Punjab

Faridkot

CC/17/27

Amit Gupta - Complainant(s)

Versus

The New India Assurance Co. Ltd., - Opp.Party(s)

Sanjeev Kumar jindal

08 Jan 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :      27

Date of Institution:  17.01.2017

Date of Decision :    8.01.2019

 

Amit Gupta aged 38 years s/o Surinder Gupta, r/o Fauji Road, Kotkapura.                                                                        ...Complainant

Versus

The New India Assurance Co. Ltd, Branch Office Opposite IOC Depot, Kotkapura.                                                                                        ....OP

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

Present: Sh S K Jindal, Ld Counsel for complainant,

              Sh Y P Bansal, Ld Counsel for OP.

 

ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim for his stolen car and for further directing OP to pay Rs. On lac as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.20,000/-.

2                                Briefly stated, the case of the complainant is that Maruti Suzuki car of complainant bearing Registration No PB 03-M 5787 was fully insured with OP vide Insurance Policy bearing no. 36070131130100013738 and same was got renewed from time to time and now it was insured for Rs.1,55,000/-and policy was valid for the period from 29.01.2014 till 28.01.2015 against all kinds of risks including theft. It is submitted that complainant purchased this car in 2008 from Rohit Verma of Ferozepur and has been insuring the same since 31.12.2009. It is submitted that at about 9.00 to 10.00 pm on 21.01.2015, complainant parked his duly locked car outside his house and next day early in the morning at about 5.00 am, he found that his car was not standing there. He alongwith his relatives made search for his car, but could not find the same and then, he lodged complaint regarding theft of his car in Police Station, Kotkapura and FIR no.38 to this effect was recorded by Police on 4.04.2015. Despite efforts, Police has been unable to search his car and report regarding same is made by Police to higher authorities on 28.02.2016. Complainant approached OPs and made several requests to them to make payment of his genuine insurance claim on account of his stolen car, but every time they linger on the complainant on one pretext or the other and now, they have flatly refused to admit the claim, which amounts to deficiency in service and trade mal practice on the part of OP and it has caused harassment and mental agony to him. He has prayed for directions to OP to pay compensation and litigation expenses besides the main relief. Hence, the  present complaint.

3                                             The counsel for complainant was heard with regard to admission of the complaint and vide order dated 23.01.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OP filed written statement taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint and there is no deficiency in service on the part of OP. Alleged incident occurred on 21-22/01/2015 but information regarding same was given to Police on 4.04.2015 and even DTO was also not informed regarding this fact and therefore, claim of complainant is not payable. Complainant has concealed the material fact and alleged that he is the owner of car in question, but in reality, real owner of said car is Harminderjit Singh and thus, complainant has no locus standi to file the present complaint. Lengthy evidence is required to prove the present case, which is not permissible in the summary procedure of this Forum and even complainant is stopped by his own act and conduct to file the present complaint as he never cooperated with OP which is mandatory for him to assist OP in perusing his case. Sh Rajan Singla was appointed by Ops as Investigator to make investigation in this case, but complainant did not extend his cooperation and did not send any reply to the letters dt 15.05.2015, 20.07.2015 and 25.11.2015 issued by Investigator, wherein he sought some information from complainant. Complainant has violated the terms and conditions of the policy in question as insured has not taken the reasonable steps to safeguard the vehicle and left it unattended. Even complainant has not produced untraced report from judicial court and he has not produced on record No Objection Certificate issued by DTO, Bathinda regarding transfer of vehicle to complainant and  moreover, newspaper report shows that car stolen belonged to Sandeep Gupta. Complainant was not having effective and valid license at the time of said occurrence. Complaint filed by complainant is false and frivolous and therefore he is not entitled for claim sought by him. However, on merits, OP have denied all the allegations of complainant being wrong and incorrect and reiterated the same pleadings as taken in preliminary objections. It is further averred that no theft is occurred and whole story of theft of car is made up and concocted by complainant and complainant never approached Police. All the other allegations levelled by complainant are denied being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice on the part of OP. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                              Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-14 and then, closed his evidence.

6                                              In order to rebut the evidence of the complainant, the ld Counsel for OP tendered in evidence affidavit of Deen Dyal Aggarwal as Ex OP-1 and documents Ex OP-2 to 6 and then, closed the evidence.

7                                    We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

8                                            From the careful perusal of record and after going through evidence and documents produced on file by complainant as well as OPs, it is observed that case of complainant is that insured car of complainant was stolen during the validity of insurance period and as per rules he gave due intimation regarding this incident to OP and also got recorded FIR no. 38 to this effect on 4.04.2015 Ex C-5, but OP have illegally and unlawfully repudiated the insurance claim on the ground that stolen car was negligently parked by complainant at the time of theft. Action of OPs in not making payment of genuine insurance claim on account of theft of his car, amounts to deficiency in service. In reply, Ops stressed mainly on the point that complainant is not the real owner of said car and even he has not produced no objection certificate issued by DTO, Bathinda regarding transfer of RC in favour of complainant. Moreover, complainant has not produced on the record untraced report approved by court. As per OPs complainant did not cooperate with Investigator appointed by them and also did not respond to letters issued by Investigator vide which he sought some vital information from him. Ops also alleged that said incident occurred on 21-22 of January, 2015, but complainant got registered FIR to this effect on 4.04.2015 and even did not intimate the OP in time. OPs sternly argued that there is no deficiency in service on the part of OP and prayed for dismissal of complaint.

9                                              The first objection of Ops is that the alleged theft occurred on 21/22.01.2015, but the complainant did not report the matter with the Police or OPs immediately, rather he first time intimated the Police on 4.04.2015, which is a violation of terms and conditions of the Insurance Policy. On it, the ld counsel for complainant argued that complainant immediately informed regarding the incident of theft to Police on 23.01.2015 and also to OP on 23.01.2015 and FIR was  got registered on 4.04.2015. To prove his case, he has produced copy of letter dated 23.01.2015 written by complainant to OP as Ex C-4 which bears the remarks ‘received’ dated 23.01.2015. Ex C-6 is copy of DDR and Ex C-5 is copy of FIR dated 4.04.2015, which prove the pleadings of complainant. Ex C-8 to Ex C-13 are copies of insurance policy which clear the fact that complainant was being purchasing and getting revived the policy in question since 31.12.2009 to 30.12.2010 Ex C-8; 28.12.2010 to 27.12.2011 Ex C-9; 28.12.2011 to 27.12.2012 Ex C-10; 29.01.2013 to 28.01.2014 EX C-11; 29.01.2014 to 28.01.2015EX C-12. Ex C-13 is the proposal form for policy in question. It is further argued that only duty of complainant is to inform the Police regarding incident and it is on the Police to register the FIR of complainant and complainant has no control on it whether Police registered the FIR on same day or after investigation. He has put reliance on citation 2008 (3) CPJ titled as Ridhi Gupta Vs National Insurance Company Ltd wherein State Consumer Disputes Redressal Commission, Delhi has held that in our view FIR is not a requirement for adjudicating the insurance claim. Whenever vehicle or any cash or goods are stolen, insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police only is concerned whether the theft has taken place or not. Once the report is lodged with the Police may in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint Surveyor for the purpose of assessing the loss. If the Police find that a person has lodged a false report, he can be prosecuted for the offence punishable under Section 182 of the IPC but in any way the Insurance Company cannot indulge in such exercise and enter into such and arena that does not belong to it. The similar view is taken by Hon’ble State Commission, Haryana in 1^st Appeal No. 754/2010 decided on 18.10.2012 titled as Branch Manager United India Insurance Company Ltd Vs Smt Sandhya Rani.

10                         Second objection raised by OP that complainant is not the registered owner of car in question has no force as at the time of giving insurance policy in question to complainant they never asked this question and were issuing the same policy to him since many years and now, only to avoid the payment of claim they are putting such querries. Ex C-8 to Ex C-13 clearly prove the fact that policy in question was issued in the name of complainant for stolen car. Careful perusal of Insurance Policy issued by OP to complainant for the period from 31.12.2009 to 30.12.2010 Ex C-8; 28.12.2010 to 27.12.2011 Ex C-9; 28.12.2011 to 27.12.2012 Ex C-10; 29.01.2013 to 28.01.2014 EX C-11; 29.01.2014 to 28.01.2015 Ex C-12, leave no doubt that complainant was continuously getting insured his car in question from OP, thus, there is no reason to doubt that complainant is not the real owner of said car.

11                               It is observed that complainant immediately gave information to Police as well as Ops and submitted all the documents for processing the claim to them. Ops are now, intentionally denying this fact only to avoid the liability of indemnifying the complainant regarding his stolen article. If the complainant immediately reported the matter with Police, then, there is no reason for him to not to inform Ops regarding the incident and to claim his genuine insurance claim. Now, the OP are intentionally denying regarding it. He further argued that if in any case, it is presumed that complainant did not inform Ops regarding incident on time, then in that case also, the OP cannot deny payment of insurance claim to complainant. On this, he put reliance on citation 2016(1) CLT 539 titled as Baja Allianz General Insurance Company Ltd Vs Abdul Sattar and anr wherein our Hon’ble National Commission has observed that in order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition no.1 of insurance policy, which is 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. Every letter claim writ summons and process or copy thereof shall be forwarded to 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 policy and co-operate with the Company in securing the conviction of the offender”. On reading the above, it is clear that in the event of theft of the vehicle, only requirement on the part of insured was to intimate the policy immediately and co-operate in securing the conviction of offender. He submitted that as per the observation of Hon’ble National Commission in case of theft, the only requirement on the part of complainant was to intimate the Police immediately and to cooperate with Police in securing the conviction of the offender and complainant duly complied with this condition and immediately reported the matter with Police. Therefore, Insurance Company cannot repudiate the claim of complainant.

11                                            Moreover, plea taken by OPs that complainant is not the real owner of car in question has no legs to stand upon as vehicle in question was being insured by complainant from OP since 2009. Reasons forwarded by Ops for not allowing the claim of complainant are not plausible and their action in denying payment of claim on baseless grounds is not appropriate and genuine, which amounts to deficiency in service on their part.

12                                            From the above discussion and case law produced by the complainant, we are of considered opinion that complainant immediately reported the matter with Police and lodged FIR with Police and also intimated Ops and Ops cannot deny the payment of insurance claim of vehicle of complainant on the ground that there is violation of the terms and conditions of the policy. Act of Ops in denying the payment of claim amounts to deficiency in service and trade mal practice on their part. We are fully convinced with the arguments, evidence and case law produced by complainant. Hence, complaint in hand is hereby allowed. OP is directed to pay the complainant Rs.1,55,000/-i.e insured value of lost vehicle subject to transfer of Registration Certificate of the vehicle in question in the name of OP and also to execute other required documents for payment of claim by complainant in favour of opposite party within 30 days from the date of receipt of these documents in their favour, failing which OP shall be liable to pay interest at the rate of 9% per anum from the date of filing the complaint till final realization. OP is further directed to pay Rs.5000/- to complainant as consolidated compensation for harassment and litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order failing which complainants shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 8.01.2019

                                      Member                         President

(Param Pal Kaur)           (Ajit Aggarwal)