State Consumer Disputes Redressal Commission
The Officer In Charge Bajaj Alliance ... vs Arun Ashok Tubachi on 23 July, 2019
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 46/2018
1. The Officer in Charge,
Bajaj Alliance General Insurance
Company Ltd., a company registered
under the Companies Act, 1956,
having its registered head office
at GE Plaza, Airport Road,
Yerwada, Pune 411 006.
2. The Regional Manager,
Bajaj Alliance General Insurance
Company Ltd having its registered office
at 3C and 3D, Sesa Ghor 20,
Patto Plaza, EDC Complex,
Panaji-Goa 403001.
3. The Branch Manager,
Bajaj Alliance General Insurance
Compnay Ltd., having its branch office
at 112 & 113, 1st Floor,
Guru Sai Plaza, Near Adarsh School,
Pajifond, Margao Goa 403601. ... Appellants
v/s
Arun Ashok Tubachi,
aged about 42 years,
s/o Ashok Tubachi, Businessman,
married, r/o H.No. 8A/1,
Adsulim, Benaulim, Salcete, Goa,
403716. ... Respondent
Mr. A. Kakodkar, Lr. Counsel for the Appellants.
Mr. A. Arsekar, Lr. Counsel for the Respondent.
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Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated:- 23/07/2019
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Judgment and Order dated 05/09/2017 passed by the Consumer Disputes Redressal Forum, South-Goa (the "Forum", for short) in Complaint No. 25/2016. The Appellants were the Opposite Parties (OPs for short) and Respondent was the Complainant in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The said Complaint was filed with a prayer to direct the OPs to pay to the Complainant the claim amount of Rs. 4,84,000/- being the claim covered under policy No. OG-15- 1717-1801-00000783, valid for the period from 14/04/2014 to 13/04/2015, with 18% interest from the date of missing of the car till the date of final payment and further to pay compensation of Rs. 1,00,000/- for the mental stress, strain, mental torture and agony suffered by the Complainant. The said policy was obtained by the Complainant from the OPs in respect of his Maruti Suzuki Swift VDI car bearing No. GA-08- K-0792.
3. Case of the Complainant, in short, is as follows:
The said car was parked by him on 11/01/2015 at around 18.00 hours at Margao, Goa, between Paulo office and Rebello hospital nearby a pick-up stand in open parking space and he had gone in his friend's car to Ponda Goa for a 3 party where he stayed over night and returned on the next day i.e. 12/01/2015 at around 11.00 hours when he noticed that his car was missing from the said parking space. The Complainant immediately lodged a missing report to the Margao Town Police Station on the same day i.e. on 12/01/2015 which was received under report No. 05/2015 and the police issued wireless messages under no. 111/2015 dated 12/01/2015 to all concerned and also to the superiors to look after and trace the said car. On the same day i.e. on 12/01/2015, the Complainant also informed the OP No. 3 in writing about the missing of the car along with the police Complaint and wireless message. However, the office personnel of the OP No. 3 refused to accept the written information and told the Complainant to filed the same in writing along with registered FIR of the police and further to report to the Branch Office the progress of the investigation. The Margao Police, who were investigating the case and searching the said car, registered the theft case u/s 379 of IPC under FIR No. 123/2015 dated 02/04/2015, carried out investigation, visited the spot and conducted the scene of panchanama in the presence of two panchas namely Sudhui Baburao Halvegar and Shri. Gibbson Caitan Fernandes. During the course of investigation the Margao Town Police interrogated seven noted criminals from the surrounding area allegedly involved in theft cases. The Complainant reported the progress of the investigation as advised by the OP No. 3 and also submitted the FIR and wireless message to the branch office of the OP No. 3. However, the OP No. 3 was not satisfied with the same and insisted for the final report. In the mean time, the OP No. 2 vide letter dated 02/09/2015 reported to the Complainant that the theft claim was communicated to their office with the documents and that the explanation given was not found to be satisfactory for the 4 claim. The Margao Town Police submitted their Final Form/ report in the Court of JMFC, Margao on 03/09/2015, in respect of the said FIR No. 123/2015 stating that the police made all efforts to detect the case, but the same remained undetected. The Police recommended "A" Final summary to the Court and the same was granted by order dated 08/12/2015. The car was missing during the operating period of the policy covering the liability of Rs. 4,84,000/-. The Complainant requested the OPs to pay the said claim amount. However, the OPs failed and neglected to pay the same and therefore the Complainant issued legal notice dated 24/02/2016 through advocate to the OPs. The OPs received the said notice but failed to comply with the same. Hence the Complaint.
4. The Complainant relied upon the certificate of registration of the said car, written information dated 12/01/2015, report dated 12/01/2015, wireless message dated 12/01/2015, insurance policies, FIR dated 03/04/2015, letters of the OP dated 16/04/2015 and 02/09/2015, final report with order of JMFC and legal notice dated 24/02/2016 with postal receipts and A.D. cards.
5. The OPs filed their written version denying the case of the Complainant. Case of the OPs, in short, is as follows:
The OPs received the intimation of the theft/missing of the said vehicle after 55 days from the date of occurrence and the FIR was lodged after 79 days from the date of occurrence. The Complainant has therefore committed breach of condition number (1) of the policy. The Complainant deprived the investigation authority of the OPs and opportunity for timely action to recover the vehicle. The Complainant deprived the 5 OP to establish the facts relating to the reported loss. Without prejudice, the OPs submitted that the amount claimed by the Complainant was excessive, exorbitant and exaggerated.
6. The OPs relied upon the insurance policy, claim form and letters dated 16/04/2015, 22/04/2015 and 02/09/2015.
7. The Complainant filed his own affidavit-in-evidence and the affidavits of Mr. Navnath Prakash Malwankar and Mr. Gibbson Fernandes. The OPs filed the affidavit-in-evidence of their Executive Legal and Authorized signatory namely Mr. Nilesh Subhashchandra Gandhi. Both the parties filed written arguments before the Forum.
8. Vide the impugned judgment the Forum held that the Complainant had filed Complaint before the police on the same day and the police started their investigation on the same day. The Forum relied upon the IRDA Circular No. RDA/HLTH./MISC/CIR/216/09/2011. The Forum held that reasons for delay were genuine. The Forum held that this was a fit case in which the OPs should have allowed the case as stated in the IRDA Circular. The Complaint has been partly allowed. The OPs, jointly and severally, have been directed to make the payment of Rs. 4,84,000/- to the Complainant and further to pay interest at the rate of 7% per annum on the said sum of Rs. 4,84,000/- as from 12/04/2016 till the date of final payment. The OPs have been further directed to pay compensation of Rs. 5000/- and cost of Rs. 2000/- to the Complainant. The OPs are aggrieved by the impugned judgment and order.
69. Records and proceedings of Complaint No. 25/2016 were called for. Mr. Kakodkar, Lr. Counsel argued on behalf of the OPs and Mr. Arsekar, Lr. Counsel argued on behalf of the Complainant. We have gone through the entire material on record.
10. Indisputably, the insurance policy was valid during the period when theft of the car occurred. There is also no dispute that loss due to theft of the car is covered under the said insurance policy. The condition No. 1 of the said insurance policy states as under:
"Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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 a 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 Inquiry in respect of any occurrence, which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall given immediate notice to the police and co-operate with the company in securing the conviction of the offender."7
11. The contention of the Ld. Counsel for the Complainant that the latter part of the above condition pertaining to theft or criminal act is independent of the former part and that in case of theft of the car, there is no requirement to intimate the OPs in writing immediately upon occurrence of theft has no substance at all. The occurrence of any accidental loss or damage includes occurrence of loss by theft and later portion of the above condition is further requirement particularly in case of theft. By letter dated 16/04/2015, the OPs informed the Complainant that the FIR was lodged after 79 days of the occurrence of theft and the OPs were intimated after 55 days of the occurrence by doing so the Condition No. (1) of the policy has been breached. The said condition No. 1 has been partly stated in this letter and it is further stated that Complainant deprived the investigation agency of the OP and opportunity for timely action to recover the vehicle and an opportunity to establish the facts relative to the reported loss needed to establish the admissibility of the claim. The Complainant was asked to submit clarification within 7 working days from the date of receipt of the said letter, to enable the OPs to process the claim further. By further letter dated 02/09/2015 read with the earlier letter dated 16/04/2015, the claim of the Complainant has been repudiated.
12. The complaint was lodged by the Complainant with the Margao Town Police station on 12/01/2015 i.e. on the very day on which the Complainant found his car missing from the parking place where he had parked the same on 11/01/2015 at about 18.00 hours. The Police registered the said complaint as missing report No. 05/15. Wireless messages were immediately flashed by Margao Town Police to all concerned. Fresh complaint was taken by the Police on 8 03/04/2015 and F.I.R. was registered on that day under Section 379 of Indian Penal Code. Brief facts of the case stated by the Police reveal that wireless messages were flashed to all Pipols, PCR Margao/Panaji and to concerned superiors. These wireless messages were flashed on 11/01/2015 itself. Panchanama of the scene of accident was drawn. One of the panch witnesses namely Mr. Gibbson Fernandes has been examined by the Complainant. The facts of parking of the car in the said parking place and about missing of the said car, as stated by the Complainant on oath have been duly corroborated by witness Shri. Navnath Prakash Malwankar. The Final Report submitted by the Police to the Ld. JMFC reveals that several persons were examined by the police, during the course of investigation. The Police reported that all out efforts were made to detect the case but the same remained undetected and hence "A" Final Summary was recommended. "A" Final Summary has been granted by the JMFC on 08/12/2015. The Complainant had produced the two keys and registration certificate of the said car before the Forum but the Forum directed the Complainant to keep them in his own custody. There is no requirement via the condition No. 1 that F.I.R. has to be registered immediately upon occurrence of the theft. Immediate notice to the police was required to be given which the Complainant did. Merely because the police registered the F.I.R. No. 123/2015 on 03/04/2015, that does not mean that the Complainant had not given immediate notice of the occurrence of the theft to the police. There is therefore no violation of the later part of the said condition No. 1 and rejection of the claim on the said ground cannot be said to be on valid ground. In fact, from the above, it can be certainly said that the claim of the Complainant is genuine.
913. Nothing is produced by the OPs to establish that the written intimation was given to them on any particular date or after 55 days of occurrence. The motor insurance claim form produced by the OPs does not have any date written on it. Neither any inward register nor any other document is produced by the OPs to prove that the required written intimation and documents were received by the OPs after 55 days from the date of occurrence. The Complainant has stated on oath in his affidavit that on 12/01/2015 itself he informed the OP No. 3 in writing about the missing of the car but the office personnel of the OP No. 3 refused to accept the written information and told the Complainant that the report is not F.I.R. and asked him to file the same in writing along with registered F.I.R. of the police and to report to the branch office, the progress of the investigation of the missing car. He has stated that upon registration of F.I.R., he had produced the said F. I. R. and wireless message at the branch office of the OP NO. 3 but the OP NO. 3 insisted for Final Report. Mr. Navnath Prakash Malwankar who had accompanied the Complainant to Ponda has confirmed that the Complainant had parked his car near and between Paulo office and Rebello hospital nearby a pick-up stand in open parking space next to Kadamba bus stop at Margao-Goa and thereafter he and the Complainant had gone to Ponda in his Honda City bearing No. GA-02-2-3424 for a party and they stayed at Ponda for the night and on the next day when they came to the place where the car of the Complainant was parked they found that the car was missing. Said Navnath Malwankar has specifically stated that they went to Margao Town Police Station on 12/01/2015 where the Complainant lodged his missing complaint and thereafter they also went to the office of the OP No. 3 and the Complainant sought to give written information of the missing car to the OPs, which was refused 10 by the OPs. The office of the OP No. 3 is at Margao-Goa. No affidavit of any person from the office of the OP No. 3 has bee filed by the OPs to say that the Complainant and his friend had not come to the said office with written information, etc. Therefore, it can be believed that the Complainant had gone to the office of the OP No. 3 to give written intimation about his missing car but the same was not accepted. The Complainant has produced the copy of the said written information dated 12/01/2015.
14. Insurance Regulatory and Development Authority (IRDA) is a statutory authority established to protect the interests of the holders of insurance policies. It is the regulator for insurance in India. The IRDA Circular No. RDA/ HLTH./MISC/CIR/216/09/2011 reads as under:
"The authority has been receiving several complaints that claims are being rejected on the ground of late 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 insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such 11 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 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 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."
Sd/-
J. Harinarayan Chairman"
15. The further Circular dated 28/10/2016, issued by IRDA says that the Circular "IRDA/HLTH/MISC/CIR/216/09/ 2011" dated 20/09/2011, in the matter of dealing with claims where there is delay in intimation/document submission, is to be deemed as a direction issued by the Authority under Section 34(1) of the Insurance Act, 1938 and insurers are bound to comply with the same. Hence, it is clear that the said IRDA directions, issued vide Circular 12 "IRDA/HLTH/MISC/CIR/216/09/2011" dated 20/09/2011, are bound to be followed by all the non-life insurers, including the OPs.
16. Mr. Kakodkar, Lr. Counsel for the OPs has relied upon following citations:
(a) "M/s. Sonell Clocks and Gifts Ltd., vs. New India Assurance Company Ltd.", reported in 2018 (10) scale
22.
(b) "Universal Sompo General Insurance Company Ltd., vs. Roop Lal Dangi", reported in 2017 (2) (CPJ) 83.
(c) "Kotak Mahindra Prime Ltd., vs. Rajaram s/o.
Bhanwar Lal", reported in 2017 (2) CPJ 210
17. In the case of case of "Sonell Clocks and Gifts Ltd."(supra), the Hon'ble Supreme Court has referred to the case of "Reliance General Insurance Co. Ltd. Vs. Harleen Kaur" (Revision Petition No. 2850 of 2015), in which though it was found that the complainant had not afforded any explanation at all to the District Forum for not reporting the incident of theft to the insurer for as many as 19 days, due to which it was held that the reliance placed on the IRDA circular was misplaced, however, it was further found that the claim was rejected much earlier than the said IRDA Circular came to be issued and hence it was held that the said Circular was not applicable to the said case. Thus, it is clear that if the claim was rejected prior to the coming into force of the said IRDA Circular, the said Circular cannot be applied. Whether the Complainant, in the present case before 13 us, has afforded proper explanation to the District Forum for not reporting the incident of theft to the insurer, as required or not, is a question of fact which has to be seen.
18. In the case of "kotak Mahindra Prime Ltd."(supra), the above IRDA circular dated 20/09/2011 has not been considered. Even otherwise, in the case supra, the repudiation of the claim was done by the insurer much prior to the coming into force of the said Circular and hence the question of following the same did not arise. The Hon'ble National Commission, in the case supra, referred to its own decision in the case of (i).- "Reliance General Ins. Co. Ltd. Vs. Vinod Kumar" ( RP No. 157 of 2016), decided on 20/07/2016; and (ii).- "Reliance General Insurance Co. Ltd. Vs. Jai Prakash" (RP No. 2479 of 2015 and connected matters), decided on 11/01/2016. In both the cases above and in connected matters, the said IRDA Circular was not considered and the repudiation of the claim was prior to the coming into force of the said IRDA Circular. In both the cases supra, the Hon'ble National Commission has relied upon the view of the Hon'ble Supreme Court in the case of "Oriental Insurance Company Limited Vs. Parvesh Chander chadha" (Civil Appeal No. 6739 of 2010), decided on 17/08/2010.) However, in the year 2010, when the Hon'ble Supreme Court decided the above Civil Appeal No. 6739 of 2010, the said IRDA Circular dated 20/09/2011 was not in existence and hence the question of dealing with the same did not arise.
19. In the case of "Universal Sompo General Insurance Company Ltd." (supra), the claim was repudiated after the issuance of the said IRDA Circular. However, the Hon'ble National Commission has mainly relied upon the same view of 14 the Hon'ble Supreme Court in the case of "Oriental Insurance Company Limited Vs. Parvesh Chander chadha". No doubt, in the said case, the Hon'ble National Commission dealt with the said IRDA circular and held that the said Circular was of no avail to the respondent (complainant) since there was no explanation at all for delay of eight days in reporting theft of the subject trailer to the insurance company. Therefore, in the present case, we have to see whether adequate explanation has been given for delay in reporting the theft to the OPs. That is a question of fact.
20. Ld. Counsel for the Complainant has relied upon the case of "Om Prakash Vs. Reliance General Insurance And Anr.", reported in [(2017) 9 SCC 724]. In the case supra, there was theft of vehicle on 23/03/2010, F.I.R. was lodged on 24/03/2010 and the insurance claim was lodged on 31/03/2010. Similar condition about immediate written notice in writing to be given upon occurrence of loss or damage was there. This was prior to coming into force of the said IRDA Circular. A Division Bench of the Hon'ble Supreme Court has observed thus:-
"It is common knowledge that a person who has lost his vehicle may not straightaway go to insurance company to claim compensation - At first, he will make efforts to trace the vehicle - It is true that owner has to intimate the insurer immediately after theft of vehicle - However, such condition should not bar settlement of genuine claims, particularly when delay in intimation or submission of documents is due to unavoidable circumstances - Decision of insurer to reject claim has to be based on valid grounds - Rejection of claims on purely technical grounds in a mechanical manner will 15 result in loss of confidence of policy-holders in insurance industry - If reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on ground of delay - Also it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by investigator - Condition regarding delay shall not be a shelter to repudiate insurance claims which have been otherwise proved to be genuine."
21. Ld. Counsel for the OPs submitted that the Hon'ble Supreme Court in the case of "Sonell Clocks and Gifts Ltd." (supra), has considered the Judgment in the case of "Om Prakash" (supra) and has held that the contention that the genuine claim ought not to be rejected on technical ground, keeping in mind that the Consumer Protection Act is a beneficial legislation warranting liberal construction, cannot be taken forward at the instance of the insured who has failed to fulfill the threshold stipulation contained in the clause of the general conditions of the policy and for which reason must suffer the consequence. In the case supra, the claim was huge of Rs. 2,66,05,000/- with interest of 21% per annum and compensation of Rs. 5,00,000/- towards mental agony and further amount of Rs. 1,00,000/- towards incidental expenses. The case was not of theft of vehicle but damage to the machinery and raw material lying in the building due to torrential rains and floods and consequent loss. Be that as it may, the loss had occurred on 04/08/2004 and it was reported to the Insurance Company only on 30/11/2004. the said IRDA Circular was not existing at that time.
1622. In the present case the Complainant had tried to intimate in writing to the OP No. 3 about the missing of his car but the OP No. 3 refused to accept the same on grounds as stated by the Complainant. The delay therefore should be condoned. In our considered view, the claim of the Complainant was genuine and there was no valid ground to reject the same. Therefore, there are no valid grounds to interfere with the impugned Order. There is no merit in the appeal.
23. In the result, we pass the following:
ORDER Appeal is dismissed. No order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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