State Consumer Disputes Redressal Commission
Rajinder Kumar vs Icici Lombard General Insurance ... on 1 December, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1471 of 2014
Date of institution : 05.11.2014
Date of decision : 01.12.2015
Rajinder Kumar aged about 45 years son of Assa Nand, House
No.5861, Gali Shaheed Bhagat Singh Nagar, Hira Chowk, Bathinda,
Punjab.
.......Appellant-Complainant
Versus
1. ICICI Lombard General Insurance Company Limited, 401, 402,
Ist Floor, Interface 11, New Linking Road, Malad (West),
Mumbai-400 064 through its Managing Director.
2. ICICI Lombard General Insurance Company Limited, 3039-A,
Sharma Complex, GT Road, Near Bus Stand, Bathinda-151
001 through its Branch Manager.
........Respondents-Opposite Parties
First Appeal against the order dated
8.9.2014 of the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Present:-
For the appellant :Shri Deepak Aggarwal, Advocate. For the respondents :Shri Sandeep Suri, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant has filed this appeal against the order dated 8.9.2014 passed by District Consumer Disputes Redressal Forum, Bathinda (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") for issuance of directions to the respondents/opposite parties to pay: Rs.40,000/-, as the price of the motorcycle; Rs.40,000/-, as compensation for the mental agony First Appeal No.1471 of 2014 2 and frustration suffered by him along with interest at the rate of 18% per annum; and Rs.6,500/-, as costs of complaint, was dismissed.
2. The complainant alleged, in his complaint, that the opposite parties made tall claims for their prompt service through pamphlets and newspapers. Allured by the same, he got insured his motorcycle bearing No.PB-03-T-8672 with them from 1.4.2013 to 31.3.2014 after the payment of the requisite premium. To his ill luck the same was stolen on 22.5.2013 at 6.30 A.M. at the gate of Rajindra College, Bathinda and he immediately informed the Police Control Room and was asked to make efforts to trace out the same. About this theft the police registered FIR No.141 dated 21.6.2013 under Section 379 IPC. The non-traceable report was accepted by the CJM, Bathinda. He filed his claim, vide No. MOT03182448, with the opposite parties but the same was declared as "No Claim" by the opposite parties, vide their letter dated 4.2.2014. His claim was genuine and the non-allowing thereof caused mental agony and frustration to him. He requested time and again to the opposite parties to pay the claim and also served legal notice dated 20.2.2014 but to no effect.
3. The complaint was contested by the opposite parties by filing joint written reply before the District Forum. In the written reply they did not dispute that the motorcycle was got insured with them by the complainant from 1.4.2013 to 31.3.2014 and that the same was stolen on 22.5.2013 from the gate of Rajindra College, Bathinda. They admitted that the intimation of the loss was given to them on 27.6.2013 and that the claim so filed by the complainant was First Appeal No.1471 of 2014 3 repudiated, vide letter dated 4.2.2014. They denied the other allegations made in the complaint and pleaded that the complainant concealed the fact that the FIR was lodged with the Police on 21.6.2013 and intimation was given to them on 27.6.2013. Thus, there was delay of 30 days in giving information to the police authorities and 36 days in giving intimation to them. As per the conditions of the Policy, immediate notice was required to be given to them as well as the police. By not doing so, the complainant violated those terms and conditions and, as such, his claim was validly repudiated. They did not commit any deficiency in service nor adopted any unfair trade practice while repudiating that claim on account of the said violation of the terms and conditions of the Policy. The complainant has neither any cause of action nor any locus-standi to file this complaint and the same is not maintainable in the present form. He is not a "consumer" and cannot take benefit of his own wrong. Moreover intricate questions of law and fact are involved in the complaint, which require voluminous documents and evidence for determination and the same is not possible in the summary procedure under the Act and appropriate remedy, if any, lies before the Civil Court. They prayed for the dismissal of the complaint with costs; having been filed on false and frivolous grounds.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
First Appeal No.1471 of 2014 4
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that by ignoring and overlooking the evidence produced by the complainant the District Forum wrongly concluded that there was violation of the terms and conditions of the Policy by not giving information to the police and intimation to the Insurance Company immediately. The intimation regarding the theft of the motorcycle was given to the Police Control Room immediately after the theft and that fact stands proved from the writing Ex.C-7; which was given under the signature of Incharge, Police Post Bus Stand, Bathinda. It is very much clear from the affidavits of the complainant, proved on the record as Ex.C-1 and Ex.C-9, that the intimation was also given to the opposite parties immediately after the theft and even if there was some delay in giving that intimation the same could not have been made a ground for repudiation of the valid claim made by the complainant under the Policy. The opposite parties are liable to pay the amounts, as claimed in the complaint; as their act in repudiating the valid claim amounts to deficiency in service, which caused mental harassment and frustration to the complainant.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that after carefully going through the evidence produced on the record correct findings were recorded by the District Forum. The claim made by the complainant was validly repudiated, as he violated the terms and conditions of the Policy by not giving notice/intimation of the theft of the motorcycle to the police and the First Appeal No.1471 of 2014 5 Insurance Company immediately. There is no ground for upsetting the well reasoned findings recorded by the District Forum. He also submitted that the opposite parties were very much justified in repudiating the claim of the complainant on the other ground also as he did not submit the documents asked for from him for settlement of his claim, vide letter dated 27.6.2013. He himself was negligent in not submitting those documents; which disabled the opposite parties to settle his claim.
8. The complainant alleged in para no.3 of his complaint that after the theft of the motorcycle on 22.5.2013 at 6.30 A.M. he immediately informed the Police Control Room and was asked to make efforts to trace out the same. He deposed about that fact specifically in his affidavits Ex.C-1 and Ex.C-9. In addition to that he proved on record the writing Ex.C-7; which was given to him by the Incharge, Police Post Bus Stand, Bathinda. It is categorically mentioned in that writing that FIR No.141 dated 21.6.2013 was got registered by the complainant regarding the theft of his motorcycle on 22.5.2013 at 6.30 A.M. from Rajindra College, Bathinda and that he had immediately given information about that theft to the Police Control Room, Bathinda as well as the concerned Police Station.
9. To rebut this evidence, the opposite parties proved on record the affidavit of Meenu Sharma, Manager, Ex.OP1/1. She deposed in that affidavit that the complainant concealed the fact that the date of loss was intimated on 22.5.2013 itself whereas the police authorities lodged the FIR on 21.6.2013. In her deposition she did not rebut the evidence produced by the complainant that the intimation about the First Appeal No.1471 of 2014 6 theft of the motorcycle was given to the Police Control Room as well as the concerned Police Station on the day of theft itself.
10. As per letter of repudiation dated 4.2.2014, Ex.C-6, one of the grounds for declaring the claim of the complainant as "No Claim"
was that the FIR was lodged after 30 days of the theft whereas as per the terms and conditions of the insurance policy, the same was to be lodged immediately after the theft. The terms and conditions of the insurance policy were proved on the record as Ex.OP-1/3 and the relevant condition, for the violation of which the claim of the complainant was repudiated, is reproduced below:-
"Notice shall be given in writing to the Company immediately upon the occurrence of any accidental or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act which may be the subject of a claim under this Policy the insured shall give First Appeal No.1471 of 2014 7 immediate notice to the police and co-operate with the Company in securing the conviction of the offender."
A perusal thereof shows that the complainant was to give immediate notice to the police about this theft and it was not obligatory for him to lodge the FIR. Judicial notice can be taken of the fact that the police authorities do not lodge FIR regarding theft immediately after a person approaches it and gives intimation about the theft. No one can be made to suffer for inaction or the non-performance of the duties by the police in not lodging the FIR immediately. The question to be decided is, whether the notice of the theft was given to the policy immediately by the complainant? From the evidence on the record and which has been discussed above, it stands proved that he had given such a notice to the police about the theft on the date of commission of theft itself. Thus, he duly complied with the said condition contained in the Policy.
11. As per this condition, notice was to be given in writing to the Insurance Company immediately upon the occurrence of the loss or damage. It is not the allegation made by the complainant in his complaint that he had given written notice to the opposite parties about the theft on 22.5.2013 itself or immediately thereafter. He only alleged therein that he had filed his claim but omitted to state the date on which that claim was made. Similarly his affidavits Ex.C-1 and Ex.C-9 are silent about the date on which he submitted that written claim. It has been deposed by Meenu Sharma, Manager, in her affidavit Ex.OP1/1 that intimation to the opposite parties was First Appeal No.1471 of 2014 8 given on 27.6.2013. Can this delay in giving the intimation to the opposite parties could have been made a ground for repudiation of the claim of the complainant?
12. Circular No.IRDA/HLTH/MISC/CIR/216/09/201 Dated 20.09.2011 was issued by IRDA after several complaints were received by it that the claims are being rejected by the Insurance Companies on the ground of delayed submission of intimation and documents. The contents of that Circular are reproduced below:-
"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.First Appeal No.1471 of 2014 9
The insurers' 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, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders 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, suitably 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."
It has been made clear in this circular that such limitation clause does not work in isolation and is not absolute. The advice, so given by the Regulatory Authority, was to be followed and the opposite parties were to develop a sound mechanism of their own to handle such like claims with utmost care and caution. They should not have repudiated the claim on account of the said delay unless the reasons for the delay were specifically ascertained and recorded. Further First Appeal No.1471 of 2014 10 advice given to the Insurance Companies, to incorporate the additional wordings in the Policy documents suitably 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, were never incorporated by the opposite parties in the insurance policy. In view of this Circular and in view of the fact that the theft was reported to the police immediately after the theft itself, we are of the considered opinion that the claim of the complainant could not have been repudiated on the ground of delayed intimation to the Insurance Company.
13. We do not find any merit in the arguments raised by learned counsel for the opposite parties that the omission on the part of the complainant to submit the documents; which were asked for from him for the settlement of his claim, could have also been made a ground for repudiation of his claim. The letter, vide which the documents were asked for from the complainant, was proved on the record as Ex.C-8. A perusal thereof shows that the complainant was asked to cooperate with the Surveyor and submit the documents mentioned in the enclosed list, in order to process his claim. If the opposite parties intended to reject his claim on the ground of delayed intimation, they would not have asked for those documents. The asking for of those documents itself shows that the opposite parties initially intended to process and settle his claim. The non- submission of the documents by the complainant was never made a ground for repudiation and, as such, their counsel cannot agitate that point in this appeal.
First Appeal No.1471 of 2014 11
14. In view of the above discussion, the appeal is allowed and the order passed by the District Forum is set aside. The complaint filed by the complainant is allowed and the following directions are issued to the opposite parties:-
i) to pay the insurance claim to the complainant as per the IDV entered in the insurance policy, Ex.C-5 (Rs.22,450.00);
ii) to pay interest on the said amount at the rate of 9% per annum from the date of submission of the claim till the date of payment of the same, as compensation for the harassment and mental agony suffered by the complainant on account of the deficiency in service on their part; and
iii) to pay Rs.3,300/-, as costs of litigation.
Compliance of this order shall be made by the opposite parties within 30 days of the receipt of the certified copy of the same.
15. The arguments in this case were heard on 18.11.2015 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER December 01, 2015 Bansal