Citation Codes

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citation codes

Case Number

CC/48/2018

Disposition

dismissed

Attorney(S)

Acts

CONSUMER PROTECTION ACT

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Smart Summary

Summary of Opinion — District Consumer Disputes Redressal Commission, Jalandhar

Factual and Procedural Background

The complainant, Rahul Babbar, purchased a Splendor motorcycle (Engine No. HA10 ERGHE 34034; Chassis No. MBLHA10CGGHE32663; temporary Registration No. PB08 DK 1803) from Jaswant Motors, Jalandhar on 11.06.2016 (Invoice No.10000-01-SINV-0616-657). At the time of purchase the vehicle was insured under a comprehensive policy (policy schedule / policy No. as on record) with ICICI Lombard, covering the period 11.06.2016 to 10.06.2017 (declared value Rs.46,526 and premium Rs.1,577). The motorcycle was stolen on 12.12.2016. An FIR (No. 0121) under Section 379 IPC was registered on 21.01.2017 by Police Station Division No.1, Jalandhar. The complainant lodged a claim with the insurer online on 30.01.2017 (49 days after the alleged theft). The insurer (OP Nos.1 & 2) sought further documents and explanations by letters dated 05.05.2017, 07.06.2017 and 12.06.2017; ultimately the insurer repudiated the claim by letter dated 24.08.2017 citing delay / non-compliance with policy conditions. The complainant filed this complaint under the Consumer Protection Act on 02.02.2018 before the District Consumer Disputes Redressal Commission, Jalandhar.

Procedurally, OP No.3 (Jaswant Motors) was withdrawn by the complainant; OP No.4 proceeded ex parte. OP Nos.1 & 2 (ICICI Lombard) appeared and filed a joint written reply, led evidence, and contested the claim. The complainant also adduced evidence. The Commission heard arguments and issued its final order on 27.04.2021.

Legal Issues Presented

Whether the insurer's repudiation of the theft claim on the ground of delay in intimation / delay in lodging the claim and in furnishing documents (as per policy condition) is a valid basis to deny indemnity.
Whether, on the evidence, the complainant is entitled to indemnity for the insured declared value of the stolen motorcycle and to compensation for mental harassment and litigation costs for the insurer's alleged deficiency in service / unfair trade practice.

Arguments of the Parties

Complainant's Arguments

The complainant alleged deficiency of service and unfair trade practice by the insurer for improper delay and failure to settle a genuine claim.
The complainant maintained that the motorcycle was stolen during the currency of the insurance policy and that an FIR was registered (Ex.C-4). He produced the retail invoice, registration certificate, policy schedule and other claim documents (Ex.C-1 to Ex.C-19).
The complainant argued that the insurer's repudiation on technical ground of delay was not justified where the claim was genuine and relied on precedents (Reliance General Insurance Co. Ltd. v. Rajender and Om Parkash v. Reliance General Insurance) that delay should not be a shelter to repudiate a genuine claim.
Relief sought: Rs.46,526 (value of vehicle), refund of premium Rs.1,577, compensation Rs.30,000 for mental pain and Rs.15,000 as litigation expenses (total claimed Rs.93,103 as pleaded).

Opposite Parties' (OP Nos.1 & 2) Arguments

Preliminary objections that the complaint is not maintainable against OPs No.1 & 2 and that the complainant cannot take advantage of his own wrongs.
The insurer asserted that the claim was lodged with inordinate delay (49 days after the theft) and that the complainant failed to furnish mandatory documents and information despite requests (intimation to RTO, loan account statement, non-repossession letter, bank NOC/Form 35, GD entry/100 no., call recording / PCR copy).
The insurer asserted repudiation of the claim by letter dated 24.08.2017 in accordance with the policy terms and conditions (condition No.1) and denied any deficiency in service or unfair trade practice in merely repudiating a claim not payable under the policy.
OPs relied on precedent (Shimbhu Singh Shekhawat v. Cholamandalam MS General Insurance Co. Ltd., 2018(1) CLT 231) for the proposition that an obligation existed upon the insured to give immediate written information of loss and that failure to do so could justify repudiation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reliance General Insurance Company Limited v. Rajender (State Consumer Commission Panchkula; decision dated 06.02.2017)	Supports the principle that an insurance company is liable to indemnify loss when claim is genuine and properly proved.	Relied upon by the complainant to support entitlement to indemnity; referenced by the Commission as part of the complainant's authorities.
Om Parkash v. Reliance General Insurance & another (Supra) (referred to as 2017 Apex Court reference in the record)	Principle that condition regarding delay shall not be a shelter to repudiate the insurance claim which has otherwise been proved genuine (delay alone cannot defeat a genuine claim).	The Commission expressly held this authority applicable to the present case and applied the principle to conclude that repudiation on delay grounds was not justified where the claim was otherwise established; this supported the finding that the insurer was liable to indemnify.
Shimbhu Singh Shekhawat v. Cholamandalam MS General Insurance Company Ltd (2018(1) CLT 231; National Commission, New Delhi)	Emphasizes the insured's obligation under policy conditions to give immediate written information upon occurrence of loss; supports repudiation where there is delay and no cogent evidence of contemporaneous intimation.	Relied upon by OPs No.1 & 2 to justify repudiation for delay / failure to give immediate written intimation. The Commission considered this authority but ultimately did not accept delay as a conclusive ground to repudiate in the facts of this case.

Court's Reasoning and Analysis

The Commission examined the pleaded facts and documentary evidence: invoice (Ex.C-1), registration certificate (Ex.C-2), policy schedule/terms (Ex.C-3 / Ex.O-1 / Ex.O-2), FIR dated 21.01.2017 (Ex.C-4), motor theft claim form (Ex.C-7), correspondence and undertaking (Ex.C-8, Ex.C-9), and insurer letters (Ex.O-3 to Ex.O-6). It accepted as established that the vehicle was purchased on 11.06.2016, insured for the period 11.06.2016 to 10.06.2017, and was stolen on 12.12.2016 during the currency of the policy. The FIR was registered on 21.01.2017 and the insurer received the claim on 30.01.2017 (a delay of 49 days).

The insurer's pleaded justification for repudiation was non-compliance with policy condition(s) requiring immediate intimation and prompt submission of documents. The Commission acknowledged that both parties are bound by the terms of the policy, but emphasised that the condition regarding delay should not automatically operate as a bar where the claim is otherwise genuine and the delay is satisfactorily explained or attributable to reasonable efforts by the insured (for example, attempting to trace the vehicle before approaching the insurer).

The Commission explained that an insured may reasonably first search for the vehicle and attempt to trace it before lodging claims with the insurer; a mechanical rejection on technical grounds (delay) would undermine public confidence in insurance. It stated that if the delay in notification or document submission is due to unavoidable circumstances or is satisfactorily explained, repudiation on that ground is not permissible. The Commission further noted that it would be unfair to repudiate claims that have been verified and found genuine by investigation.

Applying these principles and the authority of Om Parkash (that delay cannot be used as a shelter to repudiate a genuinely proved claim), the Commission concluded that the insurer's repudiation dated 24.08.2017 was not genuine in the circumstances of this case and that the insurer was liable to indemnify the complainant for the insured declared value of the motorcycle.

Holding and Implications

Holding: The complaint is allowed. OP Nos.1 & 2 (ICICI Lombard) are directed to pay Rs.46,526/- (insured declared value of the motorcycle) to the complainant and Rs.7,000/- as compensation for mental harassment and litigation costs.

Ancillary orders: Compliance with the order was directed to be made within one month from receipt of a copy of the order; copies of the order to be supplied to the parties free of cost; the file to be indexed and consigned to the record room after compliance. The Commission recorded that the matter could not be decided within the statutory timeframe due to heavy pendency and the spread of COVID-19.

Implications: The direct effect is that the insurer must indemnify the complainant for the insured value of the stolen vehicle and pay a modest amount of compensation for harassment and litigation costs. The Commission applied existing case law (in particular Om Parkash) to hold that delay in intimation, by itself, should not automatically defeat a genuine claim; the opinion applies established principles rather than announcing a novel legal doctrine. No broader binding precedent beyond the reasoning applied from existing authorities is claimed in the opinion.

Source: Final Order / Judgement dated 27.04.2021, District Consumer Disputes Redressal Commission, Jalandhar — Complaint Case No. CC/48/2018 (as provided).

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Rahul Babbar S/o Rakesh Babbar v. ICICI Lombard General Insurance

Distt Consumer Disputes Redressal Commission Ladowali Road, District Administrative Complex, 2nd Floor, Room No - 217

JALANDHAR

(PUNJAB)

Complaint Case No. CC/48/2018 ( Date of Filing : 02 Feb 2018 )

1. Rahul Babbar S/o Rakesh Babbar R/o House No.22,New Jawala Nagar,Maqsudan Grain Market, Jalandhar

Punjab ...........Complainant(s)

Versus

1. ICICI Lombard General Insurance through its Principal officer,ICICI Lombard House,414,P.Balu Marg,Off Veer Sawarkar Marg,near Siddhivinayak Temple,Prabhadevi, Mumbai-400025

2. The Principal officer ICICI Lombard General Insurance 2nd Floor,P No.EH-198,Nirmal Complex,GT Road,Jalandhar- 144001,Nr Bhagat Namdev Chowk,Near Gujrat Palace,Jalandhar,

3. Jaswant Motors through its Principal officer/Manager,39-40,G T Road,Jalandhar.

4. Capital First Private Limited through its Principal officer/Branch Manager,SCO 18,Ist Floor,PUDA Complex,Near Tehsil Complex,Ladowali Road,Jalandhar-144001. ............Opp.Party(s)

BEFORE:

Kuljit Singh PRESIDENT Jyotsna MEMBER

PRESENT: Sh. Sanjeev Sharma, Adv. Counsel for the Complainant. ......for the Complainant

Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 &

OP No.3 withdrawn. OP No.4 exparte. ......for the Opp. Party

Dated : 27 Apr 2021 Final Order / Judgement

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.48 of 2018 Date of Instt. 02.02.2018 Date of Decision: 27.04.2021 Rahul Babbar s/o Rakesh Babbar resident of House No.22, New Jawala Nagar, Maqsudan Grain Market, Jalandhar City Punjab.

..........Complainant Versus

1. ICICI Lombard General Insurance Through its Principal Officer, ICICI Lombard House, 414, P. Balu Marg, Off Veer Sawarkar Marg, near Siddhivinayak Temple, Prabhadevi, Mumbai-

400025.

2. The Principal Officer, ICICI Lombard General Insurance 2nd Floor, P No.-E.h. 198, Nirmal Complex, G. T. Road, Jalandhar- 144001, Nr Bhagat Namdev Chowk, Near Gujrat Palace, Jalandhar.

3. Jaswant Motors Through its Principal officer/Manager, 39-40, G. T. Road, Jalandhar.

4. Capital First Private Limited through its Principal officer/ Branch Manager, SCO 18, 1st Floor Puda Complex, Near Tehsil Office, Ladowali Road, Jalandhar, Punjab 144001 ….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member)

Present: Sh. Sanjeev Sharma, Adv. Counsel for the Complainant. Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 & 2. OP No.3 withdrawn.

OP No.4 exparte.

Order Kuljit Singh (President)

1. The instant complaint has been filed by the complainant, wherein alleged that he had purchased a Splendor Motorcycle with Engine No.HA 10 ERGHE 34034 Chasiss No.MBLHA

10 CFFHE32663 with temporary Registration No.PB08 DK 1803 from Jaswnt Motors Jalandhar City on 11.06.2016 vide Invoice No.10000-01-SINV-0616-657. That the OPs are rendering the general insurance services to the customers of OP No.3 and OP No.3 is also agent of OPs No.1 & 2. That the complainant has availed the insurance services of OPs since at the time of purchase, the vehicle was ensured with OPs vide comprehensive insurance policy No.3005/32654632/10000/000 dated 11.06.2016 covering risk from 11.06.2016 upto 10.06.2017. The declared value was Rs.46,526/- and a sum of Rs.1577/- was charged by OPs as premium. That on 12.12.2016 at about 09:30 AM, the complainant parked the motorcycle in front of book shops opposite DAV College, Jalandhar for purchase of books for his brother and upon return, the complainant found that the vehicle was not there. The complainant searched the vehicle and enquired from some persons present there. The police was informed at No.100. That thereafter the matter was reported to police who assured that wireless has been flashed and the complainant kept on visiting to police station and after a lot of efforts and visits, FIR No.0121 dated 21.01.2017 u/S 379 IPC was registered by Police Station Div No.1 Jalandhar but the police failed to trace out the vehicle. That thereafter the claim was lodged with OPs with all formalities but the same has not been settled by OPs. It is pertinent to mention here that the complainant was supplied with Annexure C-4. The claim of the complainant has not been settled by OPs rather they are delaying the matter on one pretext or the other. The relevant record is attached with the file. That the complainant who is a business has suffered a lot of financial loss in his business for inordinate unexplained delay by the OPs in passing of claim. The complainant has become just crippled in his day today business activities. The complainant claims a sum of Rs.46,526/- as value of insured vehicle, refund of Rs.1577/- premium and compensation/damages to the tune of Rs.30,000/- on account of suffering a lot of mental pain and agony due to unfair trade practice and gross deficiency in service on the part of the OPs and

as such, the present complaint filed with the prayer that the complaint of the complainant may kindly be accepted and OPs be directed to pay Rs.93,103/- (i.e. Rs.46,526/- as value of insured vehicle, refund of Rs.1577/- premium and compensation/damages to the tune of Rs.30,000/- & Rs.15,000/- as litigation expenses).

2. Notice of the complaint was given to the OPs, but despite service OP No.4 did not come present and ultimately, OP No.4 was proceeded against exparte, whereas the complaint against OP No.3 dismissed as withdrawn by the complainant vide his statement dated 05.02.2018. OPs No.1 & 2 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable against the answering OPs No.1 & 2, as such, the same is liable to be dismissed. That the complainant cannot take advantage of his own wrongs. The claim was lodged by the complainant with inordinate delay online on 30.01.2017 with the answering OPs after 49 days of the alleged loss of the vehicle on 12.12.2016 in theft. Copy of claim intimation sheet is attached with the file. It is wrong that the complainant had completed all the formalities. It is pertinent to mention here that the answering OPs vide letters dated 05.05.2017 and 07.06.2017 was asked to furnish the documents such as Intimation to theft to the RTO, Loan Account statement, Non repossession letter, Bank NOC/Form No.35 and GD Entry/100 No. Call recording/PCR copy, but the complainant did not respond. The complainant failed to furnish any record of having given any intimation to Police Control Room on 100 number. The complainant was once again asked to clarify vide letter dated 12.06.2017 and explain the reason for delay in lodging the FIR and delay in intimation to the insurance company within seven days to enable the answering OPs to process the claim as per terms and conditions of insurance policy and in the absence of any response, the insurance company shall be constrained to close the claim for non-compliance of condition No.1 of the insurance policy. It is further alleged that the OPs are neither deficient in service nor there is any unfair trade practice on the part of the OPs. Repudiating the claim which is not payable as per terms and conditions of the insurance policy does not amount to any deficiency in service or unfair trade practice on the part of the OPs. The claim of the

complainant has been rightly repudiated vide letter dated 24.08.2017 as per terms and conditions of the insurance policy after due application of mind, as such, the complaint against the answering OPs is liable to be dismissed. On merits, the factum in regard to purchase of the vehicle and the same was insured, is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3. In order to prove the complaint of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C- 19 and closed the evidence.

4. In order to rebut the evidence of the complainant, the counsel for the OPs No.1 & 2 tendered into evidence affidavit Ex.OA algonwith some document Ex.O-1 to Ex.O-6 and closed the evidence.

5. We have heard the argument from learned counsel for the respective parties and also gone through the case file very minutely.

6. The glance of evidence is required for settlement of the case in hand. The complainant has tendered in evidence his affidavit Ex.C-A on the record. He alleged deficiency and unfair trade practice on the part of OPs. Ex.C-1 is copy of retail invoice. Ex.C-2 is copy of registration certificate. Ex.C-3 is copy of policy. Ex.C-4 is copy of FIR dated 21.1.2017. Ex.C-7 is copy of Motor Theft Claim Form. Ex.C-8 is copy of letter addressed to OPs by complainant. Ex.C-9 is copy of indemnity and declaration undertaking. Similarly, we have also examined other documents Ex.C-10 to Ex.C-18 placed on record.

7. To refute this evidence of the complainant, OPs relied upon affidavit of Apurva Sharma Manager (Legal) ICICI Lombard General Insurance Co. Ltd as Ex.O-A on the record. This witness sated that the complainant cannot take advantage of his own wrongs. The claim was lodged by the complainant with inordinate delay online on 30.01.2017 with OPs after 49 days

of the alleged loss of the vehicle on 12.12.2016 in theft. OPs vide letters dated 05.05.2017 and 07.06.2017 asked the complainant to furnish the documents as such intimation of theft to RTO Loan Account Statement but complainant did not response. Ex.O-1 is copy of policy schedule. Ex.-2 is copy of policy terms and conditions. Ex.O-3 is copy of intimation sheet. Ex.O-5 and Ex.-6 are copies of letters of different dates.

8. This fact is admitted that complainant purchased a Splender Motorcycle with Engine No.HA10 ERGHE 34034 Chassis No.MBLHA10CGGHE32663 with temporary registration no.PB08 DK 1803 FROM Jaswant Motors Jalandhar on 11.06.2016. The vehicle in question insured with OPS. On 12.12.2016 at about 9.00 am his motorcycle his motorcycle was lost. The vehicle in question insured with OPs. This fact is clear from perusal of Ex.C-3 is copy of policy schedule and period is valid from 11.06.2016 to 10.06.2017. The theft of vehicle occurred during the currency period of the policy. The complainant lodged FIR regarding the above said theft to P.S Division No.1 Jalandhar city on 21.01.2017. On the other hand, OPs repudiated the claim of the complainant vide letter dated 24.08.2017on the ground that complainant lodged the claim with inordinate delay on 30.01.2017 with OPs after 49 days of the alleged loss of the vehicle on 12.12.2016. The terms and conditions of the policy Ex.O-3 placed on record. Both parties are binding by terms and condition of the policy, no one wriggle out from the same. But condition regarding delay shall not shelter to repudiate the claim.

9. The learned counsel for complainant relied upon judgments in support of his case, i.e. the case titled as Reliance General Insurance Company Limited versus Rajender, date of decision 06.02.2017 by State Consumer Commission Panchkula, Haryana in which it has been held that insurance company is liable to indemnify the loss suffered by the complainant. The appeal consequently fails and is hereby dismissed. Further, case title Om Parkash Vs. Reliation General Insurance 2017 Apex Court 758 Supreme Court that condition regarding delay shall not shelter to repudiate the insurance claim which have been otherwise proved genuine. The case was related to theft of vehicle during period covered under insurance.

10. On the other hand, OPs no.1 and 2 relied upon judgment in support of his case, the case titled as Shimbhu Singh Shekhawat Vs. Cholomandalam Ms. General Insurance Company Ltd reported in 2018(1) CLT 231 by Hon'ble National Commission New Delhi that as per the policy condition, it was an obligation on the part of the complainant to give information in writing immediately uon the occurrence of any loss and also denied about telephone intimation. The complainant failed to give written information to OP company immediately. There was delay in the intimation to OP. FIR clearly depicts date but there is no cogent evidence to show that it was presented on the same day.

11. From perusal of entire record, it is clear that the motorcycle of the complainant lost on 12.12.2016 and complainant lodged FIR to that effect on 21.01.2017 this fact is clear from copy of FIR Ex.C-4 on the record. The vehicle has been non-traceable by the police. After that the complainant lodged his insurance claim with OPs. The vehicle in question was insured with OPs which is valid from 11.06.2016 to 10.06.2017. The vehicle in question lost during the currency period of the policy. The OPs repudiated the claim of the complainant vide letter dated 24.08.2017 that as per condition no.1 of the terms and conditions of the policy, claim of the complainant is not genuine. OPs also pleaded that complainant intimated OPs after 49 days of the alleged loss of the vehicle. But this is not a valid ground to reject the claim of the complainant.

12. It is a common knowledge that a person who lost his vehicle may not straightway go to the insurance company/OPs to claim compensation. At first, he will make efforts to trace the vehicle. It is true that owner has to intimate the insurer immediately after the theft of the vehicle. However, the condition should not bar settlement of genuine claims particularly when delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also

necessary to state here that it would not be fair and reasonable to reject the genuine claim which had already been verified and found to be correct by the investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claim which have been otherwise proved to be genuine. This laudable object should not be forgotten while considering the claims made under the Act.

13. Keeping in view the totality of the facts and circumstances of the case, we are of the considered opinion that the repudiation of the insurance claim by OPs is not genuine. The case law cited above Om Parkash Vs. Reliance General Insurance & another (supra) is applicable in the case in hand. The evidence on the record clearly established tht the motorcycle of the complainant was insured with OPs and same was stolen during the subsistence of insurance company/OPs. In view of above the insurance company/OPs liable to indemnify the loss suffered by the complainant.

14. In the light of our above discussion, we allowed the complaint of the complainant and OPs no.1 and 2 are directed to pay Rs.46,526/- as insured declared value (IDV) of the motorcycle as per policy schedule Ex.O-1 placed on the record. The complainant is also entitled Rs.7000/- as compensation for mental harassment including cost of litigation.

15. The compliance of the order be made within one month from receipt of copy of this order.

16. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of the court cases and spread of Covid-19.

17. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance.

Announced in open Commission 27th of April 2021

Kuljit Singh (President) Jyotsna

(Member) [ Kuljit Singh]

PRESIDENT

[ Jyotsna]

MEMBER

Rahul Babbar S/o Rakesh Babbar v. ICICI Lombard General Insurance

Summary of Opinion — District Consumer Disputes Redressal Commission, Jalandhar

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Complainant's Arguments

Opposite Parties' (OP Nos.1 & 2) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rahul Babbar S/o Rakesh Babbar v. ICICI Lombard General Insurance

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