State Consumer Disputes Redressal Commission
Jaspal Kaur vs The New India Assurance Co. Ltd. on 21 December, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.694 of 2018
Date of Institution: 28.08.2018
Order reserved on: 18.12.2018
Date of Decision : 21.12.2018
Jaspal Kaur w/o Sh. Jagjit Singh r/o Village Mehraj Patti Saoul,
Rampura Phul, District Bathinda.
.....Complainant
Versus
The New India Assurance Company Limited, Branch Office (360601)
2090, The Mall, Bathinda 151001 (Pb.), through its Branch Manager.
.....Opposite Party
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Shrey Goel, Advocate
For the opposite party : Sh. J.P. Nahar, Advocate
.................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against the opposite party (OP) on the premise, she got her vehicle bearing registration no.PB-03-AP-1198 insured with OP and it issued insurance certificate no.360601/31/17/0100000367 for the period commencing from 30.04.2017 to 29.04.2018 against premium of Rs.50,733/-. The insured declared value (IDV) of the vehicle is Consumer Complaint No.694 of 2018 2 Rs.22,00,000/-, as per IMT. The insured vehicle was stolen on 07.01.2018 during the nocturnal period and due intimation was given to the police immediately on 08.01.2018 about the theft of the vehicle. The vehicle was detected in Rajasthan at Palu through GPRS system by the police on 08.01.2018, but it was not traced thereafter even by the Rajasthan police. FIR no.5 was lodged under Section 379 of IPC at police station Sadar, Bathinda on 09.01.2018 regarding theft of the vehicle. Due intimation was given to Narinder Singh, Branch Manager of OP on 09.01.2018 by the husband of the complainant regarding the theft of the vehicle. The OP overwrote the date as 10.01.2018 instead of 09.01.2018 for receipt of letter for the reasons best known to it. The OP appointed AS Sodhi from Third Eye Investigators, as an independent investigator to look into the matter. He found the theft case of the insured vehicle within the parameters of insurance cover, entitling the complainant to insurance claim. The OP wrote letter dated 07.05.2018 to the complainant for submission of non-traceable certificate from the police authority of the vehicle duly countersigned by Court/ Magistrate. The latest non traceable certificate of the above vehicle was issued by the police authority through SSP Office on 16.05.2018. The OP has not given the insurance claim to complainant on the ground that non traceable certificate is not countersigned by the Magistrate and it is not a valid document. The complainant alleged deficiency in service on the part of OPs and prayed that latter be directed to pay Rs.22,00,000/- as IDV of the insured vehicle alongwith interest @18% per annum from the date of Consumer Complaint No.694 of 2018 3 lodging the claim till date of realization. The complainant further sought compensation of Rs.2,00,000/- for mental harassment and Rs.1,00,000/- as litigation expenses.
2. Upon notice, OP appeared and filed written reply by raising preliminary objections that insured vehicle is hypothecated with HDFC Bank Limited, but the above bank has not been impleaded as a party in this case. The OP closed the claim of complainant as "no claim" vide letter dated 06.07.2018 for non submission of document by complainant i.e. untraced report of the vehicle duly signed by the Magistrate. It is further averred on merits by OPs that even the insurance claim can be paid to the bank, wherefrom the vehicle was got hypothecated and not to the complainant straightway. The OP admitted the fact of issuing the insurance policy to complainant for the above vehicle for IDV of Rs.22,00,000/- for the period from 30.04.2017 to 29.04.2018. The OP further averred that it appointed the investigator to look into the matter, who submitted his report dated 31.03.2018 and found the theft case of insured vehicle as genuine one. The complainant did not submit the untraced report issued by the Magistrate because it has been issued by SSP Office Bathinda. The police is not competent to issue untraceable report of the stolen vehicle being investigating agency. The OP asserted in the written reply that the claim was closed for non submission of untraceable report by complainant being not issued by the Magistrate. OP prayed for dismissal of the complaint.
Consumer Complaint No.694 of 2018 4
3. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence led by complainant in the shape of her affidavit has been perused by us on the record. The registration certificate of the insured vehicle is Ex.C-1 in the name of complainant. Ex.C-2 is the copy of insurance policy, vide which, the above vehicle was insured by OP for IDV of Rs.22,00,000/- for the period from 30.04.2017 to 29.04.2018. Ex.C-3 is the copy of FIR no.05 dated 09.01.2018 under Section 379 of IPC regarding the theft of insured vehicle. Ex.C-4 is the copy of intimation letter dated 09.01.2018 to OP regarding above theft of insured vehicle. OP appointed surveyor to look into the genuineness of the claim of complainant and he submitted his report Ex.C-5 finding it to be a genuine case of theft. The OP sent letter dated 07.05.2018 to complainant asking her to submit the non-traceable certificate from the police authorities countersigned by Magistrate vide Ex.C-6. The complainant submitted the vehicle enquiry report vide Ex.C-7 to OP dated 16.05.2018 issued by police authorities in this regard. Ex.C-8 is copy of letter to SHO, Police Station Sadar Bathinda by Jaspal Kaur complainant regarding the status of her vehicle. Ex.C-9 is the copy of letter dated 19.05.2018 by complainant to Branch Manager of OP to the effect that there is no provision that the non-traceable certificate has to be counter signed by the Court/Magistrate. Ex.C-10 is the copy of letter dated 23.05.2018 from OP to complainant asking her for some documents and complainant sent reply to this letter vide Ex.C-11 dated 15.06.2018 regarding submission of the documents and she has also requested for release of her claim Consumer Complaint No.694 of 2018 5 amount. Ex.C-12 is the copy of repudiation letter dated 06.07.2018 by OP to complainant to the effect insurance company closed her claim file as "no claim". The complainant also issued legal notice upon OP dated 13.07.2018 for settlement of her insurance claim, but to no effect. Ex.C-14 is the copy of letter from OP to complainant regarding completing the formalities. Ex.C-15 is the copy of circular dated 20.09.2011 issued by Insurance Regulatory and Development Authority to all the insurance companies and non-life insurers. Ex.C-16 is the copy of another letter issued by The New India Assurance Company Limited to all its Regional Offices to the effect that to appoint surveyor within 24 hours on receipt of intimation and no claim shall be repudiated just because there is a delay.
4. To counter this evidence of complainant, the OP tendered in evidence affidavit of Deep Shikha, Deputy Manager of OP on the record. She stated that the copy of insurance policy with terms and conditions is Ex.OP-1. This witness has not disputed the fact of issuing insurance policy and the theft of above insured vehicle. She stated that complainant has not supplied the latest untraceable report by the Magistrate and due to this reason, her claim was closed as "No Claim" by OP. She proved on record the repudiation letter dated 06.07.2018 as Ex.OP-2 on behalf of OP.
5. From evaluation of above referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that the complainant is entitled to the insured declared value of the vehicle to the tune of Rs.22,00,000/- from OP in this case, as insurance claim. There is no dispute of this fact that Consumer Complaint No.694 of 2018 6 complainant obtained the insurance policy from OP against premium for her vehicle. She is registered owner of the vehicle vide certificate of registration Ex.C-1. The insurance policy schedule cum certificate of insurance is Ex.C-2. The FIR lodged by Mandeep Singh on behalf of complainant with the police is Ex.C-3 on 09.01.2018. The OP appointed Third Eye Investigator as surveyor and it submitted report Ex.C-5 finding the case of theft of above vehicle to be genuine which falls under the purview of insurance policy. As per the report of the investigator, the claim is genuine and is admissible under the insurance policy. The OP simply closed the case as 'no claim' on the pretext that complainant has not supplied the untraceable certificate of the stolen vehicle countersigned by the Magistrate. The counsel for the complainant brought to our notice that the non-traceable certificate issued by the police authority dated 16.05.2018 Ex.C-7 is on the record. The police stated that the vehicle is not recovered as yet. It might take a long time for the case to reach its ultimate decision. It is for the Magistrate either to cancel the report or to reject it or to order for re-investigation of the case to find out the stolen vehicle and insured person cannot be made to wait for such indefinite period, as it may take years for the Judicial Magistrate concerned to either accept the report of untraceable or to reject it or to order for reinvestigation of the case for finding out the stolen vehicle under the provision of Code of Criminal Procedures, 1973. Even police gave in writing through its SHO of Police Station Sadar Bathinda on 18.05.2018 vide Ex.C-8 that no clue has been found about the offender and the stolen vehicle is still untraceable. In this Consumer Complaint No.694 of 2018 7 view of the matter, we find that OP wrongly closed the claim of complainant without any basis. The certificate issued by SHO Police Station Sadar Bathinda, vide Ex.C-8 and report issued by SSP Office vide Ex.C-7 with regard to vehicle that vehicle is still lying untraced is quite sufficient for this purpose.
6. Since, the case of theft of the vehicle was found genuine one and vehicle has not been traced as yet and the IDV of the vehicle is Rs.22,00,000/- and hence closing of case by OP on hyper technical ground of non-issuance of untraceable report certificate by Magistrate is not tenable in our view. So far as the contention of OP that there is delay in giving intimation to the insurance company of two days is concerned and hence claim is liable to be rejected, we find no ground in it even the IRDA notification vide Ex.C-15 dated 20.09.2011 does not approve of such hyper technical rejection of the claim of the insured on account of some delay in giving the intimation to insurance company. Some time is taken by the owner to trace out the missing vehicle and to trace out the facts, which led to the theft of the insured vehicle. Consequently, as held by the Apex Court in "Om Parkash Vs. Reliance General Insurance Company and another" IV (2017) CPJ-10-11 (SC) that the genuine claim should not be rejected on technical ground of delayed intimation. We find no force in submission of counsel for OP that complainant gave delayed intimation to OP leading to rejection of the claim.
7. As a result of our above discussion, we accept the complaint of the complainant and direct OP to pay the IDV of vehicle i.e. Rs.22,00,000/- (Rs.Twenty Two Lakhs) with interest @8% per Consumer Complaint No.694 of 2018 8 annum from the date of complaint till actual payment through HDFC Bank Limited, with which above stolen vehicle was hypothecated and thereafter the above financer shall remit the amount to complainant after adjusting its loan amount, if any. The complainant shall execute the substitution letter and transfer the registration certificate of the insured vehicle in name of OP insurance company with approval of HDFC Bank Limited within 45 days from the date of remittance of awarded amount by OP to the above financer of the vehicle. We further direct OP to pay Rs.40,000/- as compensation for mental harassment and Rs.20,000/- as cost of litigation to complainant in this case. The above amounts shall be payable by OP within 45 days from the date of receipt of certified copy of the order.
8. Arguments in this complaint were heard on 18.12.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER December 21, 2018.
(MM)