State Consumer Disputes Redressal Commission
Sh. Ajay. vs Shri Ram General Insurance Co. Ltd. & ... on 20 September, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 232/2017
Date of Presentation: 01.07.2017
Order Reserved on : 04.07.2018
Date of Order : 20.09.2018
......
Ajay s/o Shri Rajinder Singh r/o Village Andri Post Office
Summer Hill Tehsil and District Shimla H.P.
...... Appellant/Complainant
Versus
1. Shri Ram General Insurance Company Limited A body
Corporate through its Branch Incharge/Manager E-8 EPIP
RIICO Industrial Area Sitapur Jaipur Rajasthan 302022.
2. Shri Ram Transport Finance Company Limited A body
Corporate through its Branch Incharge/Manager Kachhi
Ghatti Shimla H.P.
......Respondents/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Ravi Shankar Sood Advocate.
For Respondent No.1: Mr. Jagdish Thakur Advocate.
For Respondent No.2: Mr. Ashwani Kaundal Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 24.03.2017 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) complaint No. 258/2014 titled Ajay Versus Shri Ram General Insurance Company Limited & Anr.
Brief facts of Consumer Complaint:
2. Complainant Ajay filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of truck No. HP-51B-3339. It is pleaded that vehicle was insured with opposite party No.1 w.e.f. 30.04.2009 to 29.04.2010 in the sum of Rs.495000/- (Four lac ninety five thousand). It is pleaded that vehicle was hypothecated with opposite party No.2. It is pleaded that on dated 01.05.2009 truck of complainant was stolen and FIR No.71 of 2009 under Section 379 IPC was registered. It is further pleaded that truck could not be traced and untraced report was submitted. It is further pleaded that information was given to insurance company qua theft of vehicle. It is further pleaded that opposite parties did not settle the claim and committed deficiency in service.
Complainant sought relief of payment of Rs.776000/- (Seven lac seventy six thousand) alongwith interest @12% per annum w.e.f. 01.07.2009 till payment. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant has purchased vehicle 2 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) for commercial purpose and District Forum has no jurisdiction to entertain the consumer complaint. It is pleaded that IDV of vehicle was Rs.495000/- (Four lac ninety five thousand) and insurance policy was effective w.e.f. 30.04.2009 to 29.04.2010. It is further pleaded that consumer complaint is barred by limitation. It is further pleaded that vehicle was stolen on dated 01.05.2009 and FIR was registered under Section 379 IPC on dated 01.05.2009 and present consumer complaint was filed after lapse of five years. It is further pleaded that complainant informed about the theft of vehicle to the insurance company on dated 22.07.2014 and complainant committed delay in intimating the insurance company which is fatal to the claim of complainant. It is further pleaded that opposite party No.1 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that vehicle was not insured with opposite party No.2. It is pleaded that opposite party No.2 has financed the vehicle as per loan agreement. It is further pleaded that complainant did not pay the loan amount and it is further pleaded that complainant is in huge arrears of loan amount. It is further pleaded that vehicle was under hypothecation agreement with opposite party No.2. It is 3 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) further pleaded that opposite party No.2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Learned District Forum dismissed consumer complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Learned advocate appearing on behalf of complainant has given statement before learned District Forum on dated 09.11.2015 that complaint alongwith affidavit filed in support of complaint be read as evidence on 4 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) behalf of complainant. State Commission has carefully perused all annexures filed by complainant.
9. Opposite party No.1 filed affidavit of Brij Bhushan in evidence. There is recital in the affidavit that deponent is working as Manager (Legal) in Shriram General Insurance Company Limited and is conversant with the facts of the matter. There is further recital in the affidavit that there is inordinate delay in intimating the theft of vehicle to the insurance company by complainant. There is further recital in the affidavit that complaint is hopelessly time barred. State Commission has perused all annexures filed by opposite party No.1 carefully.
10. Learned advocate appearing on behalf of opposite party No.2 has given Statement before learned District Forum on dated 09.11.2016 that version and affidavit filed in support of version be read as evidence on behalf of opposite party No.2. State Commission has perused all annexures filed by opposite party No.2 carefully.
11. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for sum of Rs.776000/- (Seven lac seventy six thousand) alongwith interest @12% per annum w.e.f. 01.07.2009 till payment and on this ground appeal filed by complainant be 5 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) allowed is decided accordingly. State Commission has carefully perused insurance policy annexure OP-1/1 placed on record. As per insurance policy annexure OP-1/1 vehicle No.HP-51B-3339 was duly insured with opposite party No.1 w.e.f. 30.04.2009 to 29.04.2010. It is proved on record that vehicle was also insured for OD claim and insurance company received premium for OD claim of vehicle to the tune of Rs.6934/- (Six thousand nine hundred thirty four) from the complainant. It is proved on record that theft took place during the period when insurance policy was in operation and it is also proved on record that immediately FIR No.71 of 2009 dated 01.05.2009 under Section 379 IPC was recorded in police station Shimla West H.P. It is also proved on record vide annexure C-5 that Learned Judicial Magistrate First Class Shimla H.P. accepted the untraced report on dated 02.06.2014. Complainant has specifically mentioned in para No.2 of complaint that fact of theft was intimated to the opposite parties and opposite parties told the complainant to submit the untraced report for settling the insurance claim.
Complainant has specifically mentioned in para No.2 of the consumer complaint that insurance company has kept the claim pending for furnishing untraced report.
12. Untraced report filed by investigating agency was accepted by the Learned Judicial Magistrate on dated 6 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) 02.06.2014. Complainant has also issued legal notice to the insurance company on dated 22.07.2014. Insurance company did not place on record repudiation letter. No reason assigned by insurance company as to why insurance company did not place on record any repudiation letter relating to claim submitted by complainant. It is well settled law that insurance company could reject claim of complainant only by way of repudiation letter and not otherwise. Non-settlement of claim till date and non issuance of repudiation letter to the complainant on behalf insurance company till date ipso-facto amounts to deficiency in service on the part of insurance company.
13. Submission of learned advocate appearing on behalf of insurance company that vehicle was used for commercial purpose and present consumer complaint is not maintainable and on this ground appeal filed by complainant be dismissed is decided accordingly. It is proved on record that opposite party No.1 has insured the vehicle for OD Claim and IDV of vehicle has been mentioned as Rs.495000/- (Four lac ninety five thousand) and it is also proved on record that insurance company has received premium to the tune of Rs.6934/- (Six thousand nine hundred thirty four) relating to OD claim. Insurance company is under legal obligation to pay the OD claim despite the fact whether vehicle was connected 7 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) with commercial activities or not. See 2005 (1) CPJ 27 NC titled Harsolia Motors Versus National Insurance Company Limited.
14. Submission of learned advocate appearing on behalf of insurance company that present consumer complaint is barred by limitation and on this ground appeal filed by complainant be dismissed is decided accordingly. It is proved on record that incident took place on dated 01.05.2009 and present consumer complaint was filed before learned District Forum on dated 20.11.2014. It is well settled law that limitation starts from the date of issuance of repudiation letter by insurance company but till date insurance company did not issue any repudiation letter to the complainant. It is held that cause of action to the complainant is recurring from day to day. Insurance company did not place on record any repudiation letter. See 2012 (II) CPJ 312 NC tilted Chambal Fertilizers and Chemicals Limited Versus IFFCO-TOKIO General Insurance Co. Ltd. & Ors. It is held that limitation to file consumer complaint would start from issuance of repudiation letter and not otherwise.
15. Submission of learned advocate appearing on behalf of insurance company that complainant did not inform the insurance company about the theft of vehicle within time and on this ground appeal filed by complainant be dismissed 8 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) is decided accordingly. Complainant has specifically mentioned in para No.2 of complaint that theft of vehicle was informed to the opposite parties by complainant and opposite parties told the complainant to submit untraced report for settling the insurance claim and claim was kept pending for furnishing untraced report. Insurance company has specifically mentioned in para No.2 of version that contents of para No.2 of complaint are admitted except that complainant had given any intimation of theft of vehicle in question to the opposite parties. Insurance company has specifically pleaded in para No.2 that information relating to theft of vehicle was given to the insurance company vide legal notice dated 22.07.2014.
16. Insurance company did not file affidavit of receipt clerk posted in the office of insurance company in order to prove that information relating to theft of vehicle was given for the first time on dated 22.07.2014. No reason assigned by the insurance company as to why insurance company did not file affidavit of receipt clerk posted in the office of insurance company. Hence adverse inference is drawn against the insurance company for non-filing affidavit of receipt clerk posted in the office of insurance company. Complainant has specifically mentioned in legal notice that factum of theft was intimated to the insurance company. Insurance company did 9 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) not file any response to legal notice dated 22.07.2014 issued by complainant. No reason assigned by the insurance company as to why insurance company did not file any response to legal notice dated 22.07.2014 issued by complainant. State Commission is of the opinion that insurance company could not be allowed to take benefit of its own wrongs and laxity.
17. Even Insurance Regulatory and Development Authority (IRDA) has issued circular No. IRDA/HLTH/MIS/ CIR/216/09/2011 dated 20.09.2011 that genuine claim should not be rejected by the insurance company on the ground of delay in intimation. State Commission is of the opinion that circular issued by Insurance Regulatory and Development Authority is binding upon insurance companies and insurance companies could not be allowed to flout the circulars issued by Insurance Regulatory and Development Authority.
18. Hon'ble National Commission in case reported in 2017 (1) CPR 430 NC tilted Shriram General Insurance Co. Ltd. Versus Ramcharan Dhobi has held that 60% of total insured value of vehicle should be paid in genuine cases of delay in intimation of theft. In the present matter it is proved on record that theft of vehicle is genuine as investigating agency has submitted untraced report and untraced report 10 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) submitted by investigating agency has been accepted by the learned Judicial Magistrate Court No.(6) Shimla H.P. vide order dated 02.06.2014. Genuineness of matter of theft is corroborated by judicial order dated 02.06.2014. See 2010 (II) CPJ 9 SC titled Amalendu Sahoo Versus Oriental Insurance Company Limited. It is well settled law that rulings given by Hon'ble National Consumer Commission is binding upon all State Commissions and District Forums throughout India. It is held that written agreement of insurance policy could be repudiated only by way of repudiation letter by insurance company in the ends of justice and on the principles of natural justice and not by way of pleadings in version. As per Section 13(2)(a) of Consumer Protection Act 1986 pleadings of opposite party are only version of case. As per law version means an account of event from a particular person point of view. In view of above stated facts point No.1 is answered partly in yes and partly in no.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that opposite party No.1 i.e. Shri Ram General Insurance Company shall pay to the complainant 60% of the total insured OD value of vehicle within a period of thirty days from the date of receipt of copy of order failing which interest @ 9% per annum shall be 11 Ajay Versus Shri Ram General Insurance Co. Ltd. & Anr. (F.A. No.232/2017) payable on the due amount from the date of order till actual payment. Insurance policy annexure OP-I/I and order of Judicial Magistrate dated 02.06.2014 annexure C-5 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 20.09.2018.
*GUPTA* 12