DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __116_ _ OF ___2017
DATE OF FILING :_7.9.2017 DATE OF PASSING JUDGEMENT: _26.7.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Jalaluddin Molla, @ Md. Jalaluddin Molla, son of Abujal Molla at Kantjala Kachuya Shanpukur, Bhangore South 24-Parganas, P.O Shonpukur, P.S Kashipur, Pin-743502.
O.P/O.Ps : 1. The Manager, ICICI Lombard Geneal Insurance Co. Ltd. 7th floor, Apeejay House, 15, Park Street, Kolkata – 16.
2. The General Manager, ICICI Lombard General Insurance Co. Ltd. ICICI Lombard House, 414, Veer Savarkar Marg. Near Siddhi Vinayak Temple, Prabhadevi, Mumbai – 400025.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Embarrassed and perturbed by rejection of his claim for loss of his motor cycle, the complainant has approached this Forum with the filing of the instant case under section 12, C.P Act, 1986 , alleging deficiency in service on the part of the O.Ps.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant had a Motor Cycle bearing no.WB-22-7558. This motor cycle was stolen away on 29.12.2014 from the front of Kasipore Kishore Bharti Bidyalaya,where it was parked by the complainant ,who entered at that time inside the school premises to pick up his daughter. When he came back, he found that his motor cycle was missing. Then and then, he searched her motor cycle here and there ,but to no effect. He went direct to Kasipur Police Station to lodge complaint ,but , he could not , as the Officer-In-Charge of the Kasipur P.S refused to accept the complaint due to unavoidable circumstances. Thereafter, on 4.1.2015 he again went to the said P.S and lodged a FIR and Kasipur P.S case no.5 of 2015 was registered by the police under section 379 IPC. He lodged a claim on 29.12.2014 before the Insurance Company i.e the O.Ps who rejected the claim of the complainant. Having got no other alternative , complainant has approached this Forum with a prayer for payment of claim amount of Rs.80,000/- and also for litigation cost Rs.30,000/-. Hence, arises the case.
Both the O.Ps have filed written statement to contest herein, wherein it is contended that the instant case is not maintainable before this Forum, because this Forum does not have any territorial jurisdiction upon the O.Ps, whose offices are situated at Park Street, Kolkata and Mumbai . According to the version of the O.Ps, the complainant has cooked up a false story that his motor cycle was stolen away by some miscreants on 29.12.2014 , that he went to P.S, that police refused to accept his complaint that day. FIR was lodged on 4.1.2015 i.e about 7 days after the theft of the motor cycle and there is no explanation of delay furnished by the complainant. No document whatsoever was filed by the complainant in support of his claim and, therefore, the claim was rightly dismissed. It was also dismissed as the claim was too exaggerated to entertain by the O.Ps. The complainant is not entitled to get the claim as made by him and, therefore, the complaint should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable before this Forum?
- Is the repudiation of claim of the complainant a deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence on affidavit is filed on behalf of the complainant and the O.Ps and the same is kept in the record after consideration. BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
Already heard the submissions of Ld. Lawyers appearing for the parties. Perused the complaint, written version and also the documents filed herein. Considered all these.
A strong objection has been raised by the O.Ps to the effect that this Forum does not have territorial jurisdiction to entertain the instant case. According to them, the offices of both the O.Ps are situated at Calcutta and also at Mumbai and ,therefore, this Forum has no territorial jurisdiction over the O.Ps.
It is true that the offices of the O.Ps are situated at Park Street, Kolkata and in Mumbai. Now , we have to see where the cause of action arose. The theft took place within the jurisdiction of Kasipur P.S and it is so stated by the complainant in his petition of complaint. This version of the complaint is also not denied by the O.Ps. The cause of action is bundle of material facts which are required to be proved by the complainant for the purpose of getting relief. Theft of the vehicle is a material fact and it certainly gives rise to cause of action and cause of action in this case also arose in the jurisdiction of Kasipur P.S which is situated within the District of South 24-parganas and within the territorial limits of jurisdiction of this Forum. This being so, the instant complaint appears to be maintainable under section 12(1)( c ) of the C.P Act, 1986.
Point no.1 is thus primarily answered in favour of the complainant.
Point no.2 and 3 :
It is argued on behalf of the O.Ps that the claim of the complainant for loss of his vehicle ,caused due to theft of the same, was rejected on the ground that the complainant did not comply the conditions of the policy. It is further submitted on behalf of them that the condition of the policy enjoins the complainant to give notice of the occurrence to the company as well as the police immediately after the incident, but the complainant lodged FIR about 7 days after the occurrence; he did not fulfill the condition of insurance policy and ,therefore, the claim of the complainant was repudiated by them for non-compliance of mandatory condition of the policy. It is also contended on behalf of the O.Ps that the claim of the complainant is also a false one. He cooked up a false story to get reimbursement from the company ; he did not file necessary papers in support of his claim and, therefore, his claim was properly rejected by the company.
Ld. Lawyer appearing for the complainant has submitted that his claim was a genuine one, that he never concocted any story regarding theft of the motor cycle of him, that he lodged FIR before the P.S and P.S also investigated the matter, and thereafter they submitted a final report, when they were not able to trace out the culprit . All these facts , as goes his submission, go to prove nothing but one thing that the claim of the complainant is not false and that his claim was unjustly repudiated by the O.Ps.
It is submitted on behalf of the O.Ps that a false story regarding theft of motor cycle has been cooked up by the complainant. No document is submitted on behalf of the O.Ps to substantiate their claim that the complainant has fabricated a false story. On the other hand, it is found that the complainant lodged FIR before the Kasipur P.S and that Kasipur P.S also started a P.S case no. 5 of 2015 under section 379 IPC. Not only this, police also made investigation in this case, witnesses were examined by them, but they could not seize the stolen motor cycle, nor could they trace out the culprit. So, they submitted final report before the concerned Magistrate. Nowhere it is stated in the police report that FIR of the complainant is false. That apart, the complainant has stated on oath that his motor cycle was stolen away on 29.12.2014 from Kashipur Kishor Bharti Bidyalaya , where he went to pick up his little daughter. We find no reason to disbelieve this version of the complainant. Regards being had to the above facts and also the version of the complainant, we do hold that the complainant has been able to substantiate that his motor cycle was stolen away by the miscreants. There is nothing falsehood in the complaint of the complainant.
Next comes the question whether the complainant has actually been unsuccessful to fulfill the condition of his insurance policy. The condition no.1 of the Insurance Policy has been quoted in the written version filed by the O.Ps and the same runs as follows:
“Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim ……… In case of theft or other criminal act which may the subject of a claim under this policy, the insured shall give immediate notice to the police and cooperate with the company in securing conviction of the offender…….”.
Firstly, it is required by the condition as aforesaid that a notice is to be given in writing to the company immediately upon the occurrence and in the event of any claim. Secondly, it is required by the aforesaid condition that the notice of the occurrence must be given to the police immediately after the occurrence.
Let us see now whether these two conditions have been fulfilled by the complainant or not. In the instant case, police case has been started on 4.1.2015 under section 379 IPC by the Kashipur P.S, South 24-Parganas. It has been argued on behalf of the O.Ps that FIR is lodged 7 days after the occurrence and, therefore, it is termed as the violation of the condition as aforesaid by the complainant. Upon a deeper scrutiny of the copy of FIR , which is filed by the complainant herein, it is found that the FIR was actually written by the complainant on 29.12.2014 and that the complainant also went to the concerned P.S that day to lodge this complaint with the P.S. It is categorically mentioned in the said FIR as such “Today on 29.12.2014 I went inside Kashipur Kishore Bharti Vidyalaya at about 11 a.m having parked my motor cycle in front of the school and when I came back from the school , I did not find my motor cycle there”. This version of the FIR of the complainant goes to prove that the complainant went to the local P.S to lodge complaint on the very date of occurrence. The complaint is dated 29.12.2014 and this entry also goes to prove that the complaint was unofficially accepted by the O.Ps that day from the complainant. Specific P.S case was started on 4.1.2015. Receipt of a complaint by the police and starting of a specific P.S case by the police are two different things. It is a matter of common experience that police receives the complaint sometimes ,but does not start specific P.S case upon that complaint inspite of the fact that the alleged offence is a cognizable one. That apart, the condition of the policy as quoted above does never require that the FIR is to be lodged before the Police. It only requires that a notice of the occurrence shall be given to the Police.
In the instant case, the complaint was lodged before the police on 29.12.2014 by the complainant and we are inclined to hold , regards being had to his very fact , that the complainant fulfilled the condition as substantially as possible in so far as the information of police is concerned.
Now comes the question whether the information of the occurrence was given to the Insurance Company by the complainant immediately after the occurrence. It is stated by the complainant both in his petition of complaint and also in his evidence on affidavit that he lodged the claim for loss of his motor cycle with the O.Ps on 29.12.2014. That claim of the complainant has been repudiated by the O.Ps and it is so admitted by the O.Ps. From this fact, it is proved that the claim was lodged with the O.Ps on the very date of occurrence and this claim is sufficient enough to give the notice about the occurrence to the O.Ps. In the facts and circumstances as stated above, we feel no hesitation to hold that the notice of the occurrence was also given to the Insurance Company i.e the O.Ps on the very date of occurrence by the complainant and this is sufficient compliance of condition of Insurance policy as quoted above.
The Insurance Company has rejected the claim of the complainant on the ground that he has failed to comply with the condition of Insurance policy as referred to above . It is found now that the condition of the Insurance Policy has been substantially complied with by the complainant and this being so, the rejection of the claim of the complainant by the O.Ps appears to be unlawful and unjust and as such it is deficiency in service on the part of the O.Ps.
The vehicle was within the period of validity on the date of occurrence and that, it was covered by the validity period of the Insurance Policy, is not denied by the O.P in their written version.
Upon such facts and circumstances .the complainant is deemed entitled to get his claim satisfied and the order is passed accordingly as hereunder.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.5000/-.
The O.P nos. 1 and 2 are directed to pay jointly and severally a sum of Rs.20,000/- only ( as IDV amount is Rs.25,600/-) to the complainant within a month of this order, failing which, the claim amount and the cost amount will bear interest @8% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
