State Consumer Disputes Redressal Commission
Icici Lombard Gic vs Lakhwinder Kumar on 15 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1508 of 2012
Date of Institution: 08.11.2012.
Date of Decision: 15 .05.2015.
ICICI Lombard General Insurance Co. Ltd., through its Manager,
ICICI Bank Towers, Bandra Kurla Complex (East), Mumbai 400051
and also at SCO 24-25, Sector 8, Chandigarh and also at Nirmal
Complex Jalandhar.
.....Appellant/opposite party nos.1 to 3
Versus
1. Lakhwinder Kamar S/o Sh. Tarsem Lal, VPO Bhojowal, District
Jalandhar.
.....Respondent no.1/complainant
2. ICICI Bank Limited, 1st Floor Syal Chambers, Jalandhar.
....Respondent no.2/opposite party no.4
First appeal against order dated
17.09.2012 passed by the District
Consumer Disputes Redressal
Forum, Jalandhar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh.Sandeep Suri, Advocate
For respondent no.1 : Sh. K.S. Sekhon, Advocate
For respondent no.2 : Ex-parte.
.............................................. First Appeal No.1508 of 2012 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (opposite party nos.1 to 3 in the complaint) has directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint) and respondent no.2 of this appeal (the opposite party no.4 in the complaint), challenging order dated 17.09.2012 of District Consumer Disputes Redressal Forum Jalandhar (in short, "the District Forum"), accepting the complaint of the complainant by directing the OPs to pay the amount of Rs.5,00,080/- being the insured declared value of the vehicle to the complainant within one month, besides Rs.5000/- as compensation and costs of litigation.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he purchased one new Scorpio Turbo M & M car, bearing registration no.PB-08-AZ-9594, engine no.58992 and chassis no.88943 from Makkar Motors Jalandhar. The said vehicle was got financed by the complainant from M/s ICICI Bank Limited. The complainant was paying the monthly installments to the ICICI Bank for the said vehicle. The vehicle got duly insured on 30.09.2008 with OP no.3, vide policy no.3001/55068806/00/000 valid w.e.f. 13.10.2008 to 12.10.2009 against premium of Rs.12,810/-. The insured declared value of the said vehicle was Rs.5,00,080/-. On 09.11.2008, above said vehicle was stolen by one Anil Kumar Aggarwahi R/o Chanakyapuri Allahabad from Hotel Residency, after First Appeal No.1508 of 2012 3 administering some intoxicating substance to the uncle of the complainant namely Sh. Binder Ram S/o Sh. Bhagu Ram R/o VPO Bhojowal District Jalandhar. FIR no.420 dated 14.11.2008 under Section 420, 379 and 328 of IPC was registered by the police station Division no.6 Jalandhar against Anil Kumar Aggrahari on the statement of Sh. Binder Ram. The matter was reported to OP no.3 and claim bearing no.944621 was also lodged on 15.11.2008 with Jalandhar office of the OPs regarding the theft of the vehicle. Consequently, surveyor was appointed by the OPs to look into the matter after obtaining of necessary documents from the complainant. The complainant was assured for early settlement of the insurance claim of the vehicle. Vide letter dated nil from their Chandigarh Office, the complainant was conveyed to submit more documents like translation of FIR in English, original R.C. of the vehicle, final untraced report and its English translation etc. The requisite documents were submitted in the month of June 2009 by the complainant to Mr.Gursewak at their Chandigarh office. The complainant was informed that the claim has been closed as 'no claim' for want of submission of documents, vide letter no.R3 dated17.07.2009, despite the fact that the complainant had already submitted the documents about 15 days back. The complainant told the officials of OPs for early settlement of the claim and the financer bank ICICI bank was claiming all the dues of installments of vehicle from complainant and issued a demand notice to the tune of First Appeal No.1508 of 2012 4 Rs.1,19,108/- to the complainant. The complainant suffered mental harassment and physical harassment in this case as well and he fell ill also. Letter was sent to the officials of OPs at their Chandigarh office in this regard, but to no effect. Despite sending this letter through speed post by the complainant for settlement of the claim, the complainant also served a legal notice dated 25.08.2011 upon the OPs, but to no effect. The complainant entered into correspondence with the OPs as well, but it evoked no response. The complainant has, thus, filed the complaint, directing the OPs to pay the amount of Rs.5,00,000/- alongwith interest 18% p.a. from the date of theft i.e. 09.11.2008, besides one lakh as compensation for mental harassment, Rs.20,000/- as litigation expenses and Rs.15,000/- as costs.
3. Upon notice, OP nos.1 to 3 appeared and filed written reply, raising preliminary objections that complaint is not maintainable against answering OPs. The complaint is barred by time, in as much as, the vehicle was insured on 30.09.2008 to 29.09.2009 and the loss of the vehicle took place on 09.11.2008 and the complaint of the complainant was earlier closed on 17.07.2009 on account of non submission of documents. The complainant submitted the documents thereafter, the claim was processed and finally repudiated, vide letter dated 08.09.2009. The complainant should have filed the complaint, if any on or before 07.09.2011 within two years from the repudiation of the contract of insurance. The First Appeal No.1508 of 2012 5 complaint is liable to be dismissed, because FIR has been lodged with delay from 09.11.2008 to 14.11.2008 regarding theft of the vehicle. The delay of 5 days is fatal to the case of the complainant. There is violation of condition no.1 of the insurance policy, which compelled the OPs to repudiate the claim, vide letter dated 08.09.2009. The story of the complainant as propounded is of gross negligence and sufficient care was not taken with due diligence to protect the vehicle. When the insurance policy has been assigned in favour of ICICI Bank, then the decree or order is not to be made in favour of the complainant. The ICICI bank is entitled to the said amount. Answering OPs further submitted that on account of non submission of documents, the claim was closed as 'no claim'. Subsequently, on submission of documents, the claim was repudiated by the answering OPs. OP nos.1 to 3 prayed for the dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-A and affidavit of Binder Ram Ex.C-B alongwith documents Ex.C-1 to C-28 and closed the evidence. As against it, the OP nos.1 to 3 tendered in evidence the affidavit of Gurpreet Legal Manager of OPs alongwith documents Ex.OP-1 to OP-12 and closed the evidence. On conclusion of evidence and arguments, the District Forum Jalandhar accepted the complaint of the complainant, as stated above. Dissatisfied with the above order, OP nos.1 to 3, now appellant has preferred this appeal against the same. First Appeal No.1508 of 2012 6
5. We have heard learned counsel for the parties and have also examined the record of the case. The submission of the appellant is that the insurance claim was repudiated, vide letter dated 08.09.2009, vide Ex.OP-1 and present complaint was filed after more than two years therefrom and hence it merits dismissal, as barred by time. The submission of counsel for the complainant per contra is that complaint is within time. The OPs have not produced any record like postal receipt to establish that said letter of repudiation was actually dispatched to the complainant by the OPs. It was further maintained that untraced report was accepted by the Court on 01.04.2010 and its certified copy was sent to OPs at their Chandigarh office through registered post on 09.04.2010. The alleged repudiation letter is dated 08.09.2009, much earlier to sending the certified copy of untraced report of the theft of the vehicle, which was dispatched to the OPs on 09.04.2010. We find that OPs, now appellant have not produced any postal receipt or other document to prove that the above said repudiation letter was actually dispatched to the complainant and was actually received by him. Letter Ex.OP-2 dated 17.07.2009 has been produced with postal receipt Ex.OP-3. Letter Ex.OP-4 is produced with receipt Ex.OP-5, but no such postal receipt in respect of alleged repudiation letter dated 08.09.2009 Ex.OP-1 has been produced by the OPs on record. We thus, conclude that OPs could not prove this fact on the record that this letter of repudiation was actually dispatched to the First Appeal No.1508 of 2012 7 complainant. We find the reasoning of the District Forum to be correct that untraced report was accepted by the court on 01.04.2010. There is no question of repudiation of the claim prior thereto, as per the case of the OPs. The complainant sent legal notice Ex.C-20 to OPs on 29.08.2011 and it is also silent regarding any repudiation letter. We find that the complaint of the complainant is within the time, because no such repudiation letter was actually sent to the complainant on 08.09.2009, as projected by the OPs.
6. The next submission of the OPs is that there is delay of 5 days in lodging the FIR, which is fatal to the case of the complainant. It is maintained that there is breach of terms of insurance policy in this regard. Our attention has been drawn to the Circular letter dated 20.09.2011 issued by the Insurance Regulatory and Development Authority, which is to the extent and is relevant and reads as under :
"IRDA/HLTH/MISC/CIR/216/09/2011 Dated : 20.09.2011 Circular To: All Life insurers and non-life insurers Re: Delay in claim intimation/documents submission with respect to i. All life insurance contracts and ii. All Non-life individual and group insurance contracts The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents. The Insurance Regulatory & Development Authority advised all the insurers need to develop a sound mechanism of their First Appeal No.1508 of 2012 8 own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
8. The gist of the circular issued by the Insurance Regulatory & Development Authority has, thus, proved that this type of claim should not be rejected mechanically and they should be repudiated only, where the Insurance Company is of the view that even on merits, there is no claim of the insured. We find that the complainant has stated that intoxicating substance was administered to his uncle and vehicle was stolen and hence 5 days delay cannot be said to be inordinate delay so as to be the fundamental breach of the terms of contract of insurance. Even, otherwise the Police of this part of country is not so eager to register the FIR immediately. Delay often takes part on the part of Police Authorities as well in registering the FIR. The Police generally record the FIR with some delay. The consciousness was gained by Binder Ram on the next day. Ex.C-28 is the investigation report of the investigator, we find that the police recorded the FIR after satisfying itself and inquired into the matter. Even the version of the complainant is that he received telephonic call from his uncle 10.11.2008 and hence we do not find any such delay in this case. The report of the investigator Ex.C-28 confirmed the occurrence regarding the theft of the vehicle, which was taken First Appeal No.1508 of 2012 9 away by Anil Kumar from the possession after giving some intoxicants.
9. Considering all the documents on the record, we have come to the conclusion that the insured declared value of the vehicle was Rs.5,00,080/-, vide Ex.C-4 Insurance policy on the record. The OPs are thus bound to reimburse the complainant the insured declared value of the vehicle, as rightly adjudicated by the District Forum in this case. The counsel for the appellant referred to law laid down in "ICICI Lombard General Insurance Co. Ltd. Vs. Pawan Kumar" in revision petition no.4166 of 2011, decided on 29.05.2014. We find that the facts of the cited authority are distinguishable, because in the cited authority, the facts were entirely different. Similarly, the facts of the authority "Sameer Khanna Vs. HDFC Ergo General Insurance Co. Ltd. & ots." in consumer complaint no. 47 of 2014 decided on 26.06.2014 of State Commission Union Territory Chandigarh, stand on different footings than the facts of the case. In view of Circular no.IRDA/HLTH /MISC/CIR/216/09/2011 dated 20.09.2011 issued by IRDA, we do not find any inordinate delay in intimating the matter to the police, so as to cause fundamental breach of terms of the insurance policy. We find no fault in the order of the District Forum, under challenge in this appeal. The order of District Forum is accordingly affirmed in this appeal.First Appeal No.1508 of 2012 10
8. As a result of our above discussions, we find no merit in the appeal of the appellant and the same is hereby dismissed.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.2,52,540/- in compliance of order of this Commission. Both above said amounts with interest, which accrued thereupon, if any, be remitted by the registry to the complainant, now respondent no.1, by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the OPs to the complainant, as per the order of the District Forum within 45 days from the date of receipt of certified copy of this order.
10. Arguments in this appeal were heard on 11.05.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER May 15, 2015.
(MM)