State Consumer Disputes Redressal Commission
Sh. Sunil Sharma vs National Insurance Co. Ltd. on 22 December, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 22.12.2014 Complaint Case No-132/2012 In the matter of: Sh. Sunil Sharma Proprietor M/s Shyam Lal & Company Village-Choura Raghunathpur Sector-22, Noida-201301 Uttar Pradesh .Complainant. Versus National Insurance Company Ltd. Division No. XXVI Second Floor SMCA House,23/23-B Ansari Road Daryaganj New Delhi-110002 Also At- Registered Office- National Insurance Company Ltd. Registered Office-3 Middleton Street Kolkata-700071 .Opposite Party CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member 1. Whether reporters of local newspaper be allowed to see the judgment? 2. To be referred to the reporter or not? S.A.Siddiqui, Member (Judicial) JUDGEMENT
1) This is a complaint under Section 17 of the Consumer Protection Act 1986 (hereinafter called the Act). The complainant is seeking directions to the OP National Insurance Company Ltd. to pay a sum of Rs. 19,21,750/- towards insurance claim with interest as per IDV mentioned in the cover note, besides paying Rs. 4 Lac compensation and Rs. 20,000/- as costs of litigations.
2) Factual matrix of the case are that complainant Sh. Sunil Sharma is the registered owner of the JCB Machine bearing registration No. HR-74-0418. The vehicle was fully insured with OP National Insurance Company Ltd. through policy No. 361500/31/08/6300002420 for the period 20.08.2008 to 19.08.2009.
Unfortunately, this vehicle was stolen during the intervening night of 18/19.07.2009 by unknown thieves from road no. 56, ISBT Anand Vihar, Delhi, local police was informed and after investigation of the matter police registered the case vide FIR No. 360/09 under Section 384 IPC. The case was investigated by the police which could not find any clue of the theft nor it could trace the vehicle. Police submitted final report on 02.09.2009, the intimation of the theft was also given to the insurance company immediately after the theft, which was acknowledged by the OP vide claim No. 361500310963900000173. After receiving the information investigator/surveyor was appointed by the insurance company to investigate and assess the loss. The complainant received a letter dt. 11.08.2009 and 17.08.2009 from the investigator Laxman Das Arora in which certain papers were demanded and the same were provided to the investigator (annexure-D), complainant also received another letter dt. 08.01.2010 for certain clarifications regarding the date of theft, statement of driver of the vehicle and DD report of police. Reply of this letter was sent by the complainant (annexure-E). Thereafter several more letters were received from the investigator raising certain queries which were being repeated again and again. However, the complainant clarified all the queries raised and also furnished all necessary documents, but, the investigator, just to harass the complainant made an issue in his report that there was difference in the statements of the complainant and his driver and continued asking to clear the difference and doubts. A personal meeting of the complainant with investigator was held and all differences were cleared to the satisfaction of the investigator, but, the insurance company did not settle the insurance claim of the complainant and continued to keep it pending and deputed another investigator to conduct further investigation. Thus, despite all follow ups and compliance made by the complainant nothing happened towards settling the insurance claim. The complainant further sent a legal notice dt. 31.07.2010 to the OP, which was served but the insurance claim was not settled. Later on complainant received letter dt. 03.05.2011 from the OP through which insurance claim of the complainant was repudiated (annexure-K). The repudiation of the claim was totally unfair and unjust which amounts to gross deficiency of service on the part of the OP, the complaint therefore deserves to be allowed.
3) OP contested the consumer complaint by filing reply. It was alleged that the complainant had no cause of action to file the consumer complaint as there was no deficiency of service of any type caused by the OP. The OP repudiated the claim of the complainant on just and proper grounds. On receiving the claim intimation from the complainant, OP appointed an independent investigator to investigate and verify the loss. The investigator submitted his report, the OP carefully examined the documents and report of the investigator. From the report of the investigator, it was found that there was contradiction regarding the date of occurrence of the alleged theft.
According to police complaint, alleged theft took place during the intervening night of 17/18.07.2009, whereas according to FIR theft took place during the intervening night of 18/19.07.2009; besides, it was also found that driver of the complainant committed gross negligence by leaving the vehicle unattended at the place of alleged theft and went home which amounted to violation of condition 4 of the insurance policy. The terms and conditions of the policy were binding upon the insurer and the insured. Also in the complaint made to the police driver told that the JCB in question had breakdown just before the alleged incident of theft; the vehicle was therefore left at the spot and during the intervening night alleged theft took place. This raised a reasonable doubt regarding the alleged theft as to how a vehicle could be stolen which had a breakdown. The complainant also did not fully cooperate in investigation and failed to provide certain documents despite repeated demands. In view of these facts and circumstances the insurance company repudiated the insurance claim and it was fully justified in doing so the complaint was therefore not maintainable and liable to be dismissed with costs.
4) Complainant filed rejoinder along with copy of the letter dt. 19.08.2010. The complainant reiterated its all allegations and contentions raised in the complaint and refuted the averments made in reply filed by the OP. It was denied that there was a contradictory statement regarding the date of theft as alleged in the police complaint (during the intervening night of 17/18.07.2009) and the facts stated in the FIR (during the intervening night of 18/19.07.2009). It was further denied that it was a case of gross negligence as the driver of the insured left the vehicle unattended at the place of alleged occurrence. It was also denied that there was any violation of condition No. 4 of the insurance policy. It was also denied that any such statement was made to the police that there had been a breakdown in the JCB machine just before the occurrence of theft and the vehicle was left unattended by the driver in a breakdown condition. It was also denied that the complainant did not provide required documents to the investigator and failed to fully cooperate with him in investigation in violation of the policy condition.
5) Parties led evidence through affidavits in support of their contentions with documents annexed. The parties have also filed written arguments.
6) We have heard Sh. Izhar Ahmed, Ld. Counsel for the Complainant and Sh. Abhinav Sarin, Counsel for the OP.
7) Ld. Counsel for the complainant argued that during the intervening night of 18/19.07.2009 theft of JCB machine No. HR-74-0418 owned by Sh. Sunil Kumar Sharma was committed by unknown thieves. The driver informed the owner and he immediately reached at the spot where the JCB machine was kept. The local police was immediately informed about the occurrence of theft by the owner/driver and the police after investigation, registered an FIR bearing No. 360/09 dt. 11.08.2009, P.S. Anand Vihar, Delhi under Section 379 IPC. There was absolutely no contradiction regarding the date of the alleged occurrence as raised by the OPs investigator. The investigator (not an IRDA approved) in collusion with the insurance company and with an intention to trouble and harass the complainant cooked up an issue of difference in statement in police complaint as well as in FIR regarding the date of theft. Controversy was nothing but creation of Sh. Laxman Das Arora to defeat just claim of the complainant. The FIR version regarding the date of alleged theft was true and a certificate to this effect was also issued by S.H.O. Anand Vihar on 22.01.2010. Through this letter the S.H.O. Anand Vihar, certified that place, date and time of occurrence as mentioned in the FIR 360/09 under section 379 IPC was correct as per investigation conducted by the IO. This certificate has been filed and is available on record at Page No. 21 of the complaint. He referred to the ruling of SCDRC in National Insurance Company Ltd. Vs Neeraj 1 (2011) CPJ 341.
Wherein it was held that difference in dates of theft will not necessarily imply that the vehicle was not stolen. There was no doubt that JCB machine in question was stolen by unknown thieves, in which police after investigation submitted final report. The complainant fully cooperated in the investigation conducted by the investigator/surveyor and provided all documents which were asked for, also all the queries were replied orally as well as through letters. The allegations in this regard were vague and motivated. The documents which were allegedly not provided have not been specified. Also, it has also not been clearly told that in what manner complainant failed to cooperate in the investigation. The insurance company cooked up certain grounds just to repudiate the just claim of the complainant. The repudiation was fully unjustified and malafide which clearly amounts to deficiency of service. Ld. Counsel also referred to the following rulings which we have gone though:-
i.
Oriental Insurance Company Ltd. Vs Om Prakash Gupta and Ans. 2009 NCJ 348 (NC).
ii.
Dharmendra Goel Vs Oriental Insurance Company Ltd. 2008 ACJ 2621 SC.
iii.
New India Assurance Company Ltd. Vs Pradeep Kumar (2009) 7 SCC 787.
8) In the last case, Honble Supreme Court held that report of a surveyor is a pre-requisite for settlement of a claim of Rs. 20,000/- or more but the report is not final and binding on the parties.
9) On the other hand, Counsel for the OP argued that from the evidence on record, it is abundantly clear that there was controversy regarding the date of occurrence as stated in the police complaint and the FIR. It was clear that the incident of theft took place during the night of 18/19.07.2009. It raised a reasonable doubt about the alleged theft. Also it has been stated by the driver that there had been a breakdown in the JCB machine just before the occurrence of theft, the driver of the vehicle left the machine in the road side at Anand Vihar and left the place and did not turn up during the night. It was a violation of the condition No. 4 of the insurance policy as the safety of the vehicle was not ensured by the complainant. Moreover, the Ld. Counsel argued that the complainant did not fully cooperate in the investigation and failed to provide certain documents despite repeated requests to file the same. It was unbelievable that a vehicle which had breakdown was later on stolen. In view of these facts the insurance company rightly repudiated the claim and there was no deficiency of service of any kind on its part. From the perusal of the repudiation letter dt. 03.05.2011 it is found that the repudiation of the insurance claim was based on the following grounds:-
i.
There was contradictory stand regarding the date of alleged occurrence of the theft as mentioned in the police complaint and FIR.
ii.
As per averments made in the police complaint the JCB had a breakdown. It was left unattended by the driver in breakdown condition and driver did not turn up during the night, it was therefore unbelievable that a vehicle which had a breakdown could be stolen.
iii.
Complainant did not fully cooperate in the investigation of the surveyor/investigator and failed to provide certain documents duly required. It is well settled that the basic question which is germane to the settlement of an insurance claim regarding the loss and theft was whether the vehicle was really stolen? Another thing for consideration by the insurance company in settling the insurance claim was that otherwise genuine claims should not be rejected on flimsy/technical grounds.
10) In the present case, there does not appear any doubt regarding the theft of the JCB machine. The version of the FIR as certified by the police after investigation should have been taken to be true regarding date, time and place of theft. As regards the breakdown, it has come on record that the driver stopped the machine at the road side after a breakdown and went to fetch a mechanic but no mechanic was available during the late night, in the early morning it was seen that the vehicle had been stolen the owner was informed who reached on the spot and local police was informed. Big machine like JCB are usually parked at the site where work is being done or at the safer place at the road side and this practice is not uncommon. A machine may be having some defect which could be easily removed and breakdown may be a misnomer. In case there is real breakdown machine cannot be moved unless and until a thorough check up and repair work is not done. As regards the breach of condition No. 4, it is true that owner must ensure that a reasonable care regarding the safety of the insured vehicle is taken. In case of some defect in the vehicle which could not be corrected by the driver, it is natural that the driver will try to find out mechanic who may remove the defect by doing the needful; such things are natural to happen and insured or the owner is not expected to remain present every time on the spot to ensure safety of the vehicle, he is only expected to take reasonable care and caution. In our opinion these things were small matter with no far-reaching consequence.
Another ground for rejection was that the complainant did not fully cooperate in investigations and failed to provide certain documents to the investigator, but, it has not been clearly elaborated or specified as to how complainant failed to cooperate in investigation or what were those documents, which were not provided; the allegations are vague and unclear.
11) An insurance company should be honest and forthright in its approach while settling an insurance claim; factors, which are material and germane should be given importance. An otherwise genuine claim should not be rejected on flimsy and technical grounds otherwise the confidence of the people in insurance companies would be deeply eroded. It is well settled legal position that consumer courts are not expected to go in technicalities of the civil or criminal jurisprudence.
Evidence Act or Civil procedures are not applicable in proceedings before the consumer courts. Disputes are to be decided on yardstick of reasonableness, probability and principles of natural justice do apply in full force.
12) Keeping in view the aforesaid principles, we have carefully examined the facts, circumstances and evidence on record. We have no hesitation in holding that the insurance claim has been repudiated by the insurance company through its letter dt. 03.05.2011 on flimsy grounds which are not basic or germane to the settling of insurance claim made by the complainant. Therefore rejection of insurance claim is not based on valid grounds and sound logic and amounts to deficiency of service on the part of the insurance company.
13) It is undisputed that vehicle was insured on 20.08.2008 against payment of Rs. 26,650/- towards premium. This vehicle was stolen during the intervening night 18/19.07.2009 i.e. approximately after one year. Therefore some amount has to be deducted towards depreciation, we fixed the amount of depreciation @ Rs. 20,000/- after deduction the depreciated value of the stolen vehicle comes to Rs. 19,01,750/-. The insurance company will have to pay this amount as insurance claim. Interest @ 9% p.a. will have also to be paid from the date of filing of the petition till the date of actual payment. Besides, a sum of Rs. 50,000/- will be paid as compensation for mental pain, agony and harassment to meet the ends of justice. A sum of Rs. 20,000/- will also be paid towards litigation expenses.
14) Accordingly, complaint is allowed and following order is passed:-
i.
OP insurance company will pay a sum of Rs. 19,01,750/- as insurance claim along with interest @ 9% from the date of filing of the petition till the date of actual payment.
ii.
OP will also pay sum of Rs. 50,000/- as compensation and Rs. 20,000/- as costs.
15) The payment will be made within a period of one month failing which the complainant shall be at liberty to undertake execution proceedings provided under section 25/27 of the Act.
16) Let a copy of the judgment be made available to the parties free of costs as per rule and thereafter file be consigned to record room.
(S.A.SIDDIQUI) MEMBER (JUDICIAL) (S.C.JAIN) MEMBER FATIMA