DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK

                                                Present:  1. Sri Raghunath Kar, President

                                                                     2. Miss Pratima Singh, Member                                                                     

                      Dated the 30^th   day of September,2015  

                                C.D.Case No.69 of 2014 

Dhaneswar Malik, aged 39 years,

S/o: Baidhar Malik

At: Matipaka, PO: Matipaka,

PS:Naikanidihi, Dist:Bhadrak

                                          …………………….Complainant

                  (Vrs.)

1.         Branch Manager,

            New India Assurance Co.Ltd.,

            At:Kacheri Road, PO/PS/Dist:Bhadrak

2.         Branch Manager,

            State Bank of India, Jamujhadi Branch

            At/PO:Jamujhadi,Dist:Balasore

                                          ………………………..Opp.Parties

For the Complainant : Sri  J.B. Agasti &  Rabinarayan Kar, Advocates

For the Opp.Parties    : Sri A.K.Chand, Advocate for O.P.No.1

                                        Sri S.K.Mishra & another, Advs.for O.P.No.2

Date of hearing           : 13.07.2015

Date of order               : 30.09.2015

SHRI RAGHUNATH KAR,PRESIDENT:

1. Deficiency in service in respect settlement of Insurance Claim is the grievance of the Complainant.
2. Briefly stated, the case of the Complainant is that he purchased Tata Tipper Truck bearing Regn.No.OR-22D/0614 in the year 2010 with the financial assistance from O.P.No.2-Bank. Unfortunately, on 25.12.2012 at about 2 PM night, the said vehicle was stolen from Sabarang Bazar. Thereafter, Complainant filed complaint case bearing No.822/2012 before the Ld. SDJM, Bhadrak and the said case was sent to Bhadrak(R) Police Station u/s.156 Cr.P.C. for investigation and now the said case is pending for submission of Final Form. The said vehicle was validly insured before O.P.No.1 for the period from 30.11.2012 to 29.11.2013.  As the vehicle of the Complainant was stolen on 25.12.2012 i.e. within the policy period, the Complainant lodged a claim before O.P.No.1. After lodging the claim, the Complainant on several occasions visited the office of the O.P.No.1 and requested the staff for settlement of claim but in vain. On the other hand the O.P.No.2-Bank issued notice on 08.07.2014 under the SARFAESI Act for attachment of immovable properties sands in the name of Complainant. In the said notice the Complainant has been directed to pay Rs.17,17,850/- within 60 days. Finding no other alternative the Complainant met his Advocate who accordingly on 20.08.2014 sent notice to O.P.No.1 claiming insured amount of Rs.9,80,000/- within 15 days. On the other hand the O.P.No.1 in his letter dt.22.08.2014 repudiated the claim of the Complainant on the ground of delay in lodging the claim. So alleging deficiency in service on the part of O.P.No.1 the Complainant filed this case on 10.09.2014 claiming Rs.9,80,000/- towards sum assured, Rs.10,000/- towards expenses incurred in visiting the office of O.P. & for written communication, Rs.7,00,000/- towards mental agony, harassment and deficiency in service, Rs.10,000/- towards cost of litigation & Rs.2,00,000/- towards interest component, all totaling to Rs.19,00,000/-.
3. O.P.No.1-Insurance Company filed their written version challenging the maintainability of the complaint before this Forum. According to O.P.No.1, the alleged vehicle in question was stolen on 25.12.2012 as stated in the letter dt.11.08.2014 and notice dt.20.08.2014 sent by the advocate for the Complainant. This fact alone creates a doubt that the case is a manufactured one and the Police has not been informed and for which the present case was masterminded after filing a complaint case before the Magistrate. The insured also did not lodge claim addressing the insurer with all promptness that his TATA TIPPER bearing Regn.No.OR-22D-0614 has been stolen so that the insured could have investigated the matter at the earliest  and the advocate notice sent after one year and seven month itself is the suggestive of the fact that the case is a creature of afterthought. There is no information regarding the progress of the Police case. When it is mandatory that the matter is to be reported to the insurer immediately but no information has been given in a reasonable time to the insurer for which the present complaint does not merit consideration.
4. O.P.No.2-Bank in their written version submitted that the Complainant and his three brothers namely Karunakar Malik, Sudhakar Malik & Pravakar Malik approached  the O.P.No.2 for grant of a Term Loan of Rs.4,87,000/- as per his loan application dt.30.06.2009, which was sanctioned in his favour on 04.07.2009. The alleged vehicle has been hypothecated with the O.P.No.2. The term loan amount and interest was to be repaid in 58 monthly instalments of Rs.11,300/- and the first of such instalment was to commence from 04.09.2009. The borrower Complainant executed an Agreement of Loan-cum-Hypothecation dt.04.07.2009 along with Hypothecation confirmation letter and his brothers named above stood as Guarantors by executing a Guarantee Agreement. Subsequently, the Complainant along with his above three brothers approached O.P.No.2 for grant of another Term loan of Rs.11,80,000/- as per his loan application dt.17.11.2009 which was sanctioned in his favour on 07.12.2009. As per terms and conditions, the alleged vehicle has been hypothecated with O.P.No.2. The term loan amount and interest was to be repaid in 59 monthly instalments of Rs.26,550/- and the first of such instalment was  to commence from January,2010. Soon after execution of loan documents the Complainant availed the term loan amount and purchased TATA Tipper Truck and engaged the same in commercial business. Throughout the period in his business the Complainant became irregular in depositing monthly instalment amount and committed breach of contract. According to O.P.No.2 repudiation of insurance claim being a subject matter concerning to O.P.No.1, the O.P.No.2-Bank has been wrongly and illegally arrayed as O.P.No.2 in this dispute for which they prayed for dismissal of the complaint.
5. We have examined the entire material on record and given thoughtful consideration to the arguments advanced before us. The admitted facts of the case are that the Complainant purchased Tata Tipper Truck with the financial assistance of O.P.No.2-Bank for a sum of Rs.11,80,000/- on 17.11.2009.The said Tipper bearing Regn.No.OR-22D/0614  was  insured  for a sum of Rs.9,80,000/- before O.P.No.1 for the period from 30.11.2012 to 29.11.2013 vide Policy No.55080131120100003300. Unfortunately, the said Tipper was stolen on 25.12.2012 at about 2 PM from Sabarang Bazar. Thereafter, the Complainant filed Complaint Case bearing No.822 of 2012 before the Ld.SDJM, Bhadrak and the said case was sent to Bhadrak (R) Police Station u/s.156 Cr.P.C. for investigation and the said case is now pending for submission of Final Form. Complainant said to had intimated about theft of his vehicle and filed Claim Form before the O.P.No.1-Insurance Company but his claim was not settled. In the meanwhile, the O.P.No.2-Bank issued notice on 08.07.2014 under section 13(2) of the  SARFAESI Act,2002 claiming Rs.17,17,850/- from Complainant within 60 days failing which  action shall be taken for attachment of immovable properties stands in his name. Complainant sent Advocate’s Notice on 19.07.2014 to Regional Manager, SBI, O.T.Road, Balasore for taking necessary action against the Policy for settlement of loan with copy to O.P.No.1-Insurance Company.  The O.P.No.1-Insurance Company after receipt of the said letter repudiated the claim in their letter dt.21.07.2014 on the ground of delay intimation of claim after 1(one) year 7(seven) months from the date of occurrence of theft which deprived them to investigate the incident.  Thereafter, the Complainant sent Advocate’s Notice to O.P.No.1 on 20.08.2014 claiming compensation amount of Rs.9,80,000/- and the O.P.No.1 suitable replied  referring to  previous  repudiation letter dt.21.07.2014  that the Complainant violated commercial vehicle Policy condition No.1 & 5 of the issued policy for which claim for compensation is not all admissible. So finding no other alternative the Complainant filed this case on 10.09.2014.  
6. The Ld.Counsel for Complainant during course of hearing submitted that immediately after stolen of the vehicle on 25.12.2012, the Complainant intimated the Police but due to inaction of the Police, he filed the ICC case No.822 of 2012 and also submitted an application for claim before the O.P.No.1.  On several occasion the Complainant visited the office of O.P.No.1 and requested for early settlement of the claim.  But the Complainant could not keep any receipt showing lodging of claim before O.P.No.1. So taking the advantage of such situation, the O.P.No.1 repudiated the claim on the ground of delay intimation.  He further submitted that the policy paper issued to the Complainant does not indicate any hard or fast rule or condition in respect of lodging of claim within a particular period. As such, the plea of O.P.No.1 that the Complainant had not lodged the claim with all promptness is not tenable in the eye of law.
7. On the contrary the Ld.Counsel for O.P.No.1-Insurance Company strenuously contended that the Complainant has not intimated the Police nor the insurer soon after the theft. He further submitted that as per Indian Motor Traffic conditions, in case of theft of vehicle, FIR is to be lodged immediately, intimation be given to policy issuing office with a copy of FIR, Final Police Report is to be submitted as soon as it is received and   full co-operation be extended to the surveyor and/or investigator appointed by the Company which the Complainant has not done in the instant case and violated the I.M.T. conditions mentioned in the policy. The Complainant in order to suppress the truth has chosen a circuitous way by filing ICC with an intention to delay the investigation regarding theft. Further, if at all the Ld.SDJM directed for investigation, why the investigation report is not forthcoming or why the Complainant did not pursue the matter in the Court for any action on the complaint?  Hence, the O.P.No.1 prayed for dismissal of the complainant as no deficiency of service has been committed by them.

7.                     Admittedly, no FIR was lodged in the Bhadrak Town Police Station by the Complainant about theft of his vehicle near Sabarana Bazar on 25.12.2012 at about 2 PM.  On the other hand the Complainant filed ICC No.822 of 2012 before the Ld.SDJM, Bhadrak on 26.12.2012 as is revealed from the certified copy of order sheets filed by the O.P.No.1.  On 26.12.2012 in ICC No.822 of 2012 the Ld.SDJM, Bhadrak directed the IIC, Bhadrak (Rural) PS to treat the complaint petition as FIR and to investigate into the matter after registration of the case and filing of Final by the in the aforesaid ICC No.822 of 2012 and further date was fixed to 07.10.2015 for filing of report of Police. As such, instead of filing FIR before the Town P.S. directly, the Complainant has filed complaint case before the SDJM, Bhadrak on the next date/same date of theft on 26.12.2012. Therefore, no delay has been occasioned in lodging complaint case before the Ld.SDJM, Bhadrak immediately after occurrence of the theft.  Non-lodging of FIR in Police Station might be either due to ignorance of the Complainant or due to improper advice. Further, the Complainant has stated to have intimated the insurer about theft of the vehicle immediately but could not obtain the acknowledgement from O.P.No.1. Apart from the above, if no Final Form is submitted by Police, the Complainant cannot compel the Police to submit the F.F..  It is not beyond the knowledge of O.P.No.1 that ICC has been filed before the Ld.SDJM, Bhadrak for theft of his vehicle. So we do not understand what prevented the O.P.No.1 to ask the Police to file Final Form if the Complainant failed to pursue for any action in the Court. It is no doubt true that insurance is obtained for indemnification of claim. It is found from record that the O.P.No.1 has repudiated the claim of the Complainant on 21.07.2014 immediately after receipt of copy of Advocate’s Notice dt.19.07.2014. This shows the intention of O.P.No.1 how and under what circumstances without proper investigation of the incident by their own agency repudiated the claim of Complainant when ICC No.822/2012 was pending before the Ld.SDJM. So repudiation of claim without investigation and proper application of mind by O.P.No.1 amounts to deficiency in service. Accordingly, it is ordered:

                                                      O R D E R

                        Resultantly, the complaint is allowed on contest against O.P.No.1 and dismissed against O.P.No.2. The O.P.No.1 is directed to pay the sum insured i.e. Rs. 9,80,000/- to the Complainant with interest @ 9% per annum from the date of repudiation i.e. 21.07.2014 along with litigation cost of Rs.2,000/- within a period of 30 days of receipt of this order.