State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs Mohd.Israil on 10 December, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/323
Instituted on : 06.05.2013
The Oriental Insurance Company Ltd.
Divisional Office No.3, Near Prakash Swimming Pool,
R.K. Plaza, Pachpedi Naka,
Raipur (C.G.) ... Appellant
Vs.
Mohd. Israil, S/o Badruddin Chawdhary,
R/o House No. 38/779, Vidhya Vihar,
Police Lines,
Raipur (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri N.K.Thakur, for appellant.
Shri K.K. Sharma, for respondent.
ORDER
DATED : 10/12/2013 This appeal is directed against the order dated 06.04.2013 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth called "District Forum" for short) in Complaint Case No.1000/2011, whereby complaint of the respondent/complainant alleging deficiency in service on the part of the appellant/O.P. due to non-payment of insurance claim towards theft of his vehicle, has been partly allowed.
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2. Briefly stated, facts of the case are that the T.V.S. motor cycle bearing registration No.C.G.04-DD-9437 of the respondent/complainant was insured with the appellant/O.P. under insurance policy No191300/31/2010/4741 covering risk for the period from 13.01.2010 to 02.10.2010. During the subsistence of the insurance policy, it was stolen by some miscreants on 11.09.2009 . Incident was reported to the Police Station, Tikrapara, Raipur where he was directed to search the vehicle 4-5 days in the nearby places and thereafter to lodge report. The incident occurred on 11.09.2010 which was second Saturday and there was public holiday on account of Ïd and Ganesh Chaturthi" and there was holiday on 12.09.2010 being Sunday. On 13.09.2010 when the complainant went to office of the O.P. to intimate regarding the incident, then he was directed to intimate along with Police Report. The Police Station had not lodged report regarding the incident and directed the complainant to search the vehicle. The complainant tried his level best to search the vehicle but when he could not search the vehicle, then on 18.09.2010 again he went to Police Station, Tikrapara, to lodge report where F.I. No./ C. No.341/10, under Section 379 IPC was recorded. On 20.09.2010, the complainant intimated the O.P. / Insurance Company regarding the incident along with copy of police report. The concerning officer of the O.P. / Insurance Company directed the complainant to submit claim information in the printed paper by filling it along with all necessary // 3 // documents along with photocopies. On 24.09.2010 the complainant submitted duly filled claim form along with all necessary documents with photocopies of insurance policy, driving licence, R.C. Book, copy of police report etc. in the office of the O.P. / Insurance Company. The O.P. / Insurance Company got the matter investigated by the Surveyor, who also recorded his statement. For the purpose of settling the claim of the complainant and to pay the amount, the O.P. / Insurance Company obtained bank account no. and name of the bank from the complainant and again demanded other documents from his from time to time. As per demand of the O.P. / Insurance Company, the complainant submitted Final Report of Police dated 29.10.2010, vehicle inspection report dated 14.03.2011 and Police Investigation Report dated 23.03.2011 and letter of undertaking, subrogation form dated 01.04.2011 in the form of stamp paper duly certified by the Notary. In addition to it, the O.P. committed mis-conduct with him and obtained signature of the complainant in a blank paper and got typed affidavit in the stamp paper and copy of it has not been provided to him. The complainant contacted the Insurance Company several times for making payment of his claim. The O.P. would assured him to settle his claim immediately and on 14.06.2011 the office of the Insurance Company at the place of making payment of the claim of the complainant, suddenly repudiated the claim without any reasonable reason on the basis of lodging late F.I.R. with the Police whereas the // 4 // complainant has not committed any delay in lodging F.I.R. The complainant sent regd. letter to the O.P. / Insurance Company on 25.07.2012 requesting the O.P. for making payment of his claim after considering it sympathetically and to return original document and key of the vehicle. The O.P. had not returned the original document and key of the vehicle to him till today and it is with the O.P. Thus, this act of the O.P. comes in the category of the deficiency in service. The complainant filed complaint before the District Forum for directing the O.P. to pay insured amount of the vehicle Rs.50,000/- along with interest from date of submitted claim i.e. 24.09.2010 and Rs.25,000/- towards compensation for deficiency in service, profession misconduct, economic and financial loss and Rs.5,000/- towards notice expenses.
3. In its reply the appellant/O.P. resisted the complaint and denied the allegations leveled by the respondent/complainant in the complaint.
4. After having considered the material placed before it by both the parties, learned District Forum, did not agree with the defence taken by the appellant/Insurance Company and partly allowed the complaint by the impugned order.
5. Learned counsel for the appellant / O.P. argued that order passed by the learned District Forum is not sustainable and is liable to set aside and the appeal may be allowed. He further argued that the // 5 // insurance policy was issued by the appellant/Insurance Company and the copy of insurance policy filed by the respondent/complainant before the District Forum was containing a term. According to terms and conditions, if vehicle was stolen by some one, it was required to be reported to the Insurance Company within 48 hours of its occurrence, otherwise the claim was not payable. He further argued that if no intimation was given within stipulated period to the Insurance Company, the Insurance Company had a right to repudiate the claim and it would not liable to pay any amount. In the instant case, the intimation of the incident was given by the complainant to the Insurance Company on 20.09.2010, whereas the incident took place on 11.09.2010. Thus, the intimation regarding incident was given by the respondent/complainant to the appellant/O.P. after an inordinate delay, therefore, the appellant/O.P. has rightly repudiated the claim of the appellant/complainant and learned District Forum has erred in holding that appellant/O.P. was liable to compensate the appellant/complainant on non-standard basis. Therefore, the impugned order of the District Forum, suffers from illegality and irregularity and is liable to be set aside.
6. Learned counsel for the appellant placed reliance on decisions of Hon'ble National Commission i.e. Rang Lal (Deceased) through his legal representatives vs. The Manager, United India Insurance Company Limited and another (Revision Petition No.1362 of 2011) // 6 // decided on 01.09.2011 ; Vikram Singh Vs. Reliance General Co. Ltd. Through Its authorized signatory (Revision Petition No.3864 of 2012) decided on 02.04.2013 ; New India Assurance Co. Ltd. Regd. & Head Office in Mumbai vs. Ram Avtar (First Appeal No.141 of 2009) decided on 11.11.2013 ; Dharam Kumar Agrawal vs. Bajaj Allianz General Insurance Co. Ltd. and others (Revision Petition No.709 of 2012) decided on 05.10.2012 ; Mamindla Uppalaiah vs. Royal Sundaram Alliance Insurance Co. Ltd. Rep. by its manager & another (FA 24 of 2012) against CC 103/2011 Dist. Forum Warangal (The A.P. State Consumer Disputes Redressal Commission, at Hyderabad) decided on 28.03.2013n; Bajaj Allianz General Insurance Company Ltd. vs. Ramprasad and another (The Chhattisgarh State Consumer Disputes Redressal Commission, Raipur) decided on 14.01.2013.
7. Learned counsel for the respondent /complainant supported the impugned order and submitted that it does not call any interference of this Commission. He prayed for dismissal of the appeal.
8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
9. In the instant case, the respondent/complainant filed document - 1 i.e. Certificate of Registration of the vehicle, document 2 is copy of the Insurance Policy, document - 3 is copy of First Information Report, // 7 // document - 4 is intimation of claim, document - 5 is final report, document - 6 is vehicle enquiry report, document - 7 is police investigation report, document 10 is repudiation letter dated 14.06.2011, document 13 is regd. setter sent by the respondent/complainant to the O.P. /Insurance Company through Advocate.
10. Looking to these documents it appears that vehicle bearing No.C.G.04-DD/9437 was insured with the appellant/O.P. from 13.01.2010 to 02.10.2010. According to the respondent/complainant and first information report (document - 3), it appears that incident took place on 11.09.2010 and the matter was reported to the Police on 18.09.2010. As per the respondent/complainant on 11.09.2010, at 8 A.M. he went to Sanjay Naga, Mosque for reading Namaz on the occasion of Id-ul Fitr. He parked his motorcycle bearing registration no.C.G.04-DD-9437 outside the Mosque in the locked condition and the came inside the Mosque for reading Namaz. At 10 A.M. when he came outside then he found that his motorcycle was not parked there and some miscreants had stolen the vehicle. He lodged first information report on 18.09.2010 at Police Station, Tikrapara, Raipur. In the first information report and complaint, sufficient ground and explanation was given regarding not-lodging prompt first information report with Police. The Insurance Company was informed by the complainant regarding the incident on 20.09.2010.
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11. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
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12. In case of M/s New India Assurance Co. Ltd. & anr. Vs. Sh. Ajit Kumar, 2013 (4) CPR 4 (NC), Hon'ble National Commission has held in paragraph no.6 that :-
"6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at 'C' Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim "sic utere tuo at alienum loedas" - A person is held liable at law for the consequence of his negligence."
13. In the case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Hon'ble Supreme Court has observed in paragraph Nos.12 that :-
// 10 // "12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC) = 2006 CTJ 221 (CP) ((NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held :
"...... The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis."
14. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble has observed in paragraph Nos.12 & 14 as under :-
"12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National // 11 // Commission has correctly upheld the said order of the State Commission"
15. The appellant/Insurance Company repudiated the claim of the respondent/complainant on the ground of delay in intimation. The Insurance Regulatory & Development Authority vide CIRCULAR NO.IRDA /HLTH /MISC /CIR /216 /09 /2011, DATED 20/09/2011 has directed all the Insurance Company not to disallow the entire claim of the claimants only on the ground of delay in intimation if the claim is otherwise payable. So, we cannot appreciate the action of the appellant/Insurance Company of repudiating the claim only on the ground of delay in intimation. In the instant case, regarding delay in giving intimation regarding the incident, sufficient explanation was given by the respondent/complainant . Looking to the law laid down in Nitin Khandelwal's case (supra), it is not proper on the part of the Insurance Company to repudiate whole claim of the respondent/complainant only on the ground of delay in intimation. The Insurance Company was required to pay at last compensation on non-standard basis to the respondent/complainant.
16. Learned District Forum awarded a sum of Rs.37,500/- to the respondent/complainant on non-standard basis of Insured Declared Value of the vehicle.
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17. Document - 2 is the copy of insurance policy. In the insurance policy, the insured declared value of the vehicle is mentioned as Rs.50,000/-. In the first information report (document 3), the value of the vehicle is mentioned as Rs.20,000/-. The questioned vehicle was insured with the appellant/Insurance Company. In the insurance policy the value of vehicle was mentioned as Rs.,50,000/- at the time of insurance, therefore, it is established that the insured declared value of the vehicle is Rs.50,000/- and learned District Forum accepted the Insured Declared Value of the vehicle as Rs.50,000/- and 75% of the said insured declared value was awarded to the respondent/complainant on the basis of non-standard basis i.e. Rs.37,500/-.
18. Therefore, the order passed by learned District Forum, does not suffer from any infirmity or illegality and does not call for any interference by this Commission. The appeal filed by the appellant/O.P. being devoid of any merit deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/12/2013 /12/2013