State Consumer Disputes Redressal Commission
Icici Lomb.Gen.Insurance Co. vs Rajesh Kumar on 26 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 541 of 2016 Date of Institution: 10.06.2016 Date of Decision : 26.05.2017 ICICI Lombard General Insurance Company Limited, having its registered office at The Statement, 4th Floor, Plot No.149, Industrial Area, Phase-1, next to Hometel Hotel, Chandigarh (UT), through its Manager. Appellant-Opposite Party Versus Rajesh Kumar s/o Sh. Suraj Bhan, Resident of House No.88, Ward No.2, Meham, District Rohtak. Respondent-Complainant CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri N.K. Setia, Advocate for appellant. Shri V.M. Handa, Advocate for respondent. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred by Opposite Party against the order dated March 14th, 2016 passed by District Consumer Disputes Redressal Forum, Rohtak (for short 'the District Forum') in Complaint No.436 of 2012.
2. Rajesh Kumar-complainant (respondent herein), registered owner of truck trailor bearing registration No.HR-46B-6084, got insured the above mentioned vehicle with ICICI Lombard General Insurance Company Limited-Opposite Party/appellant (for short the 'Insurance Company') vide Insurance Policy/Cover Note No.3003/54499693/01/000 (Exhibit R-6) regarding the period from 29th June, 2009 up to 28th June, 2010 mentioning Insured Declare Value (IDV) as Rs.12.00 lacs. On 25th November, 2009 at about 9:00 P.M. the above mentioned vehicle was parked in front of a hotel at Village Lahroda by driver Azad Singh on Narnaul-Mahendergarh Road for taking meal. The vehicle mentioned above was locked after closing doors properly. When the driver returned back alongwith cleaner of the vehicle namely Kala, the vehicle was not found there. The above mentioned vehicle was stolen by some unknown person. First Information Report (FIR) No.291 (Exhibit C-3) under Section 379 of the Indian Penal Code was lodged in Police Station, Sadar Narnaul on 26th November, 2011. Intimation was also given to the Insurance Company-Opposite Party. The Insurance Company deputed a surveyor. The complainant filed claim with the Insurance Company. A set of ignition keys of vehicle and photo copies of documents were provided to the Insurance Company. Untraced Report (Exhibit C-1) was received and thereafter also despite repeated requests, the Insurance Company did not pay the claim amount. It is prayed that the opposite party be directed to pay the claimed amount of Rs.12.00 lacs being the IDV with interest @ 18% per annum alongwith an amount of Rs.50,000/- on account of loss of business, an amount of Rs.10,000/- on account of un-necessary harassment/mental agony and litigation expenses amounting to Rs.5500/-.
3. The Insurance Company-Opposite Party in its written version has taken plea that the complaint filed by the complainant is not maintainable; that the District Forum, Jhajjar has no jurisdiction to decide this complaint and that it is not a case of deficiency in service and unfair trade practice. Moreover, the complaint is liable to be dismissed due to delay in submitting intimation to the Insurance Company. As per version of the Insurance Company the above mentioned vehicle was left un-attended during night hours by driver of the vehicle leaving the ignition keys inside the vehicle. It is a case of gross negligence on the part of the driver of the vehicle. The complainant and his driver failed to take reasonable carefulness at the time of parking of the vehicle. Investigation was completed by an impartial investigator on the basis of evidence and documents and repudiated the claim vide letter dated 12th September, 2011 on the basis of the report of the surveyor/investigator. It is prayed that the complaint be dismissed.
4. After hearing arguments and going through the evidence, vide impugned order dated 14th March, 2016 the complaint filed by the complainant was allowed directing the opposite party to pay an amount of Rs.12.00 lacs to the complainant being the IDV of the vehicle with interest at the rate of 9% per annum from the date of filing of the complaint alongwith an amount of Rs.3,000/- as litigation expenses within a period of one month from the date of completion of formalities by the complainant, like transfer of registration certificate and subrogation letter etc. to the opposite party failing which the opposite party will be liable to pay interest at the rate of 12% per annum.
5. Aggrieved with the impugned order, the opposite party- Insurance Company has filed the present appeal with a prayer for setting aside the impugned order dated 14th March, 2016 passed by the District Forum.
6. We have heard learned counsel for the parties and perused the case file.
7. From the pleadings and evidence on the file and as per version of both the parties at the time of arguments, it was common case of the parties that the truck vehicle bearing registration No.HR-46B-6084 was insured with the Opposite Party-Insurance Company vide Insurance Cover Note (Exhibit R-6) mentioning the IDV as Rs.12.00 lacs for a period from 29th June, 2009 up to 28th June, 2010. The above mentioned vehicle on 25th November, 2009, admittedly, was parked outside a hotel situated near Village Lahroda on Mahendergarh-Narnaul Road by its driver Azad Singh. The doors of the vehicle were properly closed and locked and keys were with the driver. Thereafter, Azad Singh driver and Kala cleaner entered a hotel and after taking meal when they returned back at about 9.00 P.M., the vehicle was found missing from the place it was parked. Considering that the vehicle had been stolen by some unknown person, FIR (Exhibit C-3) was lodged by the complainant (owner of the vehicle) on 26th November, 2009 in Police Station, Sadar Narnaul.
8. It is evident from the report under Section 173 Cr.P.C. (Exhibit C-1) and untraced report (Exhibit C-2) that the vehicle could not be traced despite best efforts. There was no un-necessary delay in lodging FIR regarding theft of the vehicle as the FIR was lodged on next day i.e. 26th November, 2009. The Insurance Company-Opposite Party has taken plea that the complainant has caused un-necessary delay in submitting information to the Insurance Company regarding theft of the vehicle. As per version of the Insurance Company the information was given to the Insurance Company after three days from the date of theft of the vehicle.
9. From the pleadings and evidence on the file, it is clear that the complainant (registered owner of the vehicle) was not with the vehicle at the time of theft. After theft, the driver and cleaner made all possible efforts and ultimately they informed the complainant regarding theft of the vehicle. The Police was informed immediately and FIR was registered on the next day, that is, 26th November, 2009. Keeping in mind these circumstances, the complainant did not cause un-necessary delay in submitting information to the Insurance Company. Findings cannot be given that the complainant has violated the terms and conditions of the insurance policy. Moreover, in this case, the insurance policy mentioning total terms and conditions have also not been adduced in evidence by the Insurance Company. Only cover note Exhibit R-6 has been produced in evidence.
10. Moreover, directions were issued by the Insurance Regulatory Development Authority (IRDA), which control and regulates the Insurance Companies not to reject the genuine claims simply because of delay in registration of FIR and intimation to the Insurance Company. In the instructions of the IRDA it was also mentioned that 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 insurer's decision to reject a claim shall be based on sound logic and valid grounds.
11. Apart from it, in case law Bharti Axa General Insurance Company Limited vs. Ms. Monu Yadav and another, 2014(4) PLR 861, there was delay of 54 days in lodging claim with the Insurance Company. The findings in that case were given in favour of the claimant on the basis of the guidelines issued by IRDA. The Insurance Companies were advised that they must not repudiate such claims on the ground of delay especially when the Police have been promptly informed in this regard.
12. In this case, the Insurance Company-opposite party has repudiated complainant's claim mainly on the ground that the complainant as well as driver of the vehicle did not take proper precautions and shown carelessness when the vehicle was parked in front of a hotel without locking the same and ignition keys were also placed inside the vehicle which made it easier for the offender to commit theft of the vehicle.
13. Version of the complainant in this case from the very beginning is that the vehicle was locked properly and keys of the vehicle were with the driver when the vehicle was parked in front of a hotel. In the FIR also same is the version of the complainant. In paragraph No.5 of the complaint, the complainant has taken plea specifically that two sets of keys of the vehicle as well as photo copies of the documents were handed over to the surveyor of the Insurance Company by Azad Singh-driver. There is no specific denial in this regard in paragraph No.5 of the written version on merits. Shri Sanjay Jain, Advocate was also appointed by the Insurance Company for investigation. In his report, he (investigator) also mentioned that the vehicle was locked and keys were with the driver of the vehicle. The Insurance Company-opposite party based its case mainly on the statement of Azad Singh-driver recorded by surveyor of the Insurance Company. Photo copy of the statement of Azad Singh is placed on the file even without mentioning date of recording the statement. This Photostat copy of the statement cannot be given weight as neither the same was put to the complainant when he appeared in the witness box for tendering his evidence nor Azad Singh has been got examined by the opposite party to prove that statement of Azad Singh was recorded. Moreover, surveyor of the Insurance Company neither tendered his affidavit nor appeared in the witness box to prove recording statement of Azad Singh before him.
14. In case law cited as Manikant vs. New India Assurance Co. Ltd., 2012(2)CLT 621, Hon'ble National Commission held as under:-
"...Producing a document in Court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the Surveyor's Report in the absence of which the Surveyor's Report has little evidentiary value. In view of these facts, we are unable to accept the contention of the Respondent that he has been able to show substantial and credible evidence that the tractor was being used for transporting goods and thus violating the terms and conditions of the insurance policy and the driving licence. The State Commission by solely relying on this document erroneously concluded that there is violation of terms and conditions of the policy and that the claim was rightly repudiated."
15. On the basis of the above mentioned document alone, un-rebutted statement of complainant in his affidavit (Exhibit P-1) and version of the complainant in his complaint cannot be disbelieved. In this case, the insurance policy document showing complete terms and conditions have not been adduced in evidence. Only cover note has been tendered in evidence as (Exhibit R-6). Moreover, the opposite party could not prove exact wording mentioned in the terms and conditions and what type of precautions the complainant and driver of the vehicle were required to take before the vehicle was parked. Moreover, in the insurance cover note also it is nowhere provided that the vehicle should always be kept locked and ignition keys should not be in the vehicle. Moreover, only due to this reason, findings cannot be given that theft of the vehicle could be possible only because keys of the vehicle were not with the driver. Frankly, speaking professional persons involved in cases of theft, do not need ignition keys for committing theft of vehicle because it is not an impossible task to prepare duplicate master keys and prepare other technology to commit theft of vehicle. In these circumstances, we feel no hesitation in giving findings that theft of the vehicle was committed and complainant and his driver had taken all possible precautions at the time of parking of the vehicle near a hotel as are required from a man of ordinary prudent.
16. During the course of arguments, it was also pointed out by the learned counsel for the Insurance Company-opposite party that driving licence of Azad Singh was not valid on the date of theft of the vehicle. Photostat copy of driving licence of Azad Singh (Exhibit R-5) is placed on the file. Date of issuance and date of expiry of the driving licence are not legible on this document. Moreover, it makes no difference if Azad Singh was not having a valid and effective driving licence at the time of this incident because it is a case of theft of vehicle and it makes no difference if the driver was a skilled driver or not. No other point was raised during the course of arguments.
17. As per the insurance policy, IDV of the vehicle is Rs.12.00 lacs. The findings of the learned District Forum awarding an amount of Rs.12.00 lacs along with interest at the rate of 9% per annum as well as an amount of Rs.3000/- as litigation expenses is justified. We find no illegality or invalidity in the impugned order dated 14th March, 2016 passed by the learned District Forum. Findings of the learned District Forum stands affirmed. We find no merit in this appeal and the same stands dismissed.
18. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
Announced:
26.05.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL