State Consumer Disputes Redressal Commission
Kuldeep Singh vs The New India Assurance Company Ltd. on 1 December, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.16 of 2022
Date of Institution : 11.01.2022
Reserved on : 17.11.2022
Date of Decision : 01.12.2022
Kuldeep Singh S/o Sh. Gurdev Singh, resident of Village Alloarkh,
Tehsil Bhawanigarh, District Sangrur.
........Appellant/Complainant
Versus
The New India Assurance Company Limited, Branch Office, Near
Ranbir College, Sangrur, through its Branch Manager.
.....Respondent/Opposite Party
First Appeal under Section 41 of
Consumer Protection Act, 2019 against
orders dated 12.11.2021 passed by the
District Consumer Disputes Redressal
Commission, Sangrur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Present:-
For the appellants : Sh. Sanjeev Goyal, Advocate
For the respondent : Sh. R.K. Sharma, Advocate
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellant/complainant Kuldeep Singh has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') to challenge the impugned order dated 2 First Appeal No.16 of 2022 12.11.2021 passed by the District Consumer Disputes Redressal Commission, Sangrur (hereinafter referred as the "District Commission") in C.C. No.489 of 2018, whereby the complaint filed by appellant-complainant was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. The brief facts of the case as made out by complainant in the complaint which are necessary for disposal of the present appeal are that the complainant filed a Consumer Complaint before the District Commission with the averments that he got insured his Truck/Tipper bearing No.PB-11BK-0753 from the OP for the period with effect from 17.06.2016 to 16.06.2017 through Mahindra & Mahindra Finance Company Limited. Further it was mentioned that on 05.05.2017 some problem developed in the vehicle at a place near Samana Kanchiyan, Near Rubber Factory, Bhawanigarh and it was parked by locking with the key. But on the very next day i.e. 06.05.2017 at about 7.00 a.m. the complainant reached alongwith a mechanic on the spot and found that the vehicle was missing from the place where it was parked. He made all possible efforts and thereafter approached to the Police of Police Station Bhawanigarh and a written complaint was submitted which was duly acknowledged by the police. The intimation of this incident was also immediately given to Mahindra & Mahindra Finance Company from which the 3 First Appeal No.16 of 2022 vehicle was got financed. On the basis of complaint FIR No.88 dated 02.06.2017 was registered under Section 379 IPC at Police Station Bhawanigarh. The Surveyor was appointed by the OP who visited the house of the complainant and got certain documents alongwith signatures of the complainant. As per the case of the complainant all the documents were supplied alongwith original keys. Inspite of request made by the complainant and on the assurance given by the Surveyor, the claim was not released. The police filed the untraced report before the competent Court which was duly accepted by the Presiding Officer, National Lok Adalat, Sangrur on 10.03.2018. The complainant approached the OP but his claim was repudiated vide letter dated 24.04.2018. Alleging a case of 'deficiency of service' on the part of OP in the complaint the complainant prayed for award of an amount of Rs.12,50,000/- alongwith interest, compensation as well as litigation expenses.
4. On issuing notice in the complaint to the respondent the reply was filed wherein certain preliminary objections were raised and averments made in the complaint were also denied.
5. The District Commission by considering the averments made in the complaint, reply thereof as well as arguments raised by both the sides ultimately dismissed the complaint vide order dated 12.11.2021 on the ground that there was a delay of 26 days in lodging of the FIR and the owner of the truck did not inform the police 4 First Appeal No.16 of 2022 officials as well as the insurance company immediately whereas it was required to be intimated without any delay.
6. Said impugned order dated 12.11.2021 passed by the District Commission is under challenge in the appeal filed by the appellant/complainant by raising a number of grounds.
7. Mr. Sanjeev Goyal, Advocate learned counsel for the appellant submits that the District Commission has dismissed the complaint only on the ground that there was a delay of 26 days in giving intimation to the police whereas the intimation was given on the next day only i.e. 06.05.2017 and there was no delay in intimation. This fact was duly acknowledged by the police which is clear from the stamp put by the police on the letter. It was proved on record that the police was timely approached. Learned counsel also submits that the police filed cancellation report after investigation and it was accepted by the Court. It has also been proved on the record that the vehicle was stolen but the District Commission has not taken into consideration this aspect and the complaint has been dismissed. Learned counsel also submits that the Investigator was appointed who investigated the claim which is clear from Investigation Report dated 15.11.2017 Ex.OP-1 which is part of record. The Investigator has clearly mentioned in the said report that the vehicle was stolen on the intervening night of 05/06.05.2017 from the premises of Sukhmani Resole Rubber Factory, Samana Bye Pass, Bhawanigarh and intimation was also given to the police by the insured regarding 5 First Appeal No.16 of 2022 theft of the vehicle. The Investigator has specifically mentioned that inquiry was conducted and it was found that the truck of the insured was stolen and it was not traced out. It was also mentioned in the Investigation Report that the insured was a genuine person. Learned counsel has also relied upon judgment of Hon'ble Supreme Court of case "Gurshinder Singh Vs. Shri Ram General Insurance Company Limited" 2020 (11)SCC-612 in support of his arguments.
8. Mr. R.K. Sharma, Advocate learned counsel for the respondent/OP submits that the claim of the appellant/complainant was rightly repudiated by the insurance company as FIR was lodged after a delay of 26 days of the incident of theft and a concocted story was prepared whereas the complainant was supposed to inform the police immediately and without any delay. The appellant/complainant has not given any concrete explanation as to why FIR was not lodged immediately. The claim was rightly rejected and all relevant factors were taken into consideration by the District Commission and no interference is required.
9. Heard the arguments of learned counsel for the appellant as well as learned counsel for the respondent. I have also gone through the impugned order as well as the relevant record of the case. The facts relating to filing of complaint, dismissal thereof and filing of appeal by the appellant/complainant before this Commission are not in dispute. The only and sole question for consideration by this Commission is as to whether there was a delay in giving 6 First Appeal No.16 of 2022 intimation to the police and insurance company on the part of the appellant/complainant and it was fatal in considering the claim?
10. Admittedly the truck of the appellant/complainant was insured with the respondent/OP vide policy for the period from 17.06.2016 to 16.06.2017 and the OP insurance company had declared the Insured Declared Value (IDV) as Rs.12,50,000/-. The said truck/tipper was financed from Mahindra & Mahindra Finance Company Limited. The truck was used by the complainant for earning his livelihood as mentioned in the complaint. The respondent/OP has not denied the fact of theft of the truck/tipper.
11. As per para No.3(b) of the complaint filed by the appellant/complainant before the District Commission, he immediately had given intimation to the SHO, Police Station, Bhawanigarh in writing and also gave intimation to the concerned officials of Mahindra and Mahindra Finance Limited, who assured him that they would inform the officials of OP Insurance Company. In support of his submission the appellant/complainant has relied upon intimation letter dated 06.05.2017 written to the S.H.O., Police Station, Bhawanigarh Ex.C-3. From the written reply or any other cogent evidence the OP had failed to rebut the intimation letter Ex.C- 3 and also has not specifically denied the factum of giving intimation to the Mahindra & Mahindra Finance Limited with regard to theft of the truck/tipper. The District Commission has not taken into 7 First Appeal No.16 of 2022 consideration all these vital facts of the case while dismissing the case.
12. I have also gone through the Investigation Report dated 15.11.2017 Ex.OP-1. The Investigator has thoroughly investigated the case and relevant parts of Investigation Report which relevant are reproduced as under:-
On the same day i.e. 06.05.2017 the insured gave written intimation to the SHO, PS Bhawanigarh regarding theft of truck tipper No.PB-11BKI-0753. The police has put round stamp as a token of receipt of copy of intimation letter dated 06.05.2017. Police advised the insured to search the truck as it is own because there is possibility that truck may be traced. The police also informed insured that if the truck will not be traced, F.I.R. will be registered.
The undersigned made enquiry with the police enquiry officer who has disclosed that the F.I.R. is genuinely issued at police station Bhawanigarh.
Secret inquiry was conducted at the native village of the insured where investigation revealed that the truck of the insured is stolen which is not traced so far.
Secret inquiry also revealed that the insured in an honest and gentle person.
13. Inspite of availability of detailed Investigation Report on the record regarding the theft of the truck/tipper and immediate intimation sent to the police on 06.05.2017 as Ex.C-3 which clearly corroborates the version of the complainant. However the District 8 First Appeal No.16 of 2022 Commission has ignored the same and on its own has recorded the finding as under:-
"said document Ex.C-3 can well said to be self serving in nature which could easily be prepared"
The District Commission has not gone through the report of the Investigator who thoroughly investigated the case. The appellant/complainant has also referred the said report for explanation of delay wherein it has been mentioned as under:-
"Therefore as per the advices of the police the insured along with his friends searched the truck/tipper at the possible places where the trace of the truck was expected.
The insured used to inform the police regarding the outcome of their visit to different places.
Investigation revealed that the Mr. Gurpreet Singh has honestly and genuinely disclosed the facts regarding the theft of truck/tipper.
On perusal of above said detailed Investigation report Ex.OP-1 it cannot be said that the appellant/complainant had not given the intimation of theft of his truck/tipper to police immediately and it has also not been proved on record that complainant himself alongwith his friend has tried his best to find out the truck/tipper but despite his efforts he could not find the truck/tipper. The District Commission has not considered all the aspects of the case and dismissed the complainant only on the ground of delay whereas the Investigator has 9 First Appeal No.16 of 2022 specifically mentioned in his report that the insured has genuinely lodged claim.
14. Moreover, the IRDA has also issued circular to the Insurance Companies that the genuine claim be not rejected on hyper technical grounds i.e. delay, which is reproduced as under:-
"INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated:20.09.2011 CIRCULAR 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 insurer's 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, 10 First Appeal No.16 of 2022 without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders 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, suitable 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.
Sd/- J. Harinarayan CHAIRMAN."
15. The Hon'ble Supreme Court in case Gurshinder Singh (Supra) has held as under:-
"20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the policy 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 ground to deny the claim of the insured."
16. The Hon'ble Apex Court in judgment of case of "Dharmendra Goel Vs. Oriental Insurance Co. Ltd." III (2008) CPJ 63 (SC), held as under:-
11First Appeal No.16 of 2022
"Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This "take it or leave it", attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims."
17. In view of above detailed discussion as above, the judgments of Hon'ble Supreme Court and guidelines issued by IRDAI, I am of the considered view that the District Commission has wrongly dismissed the complaint on the ground of delay without perusing the vital documents available on the record, as such the impugned order dated 12.11.2021 passed by the District Commission is not sustainable in the eyes of law and the same is liable to be set aside.
18. As a result of above discussion, I find merit in the contentions raised by learned counsel for the appellant/complainant and the appeal of the appellant/complainant is allowed and the impugned order dated 12.11.2021 passed by the District Commission is set aside with the following directions to the respondent/OP:-
(i) to pay claim amount of Rs.12,50,000/- to the appellant/complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its actual realization; and 12 First Appeal No.16 of 2022
(ii) to pay composite amount of compensation to the tune of Rs.40,000/- for causing mental agony and harassment to the complainant as well as on account of litigation expenses.
19. Since the main case is decided, the pending applications, if any, are also disposed of.
20. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT December 01, 2022 (MM)