimation was also given to the OP. It is also an admitted fact that the vehicle in question had been traced out by the police in damaged condition and complainant took the possession of the vehicle on superdari from the court.  Complainant also got repaired the vehicle and claim was filed with the OP but OP repudiated the claim of the complainant, vide repudiation letter dated 23.03.20 Ex.C13/Ex.O6 on the ground which reproduced as under:-

“Please our earlier letter dated 26.02.2020 and registered letter dated 05.03.2020, 1^st letter was received by you in our office by hand and second letter was sent by registered post. You have not given the reply of the queries written in the letter dated 26.02.2020 only you have cleared regarding the delayed intimation of your letter dated 11.03.2020, which is not satisfactory answer. Moreover, you have not answered of our second query, we once again request you that if you want to comment regarding the queries raised in previous letters, then comment within seven days from the date of  this letter otherwise your file will be closed as No Claim/Repudiated for the violation of condition no.4 of the insurance policy, we repeat the query that as per FIR no.380 dated 16.11.2019 it is clear that ignition key of the car was left inside. Moreover, car was left unattended being in start condition. In hindi car mein chabi lagi hui the aur car start the. Secondly, the loss was intimated on 03.12.2019 which is also the violation of condition no.1 of the insurance policy”.

11.           It is pertinent to mention here that the present complaint is not related to the incident of theft case, rather it relates to the damage of vehicle in question. The claim of the complainant has been repudiated by the OP on the ground that complainant has violated the terms and conditions of the insurance policy at the time of theft of the vehicle. Nobody knows in what circumstances the accident took place. The vehicle in question has been recovered by the police in accidental condition and complainant submitted the claim of the repair charge occurred by him.         

12.           The claim of the complainant has been repudiated by the OP on the ground that complainant has violated the condition no.1 and 4 of the insurance policy. As per condition no.1 of the insurance policy 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. As per version of the OP, intimation was given to the office of OP on 03.12.2019 after delay of seventeen days. In the present case vehicle in question was stolen on 16.11.2019 and intimation was given to the police on the same day, police had lodged the First Information Report (FIR) no.0380 dated 16.11.2019.  Hence, there is no delay on the part of the complainant. In the theft case, we relied upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has 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 holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay and in Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020  Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.

13.           It is submitted by the learned counsel for the OP that as per condition no.4 of the insurance policy the insured shall take all reasonable steps to safeguard the vehicle from loss or damage. In this regard, we are of the considered opinion that claim of the complainant cannot repudiated in toto on this alone ground.  In this regard we can also rely upon the authority cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar, and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.  

14.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP  amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis alongwith compensation and litigation expenses.

15.           The case laws cited by the learned counsel for OP are not applicable to the facts of the present case as in the case laws cited by the learned counsel for OP the driver/complainant returned nearby the vehicle after 15 minutes and to four hours respectively but in the present case the driver of the vehicle had gone only for taking the water and he might returned back within 2-3 minutes.

16.           The police has recovered the vehicle in question in damaged condition due to accident. Complainant got repaired the same from Karnal Motors and spent Rs.2,11,289/- and in this regard he has placed on record bills Ex.C8 to Ex.C10. On the other hand, as per the survey report Ex.O8 dated 15.01.2020, the loss has been assessed by the surveyor of the OP as Rs.1,99,530/-but complainant claimed Rs.2,11,289/-. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental harassment and litigation expenses.

 

17.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,49,647/- (Rs.one lakh forty nine thousand six hundred forty seven only) i.e.75% of the loss assessed by the surveyor of the OP to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:21.02.2022

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)       

                          Member