State Consumer Disputes Redressal Commission
Icici Lombard General Insurance Co. ... vs Sh. Dharmender Singh on 25 October, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 288/2018
Date of Presentation: 26.10.2018
Order Reserved on : 20.05.2019
Date of Order : 25.10.2019
......
1. ICICI Lombard General Insurance Company Ltd. 4th Floor
Interface 11 Office No.401,402 near Linking Road Malad
(West) 400064
2. ICICI Lombard General Insurance Company Ltd. ICICI
Lombard House 414 Veer Savarkar Marg Near Sidhi Vinayak
Temple Prabha Devi Mumbai-400025.
3. ICICI Lombard General Insurance Company Ltd. Branch
Office Una H.P.
All appellants through its Manager (Legal) ICICI Lombard
General Insurance Company Ltd. Plot No.149 4th Floor The
Statesman Building Industrial Area Phase-1 Chandigarh-160002
...... Appellants/Opposite Parties.
Versus
Sh.Dharmender Singh S/o Sh. Bakshi Ram R/o Village Malahat
Tehsil and District Una H.P.
......Respondent /Complainant .
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Sanjeev K.Suri Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 17.09.2018 passed by Learned District Consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 Forum/Commission Una H.P. in consumer complaint No.19/2016 titled Dharmender Singh Versus ICICI General Insurance Company Ltd. & Others.
Brief facts of consumer complaint:
2. Shri Dharmender Singh filed consumer complaint under Consumer Protection Act pleaded therein that in October 2012 complainant purchased tractor in question. It is pleaded that tractor in question was insured with opposite parties for a sum of Rs.608000/- (Six lacs eight thousand) w.e.f. 23.10.2012 to 22.10.2013 and premium to the tune of Rs.10345/- (Ten thousand three hundred forty five) was also paid to opposite parties. It is pleaded that tractor in question was financed from State Bank of Patiala District Una H.P. for a sum of Rs.480000/- (Four lacs eighty thousand). It is pleaded that on intervening night of 28.07.2013/29.07.2013 when complainant and his friends have gone to Sadashiv Temple Talmehra Tehsil Bangana District Una H.P. for pilgrimage purpose and parked tractor in open ground after locking the same properly same was stolen away in the night hours by some unknown person. It is pleaded that tractor in question could not be traced and FIR was filed in Police Station Bangana District Una H.P. It is pleaded that thereafter necessary information was given to State Bank of Patiala as well as claim was filed with opposite party No.3 by 2 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 way of submitting necessary documents. It is pleaded that complainant visited the office of opposite parties several time but opposite parties did not settle the claim and committed deficiency in service. Complainant sought relief of payment of Insurance amount to the tune of Rs.505000/- (Five lacs five thousand) alongwith interest @ 12 % per annum. In addition complainant sought relief of payment of Rs.50000/-
(Fifty thousand) as compensation for harassment. In addition complainant sought payment of costs to the tune of Rs.15000/- (Fifteen thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that vehicle in question was stolen on 28.07.2013 and FIR was got registered vide FIR No.87 on 30.07.2013 in Police Station Bangana District Una H.P. It is pleaded that cause of action accrued to complainant on 28.07.2013 and present consumer complaint was filed by the complainant on 26.02.2016 and present consumer complaint is barred by limitation. It is pleaded that present consumer complaint is liable to be dismissed on the ground of non- joinder of necessary party. It is pleaded that vehicle in question was hypothecated with State Bank of Patiala District Una H.P. and State Bank of Patiala District Una H.P. is necessary party. It is pleaded that Insurance claim has not 3 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 been lodged with the opposite parties. Prayer for dismissal of consumer complaint sought.
4. Learned District Consumer Forum/Commission allowed consumer complaint and ordered opposite parties to reimburse Insurance claim of complainant on non-standard basis i.e. 75% of insured amount which comes to Rs.456000/- (Four lacs fifty six thousand) and further ordered opposite parties to pay the said amount within 30 days from the date of receipt of copy of order alongwith interest @ 9% per annum from the date of complaint till actual payment. Learned District Consumer Forum/ Commission ordered complainant to handover letter of subrogation in favour of opposite parties. In addition Learned District Consumer Forum/Commission ordered opposite parties to pay costs to complainant to the tune of Rs.5000/- (Five thousand). Feeling aggrieved against order passed by Learned District Consumer Forum/Commission Insurance company filed present appeal before State Commission.
5. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
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ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018
1. Whether appeal filed by Insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal and whether Insurance company is under legal obligation to pay genuine claim of Insurance and whether it is expedient in the ends of justice and on the principles of natural justice to exonerate Insurance company to pay Insurance claim when terms and conditions of Insurance policy were not explained to Insured by Insurance company?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that deponent purchased tractor in question in the month of October 2012. There is further recital in affidavit that tractor in question was insured with opposite parties for a sum of Rs.608000/- (Six lacs eight thousand) w.e.f. 23.10.2012 to 22.10.2013 and premium to the tune of Rs.10345/- (Ten thousand three hundred forty five) was also paid to opposite parties. There is further recital in affidavit that tractor in question was financed from State Bank of Patiala District Una H.P. for a sum of Rs.480000/-
(Four lacs eighty thousand). There is further recital in affidavit that on the intervening night of 28.07.2013/ 29.07.2013 when deponent and his friends have gone to Sadashiv Temple Talmehra Tehsil Bangana District Una H.P. 5 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 for pilgrimage purpose and parked tractor in open ground after locking the same properly same was stolen away in night hours by some unknown person and despite best possible efforts tractor could not be traced out. There is further recital in affidavit that FIR No.87 dated 30.07.2013 was filed in Police Station Bangana District Una H.P. There is further recital in affidavit that necessary information was given to financier and claim was filed with opposite parties at their office at Una H.P. i.e. opposite party No.3 by way of submitting necessary documents. There is further recital in affidavit that thereafter deponent visited the office of opposite parties several time and requested to release the amount but opposite parties did not release the amount. There is recital in affidavit that opposite parties committed deficiency in service. State Commission has carefully perused all annexures filed by complainant.
8. Opposite parties filed affidavit of Vidhi Passi Manager (Legal) ICICI General Insurance company Ltd. There is recital in affidavit that vehicle was stolen on 28.07.2013 and FIR was got registered on 30.07.2013 by complainant. There is further recital in affidavit that claim was not filed with opposite parties and documents pertaining to claim also not submitted by the complainant to the opposite parties. There is further recital in affidavit that in the absence of 6 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 requisite papers opposite parties were prevented from investigating and verification of alleged incident. There is further recital in affidavit that complainant did not file claim as per terms and conditions of Insurance policy and has violated terms and conditions of Insurance policy. There is further recital in affidavit that vehicle was stolen on 28.07.2013 and FIR was got registered on 30.07.2013 by complainant in Police Station Bangana District Una H.P. There is further recital in affidavit that cause of action accrued to complainant on 28.07.2013 and consumer complaint was filed on 26.02.2016 after expiry of limitation period. There is further recital in affidavit that present consumer complaint is premature in nature. State Commission has carefully perused all annexures filed by opposite parties.
9. Submission of learned Advocate appearing on behalf of Insurance company that present consumer complaint is not filed within limitation period as mentioned under Consumer Protection Act and on this ground appeal filed by appellants be allowed is decided accordingly. Complainant has specifically mentioned in affidavit in positive manner that he has filed claim in the office of opposite party No.3. Insurance company did not file any affidavit of receipt clerk posted in the office of opposite party No.3 in order to 7 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 contradict the contents of affidavit filed by complainant. No reason assigned by Insurance company as to why Insurance company did not file affidavit of receipt clerk posted in the office of Insurance company in order to disprove the facts alleged by complainant that he has submitted all relevant documents to the Insurance company. Adverse inference is drawn against Insurance company for non-filing of affidavit of receipt clerk posted in the office of Insurance company.
10. Even Insurance company did not place on record any repudiation letter. It is well settled laws that limitation to file consumer complaint accrued from the date of repudiation letter and does not accrued from the date of incident. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr. See 2012(II) CPJ 312 NC Chambal Fertilizers and Chemicals Limited Versus IFFCO-Tokio General Insurance Co. Ltd. & Ors.
11. Submission of learned Advocate appearing on behalf of Insurance company that vehicle in question is financed by State Bank of Patiala District Una H.P. and State Bank of Patiala District Una H.P. is necessary party in present consumer complaint and on this ground appeal filed by appellants be allowed is decided accordingly. Complainant 8 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 did not seek any relief against financer and complainant has sought relief against Insurance company. It is well settled law that complainant is dominus litis of his matter. State Commission is of the opinion that Insurance contract relating to Insurance company was bilateral in nature and was not tri- partite in nature. In view of fact that Insurance policy issued by opposite parties in favour of complainant is bilateral in nature State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow appeal simply on ground that financier is not impleaded as co-party in present consumer complaint. It is held that financier could avail independent remedy available to financier as per laws because financer was not co-party in bilateral contract i.e. Insurance policy.
12. Submission of learned Advocate appearing on behalf of Insurance company that Learned District Forum/Commission has not directed complainant to execute letter of subrogation in favour of Insurance company and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission has carefully perused the order of learned District Forum/Commission and learned District Forum/Commission has specifically mentioned that complainant would handover letter of subrogation in favour of 9 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 opposite parties qua vehicle in question immediately and thereafter period of 30 days to pay amount would commence.
13. Submission of learned Advocate appearing on behalf of Insurance company that Learned District Forum/Commission has not directed complainant to transfer RC of vehicle in question in the name of Insurance company and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to direct the complainant to transfer RC in the name of Insurance company because in total loss Insurance company is legally entitled for transfer of RC of vehicle in question in favour of Insurance company.
14. Submission of learned Advocate appearing on behalf of Insurance company that Learned District Forum/Commission has granted excessive rate of interest i.e. 9% per annum and on this ground appeal filed by appellants be allowed is decided accordingly. It is held that grant of interest is discretion of District Forum/Commission and it is held that Learned District Forum/Commission has granted reasonable interest to complainant and it is not expedient in the ends of justice and on the principles of natural justice to interfere in the order of learned District Forum/Commission qua interest rate order.
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ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018
15. Submission of learned Advocate appearing on behalf of Insurance company that present matter falls within exclusion clause of Insurance policy and on this ground appeal filed by appellants be allowed is decided accordingly. There is no evidence on record in order to prove that exclusion clause mentioned in Insurance policy was communicated to insured in present matter. It is well settled laws that when exclusion clause mentioned in Insurance policy is not communicated to insured then Insurance company is not legally competent to take benefit of exclusion clause mentioned in Insurance policy. See 2019 (6) Supreme Court Cases 212 (DB) Apex Court titled Bharat Watch Company Limited through its partner Versus National Insurance Company Limited. See 2004(8) Supreme Court Cases 644 Apex Court titled United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal. See. 2007 (III)) CPJ 34 NC titled National Insurance Company Ltd. Versus D.P. Jain. See 2000 (2) SCC 734 Modern Insulators Ltd. Versus Oriental Insurance Co. Ltd.
16. Facts of rulings cited by learned Advocate appearing on behalf of appellants i.e. (1) 2010 CPJ (1) SC titled Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha (2) 2017 CPJ 10 titled Om Prakash Vs. Reliance General Insurance & Anr. (3). 2018 (4) CPJ I titled Sonnel 11 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 Clocks and Gifts Ltd. Vs. New India Assurance Company. (4) Order dated 09.01.2018 passed by Hon'ble Apex Court of India in SLP No.24370 of 2015 titled Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. and facts of present consumer complaint are entirely different. Rulings cited by learned Advocate appearing on behalf of appellants are distinguishable in the present matter.
17. Submission of learned Advocate appearing on behalf of complainant that order of learned District Consumer Forum/Commission is in accordance with laws and proved facts and same does not warrant interference by State Commission is decidedly accordingly. It is proved on record that vehicle in question was stolen on the intervening night of 28.07.2013/ 29.07.2013 and it is also proved on record that FIR was registered in Police Station Bangana District Una H.P. It is also proved on record by way of affidavit filed by complainant that claim was filed in the office of Insurance company i.e. opposite party No.3. State Commission is of the opinion that Insurance company is under legal obligation to pay genuine claim of Insurance. It is not expedient in the ends of justice and on the principles of natural justice to exonerate Insurance company from liability. Point No.1 is decided accordingly.
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ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 Point No.2: Final Order
18. In view of findings upon point No.1 above appeal filed by appellants is partly allowed. It is ordered that complainant will transfer RC of vehicle in question in the name of Insurance company within 30 days from the date of receipt of copy of order. It is further ordered that complainant will submit NOC to Insurance company from financier within thirty days. If complainant will not submit NOC from financier to Insurance company in that eventuality Insurance company will transfer OD claim amount of vehicle in question to financier to liquidate loan amount because vehicle in question was financed by State Bank of Patiala Una H.P. 19 Order of Learned District Forum/Commission that Insurance company would pay Insurance claim to complainant on non-standard basis to the tune of Rs.456000/- (Four lacs fifty six thousand) alongwith interest @ 9% per annum from the date of complaint till actual payment is affirmed. Order of Learned District Consumer Forum/Commission that Insurance company would pay costs to complainant to the tune of Rs.5000/-(Five thousand) is also affirmed. It is ordered that Insurance company will comply its part within 30 days from the date of receipt of certified copy of order. It is also ordered that complainant will also comply its part relating to transfer of RC in favour of 13 ICICI Lombard General Insurance Co. Ltd. & Ors. Vs.Dharmender Singh F.A. No.288/2018 Insurance company within 30 days from the date of receipt of certified copy of order. Order of learned District Forum/Commission is modified accordingly. Parties are left to bear their own litigation costs before State Commission.
20. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to learned District Forum/Commission forthwith for information and file of State Commission be consigned to record room after due completion forthwith. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 25.10.2019 Manoj 14