State Consumer Disputes Redressal Commission
National Insurance Company Ltd., vs Rajesh Kumar Kalia on 26 February, 2013
3rd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 76 of 2012
Date of institution: 20.1.2012
Date of Decision : 26.2.2013
National Insurance Company Ltd., Regional Office-I, SCO No. 332-334, Sector 34A,
Chandigarh through its Manager M.S. Kalsi
.....Appellant
Versus
Rajesh Kumar Kalia S/o Amar Nath Kalia R/o Village Dabur, P.O. Massewal, Tehsil
Anandpur Sahib, District Ropar.
.....Respondent
First Appeal against the order dated 12.12.2011
passed by the District Consumer Disputes Redressal
Forum, Ropar.
Before:-
Shri. Piare Lal Garg, Presiding Member
Shri. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. Munish Goel, Advocate
For the respondent : None.
PIARE LAL GARG, PRESIDING MEMBER
This is an appeal filed by the appellant-National Insurance Co. Ltd. (hereinafter called 'the appellant') against the order dated 12.12.2011 of the District Consumer Disputes Redressal Forum, Ropar(hereinafter called the 'District Forum') vide which the complaint of the respondent/complainant (hereinafter called 'the respondent') was accepted by the District Forum.
2. Brief facts of the case are that the truck of the respondent bearing registration No. HP-24B-7149 was insured with the appellant for an amount of Rs. 9,02,500/- for the period of 25.11.2007 to 24.11.2008. The truck was stolen on 30.5.2008 when the same was parked at 8.00 p.m. by his driver Sh. Gurbachan Singh on the back side of his house and the keys of the Truck was with him. On the First Appeal No. 76 of 2012 2 next day, the driver at about 4.00 a.m. found that the truck was missing from the place where the same was parked. The truck was stolen by some unknown person and the matter was reported to the Police Station, Anandpur Sahib and an FIR No. 48 under Section 379 IPC was registered by the Police.
3. Information to the appellant was given, who appointed the Surveyor for the spot verification, who inspected the spot and taken the signature of the respondent on various documents with direction to secure un-traced report from the Illaqa Magistrate. The untraced report was accepted by S.D.J.M., Anandpur Sahib on 4.1.2010 submitted by the Police. The copy of the same was supplied by the respondent to the appellant but the claim was not paid by the appellant to the respondent. Hence, the complaint was filed by the respondent with the prayer that the appellant may be directed to pay the IDV of the truck with interest @ 18% per annum, compensation of Rs. 60,000/- on account of mental tension and agony as well as Rs. 10,000/- as litigation expenses.
4. Upon notice, reply was filed by the appellant taking preliminary objections that no cause of action had accrued in favour of the respondent, complicated questions of law and facts were involved and the same could not be adjudicated in a summary proceedings, complaint was not maintainable as there was no deficiency in service, respondent did not approach the District Forum with clean hands, the claim was rightly filed as no claim vide letter dated 19.3.2009 as there was delay regarding the intimation to the Police as well as to the appellant regarding the incident of theft. On merits, it was admitted that the truck was insured but the truck was not parked at the safe place as per the terms and conditions of the policy. It was also denied that the Surveyor had taken the signature of the respondent or his driver on various documents. The respondent was also not having the valid and effective route permit as the truck was registered in Himachal Pradesh but the theft took place in the State of Punjab. Requisite formalities were not complied by the respondent and also not submitted the requisite documents to First Appeal No. 76 of 2012 3 the appellant for the settlement of the claim. There was no deficiency or unfair trade practice on the part of the appellant, as such, the complaint may be dismissed with costs.
5. The complaint of the respondent was accepted by the District Forum and the appellant was directed to pay Rs. 9,02,500/- to the respondent with interest @ 9% per annum from the date of filing the complaint i.e. 14.9.2011 till its payment with Rs. 1,000/- as litigation expenses within two months from the date of receipt of the copy of the order.
6. The appeal is filed by the appellant on the grounds that the respondent had not conveyed the appellant as well as Police immediately regarding the theft of his truck, as such, the appellant was devoid of getting the investigation of the Truck immediately, the respondent was not having the route permit as required under Section 66 of the Motor Vehicles Act, the District Forum did not take proper care as the truck was not parked in the safe place, the complaint was not filed within limitation but the District Forum did not consider this fact while deciding the complaint, as such, the order of the District Forum is liable to be set-aside.
7. There is no dispute between the parties that the truck of the respondent was insured for an amount of Rs. 9,02,500/- with the appellant for the period of 25.11.2007 to 24.11.2008. It is also admitted case of the parties that the insured truck was stolen by some un-identified person on the intervening night of 30/31.5.2008, which was parked on the back side of the house of the respondent by his driver Gurbachan Singh and on the next day at 4.00 a.m. the driver found the truck missing/stolen.
8. It is also no dispute between the parties that an FIR No. 48 dated 1.6.2008 was registered at P.S. Anandpur Sahib, District Roopnagar on the statement of Gurbachan Singh, driver of the respondent under Section 379 IPC.
9. It is the version of the respondent that the appellant was also informed by him regarding the theft of the vehicle and Surveyor was appointed by the First Appeal No. 76 of 2012 4 appellant to inspect the spot. The Surveyor inspected the spot and obtained his signatures on various documents and he also submitted all the requisite documents to the appellant but his claim was not paid. On the other hand, the version of the appellant is that the intimation regarding the theft was given by the respondent vide letter dated 17.6.2008 but appointment of the Surveyor for the inspection of the spot was not denied.
10. The version of the respondent is that when his claim was not paid then he filed the complaint. On the other hand, the version of the appellant is that the claim was closed and the respondent was informed vide letter Ex. R-3 dated 19.3.2009 as the appellant failed to submit the documents which were demanded by the appellant vide letter Ex. R-2 dated 20.2.2009.
11. We have perused letter Ex. R-3. In the said letter, it was only informed to the respondent to submit the requisite documents within seven days positively otherwise his claim file will be closed as 'no claim'. After the said letter, no intimation was given by the appellant to the respondent regarding repudiation of his claim. The appellant also not pleaded in the reply to the complaint regarding the repudiation of the claim and reason for the same. Even in the grounds of appeal no date and reason is given for non-payment of the claim.
12. It is also admitted case of the appellant that the Surveyor was appointed on receiving intimation regarding the theft but the report of the Surveyor was neither tendered into evidence nor the Surveyor was examined by the appellant before the District Forum. Even neither any date of his appointment is mentioned nor any date of his inspection was disclosed by the appellant. It was also not disclosed by the appellant what sort of documents was collected by the Surveyor from the respondent and on what documents signature of the respondent was obtained by the Surveyor.
13. It is also mentioned in letter Ex. R-2 dated 20.2.2009 that the claim was also got investigated from Investigator but the name of the Investigator was not First Appeal No. 76 of 2012 5 disclosed by the appellant and his report was also not produced by the appellant regarding his findings of theft of the truck. Neither his affidavit nor he was examined by the appellant before the District Forum.
14. The Surveyor report as well as the investigation report, which were the material documents were withheld by the appellant for the reason best known to it.
15. The version of the appellant is that the information regarding the theft of the truck was given by the respondent to the appellant vide letter dated 17.6.2008 i.e. after 17 days of the occurrence of theft and not immediately.
16. The occurrence took place in the midnight of 30/31.5.2008 and FIR was lodged by the respondent with the Police Station of Anandpur Sahib on 1.6.2008.
17. The counsel for the appellant cited the judgment of the Hon'ble National Commission passed in First Appeal No. 321 of 2005 titled as "New India Assurance Company Limited versus Trilochan Jane", decided on 9.12.2009 that the complaint of the respondent was liable to be dismissed as immediately the matter was not reported to the appellant.
18. We have gone through the judgment. The relevant part of the judgment is reproduced:-
"In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The delay in lodging the F.I.R. after 2 days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that time and sold to kabaadi (scrap dealer)."
19. In the present case vehicle was stolen in the midnight of 30/31.5.2008 and the FIR was registered on 1.6.2008 immediately from the knowledge of the theft. This is a routine practice in the Punjab Police that they did not register the case of theft immediately on intimation by the sufferer. It is advised that the sufferer should first trace the vehicle at his own level and in case it is not found then the case will be registered by the Police. It is also sometime told to the sufferer that First Appeal No. 76 of 2012 6 after the registration of the FIR the legal complications will arise of taking the said vehicle on superdari from Illaqa Magistrate etc.. Almost the owners of the trucks/tractors are illiterate persons and they did not know the problems which they have to face for the settlement of their claims afterwards.
20. The appellant also not disclosed the date of appointment of Surveyor as well as Investigator and also not disclosed the documents on which the signature of the respondent was obtained by the Surveyor, which shows that the intimation letter was afterwards prepared by the appellant to file the claim of the respondent as 'no claim'.
21. The appellant also not produced the repudiation letter to prove on what grounds the claim of the respondent was repudiated before the District Forum. Even no document/letter regarding the repudiation of claim was annexed by the appellant with the appeal.
22. We have perused the letter(Ex. R-2) dated 20.2.2009 vide which some documents were demanded by the appellant at serial No. 8 i.e. copy of the FIR with English version on account of that the copy supplied by the respondent was not legible.
23. We have perused the copy of the FIR Ex. R-4, which was tendered into evidence by the appellant itself. The same is very much legible. It proves that the respondent had already submitted the requisite documents with the appellant. The appellant demanded the documents from the respondent after about nine months from the date of occurrence and if the documents were not submitted by the respondent with the appellant then why the appellant had not written the letter to the respondent for the submission of the documents immediately when the report was submitted by the Surveyor to the appellant.
24. As per Regulation No. 9 of 'The Insurance Regulatory and Development Authority (Protection of Policyholders' interests) Regulations, 2002', the appellant is liable to process the claim as per below mentioned instructions:- First Appeal No. 76 of 2012 7
"9. Claim procedure in respect of a general insurance policy (1) An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/ claim, it shall be so done within 72 hours of the receipt of intimation from the insured.
(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.
(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report.
Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.
(4) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer. (5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.
(6) Upon acceptance of an offer of settlement as stated in sub-regulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it.
25. So as per sub-clause (2) of Regulation No. 9, if the required particulars were not supplied by the insured or the Surveyor had not received the full cooperation from the insured then the insurer or the Surveyor may inform in writing to the insured regarding the delay in assessment of the loss. The Surveyor also not furnished the copy of his report to the insured. It is also not the case of the appellant that the Surveyor report was incomplete and any additional report of certain specific issues was called from the Surveyor. As per sub-clause (5) of Regulation No. 9, the First Appeal No. 76 of 2012 8 insurer/appellant had not offered any settlement of the claim to the insured and even if the appellant was of the opinion that the claim is not payable then the appellant had also not repudiated/decided the claim within 30 days from the receipt of the Survey Report or the additional Survey Report as per Sub-Clause 5 of Regulation No. 9.
26. So as per the above conditions, it is clear that the appellant had violated the above conditions of I.R.D.A. Regulations, 2002 also. We find no fault on the part of the respondent in informing the appellant regarding the incident of theft.
27. In view of the above discussion, we are of the view that the order passed by the learned District Forum is legal and valid and there is no ground to interfere with the same. The appeal being without any merit is dismissed with costs of Rs. 25,000/- and the impugned order of the District Forum is affirmed and upheld.
28. The arguments in this appeal were heard on 12.2.2013 and the order was reserved. Now the order be communicated to the parties.
29. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
30. Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
31. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
February 26, 2013. (Jasbir Singh Gill)
as Member
First Appeal No. 76 of 2012 9