ORDER (DR.R.K.DOGRA, PRESIDENT)
The instant complaint has been filed by complainant Pawan Kumar against the opposite parties u/s 12 (Now 35) of the Consumer Protection Act seeking insurance claim in question along with interest and costs.
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FACTUAL ASPECTS
2 The brief facts of the present complaint are that the complainant had purchased a Bolero Car bearing Regd. No. HR-66A-5082 and he had got the same insured through opposite party No.3-Agent with the Opposite parties No.1 & 2- Insurance Company vide insurance policy bearing No.14010331170100022460 effective from 07.02.2018 to 06.02.2019 with IDV of Rs.4,50,000/-. Unfortunately, the vehicle in question was stolen during the intervening night of 26/27.04.2018 at
1.00 O'clock when it was parked near Ramanand Dharamshala, Narnaul at 11.00 PM. The complainant made a telephonic call on Telephone No.100 to the police and accordingly, FIR bearing No.202 dated 27.04.2018 was registered by City Police, Narnaul u/s 379 IPC. All the original documents were lying in the stolen vehicle. It has been further averred by the complainant that the opposite parties were also intimated about the theft of the vehicle in question. After receipt of the information, the opposite parties-Insurance Company deputed Surveyor, who visited the spot and on the advice of the surveyor, the original keys alongwith documents were deposited with the office of the opposite parties at Rewari. The surveyor also assured the complainant that his claim will be settled very soon. The police submitted the Final Untrace Report on 16.08.2018 and the same was accepted by the Learned Court and on receipt of the certified copy of the same from the learned Court on 29.04.2019, the complainant submitted the Final Untrace Report with the office of the opposite party No.2 but the opposite parties have not paid any claim amount to the complainant despite so many requests. Lastly, the complainant got served a registered legal notice on 16.08.2019 upon the opposite parties. The said notice was relied by opposite party
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No.2 on false facts mentioning therein that the complainant has informed the insurance company about the theft of the vehicle after a delay of 102 days, which is totally wrong rather the complainant has immediately informed the insurance company. Thus, there was gross deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint has been filed by the complainant with the prayer for directing the opposite parties to pay Rs.4,50,000/- as cost of price of the vehicle along with interest
3 Upon notice, opposite parties No.1 & 2-Insurance company appeared and filed their joint written statement mentioning therein that the present complaint is not maintainable before this Commission. The complainant has not come before this Commission with clean hands. The complainant is not entitled for any claim because the claim was lodged by the complainant with the insurance company after the delay of 102 days of the alleged theft and thus, terms and conditions of the insurance policy were violated by the complainant and as such, the claim of the complainant was rightly repudiated by the opposite parties-insurance company. Hence, the present complaint may kindly be dismissed with costs.
However, despite service, Opposite party No.3-Agent did not turn up before this Commission and hence, he was proceeded against exparte vide order dated 24.10.2019.
EVIDENCE LED BY COMPLAINANT
4 In support of his case, learned counsel for the complainant has tendered in evidence the affidavit of complainant as Annexure CW/A and following documents:
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Photocopy of :-
Legal Notice Annexure C-1 Original Postal Receipts Annexure C-2 to C-4 Retail Invoice dated 07.02.2014 Annexure C-5 Sales Certificate dated 07.02.2014 Annexure C-6 Temporary Registration Certificate Annexure C-7 Registration Certificate No.HR-66A-5082 Annexure C-8 Insurance Policy Annexure C-9
First Information Report (FIR) Annexure C-10 Certified copy of order dated 24.04.2019 Annexure C-11 Passed by Hon'ble CJM, Narnaul
Final Report Annexure C-12
Final Report Form Annexure C-13
Aadhaar Card of complainant Annexure C-14 Intimation given to insurance company Annexure C-15 RTI letter dated 16.09.2019 with Annexure C-16 Call detail supplied by police
and closed the evidence on behalf of complainant.
EVIDENCE LED BY OPPOSITE PARTIES
5 On the other hand, learned counsel for the opposite parties has tendered into evidence the affidavit of Sh.P.R.Gupta, D.M., New India Assurance Company as Annexure RW1/A and following documents:-
Photocopy of :-
Legal Notice Annexure R1/1
Reply to legal notice Annexure R1/2
Intimation letter given by complainant Annexure R1/3
Letter dated 11.02.2019 Annexure R1/4
Letter dated 18.01.2019 Annexure R1/5
and closed the evidence on behalf of OPs.
6 After considering the arguments and perusing the whole documents placed on file by both the parties, the following points have been found to be made out:-
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1 Whether the complainant is entitled to recover the claim amount along with interest etc? OPC
2 Whether the complaint of the complainant is not maintainable in the present form OPR?
STAND TAKEN BY THE COMPLAINANT
7 Learned counsel for the complainant has contended that he had purchased Bolero Car bearing Engine No.GHD4M71685, Chassis No. MA1XA2GHKE5A42671, Regd. No. HR-66A-5082, which was parked by him near Rama Nand Dharamshala, Narnaul from where the same was stolen by some unknown person and due intimation was given to the police at Phone No.100 and FIR was registered against unknown person and thereafter intimation was given to the insurance company who had sent surveyor. All the documents and keys were handed over to the surveyor and after receiving Untrace Report, the matter was explained to the insurance company. The vehicle in question was duly insured from 07.02.2018 to 06.02.2019. As the vehicle was insured and vehicle could not be traced by the police despite so many efforts, so, in view of the terms and conditions mentioned in the insurance policy, the complainant is entitled for receiving the price of the Bolero in question along with interest as the same has not been paid by the insurance company despite so many efforts made by the complainant. So, the present complaint may kindly be accepted and the opposite parties be directed to make all the payments along with interest and costs.
STAND TAKEN BY THE OPPOSITE PARTIES
8 On the other hand, learned counsel for the opposite parties No.1 & 2- Insurance Company has contended that although the vehicle in question was stolen by some unknown person and the same was insured with the opposite parties-
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insurance company but the first and foremost condition of the insurance policy was to intimate the insurance company regarding theft forthwith which means without any delay but the complainant has informed the insurance company after the delay of about 102 days of the occurrence without any reasonable cause. On this score only, the present complaint of the complainant is liable to be dismissed with special costs.
9 We have heard the arguments advanced by the learned counsel for the parties and perused the whole record available on file. Our point-wise findings with reasons thereof are as under:-
FINDINGS
POINT NO.1
10 In order to substantiate this Point No.1, the complainant has placed on file all the necessary documents Annexure C-1 to C-16 explaining each and everything from beginning to end. It has been established by the complainant that his vehicle was insured from 07.02.2018 to 06.02.2019 and he had paid the premium amount of Rs.13,317/-. It is also established on file that the vehicle was parked near Ramanand Dharamshala, Narnaul on 26.04.2018 at about 11.00 P.M. and at about
1.00 O'clock the vehicle was found to be stolen by some unknown person. So, in the intervening night of 26/27.04.2018 the intimation was given on Phone No.100 to the police regarding theft of the vehicle in question. On the basis of information and application moved by the complainant on 27.04.2018, FIR No.202 u/s 379 IPC was registered by police and all the necessary documents were also furnished with the police.
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Due intimation was given to the insurance company regarding theft and all the documents were submitted, on the basis of which the insurance company had sent surveyor, who inspected the spot and placed his report. As per the record FIR no.202 u/s 379 IPC was prompt and final report was submitted on 16.08.2018 and the final report was received on 29.04.2019. So far as the untrace report is concerned, that was accepted by the Court on 24.04.2019 and thereafter that order along with untrace report was also handed over to the insurance company. So far as regarding sending intimation to the insurance company after the delay of 102 days is concerned, although there is provision in the insurance policy that report should be prompt one and intimation should have been given forthwith to the insurance company, it can also be seen that the complainant is a poor villager and roughen, who does not know about the ins and outs of the law and he was even unable to read all the terms and conditions of the insurance policy. The Hon'ble Supreme Court of India in case Dharmender Vs United India Insurance Co. Ltd & Ors in Civil Appeal No.5705 of 2021 decided on 13.09.2021 has categorically held that :-
"Although delay of 78 days was not explained and the complainant has failed to make a case that there was delay in intimation due to unavoidable circumstances as per the IRDA circular."
But as per document placed on file FIR was registered on 26.04.2018 at Phone No.100 and the application was given on 27.04.218 to the police. Intimation was given to the insurance company who appointed surveyor and the surveyor also made his report but it cannot be said that mere sending intimation to the insurance company after a
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delay is a ground for rejection of the complaint. The Hon'ble Ape Court had affirmed the order passed by District Forum, as affirmed by State Commission and compensation was awarded to the complainant ignoring the delay of 78 days.
11 Coming to the case in hand, in this case due intimation was given to the police and FIR was recorded promptly. All the documents were handed over to the surveyor and no other instance could be shown by the insurance company that they are not liable for making payment to the complainant. At the same time, the vehicle was duly insured and the complainant has fully paid the premium and as per terms and conditions of the insurance policy, the complainant is entitled for getting the cost of the vehicle at the time of its theft. As per the surveyor report the price which was assessed by the surveyor is liable to be paid to the complainant and which is also mentioned in the insurance policy. All the facts and circumstances of the case, which are is duly proved by the complainant by leading cogent and convincing evidence are duly supported by documents Annexure C-1 to C-16. Accordingly, this Point No.1, which is duly proved by the complainant, is hereby returned in favour of complainant and against the opposite parties.
POINT NO.2.
12 So far as the Point No.2 is concerned, once it has been established by the complainant that he is entitled for seeking compensation/cost of Bolero then certainly this Point No.1 becomes redundant. At the same time, no cogent and convincing evidence could be led by the opposite parties that how the complainant is not entitled for seeking any compensation at all rather this Issue No.2 has also been disproved by the complainant by showing entire evidence in his support. Hence, this
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Point No.2 is hereby returned against the opposite parties and in favour of complainant.
FINAL ORDER
13 Having heard the rival contentions raised by learned counsel for both the parties and after perusing the whole record, this Commission is of the firm opinion that the complainant is entitled for the Insurance Declared Value i.e. IDV from the opposite parties. Hence, it is ordered that the opposite parties shall pay Rs.4,50,000/- as IDV of the vehicle in question to the complainant along with interest @ 7 % p.a. from the date of filing of the present complaint till its actual realization, subject to furnishing of letter of subrogation, indemnity bond, Form No.28, 29 & 30 etc. by the complainant. The opposite parties are further directed to pay Rs.5,000/- to the complainant on account of compensation as well as Rs.5,000/- as counsel fee within a period of 45 days, failing which the complainant will be at liberty to initiate proceedings against the opposite parties u/s 71 & 72 of the Consumer Protection Act, 2019 and even he will be entitled to recover the IDV with interest @ 9 % p.a. from the date of order till its actual realization. Certified copies of the order be sent to the parties as per rules. File be consigned to the record room after due compliance. Announced in Open Court (Dr.R.K.Dogra)
Dated: 11.05.2022 President,
(Jyoti Siwach) (Guru Datt Goyal) District Consumer Disputes
Member Member Redressal Commission,
Narnaul
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