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

        KENDUJHAR

CONSUMER COMPLAINT CASE NO 14 OF 2017

 

Chandra Sekhar Dey, aged about 36 years,

S/o: Chittaranjan Dey,

At/P.O: Serenda, P.S: Barbil,

Dist.: Keonjhar-758035, Odisha……………………………………………………………………………………….Complainant

                            Vrs

 

1. The Branch Manager,

Oriental Insurance Company Ltd.

Barbil Branch, At: Main Road, Barbil,

P.O/P.S: Barbil, 

Dist.: Keonjhar-758035, Odisha

2. Divisional Manager,

The Oriental Insurance Company Ltd.

Gaffor Colony, Udit Nagar,

Rourkela, Sundargarh, Odisha………………………………………………………………………………………...Op. Parties

 

         Present:

  Shri Purusottam Samantara,President

  Smt. B.Giri Member(W)

 

     Advocate for complainant-R.R Rana & associate 

Advocate for O.P   -            P.K. Pothal

 

Date of  filing- 08.03.2017                                                                              Date of order- 30.08.2017

1. Sri Purusottam Samantra-The complainant  owned a truck bearing Regd No-OR-09K-7219. The vehicle was financed by Tata Motors Finance Ltd in maintain of his livelihood.

 

2. The complainant also submitted, the truck while unloading Iron Ores at Barbil Railway siding two unknown person rendered assistance and while on way at Serenda petrol pump inforce stop the vehicle and fled away with the vehicle assaulting the driver at gun point.

3.  Further stated that the incident is reported to Barbil Police Station. Intimated the matter to Insurer on Dt 29.12.2011. The P.S Case No -01/2012 and claim No- 31/2012/000075. 

4.  Further also submitted the Insured vehicle’s Policy No- 345506/31/2012/347, which was valid from     dt 14.05.2011 to 13.05.2012. The incident occurred during subsistence of policy .The driver retained a valid driving license   bearing No-2500900/4519 along with permit, fitness and Registration.

 

5.  It is also said although survey ensured but claim is not yet settled, which is an unfair trade practice as the claim is neither repudiated nor allowed the claim so far. The callousness in settlement amounts to deficiency of service. 

6.  Prayed a direction be passed against intentional delay causing harassment and mental agony. Relied on F.I.R , R.C Book, Insurance Policy, Road Permit , Fitness certificate, D/L and investigation report in photocopies and affidavit.

7.  On notice, the O.P appeared and contested the case in contending that the case is not maintainable as the case is bad for nonjoinder as well as misjoinder of parties & no cause of action to ensue.

 

8.  On the other hand admitted, it is a fact the alleged vehicle was insured with this O.P, the case being a nature of total loss has been sent to process in regional and head office hub, so is the delay for which the delay caused in repudiation or in settlement.

 

9.  Further submitted, it is a fact the Insured has delayed seven days in lodging F.I.R from the date of occurrence. Above all the alleged vehicle was a goods carrying vehicle and allowing to unknown person to travel in the vehicle was a violation of policy terms & conditions as the unauthorized passenger has hijacked or fled away with the vehicle, the loss being nature of OD claim is no more admissible.

10.   Further averred, it is worthwhile to submit that the Insured had intimated to the O.Ps on             dt 05.01.2012 while the incident occurred on 28.12.2011 at about 9.30pm hence intimating the matter of theft made not within 48 hours from the date of loss as per terms & condition of policy .So also No Engine or Chassis No has been mentioned in F.I.R as the Engine No and Chassis No are entirely different in R.C Book. 

 

11.  It is said, there is no genuiness  in the alleged claim against this O.P. In the above circumstance, the claim of the petitioner deserves to be dismissed being baseless and intentional violation of the policy. 

12.  Relied on policy certificate, Investigation report, RC Book and F.I .R in photocopies.

 

13.  Heard the learned counsels and perused the materials on record.

14.  Perusal of record reveals, the policy issued by the insurer is commercial vehicles package policy-zone C, retained the policy No- 345506/31/2012/347. Relating to model No- TATA SK 1613 TC TIPPER, Engine No- 373134ERZ118392 and the Insurance covered is valid from dt 14.05.2011 to 13.05.2012. where as the Engine No and Chassis No- is different in RC Book, the irregularity and discrepancy not evidenced  to the core in the right manner although  the permit is valid up to dt 26.05.2013 and the fitness is valid up to 23.05.2012.  

 

15.  Further revealed no surveyor has been deputed by the Insurance company nor repudiated or considered on violation of policy terms and conditions as we observe, the incident was lodged in police under section of 394 of Indian penal Code and Section 25 of Arms Act, where as the stipulation in insurance contract (policy) clause-1- spells loss or damage to the vehicle insured – the company will indemnity the Insured hereunder by burglary house breaking or theft. In the present case, the nature of loss relates to robbery nor to theft u/s 378 and 381, thus beyond the ambit of the stipulated clause as in policy thus loss deemed not covered as no authority or ratio decidendi has taken reliance by the petitioner in affirmation that the definition of theft assimilates robbery and vice verse. 

 

16.  The other discrepancy that we come across, the case suffers “no cause of action”. It is settled principle when the Insurer repudiates, the cause of action arises. As no repudiation made so the cause of action does not arise to institute the case. Our same view is fortified with the authority- United India Insurance Company Ltd Vs Trilok Kaushik- 2010(4) CPR145(NC)-Held- cause of action would not arise when claim was awaiting a decision in Insurance Company. No law has been invoked to substantiate the cause of action survives to initiate or to ensue.

 

17.  The petitioner as alleged the occurrence occurred on dt 28.11.2011 and as per the Insurance law & IRDA guidelines, the Insurer has to act within maximum time  given of ninety days having a lenient approach, given  the time allowed and taking 90 days plus to limitation calculation (28.11.2011 + 90 days).  The limitation starts from dt 28.02.2012 to ended in 27.02.2014 whereas the case has been filed on dt 08.03.2017 so the case is barred of limitation and not filed within the stipulated time frame as provisioned made under Section 24A of the Consumer Protection Act .Even no application made in condonation of delay nor condoned allowed with.

 

18.  We have heard the rival contentions & submissions on both sides and observed the loss as alleged & occurred on dt .28.11.2011 at about 9.30 am and the matter reported to the police on dt 03.01.2012 at about 5.15 pm after 5 days in deferment. The reason of delay is not sufficiently adduced by documentary evidence.

 

19.  The case suffers multifaceted laxity/irregularities as discussed above in one or other way.  Further the case has been also reported as FRT “No clue” besides also found   no necessary order has been passed by the competent authority in dispose of the case being a non-compoundable under IPC 394.where as theft generally related to IPC Section 378 & 381 being under undecided state. In such a scenario , the case having being barred of limitation, with non accrual cause of action, delayed reporting the matter to police is a fault along with loads of  discrepancy in Engine No and Chassis No in   Insurance certificate and book of registration per se far from  bonafideness  so the case  is  being devoid of merit thus  hereby  dismissed . 

 

 

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

 File be consigned to record room.

  Pronounced, 30th  August 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