National Consumer Disputes Redressal
Reliance General Insurance Company ... vs Pratap Singh on 17 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 631 OF 2016 (Against the Order dated 04/11/2015 in Appeal No. 298/2015 of the State Commission Haryana) 1. RELIANCE GENERAL INSURANCE COMPANY LTD. REPRESENTED THROUGH DELHI OFFICE AT,2ND & 3RD FLOOR, D-160/2, BEHIND HONDA COURTESY OKHLA PHASE I, NEW DELHI-110020 ...........Petitioner(s) Versus 1. PRATAP SINGH S/O SH. ABHAY RAM, R/O HOUSE NO. 46, DINDARPUR NEW DELHI-110043 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 17 Nov 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
:
Ms. Shantha Devi Raman, Advocate
For the Respondent
:
Mr. Pratap Singh, Advocate
with respondent in person
PRONOUNCED ON : 17th NOVEMBER 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 04.11.2015, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 298/2015, "Pratap Singh versus Reliance General Insurance Co. Ltd.", vide which, while allowing the appeal, the order dated 05.01.2015, passed by the District Forum Gurgaon dismissing the consumer complaint No. 431/2011, filed by the present respondent Pratap Singh, was set aside.
2. Briefly stated, the facts of the case are that the respondent/complainant Pratap Singh was the registered owner of a Tavera vehicle, bearing registration No. DL-4B 3741, which was duly insured with the petitioner/Opposite Party (OP) Reliance General Insurance Co. Ltd. with insured declared value (IDV) of ₹4,30,000/- for the period 07.02.2009 to 06.02.2010. The said vehicle is stated to have been stolen on 2.04.2009 at about 1 PM near Sai Baba Mandir, Najafgarh, Delhi when the complainant had gone inside the temple to offer prayers. The complainant reported the matter to the Police at 3:15 PM on that date, i.e., 02.04.2009, on telephone no. '100'. However, the Police registered FIR No. 144 dated 06.05.2009 under section 379 IPC at PS, Najafgarh, South West Delhi. A DDR No. 28A dated 2.04.2009 was however, registered at the same Police Station. The complainant filed his claim with the OP Insurance Company, but the same was repudiated by them vide letter dated 25.03.2010. The complainant filed complaint against the Insurance Company with the Insurance Ombudsman, but the same was also dismissed on 2.05.2011 and it was observed in the order of the Ombudsman as follows:-
"the company was justified in repudiating the claim because the Company was not informed about the theft of vehicle immediately. The company was informed about loss of vehicle after 38 days of theft. The vehicle was not having a valid permit and fitness at the time of theft, therefore, the claim stands rejected with sufficient reasons. The claim is not payable. The complaint filed by the complainant is hereby dismissed on 20.05.20111. "
3. The complainant filed the consumer complaint in question, seeking directions to the OP Insurance Company to pay him a sum of ₹4,30,000/- as IDV of the vehicle and ₹50,000/- as loss suffered due to non-operation of the vehicle, being a commercial vehicle. A sum of ₹30,000/- as compensation against mental agony alongwith interest @18% p.a. on the amount was demanded from the OP and ₹20,000/-as litigation cost. It was stated in the consumer complaint that the Ombudsman held that on the date of the theft, the vehicle was without permit and fitness. In fact, the vehicle was in garage due to some repair work and technical fault from 10.02.2009. The vehicle was handed over to the complainant by the mechanic on 02.04.2009 and when he was returning after taking possession of the vehicle from the mechanic, the vehicle was stolen near the temple, as stated already.
4. The consumer complaint was resisted by the OP Insurance Company by filing a written statement before the State Commission, in which they stated that the District Forum at Gurgaon had no jurisdiction to decide the consumer complaint, as the complainant was a resident of Delhi. The vehicle was registered at Delhi and the theft also took place at Delhi. Moreover, the complainant intimated about the theft of the vehicle to the insurance company after a delay of 38 days, whereas as per the terms and conditions governing the policy, he was supposed to inform them immediately after the theft. Even the FIR was lodged after a delay of one month, i.e., on 06.05.2009. Further, on the date of the theft, the vehicle was without permit and fitness certificate, clearly violating the terms and conditions of the policy. The District Forum after taking into consideration the averments made by both the parties, dismissed the consumer complaint, saying that intimation about the theft had been given to the insurance company after a delay of 38 days and moreover, the vehicle did not carry any permit and fitness certificate. Being aggrieved against the order of the District Forum, the complainant challenged the same by way of appeal before the State Commission. The State Commission, relying upon a circular dated 20.09.2011, issued by the Insurance Regulatory and Development Authority (IRDA) allowed the appeal and set aside the order of the District Forum. The State Commission directed the insurance company to pay a sum of ₹4,30,000/- as IDV of the vehicle to the complainant alongwith interest @9% p.a. from the date of filing the complaint till realisation. Being aggrieved against the order of the State Commission, the OP Insurance Company is before this Commission by way of the present revision petition.
5. It was argued by the learned counsel for the insurance company during hearing that there was a delay of 38 days in giving intimation to the insurance company about the alleged incidence of the theft of the vehicle. The learned counsel has drawn attention to the repudiation letter dated 25.03.2010 sent by the insurance company, in which it was clearly stated that the claim had been repudiated on two main grounds, i.e., the delay in giving intimation and the absence of permit and fitness certificate for the vehicle. It has been stated therein that although the vehicle was stolen on 02.04.2009, the claim intimation was given to the insurance company on 11.05.2009, whereas under the terms and conditions of the policy, such intimation should have been given to them immediately. Further, under section 66(3) of the Motor Vehicles Act, 1988, the complainant was supposed to have a permit and fitness certificate, failing which the insurance policy is not supposed to be valid. The learned counsel stated that the State Commission had wrongly relied upon the circular issued by the IRDA dated 20.09.2011. It was explicitly stated in the said circular that the settlement of genuine claims should not be affected, if there was delay in intimation or submission of documents. The said circular is not applicable in the present case, as the claim was not genuine.
6. In reply, the learned counsel for the respondent/complainant stated that the delay of 38 days happened in the normal course of business and hence, the said delay should not prove fatal in the settlement of the claim. This is more so, because the intimation to the Police had been made immediately although they registered the FIR later. The learned counsel has drawn attention to a number of judgments made by the Hon'ble Supreme Court, as for example, in "National Insurance Company vs. Nitin Khandelwal" [2008 (11) SCC 259], saying that the claim could not have been repudiated in total. In so far as the non-possession of permit etc. was concerned, the point had not been touched upon in the orders passed by the Consumer Fora below.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The first issue that merits consideration in the case is with regard to the delay of 38 days in providing intimation to the insurance company about the theft of the vehicle. It has come on record that although the FIR was registered by the local Police on 06.05.2009, but Daily Diary Report (DDR) was entered by the local police vide entry No. 28A dated 02.04.2009, meaning thereby that intimation was given to the Police in time. However, the complainant has not been able to advance any reasons as to why there was a delay of 38 days in making intimation to the insurance company on 11.05.2009. It is stated in the insurance policy that intimation about the incident was to be provided to the insurance policy immediately. To this effect, there are already judgments made by this Commission, as for example in "New India Assurance Co. Ltd. vs Trilochan Jane" [First Appeal No. 321/2005 decided on 9th Dec. 2009], in which a delay of two days in lodging FIR with the Police and a delay of 9 days in giving intimation to the insurance company were held to be fatal for the claim. The State Commission in their impugned order have relied upon the circular issued by the Regulator, i.e., IRDA covering these matters. This circular also mentions that there is a contractual obligation under which the insured is required to give intimation to the insurer within a specified number of days so as to enable him to do investigation, loss assessment etc. The circular further says that this condition should not prevent settlement of genuine claims where the delay had occurred due to unavoidable circumstances. In the present case, the complainant has not been able to provide any detail about the existence of any unavoidable circumstances that prevented him from giving intimation to the insurance company with a delay of 38 days. Had there been proper explanation for any unavoidable circumstances, the claim could have been considered under the circular issued by IRDA. Therefore, we tend to agree with the argument presented by the insurance company that the condition mentioned in the circular is applicable for 'genuine' claims only whereas in this case, the claim was not genuine as the complainant did not possess proper fitness certificate and permit to ply the vehicle. It is evident, therefore, that the complainant cannot be given benefit of the IRDA circular in the present case.
9. The next most important issue for consideration in the present case is with regard to the necessary permit and fitness certificate for plying the said vehicle. The Insurance Ombudsman has already rejected the claim of the complainant on the ground that the vehicle was without permit and fitness certificate on the date of the theft of the vehicle. In the consumer complaint itself, it has been stated as follows:-
"it is further submitted that the vehicle was not in running condition from 10.02.2009 to 2.04.2009 due to technical fault in engine and complainant was repairing his vehicle, moreover the said vehicle was not plying anywhere for commercial purposes, hence due to the reason, the fitness and permit could not be obtained by the complainant. The copy of bills regarding repairing of the vehicle is annexed herewith."
10. From the above version of the complainant, it is vividly clear that the vehicle was without a proper permit and fitness certificate on the date the theft took place. Even if, the vehicle was not in a fit running condition, it was supposed to have the necessary permit from the concerned transport authority under the Motor Vehicles Act, 1988. The complainant has not been able to explain as to why he had not obtained proper permit for the operation of the said vehicle. He has also not explained whether he had made any application for obtaining the said permit from the appropriate authority and whether the permit was there for any previous period etc. In the light of these facts, we do find merit in the averments made by the petitioner insurance company that the claim could not be paid, as the vehicle was without the necessary permit and fitness certificate and moreover, there was delay in giving intimation about the incident to the insurance company. Obviously, there is a clear-cut violation of the terms and conditions of the insurance policy and the action of the insurance company in repudiating the claim, was in accordance with law.
11. Based on the discussion above, this revision petition is allowed, the impugned order passed by the State Commission is set aside and the consumer complaint in question is ordered to be dismissed. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER