ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
1.
First Appeal No.388 of 2019
Date of Institution : 01.07.2019 Date of Reserve : 08.11.2021 Date of Decision : 25.11.2021
The New India Assurance Co. Ltd., Branch Office, Mall Godam Road, Rampura Phul, 151103, through its Branch Manager, through authorized signatory Regional Office, The New India Insurance Com. Ltd., SCO 36-37, Sector 17-A, Chandigarh. …..Appellant/Opposite Party No.1
Versus
1. Hamir Singh aged about 48 years son of Karnail Singh, resident of 145, Barewala Jattan, Tehsil Sardulgarh, District Mansa-151505.
…..Respondent/Complainant
2. HDB Financial Services Ltd., BO SCF 123, First Floor, Rose Garden Complex, Near Hotel Sweet Milan, Bathinda. …..Respondent/Opposite party No.2
2.
First Appeal No.285 of 2019 Date of Institution : 17.05.2019 Date of Reserve : 08.11.2021 Date of Decision : 25.11.2021
Hamir Singh aged about 48 years S/o Karnail Singh R/o House No.145, Village Barewala Jattan, Tehsil Sardulgarh, District Mansa-
151505
…..Appellants/Complainant Versus
1. The New India Assurance Co. Ltd., Branch Officer, Mall Godam Road, Rampura Phul 151103 through its Branch Manager.
2. HDB Financial Services Limited, B.O. SCF 123, 1stFloor, Rose Garden Complex, Near Hotel Sweet Milan, Bathinda. ….Respondents/Opposite Parties
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First Appeals under Section 15 of the Consumer Protection Act, as amended up to date, against the order dated 11.04.2019 of the District Consumer Disputes Redressal Forum, (now 'Commission'), Bathinda.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member Mrs.Kiran Sibal, Member
Present (F.A. No.388 of 2019):-
For the appellant : Sh.S.S.Sidhu, Advocate For respondent No.1 : Sh.Rishabh Gupta, Advocate For respondent No.2 : Ms.Rupali, Advocate for Sh.Nitin Thatai, Advocate
RAJINDER KUMAR GOYAL, PRESIDING MEMBER
This order will dispose of the above noted two (2) appeals, which have been preferred, against the same order dated 11.04.2019 passed by District Consumer Disputes Redressal Forum (now 'Commission'), Bathinda (in short, "the District Commission"), by both the parties whereby the complaint filed by the complainant was partly accepted with Rs.10,000/- as costs against opposite party No.1. The opposite party was further directed to pay claim amount of Rs.13,00,000/- along with interest @ 9% w.e.f. 14.06.2018 till payment. It was further directed that the complainant will execute the subrogation letter and complete the other formalities, if any, required by law for release of claim. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
2. Brief facts, as averred in the complaint are that the complainant purchased a commercial vehicle Package Policy vide
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Insurance Certificate No.36060431140100002379 w.e.f. 02.10.2014 to 01.10.2015 for his vehicle Truck Regn. No.RJ-14- GC-4176, from opposite party No.1. The IDV of the vehicle was Rs.13,00,000/-. The vehicle was hypothecated with opposite party No.2. On the intervening night of 4/5.06.2015, the vehicle, in question, was parked opposite MRF Tyre Agency, Near DC Tinkoni, Mansa for repair but in the morning, the said vehicle was not there and was stolen by unknown persons. The complainant and his driver Jaswinder Singh S/o Niranjan Singh tried to trace the vehicle, but all in vain. Information was also given to the concerned police but they stated that they will try to trace the vehicle and in case of failure they will register the FIR. Finally, on the complainant statement the police authorities registered the FIR No.37 dated 12.06.2015 in P.S. City-II, Mansa. On 05.06.2015, oral information was given to opposite party No.1 at its Mansa Branch, however, it was informed that the claim will be lodged with the FIR only. The opposite party No.1 appointed Royal Associates, Kurukshetra as Investigator to investigate the matter. The complainant submitted all the documents to opposite party No.1 through Royal Associates but all in vain. Thereafter, the complainant filed a consumer complaint bearing No.80 of 2016, which was decided on 17.04.2018 with the directions to opposite party No.1 that untraceable report is part of the file i.e. Ex.OP-2 and second NCRB report cannot be in the possession of the complainant. If it is required to decide the claim, the opposite party can collect itself from the concerned department and decide the claim of the
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complainant on the basis of documents in their possession. However, the opposite party No.1 vide letter dated 14.06.2018 rejected the claim of the complainant with the remarks that the claim is not intimated in time. The IRDA had already issued the guidelines that no claim will be rejected on the basis of late intimation if the same is genuine. Alleging deficiency in service and unfair trade practice on the part of the opposite party No.1 complainant filed the complaint before the District Commission and sought the following directions against opposite party No.1:-
i) to make the total loss amount of Rs.13,00,000/- along with interest at the rate of 18% per annum;
ii) to pay Rs.1,00,000/- as compensation on account of mental agony, pain; and
iii) to pay Rs.50,000/- as litigation expenses.
3. Upon notice, the opposite parties appeared and contested the complaint by filing their separate replies.
4. Opposite party No.1 filed reply taking legal objections that the complainant did not inform the answering opposite party immediately after the theft of insured vehicle. As per record, actual theft of insured vehicle took place on the intervening night of 4/5.06.2015 and complainant informed the branch office of the opposite party on 19.06.2015 i.e. after delay of 15 days and FIR No.37 was recorded on 12.06.2015. As per clause 5 of terms and conditions of the policy, it has been held that 'insured shall take all reasonable steps to safeguard the Motor Vehicle from loss or damage and to maintain it in efficient condition. Further, as per
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report of M/s Royal Associates and as per statement of driver insured vehicle ignition key was attached with ignition switch, when the vehicle was stolen. It is a gross negligence on the part of the driver and owner of the vehicle which facilitated the thieves to steal the insured vehicle and to further carry away the same to far away places. The claim of the complainant was rightly repudiated after receipt of investigation report dated 21.10.2015 of M/s Royal Associates by the answering opposite party vide their letter dated 14.06.2018. On merits, it was submitted that the complainant and his driver have violated the terms and conditions of insurance policy and have committed gross negligence as driver of the insured truck has left ignition key in the truck itself which has facilitated the thieves to steal the insured truck. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
5. The opposite party No.2 filed its reply taking legal objections that the dispute is between the complainant and opposite party No.1. The opposite party No.2 financed the vehicle and being its financer, it has first charge on the said vehicle being hypothecated in the name of opposite party No.2. The complainant took financial assistance from opposite party No.2 and purchased said vehicle. The loan amount was sanctioned on 30.09.2014 of Rs.10,25,000/- and the same was repayable along with interest of Rs.13,56,180/- in 42 monthly instalments. On merits, opposite party No.2 reiterated its stand as taken in preliminary objections and detailed above. It was relevant to mention that subsequently opposite party
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No.2 has admitted that it has received settled amount from the complainant and nothing is due against this vehicle.
6. The parties led their evidence in support of their respective contentions before the District Commission and after hearing the learned counsel for the parties, the complaint was partly accepted, vide order dated 11.04.2019.
7. Aggrieved by the said order, this appeal has been filed by the appellant/complainant for setting aside the impugned order and to allow the appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record as well as written arguments filed by the appellant and respondents No.1& 2.
9. Learned counsel for the Appellant/opposite party No.1 argued that the order passed by the District Commission is based on the surmises and conjectures, presumptions and is liable to be set aside. It is argued that the complainant has violated the terms and conditions of the insurance policy and has committed gross negligence as driver of the insured truck has left ignition key in the truck itself which has facilitated the thieves to steal the insured truck. Further argued that the complainant has also lodged the complaint to the police authorities after a delay of 6 days. The complainant failed to provide the documents as required from him. The District Commission has not considered the fact that the claim was reported on 12.06.2015 to the police. There is no deficiency in service or unfair trade practice on the part of the appellant. Finally, it is prayed to allow the appeal and set aside impugned order.
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10. Learned counsel for the respondent No.1/complainant argued that the District Commission has rightly allowed the claim. However, the interest on the said amount has been awarded from 14.06.2018, when the claim was rejected after more than 3 years from the date of theft. The interest on the claim should have been allowed from the date of theft of the vehicle i.e. 04/05.06.2015 instead from the date of repudiation of claim by Insurance Company as the appellant/ complainant suffered heavy damages on account of non-settlement of claim within the statutory period. Finally, it is prayed to dismiss the appeal filed by appellant/opposite No.1 and to modify the order passed by the District Commission as prayed by respondent No.1/complainant in his cross appeal No.285 of 2019.
11. Learned counsel for respondent No.2/opposite party No.2 argued that the dispute is between the appellant and respondent No.1/complainant. The respondent No.1/complainant has already paid entire instalments to respondent No.2/opposite party No.2 qua the financed vehicle, therefore, the loan amount stands repaid and NOC is issued in favour of the respondent No.1/complainant. No claim has been raised by the complainant against answering respondent. Finally, it is prayed that the appeal/complaint filed by the respondent No.1/complainant against respondent No.2 be dismissed.
12. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and have also gone through the record carefully.
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13. Brief facts of the case are that the respondent/complainant obtained a commercial vehicle package policy for his truck bearing Regn. No.RJ-14-GC-4176 from appellant/opposite party No.1 for the period 02.10.2014 to 01.10.2015 for an IDV of Rs.13 lacs vide Ex.C-3 and paid a premium of Rs.34,182/-. The said vehicle was hypothecated with respondent/opposite party No.2. The insured vehicle was stolen on the intervening night of 04/05.06.2015 while it was parked opposite MRF Tyre Agency in Mansa. The respondent No.1/complainant lodged the claim with the appellant/opposite party No.1 vide his letter dated 18.06.2015, Ex.C-7, which was repudiated vide letter dated 14.06.2018 with the following observations:
"1. Actual date of theft i.e. 04/05.06.2015, whereas you had informed our office on 19.06.2015 i.e., after 15 days of theft and lodged the FIR on 12.06.2015.
2. Further you had left the ignition key in the vehicle which is gross negligence on your part."
14. Now the issue is to decide whether the above repudiation of claim is in order or not? After receipt of the claim intimation, the appellant/opposite party No.1 appointed M/s Royal Associates to investigate the said case. On the basis of statements of the insured Hamir Singh, Driver Jaswinder Singh & others, the investigator concluded as under:-
"On the basis of above said findings and documentary evidence we are on the opinion that date, time and place of theft seems to be genuine. Truck was stolen on 04.06.2015. FIR was lodged after about six days i.e. on 12/06/2015. The
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insured could not provide any evidence that he informed to police immediately after theft. As per insured as well as driver statement ignition key was attached with ignition switch, which was stolen with truck. This is gross negligence on the part of insured, engine & chassis number of truck is not mentioned in FIR. Police investigation is still going on and untraced report is still awaited. Insurer may deal with the claim as per terms and condition of the insurance policy, keeping in the above said findings. This report issued without prejudice."
15. In the complaint filed in the District Commission, the complainant has not agitated the above conclusion drawn by the investigator.
16. As per the Insurance Policy terms and conditions No.1, it is provided as under:
"1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."
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17. In the instant case, the theft occurred on 04/05.06.2015 and the FIR was lodged on 12.06.2015 i.e. after 6 days of delay. As per the above provision, the insured was required to lodge FIR with the police immediately after the theft came to his notice to put the police machinery in motion to take the steps for recovery of vehicle. We rely upon the judgment passed by Hon'ble Supreme Court in
Civil Appeal No.653 of 2020 titled Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. wherein it is observed as under:
"15. We find, that the second part of Condition No.1 deals with the 'theft or criminal act other that the accident'. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the Insurance Company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.
16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to
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trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the Insurance Company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen."
18. Regarding second observation on the repudiation of claim, the only ignition key which was with the insured (received from the previous owner at the time of purchase) was left in the vehicle attached with the switch. The insured in his statement dated 01.07.2015, Ex.OP-1/2, stated that two keys of cabin lock are with him and will deposit with the appellant/opposite party at the time of settling the claim. However, only one key of the cabin was handed over which puts a question mark on the 2ndcabin key-whether the same was misplaced by the insured or the driver Jaswinder Singh left the cabin key also in the cabin lock? The District Commission on the statement of insured that two keys of cabin lock are in his possession and will deposit the same, wrongly corroborated the
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version of the complainant that door of the cabin was locked from outside in para 29 of the impugned order dated 11.04.2019. Leaving the only ignition key in the switch and unknown whereabouts of 2ndcabin key is a lapse on the part of the respondent/complainant/insured. As per terms and conditions of the Insurance Policy Clause 5;
"5. The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
19. We are further fortified with the judgment of the Hon'ble National Commission passed in the case of Mahvir Prasad Gupta and Sons Vs. Oriental Insurance Co. Ltd., reported as 2017(1) C.P.R. 117 wherein it has been observed as under:
"Consumer Protection Act, 1986, Sections 17, 19 and 21 Consumer laws - Insurance Policy-Theft of Truck- Repudiation of claim - On ground that keys of vehicle were left in ignition socket at the time of incident and theft was facilitated due to negligence of complainant-Complaint filed before State Commission-Dismissed- Hence, appeal before National Commission - If keys of vehicles are left inside ignition socket, it amounts to grave negligence on part of complainant- In present case, complainant has nowhere
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stated in consumer complaint that keys were taken away by driver when he went to attend the call of nature, after parking vehicle on roadside - That apart, appellant has not been able to give any cogent reasons as to why there was delay in filing appeal- No illegality or jurisdictional error in the order passed by State Commission- Appeal dismissed on ground of limitation as well as on merits."
20. In view of the above discussion, we are of the opinion that the repudiation of claim on account of delay in lodging the FIR with the police and leaving the ignition key in the switch is in order and is a violation of the terms and conditions of the policy. There is no liability of the appellant/Insurance Company to pay the claim.
21. Sequel to the above, the appeal is allowed and the order passed by the District Forum is set aside resultantly the complaint filed by the complainant before the District Commission is also dismissed.
22. The appellants had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.12,75,000/- vide receipt dated 1821504 dated 26.07.2019 in compliance of the order dated 18.07.2019 This amount, along with interest accrued thereon, if any, shall be remitted by the Registry to the appellant / opposite party No.1, after the expiry of 45 days of the sending of certified copies of the order to them in accordance with law. The Registry is further directed to remit the amount of Rs.4,400/- deposited as costs, to respondent No.1/complainant, if not already remitted, in pursuance to the interim order dated
03.07.2019.
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First Appeal No.285 of 2019
23. This appeal has been filed by the complainant/appellant, challenging the order dated 11.04.2019 passed by the District Commission, Bathinda, wherein the complainant prayed for enhancement of claim by modifying the order of the District Commission.
24. In view of the detailed discussions in First Appeal No.388 of 2019, the appeal bearing F.A. No.285 of 2019 filed by the appellant/complainant is dismissed.
25. Arguments in these appeals were heard on 08.11.2021 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
26. The appeals could not be decided within the statutory period due to heavy pendency of the court cases.
(RAJINDER KUMAR GOYAL)
PRESIDING MEMBER
(KIRAN SIBAL)
MEMBER
November 25th, 2021
parmod
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