Orissa

Kendujhar

CC/25/2016

Ramanandan Sahu - Complainant(s)

Versus

1. Branch Manager, National Insurance Co. Ltd. - Opp.Party(s)

Sri G.N. Jena & S.C. Sahu

22 Feb 2017

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 25 OF 2016         

 

     Ramanandan Sahu, 51 yrs.

     S/o: Late Chintamani Sahu,

     At/P.O: Arshala, P.S: Jhumpura,

     Dist: Keonjhar (Odisha)……………………………………………………..Complainant

                              Vrs.

1. Branch Manager,

     National Insurance Co. Ltd.

     Keonjhar Branch Office,

     At: Jagannathpur, Opp. New Court Building,

     P.O: Kendujhargarh, Dist: Keonjhar

2. Divisional Manager,

     National Insurance Co. Ltd.

     Divisional Office 1, Cantonment Road,

     Cuttack - 753001…………………………………………………………….Op. Parties

PRESENT:

     Shri Purushottam Samantara, President

     Smt. B. Giri, Member (W)

     Advocate for Complainant- Sri G.N. Jena & S.C. Sahu

     Advocate for OPs- Sri P.K. Pothal

___________________________________________________________________________________________ 

Date of Filing - 30.12.2015                                                                                              Date of Order-22.02.2017

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. Succinctly say, the complainant owned a TATA 3118 31.O LPT TC and obtained a package (Goods carrying) (Other than Three wheeler policy) from National Insurance Co. Ltd. Keonjhar.

2. Said, the Policy No. 55270031126300006484, the policy tenure retains from dt.26.08.2012 to 25.08.2013. The policy was laid down in expressed terms and condition and was plying to earn his livelihood at Keonjhar.

3. The complainant also submitted, unfortunately the noted vehicle bearing Regd. No. OR-09P-9576 got stolen in intervening night on dt.13.11.2012 and 14.11.2012 at New colony, Dangal Dhaouna, Jharkhand, the occurrence has been reported with police- Jharapokhar (Sudamdih) under P.S. Case No. 236/12 U/s.379 IPC.  

4. Further averred, the vehicle costs Rs.19,86,824/- and financed by TATA MOTORS FINANCE LTD and added the loan has been repaid in onetime settlement option mode and NOC has been obtained.   

5. Further submitted as due to theft occurrence, the arising claim under the Insurance settlement has been repudiated on a vague plea, that the clause 5 of the expressed terms and conditions has been violated and not adhered with. Thus the repudiation of a huge amount claim by the Insurer compelled him to avail redress under Consumer Protection Act. Praying the claim complaint is not nurtured judiciously. Out right repudiation made on the date of 08.12.2014 on the basis Investigator report is illegal arbitrary and preposterous. Humbly assents to pass a direction to pay the admitted IDV value with reasonable cost and compensation.

6. Reliance made on RC book, National Permit, Policy Certificate, Repudiation, Finance settlement documents etc. and affidavit.

7. Consequent on notice, the OPs appeared in filing version in admission that the vehicle no in question is issued with policy as advanced. The theft occurrence as happened is matter of contention and submitted the case is not maintainable being barred resjudicata, limitation, no cause of action and non -joinder of parties inter alia gross violation of policy condition.

 8. Submitted, the person named Pappu Verma, who made complaint on the matter of theft at Jharpokhar Police station, is a stranger and transfer of the vehicle to him without any agreement is suspicious and not believable taking the situation under warrant.

9. As to the matter of theft, the investigation conducted at Insurer is end surrounds in surreptitious act of conniving nature, the complainant being a relative of the informant in P.S. Case 236/2012 further aggravates the occurrence is far from truth.

10. Further to say since transfer of vehicle to Pappu Verma, the complainant has not made any contract on the day to day hiring affair and safety of the vehicle that to in a farfetched isolated area. Not giving adequate precaution for safe guard of the high value truck is clear cut cause of violation of policy condition and cunningly hatched design by the relatives to gain from the Insurer. So in the circumstance discounting the claim “As No Claim” is just and proper. Even when Ombudsman passed under this court has no jurisdiction to act further being discarded as a case having no merit.

11. Also contended the issue can’t be raised twice Neither deficiency of service nor unfair trade practice is apparent to adjudicate, the claim of the complainant is baseless having no legal equitable basis, the OP is not liable to pay rather under the circumstance deserve to be dismissed with cost.    

12. Heard the learned counsels & arguments in extensive manner and perused the material on record.

13. The core question revolves on the matter of theft and maintainability.

14. One the outset it is no more dispute that Policy No. 55270031126300006484 has been issued to the complainant, so in giving premium, the Insured is a consumer. Further observed, the vehicle Regd. No. OR-09P-9576 has been retained with a National permit. So the Insured plying the truck throughout India is no more illegal nor contravenes the expressed terms and conditions rather permitted under the National Permit to exercise the right and provisions under the Orissa Motor Vehicles Rules 55, so we assumed plying the vehicle for the purpose as mentioned therein is no more illegal or contravention of any nature in other area of the country. Again resisting the “No Claim” on the issue of cause of action, limitation and jurisdiction no supportative document has been filed. In other hand raising the issue of Res-judicata as the case has taken before the Ombudsman and order has been passed same contention is no more tenable in view of the judgment- Kamleshwari Prasad Singh Vs National Insurance Co. Ltd.- Held- “Role of Ombudsman is to investigate individuals’ complaints against the maladministration, especially that of Public authorities, he does not discharge any judicial or quasi-judicial function.”

15. The other contention raised the OPs is that transfer of a vehicle to a remote area of another without any document is as vulnerable to willful dislocation which tantamount to voluntary non-disclosure of the property and investigation report establish, same vehicle was not guarded during a festival time such unguarded action attracts clause-5 of the Commercial Vehicle Package Policy, breach of terms and conditions as laid down therein as “the Insured has failed to ensure reasonable steps to safeguard the vehicle”.

16. On this context we prefer to place reliance on the decision National Insurance Co. Ltd Vs Nitin Khandelwal, 56(iv)2008 CPJ I (SC) that “In case of theft of vehicle, breach of condition as not germane”, same view is further taken on the “Vishnu Bhagwan Mittal Vs Bharati AXA General Insurance Co. Ltd. decided on 28^th April 2016. So it is settled the breach of policy condition is not an impediment in setting the issue before us.

17. On the other side, we decline to accept the Investigator Report in view of the judgment - National Insurance Company Ltd Vs Ajay Kanwar, 2008 (20) CLT 402 NC, in which it is held that the Insurance Act permits appointment of surveyors and they are licensed by the I.R.D.A - Appointment of an Investigator is neither backed by any statute nor are they licensed by any regulatory Authority.

(ii) Insurance Company not relying upon the report of surveyor and repudiating the claim, while relying solely upon the report of the extra legal authority i.e. Investigator - Not tenable- New India Assurance Co. Ltd. V/s Shree Shyam Cotspin Ltd. 2009 (20 CLT 131 (NC).

18. On the further submissions in the respective pleadings we find considerable force in the argument as urged by the learned counsel of the complainant and their placed reliance. On that basis we place reliance on the settled principles that the four members Bench of the National Commission in “National Ins. Co. Ltd. versus Prem Chand” decided on 12.3.2001, II (2001) CPJ 60 (NC) that where the terms and conditions ofthe policy were violated, the insurance companies settled the claim on “non-standard” basis. The relevant portion of the same is reproduced:-          

“Following types of claims shall be considered as non-standard and shall be settled as indicated below are recording the reasons:-

Sr. No.	Description	Percentage of settlement
(i)	Under declaration of licensed carrying capacity	Deduct 3 years’ difference in premium from the amount of claim or deduct25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/ condition of policy including limitation as to use	Pay up to 75% of admissible claim.

 

The IDV value of the vehicle                                        Rs.19,86,824/-

 75% of the IDV comes to                                             Rs.14,90,118/-

(-) Policy excess                                                              Rs.2,500/-

_________________________________________________________

     Net Total -                                                                  Rs. 14,87,618/-

                   

       In view of the above noted findings, we subscribe the principle as laid down in various authorities and considered the claim is allowed and entitled to be paid in favour of the petitioner. The petitioner is entitled to claim and also to receive the amount in view of the onetime settlement offer made consecutively paying Rs.5,70,000/- towards full and final closer of the captioned amount and issuance of “NOC” on dated 01.03.2016 that reads-

 “As we have received the full HIRE PURCHASE/ LEASE/ HYPOTHICATION Dues, we hereby request that the HIRE PURCHASE/ LEASE/ HYPOTHICATION endorsement in our favour in the certificate of Registration may be cancelled”. Thus,

                                                                     

O  R  D  E  R

 The case is allowed on contest. The OPs are hereby directed to disburse a sum of Rs.14,87,618/- (Fourteen lakh eighty seven thousand six hundred eighteen) to the petitioner towards his claim, along with Rs.2000/- (two thousand) as compensation for harassment and mental agony sustained within five weeks of this order, failing @6% per annum interest will accrue on the principal sum till realization.

(ii) No order as to cost.

 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 22^nd February 2017.          

                                                                                                                                                            

                   I agree                                                                            

             (Smt. B. Giri)                                                                                     (Shri Purushottam Samantara)

            Member (W)                                                                                                         President                    

         DCDRF, Keonjhar                                                                                             DCDRF, Keonjhar                                                   

          

                                                                                  Dictated & Corrected by me

                                                                                (Shri Purushottam Samantara)

                                                                                          (President)

                                                                                     DCDRF, Keonjhar