State Consumer Disputes Redressal Commission
Icici Lombard General Insurance Co. ... vs Sh. Anil Kumar. & Anr. on 24 September, 2024
H. P. ST AT E CONSUMER D ISPUTES REDRESS AL
CO MMISSION SHIML A.
First Appeal No. : 134/2020
Date of Presentation : 04.11.2020
Order Reserved on : 11.09.2024
Date of Order : 24.09.2024
_____
1. ICICI Lombard General Insurance Company Ltd., Branch
Office 401 and 402, 4 th Floor, Interface 11, New Linking
Road, Malad, (West), Mumbai-400064.
2. ICICI Lombard General Insurance Company Ltd., having
its registered office at ICICI Lombard House 414, Veer
Savarkar Marg, New Sidhi Vinayak Temple, Prabhadevi,
Mumbai-400025.
Both appellants through its (Legal), ICICI Lombard
General Insurance Company Ltd., Plot No.149, 4th Floor,
The Statesman Building, Industrial Area, Phase-I,
Chandigarh-160002.
......Appellants/Opposite Parties.
Versus
1. Sh. Anil Kumar S/o Sh. Salig Ram, C/o House No.15,
Sector-1, Parwanoo, Tehsil Kasauli, District Solan, H.P.
2. Mahindra Snowview Automobiles Pvt. Ltd. Village Bara,
National Highways-22, Kumarhatti, District Solan, H.P.-
173229.
......Respondents/Complainants.
Coram
Hon'ble Justice Inder Singh Mehta, President
ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020)
Whether approved for reporting?1 Yes
For the Appellants: Mr.Jagdish Thakur, Advocate.
For the Respondents : None.
Justice Inder Singh Mehta, President
ORDER
Instant appeal is arising out of the order dated 26.02.2020 passed by Learned District Consumer Commission, Solan in Consumer Complaint No.109/2018 titled Anil Kumar Versus ICICI Lombard General Insurance Co. Ltd. & Ors.
Brief facts of Case:
2. Brief facts of the case are that in the year 2017, the complainant purchased a vehicle i.e. Mahindra Pickup bearing registration No.HP-64-4799 from opposite party No.3/dealer and insured the same from the opposite parties No.1 and 2/insurance company. The complainant employed a driver on his vehicle. On 06.05.2017, the driver took the 1Whether reporters of the local papers may be allowed to see the order?2
ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) vehicle to Nahan after loading the goods. The driver was expected to return on the next day but when he did not return along with the vehicle, the complainant made a telephonic call to the driver on his mobile phone, but the same was found switched off. Thereafter, the complainant made efforts to search out the vehicle but he could not find the vehicle. The complainant approached the police of Police Station, Parwanoo and registered the FIR. The complainant had also given information with respect to theft of his vehicle to opposite party No.3/dealer through whom he had got his vehicle insured from opposite parties No.1 and 2/insurance company. But the dealer has not informed the insurance company about the theft of the vehicle in question. Thereafter, the complainant informed the insurance company about the theft of vehicle. On the basis of the said information, opposite party No.1/insurance company appointed a surveyor who collected the relevant documents from the complainant. Thereafter, the complainant received 3 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) a letter dated 01.08.2018 from opposite party No.1/insurance company and repudiated the claim on the ground that there was unexplained delay in lodging the FIR and inordinate delay in giving information to opposite parties No.1 and 2/insurance company with respect to the incident of theft in question. There is deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint.
3. The opposite party No.3/dealer did not put appearance despite of service and was proceeded ex-parte.
4. The opposite parties No.1 and 2/insurance company contested the complaint of the complainant by filing reply and alleged that the complainant had informed the insurance company regarding the alleged theft of the vehicle in question after a delay of more than one year. The insurance company deputed Sh.Jatinder Dhiman, Surveyor- cum-loss-Assessor to inquire into the matter and thereafter the surveyor had submitted his report. The insurance 4 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) company has rightly repudiated the claim of the complainant. There is no deficiency in service and unfair trade practice on the part of the opposite parties No. 1 & 2/insurance company. A prayer for dismissal of the complaint was made.
5. The complainant had controverted the reply of the opposite parties No.1 and 2 by filing rejoinder and re- affirmed and re-asserted the facts mentioned in the complaint.
6. Thereafter, the parties led evidence in support of their respective pleadings.
7. After hearing the parties, learned District Commission below partly allowed the complaint of the complainant.
8. Feeling aggrieved by the order of learned District Commission, the appellants/Insurance company preferred the instant appeal before this Commission.
5 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020)
9. Arguments heard on behalf of the parties and perused the record carefully.
10. Learned counsel of the appellants/insurance company has submitted that the vehicle of the complainant was insured with appellants/insurance company w.e.f. 16.03.2017 to 15.03.2018. He further submitted that during the existence of the policy, the vehicle in question was stolen on 06.05.2017 and FIR in this regard was lodged on 01.06.2017. He further submitted that intimation regarding theft of vehicle was given to the insurance company on 24.05.2018. He further submitted that the claim lodged by the complainant was repudiated by the insurance company on the ground that there is a delay of 27 days in lodging the FIR. He further submitted that learned District Commission below erred in observing that as the untraced report filed by the police has been accepted by the Competent Court, hence, appellants/insurance company has to pay the compensation. He further submitted that the learned District Commission 6 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) below has not passed any order of subrogation and in the absence of subrogation letter, the vehicle in question, if recovered, the insurance company cannot take the possession of the same. He further submitted that learned District Commission had also not directed the complainant to get the RC of the vehicle cancelled. He has also relied upon the order of Hon'ble Supreme Court of India in case titled Kanwarjit Singh Kang Vs. ICICI Lombard General Insurance Co. Ltd. & Anr. SLP No.6518/2018 dated 29.03.2022 and has also placed reliance upon the judgment of Hon'ble Supreme Court in case titled Sonell Clocks and Gifts Ltd. Vs. The New India Assurance Company Ltd. 2018-IV (1) ACJ and prays that appeal of the appellant be allowed.
FINDINGS
11. The admitted fact emerging on record is that the complainant is registered owner of the vehicle i.e. Mahindra Pickup bearing registration No.HP-64-4799 and the said 7 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) vehicle was insured with the opposite parties No.1 and 2/insurance company.
12. The complainant has alleged that on 06.05.2017, the driver took the vehicle to Nahan after loading the goods. The driver was expected to return on the next day but he did not return along with the vehicle. Thereafter, the complainant made efforts to search out the vehicle but he could not find the vehicle.
13. The complainant has also alleged that intimation regarding theft of vehicle in question was given to the opposite party No.3 (from whom the vehicle was purchased), insurance company as well as to the police and consequential FIR No.0043 dated 01.06.2017 was lodged in Police Station, Parwanoo.
14. The insurance company repudiated the claim of the complainant on the ground that there was delay of 26 days in giving intimation to the police and to the insurance company of 386 days.
8ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020)
15. The complainant in para-5 of his complaint has duly explained the delay in lodging the FIR regarding theft of the vehicle in question. Relevant portion of Para-5 of the complaint is reproduced as under:-
"5. That the complainant approached the police station situated at Parwanoo and narrated the whole scenario by giving a written complaint of the said incident/theft but the police officials instead of lodging an FIR regarding the theft of the said vehicle in question advised the complainant to locate the said vehicle in question for some days at his own end and the complainant did same and tried his level best to locate the said vehicle in question but all efforts in vain as the said vehicle in question is not traceable till date, as such police officials had to lodge an FIR regarding theft of said vehicle in question on dated 01/06/2017..."
16. Thus, it is proved on record that delay in lodging the FIR was not intentional on the part of the complainant, but it was due to the reason that complainant was trying his level 9 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) best at his own to locate/search the vehicle in question as per the advice of the police officials.
17. The complainant in his complaint has also duly explained the delay in intimating the insurance company regarding theft of the vehicle in question. Relevant portion of para-7 and 8 of the complaint are reproduced as under:-
"7. That it is worthwhile to mention here the complainant informed the intimation regarding the said incident/theft to the opposite party No.3 telephonically, as the said vehicle in question has been purchased by the complainant from opposite party No.3 and the said insurance policy has also been taken by the complainant through the opposite party No.3.
8.......the complainant was given assurance by the opposite party No.3 regarding the forwarding of incident/theft intimation to the concerned insurance company i.e. opposite party No.1 and the complainant on the said assurance remaining in belief the said intimation being forwarded to the opposite party No.1 did not enquire regarding the 10 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) intimation of the incident/theft from the opposite party No.1 on pretext of the false assurance given by the opposite party No.3."
18. Thus, it is proved on record that the complainant has intimated the opposite party No.3 regarding the theft of the vehicle, through whom the complainant has purchased the insurance policy of the vehicle in question from the opposite parties No.1 and 2/Insurance company and on the assurance of the opposite party No.3 (from whom the vehicle was purchased) regarding forwarding the intimation of theft of the vehicle to insurance company, the complainant did not give separate information to the opposite parties/insurance company.
19. The opposite party No.3/Mahindra Snow view Automobiles Pvt. Ltd. was proceeded ex-parte before the learned District Commission. Therefore, there is nothing on record to disbelieve the version of the complainant that opposite party No.3 assured the complainant regarding 11 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) forwarding of intimation of theft of the vehicle to the insurance company.
20. In view of the above stated facts, it could be safely inferred that the complainant has duly explained the delay in intimating the incident of theft of vehicle to the police as well as to the Insurance company.
21. It is also pertinent to mention that on the basis of the information of theft of vehicle given by the complainant to police, FIR was registered in Police Station, Parwanoo and untraced report was filed by the police, which was accepted by the learned Additional Chief Judicial Magistrate, Kasauli vide order dated 25.04.2018.
22. The order dated 25.04.2018 passed by the learned Additional Chief Judicial Magistrate, Kasauli is reproduced as under:-
"25.04.2018 Present: Sh.Jatinder Kumar, ld. APP for the State.
Complainant in person.12
ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) This is an untraced report filed by Police of Police Station, Parwanoo in case F.I.R. No.43/2017 dated 1.6.2017 under Section 407 of IPC on the ground that offender could be traced. Today the complainant has stated that he has no objection to the untraced report. Keeping into consideration the submission made by the investigating agency and also the fact that complainant has not objected the same, the F.I.R No.43/2017 dated 1.6.2017 under Section 407 of IPC is kept untraced. Record of police be returned. Court record alongwith copy of F.I.R and relevant documents be consigned to Record Room.
Announced -sd-
25.4.2018 (Yajuvender Singh)
Addl. Chief Judicial Magistrate,
Kasauli."
23. Even clause 1 of the insurance policy provides that on analysis of reason for delay intimation, the insurance company may condone the delay in intimation of the claim.
Relevant portion of the clause 1 is reproduced as under:-
"1.........
Whereever details pertaining to any incident which results in a claim, are conveyed by the insured to the insurer after reasonable period, insured shall provide the reasons of such delay to the insurer and insurer 13 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) may on analysis of reasons provided by the insured, condone the delay in intimation of claim or delay in providing the required information/documents to the insurer"
24. Since the complainant has duly explained the delay in intimating the incident of theft of the vehicle to the police as well as insurance company, the insurance company was under legal obligation to condone the said delay and thereafter to indemnify the complainant for the loss of vehicle on account of theft. But, the insurance company rejected the genuine claim of the complainant which amounts to deficiency in service and unfair trade practice.
25. As far as the judgments relied upon by the insurance company are concerned, same are not applicable in the facts and circumstances of the case.
26. Perusal of the impugned order indicates that learned District Commission below directed the appellants/opposite parties No.1 and 2 jointly and severally to 14 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020) pay to the complainant ₹6,20,683/- i.e. the insured declared value of the vehicle within 30 days from the date of receipt of the copy of order. However, no direction has been passed to the complainant to furnish letter of subrogation in respect of the stolen vehicle in favour of the insurance company and as such, to that extent order of learned District Commission is required to be modified.
27. In view of the above discussion, appeal of the appellants/insurance company is partly allowed and the impugned order is modified only to the extent that complainant is directed to furnish letter of subrogation in favour of the insurance company within 30 days from the date of receipt of copy of this order, to the effect that in case the vehicle in question is recovered, the complainant shall handover the possession of the said vehicle alongwith cancelled RC to the insurance company. Remaining order of learned District Commission below remains upheld.
28. Parties are left to bear their own costs. 15 ICICI Lombard General Insurance Co. Ltd. & Anr. Versus Anil Kumar & Anr.
(F.A. No.134/2020)
29. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. Certified copy of order be sent to learned District Commission below and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President Manoj 16