Haryana

Karnal

CC/654/2021

Pardeep Khal Bhandar - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Sanjeev Vohra

01 Aug 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                     Complaint No.654 of 2021

                                                     Date of instt.25.11.2021

                                                     Date of Decision 01.08.2023

 

Pardeep Khal Bhandar through Pardeep Kumar proprietor son of Balwant Singh, resident of VPO Daha, District Karnal.

 

                                                 …….Complainant.

                                              Versus

 

1. United India Insurance Co. Ltd.  through its Divisional Manager SCO 97, First Floor, Sector-17 Market, Kurukshetra.

 

2. Kamlesh wife of Suresh son of Ram Kumar, resident of house no.1294, ward no.5, Vashist Colony, Kurukshetra.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary…..Member

 

 Argued by: Shri Sanjeev Vohra, counsel for complainant.

                    Shri Virender Adlakha, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite partis (hereinafter referred to as ‘OPs’) on the averments that complainant got insured his Bolero Pick up bearing registration no.HR-45B-6701 and complainant got insured the abovesaid vehicle with the OP no.1, vide policy no.1126003119P110185459 for the period from 03.11.2019 to 02.22.2020 and the insured declared was Rs.2,50,000/- The said vehicle of the complainant has been stolen by unknown person on 21.11.2019 in the night before Gali no.8, Shiv Colony, Karnal where the vehicle was parked and duly locked. In the morning, it was not found there and someone has stolen the same. In this regard complainant immediately sent the intimation to the police and got registered FIR no.151 dated 25.11.2019 Police Station Ram Nagar, Karnal and due intimation was given to the OP no.2 authorized agent of OP no.1 through whom the vehicle was got insured and also given intimation telephonically to OP no.1. As per instruction of OP no.2, all relevant documents duly submitted to OP no.1 and copy of the same also sent on the whatsapp of OP no.2 who assured that he will also submit all the documents in the office of company. Complainant approached the OP no.1 time and again and asked about the status of the claim. OP no.1 also assured the complainant that the claim will be settled only after getting the copy of untrace report duly issued from Competent court.  The complainant got untrace report of his vehicle from the court of Ms. Sukirti, Ld. CJM, Karnal, vide order dated 19.01.2021 and the copy of the same received to the complainant on 25.01.2021 and when complainant approached to the OP for submitting the same only then OP no.1 told that your claim was not lodged with them. Complainant shown the documents sent on whatsapp of OP no.2 immediately after the accident and also told that duly conveyed to OP no.1 but OP no.1 assured the complainant to give fresh application of intimation as the same was not lying in the record. Left no other option and assurance given by OP no.1, complainant again gave an application on 09.03.2021 but OP wrongly repudiated the claim of the complainant, vide letter dated 20.08.2021 with remarks of delay intimation. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the alleged vehicle was stolen in the intervening night of 21/22.11.2019 and FIR was lodged after three days of the alleged theft. The vehicle was remained unattended at the time of alleged theft. It is further pleaded that complainant had not intimated to the insurer. Intimation was given to the insurer in writing after a gap of more than 1½ years of the theft of the vehicle.  It is clear cut violation of the terms and conditions of the policy. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of FIR Ex.C2, copy of untrace report Ex.C3, copy of messages regarding intimation sent to OP no.2 Ex.C4, copy of repudiation letter Ex.C5, copy of RC Ex.C6 and closed the evidence on 15.07.2022  by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Raj Kamal Saini, Administrative Officer Ex.OPW1/A, affidavit of Pawan Sachdeva, Investigator Ex.OPW2/A, copy of insurance policy Ex.OP1, copy of repudiation letter Ex.OP2, copy of investigation report Ex.OP3, copy of application to Divisional Manager Ex.OP4, copy of statement of Suresh Agent Ex.OP5, copy of whatsapp messages Ex.OP6, cop of statement of Pardeep (complainant) Ex.OP7 and closed the evidence on 17.04.2023 by suffering separate statement.

6.             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.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his Bolero Pick up with the OP no.1 through OP no.2. On 21.11.2019, the said vehicle was stolen and in this regard complainant got lodged an FIR no.151 dated 25.11.2019, under section 379 of IPC with Police Station, Ram Nagar, Karnal. Complainant sent the intimation to OP no.2 on whatsapp. On 19.01.2021, the police submitted the untrace report before the concerned Court. Complainant approached the OPs alongwith relevant documents including the untrace report and requested the OPs to settle the claim but OPs did not settle the claim and repudiated the same on the false and frivolous grounds and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the theft of the vehicle was occurred on 21/22.11.2019 and the complainant has lodged the FIR on 25.11.2019 i.e. after an inordinate delay of four days and intimated to the OPs after more than 1½ years of theft. The vehicle in question was being used for commercial purpose and this Commission has no jurisdiction to try and entertain the present complaint. OPs have rightly repudiated the claim of complainant and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his Bolero Pick up with the OP no.1. It is also admitted that the said vehicle was stolen during the subsistence of the insurance policy. It is also admitted that the insured declared value (IDV) of the vehicle in question is Rs.2,50,000/-.

11.           The claim of the complainant has been repudiated by the OP no.1, vide letter Ex.C5/OP2 dated 20.08.2021 on the ground, which is reproduced as under:-

“Theft of vehicle occurred on 21/22.11.2019 whereas you had given claim intimation to company on 09.03.2021 after delay of more than 1.5 years and reason given by you for delay in intimation letter dated 29.06.2021 is not satisfactory. So on account of violation of policy condition no.1, we are repudiating your claim”.

 

12.           The claim of the complainant has been repudiated by the OP on the above mentioned ground.  In the present complaint, the vehicle in question was stolen between 21/22.11.2019 and complainant intimated to the police on the same day as alleged by him but police has lodged the FIR on 25.11.2019.  It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR and intimation to OPs. In this regard we have placed reliance 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. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein 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. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

13.           Learned counsel for the OPs submitted that theft of the vehicle was occurred on 21/22.11.2019 for which intimation was given to the OPs after inordinate delay of 1½ years. There is violation of terms and conditions of the policy. On the other hand, as per version of the complainant, he sent the intimation to OP no.2 on whatsapp but she did not inform the OP no.1 i.e. insurance company. Complainant has relied upon the affidavit of Pawan Sachdeva, Investigator Ex.OPW2/A, in para no.4 of the said affidavit, it is mentioned that investigator enquired the matter from husband of OP no.2, who is working as insurance agent on behalf of his wife Smt. Kamlesh. He had got insured the vehicle in question. This vehicle had been stolen. He advised the complainant to inform the insurance company in writing, but the insured had sent the SMS on his mobile but did not visit the office of the insurance company. Complainant has not followed the advice of the agent of the insurer and has only sent the SMS to the agent.

14.           It has been proved on the record that there is delay of 1½ years in intimation to insurance company and also four days delay for lodging the FIR. Moreover, if for the sake of arguments, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws  titled as Amalendu Sahu Vs. Oriental Insurance Company Limited, in Civil appeal no.2703 of 2010, decided on 25.03.2010 of Hon’ble Supreme Court of India; New India Assurance Co. Ltd. Versus Thirath Singh Brar in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as of Hon’ble National Commission 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 all the 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.

15.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           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 no.1 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.

17.           As per insurance policy Ex.C1/OP1, the insured declared value (IDV) of the vehicle in question is Rs.2,50,000/-.  Hence the complainant is entitled for Rs.1,87,500/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.

18.           In view of the above discussion, we partly allow the present complaint and direct the OP no.1 (being insurer) to pay Rs.1,87,500/-(Rs. one lakh eight seven thousand five hundred only) i.e. 75% of the insured amount alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization to the complainant. We further direct the OP no.1 to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. Complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:01.08.2023     

 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member