State Consumer Disputes Redressal Commission
United India Insurance Co. vs Vijay Kumar on 3 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 1015 of 2016 Date of Institution: 25.10.2016 Date of Decision : 03.05.2017 United India Insurance Company Limited, Regional Office SCO No.123-124, Sector 17-B, Chandigarh through its Deputy Manager (Consumer), Chandigarh. Appellant-Opposite Party Versus Vijay Kumar s/o Sh. Dharam Pal, Resident of Village Ladpur, Tehsil and District Jhajjar. Respondent-Complainant CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri V. Ramswaroop, Advocate for appellant.
Shri Saurabh Dalal, Advocate on behalf of Shri Sikander Bakshi, Advocate for respondent.
O R D E R BALBIR SINGH, JUDICIAL MEMBER Complainant-Vijay Kumar (respondent herein) is the registered owner of J.C.B. machine bearing registration No.HR-63B-1231. The above mentioned J.C.B. machine was provided insurance policy No.111281/31/13/01/00009632 (Exhibit P-2) by United India Insurance Company Limited (for short 'the Insurance Company')-Opposite Party/appellant, regarding the period from March 21st, 2014 to March 20th, 2015. The Insured Declared Value of the J.C.B. Machine/vehicle was Rs.17.00 lacs.
2. During the intervening night of 29th/30th April, 2014, the above mentioned vehicle was parked by its driver namely Farooq, in the premises of Punjab Bhatta (brick-kiln), Ladpur, District Jhajjar, after daily routine work. Farooq-driver returned home as Ashok s/o Sh. Parbhu and few other workers of Punjab Bhatta were there.
3. On April 30th, 2014 at about 4:00 P.M. when Farooq-driver reached Punjab Bhatta, he found the J.C.B. machine missing from the parking place. The J.C.B. machine was stolen by some unknown person and on the same day, information was given to the Police of Police Station Jhajjar in this regard and a case under Section 379 of the Indian Penal Code was registered on the same day under F.I.R. No.297 (Exhibit P-7).
4. On May 01st, 2014, the Insurance Company was also informed in this regarding in writing and a photo state copy of the FIR was also given. Photo copy of the Registration Certificate, Insurance Policy, Fitness Certificate and ignition key of the J.C.B. machine were also handed over to the surveyor of the Insurance Company. The complainant was told that it may take 2-3 months to complete process regarding payment of the amount. The stolen J.C.B. machine could not be traced and Untraced Report (Exhibit R-12) was submitted by the Police and the same was accepted by learned Chief Judicial Magistrate, Jhajjar vide order dated 20th November, 2014 (Exhibit R-11). Thereafter, the complainant filed complaint bearing No.219 on 15th December, 2014 before District Consumer Disputes Redressal Forum, Jhajjar (for short 'the District Forum'), under Section 12 of the Consumer Protection Act, 1986 (for short 'the Act, 1986). In that complaint, directions were given to the complainant to submit his claim before the Insurance Company and the Insurance Company was directed to consider and settle the claim filed by the complainant within 45 days from the date of its submission. The above mentioned complaint was dismissed with the directions that the complainant shall file fresh complaint before the District Forum, if settlement of his claim is not possible within the prescribed period.
5. The complainant filed claim before the Insurance Company on 02nd November, 2015 and thereafter visited the office of the Insurance Company number of times. Ultimately, the complainant was told that his claim has been repudiated. As the claim could not be settled within 45 days, the complainant filed the present complaint on 10th March, 2016 under Section 12 of the Act, 1986 with a prayer to direct the Insurance Company to pay an amount of Rs.17.00 lacs (IDV) of the J.C.B. machine with interest at the rate of 18% per annum w.e.f. 30th April, 2014. The complainant has prayed that the Insurance Company be directed to pay an amount of Rs.2.00 lacs on account of pecuniary loss and un-necessary harassment and an amount of Rs.30,000/- as litigation expenses.
6. The Insurance Company-Opposite Party, in its written version has taken plea that the complaint is not maintainable in the present form; that the complainant has no cause of action to file the present complaint and that the complainant has violated the terms and conditions of the insurance policy. The intimation regarding theft of the J.C.B. machine was given to the Insurance Company after 18 months. After receiving information, when surveyor was appointed, the complainant did not cooperate during investigation. The surveyor made efforts to contact the complainant on his mobile phone on 4th October, 2015 and by issuance of a registered letter on 25th November, 2015 the complainant was asked to supply the copies of documents, insurance policy, registration certificate, copy of FIR etc mentioned in the written version but there was no response from the side of the complainant. Moreover, the complainant has not taken due care of the J.C.B. machine and the same was left un-attended during night hours in the premises of the brick-kiln, an isolated place. The complainant has taken plea that he could not give information in time as complainant met with an accident but the accident of the complainant had taken place in the month of August, 2014 as per his version recorded in the Compact Disc (C.D.) The complainant has violated the terms and conditions of the Insurance Policy, as such the complainant is not entitled to receive any amount as claimed in his complaint. It is prayed that the complaint be dismissed.
7. The parties led evidence in support of their respective claims.
8. After going through the pleadings and evidence of the parties, the District Forum vide impugned order dated 14th September, 2016 allowed the complaint and directed the Insurance Company to pay an amount of Rs.17.00 lacs to the complainant with interest at the rate of 9% per annum from the date of receiving the documents from the complainant, that is, 2nd November, 2015 till its realization to the complainant subject to submission of needed documents, signatures etc required for transfer of registration of the vehicle. The Insurance Company has also been directed to pay an amount of Rs.5500/- on account of litigation expenses.
9. During the course of arguments, there was no controversy of any type that the J.C.B. machine bearing registration No.HR-63B-1231 was insured with the Insurance Company vide insurance policy Exhibit P-2 regarding the period from March 21st, 2014 to March 20th, 2015 mentioning IDV as Rs.17.00 lacs. During the intervening night of 29th/30th April, 2014, the above mentioned J.C.B. machine, after routine earth lifting work, was parked in the premises of Punjab Bhatta (brick-kiln). The complainant and Farooq-driver returned home after parking the above mentioned J.C.B. machine. Ashok and few other workers employed at the brick-kiln were present there during the night hours. The complainant came to know on 30th April, 2014 that the above mentioned J.C.B. machine had been stolen by some unknown person when Farooq driver went to brick-kiln, Ladpur early in the morning at about 4:30 A.M. After making efforts to search, the stolen J.C.B. machine, the police of Police Station, Jhajjar was informed and a criminal case under Section 379 I.P.C. was registered at Police Station, Jhajjar under F.I.R. No.297 on 30th April, 2014.
10. The complainant has taken plea that he informed the Insurance Company in writing on 01st May, 2014 along with photo copy of the F.I.R. As per version of the complainant, the place of parking of the insured J.C.B. machine was also inspected by the surveyor appointed by the Insurance Company. In this way, the Insurance Company had knowledge regarding theft of the J.C.B. machine from the very beginning. When the Insurance Company did not make payment of the amount claimed, the complainant filed complaint No.219 on 15th December, 2014 before the District Forum. In that complaint directions were given to the complainant to file claim before the Insurance Company. The Insurance Company was directed to settle the claim of the complainant after proper investigation within a period of 45 days from the date of submission of documents and claim form. The complainant was disposed of giving liberty to the complainant to file a fresh complaint before the District Forum if dissatisfied with the settlement of the claim.
11. As per directions of the District Forum, the complainant submitted claim form (Exhibit R-6) before the Insurance Company on 02nd November, 2015. In the copy of claim form (Exhibit P-5), it is mentioned that claim form has been received along with the copy of F.I.R., untraced report etc. Exhibit R-13 is the copy of F.I.R. No.297 dated 30th April, 2014. Exhibit R-12 is the untraced report and Exhibit R-11 is the copy of the order dated 20th November, 2014 whereby learned Chief Judicial Magistrate accepted untraced report. Exhibit R-7 was also submitted along with claim application. Despite submitting claim application and documents mentioned above, the Insurance Company did not settle the claim mentioning that the complainant did not cooperate with the Insurance Company and did not supply the documents when the complainant was informed telephonically and through registered letter. This version of the Insurance Company does not appear to be believable. Few documents, as mentioned above, were handed over to the Insurance Company when claim application was filed. The complainant also stated that other documents regarding the Insurance Policy were handed over to the Insurance Company in the very beginning. The version of the Insurance Company does not appear to be believable because when the claim of the complainant was not settled, he had to file Consumer Complaint No.219 before the District Forum and during the pendency of consumer complaint No.219, agreed to submit his claim form and documents again before the Insurance Company. It appears that there was un-willingness on the part of the Insurance Company to settle the claim of the complainant.
12. In our view, the claim of the complainant cannot be declined on grounds mentioned above. Firstly, the structure of the J.C.B. machine is of such type which cannot be kept in a garage or Tin shed conveniently. It is always convenient to park a J.C.B. machine in open space. Now-a-days, not only the J.C.B. machine but the other small size vehicles are also generally parked outside in the open. The J.C.B. machine of the complainant was being used for earth digging work at brick-kiln. After using the J.C.B. machine during day time, the same was parked in the premises of Punjab Bhatta because generally J.C.B. machines are parked in such type of premises more particularly in villages. The complainant has made it clear in his complaint that the complainant and driver had returned home during that night and Ashok Kumar and few other workers employed at the brick-kiln were sleeping there i.e. brick-kiln premises. In these circumstances, findings can be given that the complainant had taken necessary precautions at the time of parking of J.C.B. machine, as expected from a man of ordinary prudent. Observation can be made that there cannot be a different opinion that theft of J.C.B. machine is not possible if a person can afford to asleep while sitting or standing nearby throughout the night but such type of precautions cannot be expected. If a person can afford to asleep throughout the night, he has no necessity to spend so much amount for obtaining the insurance policy.
13. Ashok Kumar also stated that he remained at the brick-kiln throughout the night and the same was stolen when he was sleeping. Ashok Kumar in his affidavit (Exhibit PW-3/A) also stated that on the date of theft, the J.C.B. machine and few other vehicles were parked in the same premises. Rajender-owner of Punjab Bhatta, also stated like this in his affidavit Exhibit PW-2/A. In these circumstances, findings can be given that the complainant did not violate the terms and conditions of the insurance policy and took all possible precautions when the J.C.B. machine was parked inside the premises of the brick-kiln. In this way, the complainant has used all possible precautions and had not shown carelessness and negligence and has not violated the terms and conditions of the insurance policy. On this point of controversy, case law cited as National Insurance Company Limited versus Nitin Khandelwal, 2008(3) CPC 559 and Civil Writ Petition No.23209 of 2011 Reliance General Insurance Company Limited and another versus Rajesh Kumar, decided on 14th December, 2011 (Punjab and Haryana High Court), also support the version of the complainant.
14. During the course of arguments, learned counsel for the Insurance Company also argued that the relief claimed in the complaint cannot be granted to the complainant as the Insurance Company received information regarding theft of the J.C.B. machine after 18 months. As per terms and conditions mentioned in the insurance policy, the complainant was required to inform the Insurance Company as well as the Police regarding theft of the J.C.B. machine immediately. As per discussion above in detail, findings can be safely given that the complainant did not cause any delay in lodging F.I.R. The occurrence took place during the intervening night of 29th/30th April, 2014 and F.I.R. was lodged on the same day, that is, 30th April, 2014. This version of the Insurance Company also appears to be false that the information was received by the Insurance Company after 18 months when claim application (Exhibit R-6) was filed on 02nd November, 2015. The version of the complainant in his complaint and in his affidavit is that the Insurance Company was informed regarding theft of the J.C.B. machine on 01st May, 2014, in writing, along with photo copy of F.I.R.
15. Keeping in mind the facts and circumstances of this case, finding certainly cannot be given that the Insurance Company had received information on 02nd November, 2015. It will be pertinent to mention here that the complainant submitted the claim form along with documents on 02nd November, 2015, as per directions of the District Forum while deciding complaint No.219 of 2014. Even if it be presumed that the Insurance Company had no knowledge regarding theft prior to the date of filing of complaint No.219 of 2014, even then findings can be safely given that after filing of complaint No.219 on 15th December, 2014, the Insurance Company had received information regarding theft of the vehicle after receiving a notice of the complaint. It is strange that the Insurance Company appeared in the proceedings of the Consumer Complaint No.219 of 2014 which remained pending before the District Forum approximately for a period of nine months and thought proper to take plea in its version that the Insurance Company received information only on 02nd November, 2015. In fact, the claim form and documents were submitted by the complainant again before the Insurance Company on 02nd November, 2015, after the decision of Consumer Complaint No.219 of 2014. It appears that the Insurance Company has no hesitation in taking false pleas for monetary gains. In these circumstances, findings can be safely given that information was given to the Insurance Company regarding this occurrence on 01st May, 2014 and statement of the complainant in the shape of affidavit (Exhibit PW-1/A) cannot be disbelieved.
16. Version of the Insurance Company in letter dated 25th November, 2015 (Exhibit R-4) and the Investigating Report (Exhibit R-2) are not believable and cannot be given any weight. The Insurance Regulatory Development Authority (IRDA), which control and regulates the Insurance Companies issued direction 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. The guidelines given by IRDA are mentioned in detail in the impugned order passed by the District Forum also. Support to this view can be taken from the case law cited as Bharti Axa General Insurance Company Limited vs. Ms. Monu Yadav and another, 2014(4) PLR 861, by Hon'ble Punjab and Haryana High Court, Chandigarh. As per facts of that case, the delay in lodging claim with the Insurance Company was of 54 days. The findings in that case were also given in favour of the claimants 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.
17. It is very clear from the circular that the insurance company cannot repudiate the bonafide claims on technical grounds like delay in intimation and submission of some required documents. The decision of insurers' to reject a claim of the claimant should be based on sound logic and valid grounds. The 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 procedural grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation. It has been further advised in the above said letter that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded.
18. What is the spirit of Insurance Policy, should be kept in mind by the officials dealing with the genuine claims of the sufferers and the same should not be rejected on methodological grounds in a mechanical manner. The tendency of Insurance Companies in rejecting genuine claims is the reason of increasing litigation between the insurers and the insureds/their legal heirs. In this case the repudiation of complainant's claim was contrary to the instructions issued by the IRDA, mentioned above. No other point was raised during the course of arguments.
19. In view of the above, it is proved that the J.C.B. machine of the complainant was stolen during the insured period The Police submitted the untraced report. The evidence led by the complainant has proved that it was a genuine claim of the complainant. It is unfortunate that the insurer takes such flimsy pleas to defeat the genuine claim of the insured. It will be in the interest of justice that the insurer should not rely upon pleas for the purpose of defeating legitimate claims of claimants which are otherwise well founded.
20. Admittedly, the IDV of the J.C.B. machine was assessed at Rs.17.00 lacs when the Insurance Policy was provided. The relief granted to the complainant by the learned District Forum, as mentioned in earlier part of this order, is valid and justified. Resultantly, findings of the learned District Forum stands affirmed. The order dated 14th September, 2016 passed by the District Forum stands affirmed and the appeal stands dismissed.
21. 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:
03.05.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL