West Bengal

Birbhum

CC/108/2015

Biswadeep Dhara, - Complainant(s)

Versus

1.Divisional Manager, The New India Assurance Co. Ltd., - Opp.Party(s)

Monalisha Bandhopadhya

15 Mar 2018

ORDER

Shri Biswa Nath Konar,  President.

            The case of the complainant Biswadeep Dhara, in brief, is that he purchased Omni Car bearing No. WB54N-0606 after taking financial help of O.P No.3. He took insurance certificate of the said vehicle under O.P No.1 and 2 i.e. The New India Assurance Co. on payment of premium of Rs. 15199/- for the period 04.07.13 to 03.07.14.

            It is the further case of the complainant that in between 8.00 to 8.30P.M. on 12.02.2014 the driver of the said vehicle Subrata Singh was taking diner  in a Dhaba situated in between Burdwan to Bolpur near Rabindra Setu Toll-Tax by keeping the same by the side of the said road, at that time said vehicle was stolen away with original key and documents. The complainant informed the police and police started Bolpur P.S. case No. 71/14 dated 22.02.2014 u/s 379 IPC. The said case was ended on final report. He also informed Insurance Co. and Financier on 24.02.2014 regarding said theft.

            It is the further case of the complainant that he submitted the claim application with all documents but the O.Ps Assurance Co. Ltd. did not pay any claim amount to him. He also send reminders and served legal notice upon O.Ps/Insurance Co. but they did not pay any heed.

            The act of the O.Ps amounts to deficiency in service and illegal trade practice.

            Hence this case for directing the O.P No.1 and 2 to pay Rs. 653573/- as Insured value with Rs. 20000/- as compensation for mental agony and other reliefs.

            The O.P No.1 and 2 New India Assurance Co. have contested the case by filing written version denying all material allegations of the complaint contending, inter alia, the case is not maintainable.

It is specific case of the O.P No. 1 and 2 that they came to learn from the Insured/complainant for the first time on 24.02.2014 that the alleged incident of theft was occurred on 12.02.2014, which was more than 10 days after the alleged incident and the same is utterly violation of the terms and condition of the policy clause No.1 on the part of the complainant/insured and the complainant also lodged FIR on 22.02.02014 i.e. 10 days after the incident.

It is the further case of the O.P No.1 and 2 that as per policy condition Clause 4 of the policy the insured shall take all reasonable steps to safeguard the vehicle from the loss or damage. But in this case the insured failed to comply the said conditions by leaving the said vehicle callously at night time in unsafe and vulnerable condition keeping the key and other relevant documents in the same in order to food which is utter violation of the policy condition.

It is also the case of the O.P No.1 and 2 that they have rightly repudiated the claim of the complainant and there was no deficiency in service on the part of them and the case is liable to be dismissed.

Inspite of due service of notice O.P No.3 Mahindra and Mahindra Finance Service has not appeared before this Forum and the case was heard ex parte against them.

The O.P No.4 Br. Manager, the New India Assurance Co. Ltd. Bolpur, Birbhum has appeared and adopted the written version filed by the O.P No.1 and 2.

Considering the complaint and other materials on record with think following points are to be decided in this case.

1. Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Biswadeep Dhara has filed examination in chief. He has been cross examined by contesting O.Ps. He has also field some documents. 

O.Ps have not filed any oral evidence but submitted some documents.

Heard argument of both sides.

Point No.1:: Evidently the complainant purchased Omni Bus bearing No. WB54N-0606 after taking financial help of O.P No.3 and took insurance certificate of the said vehicle under O.P No.1 and 2 i.e. The New India Assurance Co. on payment of premium of Rs. 15199/- .

So, the complainant is a consumer u/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:: Total valuation of the case is Rs. 6,73,573/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

            The O.P No.2 and 5 have office within jurisdiction of the Forum.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant Biswadeep Dhara in his complaint and evidence stated that he purchased Omni Car bearing No. WB54N-0606 after taking financial help of O.P No.3. He took insurance certificate of the said vehicle under O.P No.1 and 2 i.e. The New India Assurance Co. on payment of premium of Rs. 15199/- for the period 04.07.13 to 03.07.14.

            Copy of Insurance policy certificate issued by the O.P/Insurance Co. shows that the complainant obtained such policy certificate in respect of the vehicle in question for the period 04.07.2013 to 03.07.2014 having IDV of Rs. 653573/-.

            The complainant further stated that in between 8.00 to 8.30P.M. on 12.02.2014 the driver of the said vehicle Subrata Singh was taking diner  in a Dhaba situated in between Burdwan to Bolpur near Rabindra Setu Toll-Tax by keeping the same by the side of the said road, at that time said vehicle was stolen away with original key and documents. The complainant informed the police and police started Bolpur P.S. case No. 71/14 dated 22.02.2014 u/s 379 IPC. The said case was ended on final report. He also informed Insurance Co. and Financier on 24.02.2014 regarding said theft.

            Copy of the FIR, Formal FIR, FRT and order sheet show that the Bolpur P.S case No. 71/14 dt. 20.02.2014 was started by police which was ended in FRT and Ld. ACJM, Bolpur accepted the same.

            It is the further case of the complainant that he submitted the claim application with all documents but the O.Ps Assurance Co. Ltd. did not pay any claim amount to him. He also send reminders and served legal notice upon O.Ps/Insurance Co. but they did not pay any heed.

            Copy of repudiation letter dated 16.06.15 shows that the claim of the complainant was repudiated on the ground; 1) delayed intimation to the police authority after 10 days from the occurrence of incident; 2) delayed intimation to policy issuing office and 3) the caption vehicle was unlocked at the material time of accident.

            Evidently the incident of theft took place on 12.02.2014 and the complainant informed the police in writing on 22.02.2014 and informed O.P Insurance Co. on 24.02.14.

            So, 10 days delay has been cropped up in lodging the FIR.

            The complainant Biswadeep Dhara in his evidence stated that the driver of the car in question Subrata Singh on 12.02.14 in between 8.00 to 8.30P.M stopped the same near Rabindra Setu Toll-Tax for taking diner in a Dhaba and then eventually the car with all its original documents was stolen from the spot with original key by some unknown persons and the said incident was duly intimated to him by his driver and after that day he searched the vehicle vigorously for the whole day but could not find out the same which left him utter surprise and disbelieve. He immediate after the occurrence informed the police verbally and informed Insurance Co. by telephone. Due to such hazard and precarious situation he once again went to police personnel and also lodged general diary being Bolpur G.D entry No. 1426/14 dated 22.02.2014 which was treated as FIR and police started Bolpur P.S case No. 71/14 dated 22.02.2014 u/s 379 IPC.

            During hearing of argument Ld. Advocate/Agent of the O.P Insurance Co. submitted that 10 days delay in lodging FIR is utter violation of policy condition and the claim of the complainant is liable to be repudiated.

            In support of his contention he cited a ruling reported in I(2015)CPJ 387(NC), where in a case of theft FIR was lodged 5 days after the incident and Insurance Co. was informed 6months after the incident.

            Hon’ble National Commission pleased to hold that Insurance co. was justified in repudiating the claim for violation of the policy condition.

            But in his reply Ld. Advocate/Agent of the complainant submitted a ruling reported in 2018(1)ICC237(SC), where in a case of theft a vehicle and delay in intimating the police Hon’ble Apex Court pleased to observe that it is common knowledge that a person who lost his vehicle may not straight way go to the Insurance Co. to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the Insurer immediately after theft of the vehicle. However, this condition should not bar settlement of the genuine claim practically when the delay in intimation or submission of document is due to unavoidable circumstances and lastly Hon’ble Apex Court has been pleased to condoned 8-days delay of the complainant and pleased to hold that Insurance Co. is liable to party compensation.

            We have already stated that the complainant in his evidence on oath stated that he was trying to find out the vehicle and informed the police orally and Insurance Co. by telephone.

            Ld. Advocate/Agent of the complainant submitted another ruling reported in 2010(1)CPC653(SC), where in case of violation of policy for misuse of vehicle at the time of accident Hon’ble Apex Court has been pleased to hold that in view of Nitin Khandelwal Case 2008(3)CPC 559(SC), even where violation of policy found, Insurer should pay 75% of total amount as non-standard basis and ultimately the Insurer is directed to pay consolidated a sum of Rs. 250000/- on non-standard basis.

            So, considering facts and circumstance of the case and relying upon the ruling passed by Hon’ble Apex Court we have no alternative but to hold that delay in lodging FIR and intimating the O.P/Ins. Co. may be condoned as unavoidable circumstance.

We further find that it is also the case of the O.P/Ins. Co. that as per policy condition Clause 4 of the policy the insured shall take all reasonable steps to safeguard the vehicle from the loss or damage. But in this case the insured failed to comply the said conditions by leaving the said vehicle callously at night time in unsafe and vulnerable condition keeping the key and other relevant documents in the same in order to food which is utter violation of the policy condition.

During hearing of the case Ld. Advocate/Agent of the O.P/Ins. Co. also submitted a ruling reported in III(2017)CPJ 293(NC) where in a case of theft of vehicle and negligency of driver Hon’ble National Commission pleased to hold that if driver of vehicle leaves key in ignition and also does not lock door of vehicle while going to a place from where vehicle would not be visible to him, such an act amounts to a failure to safeguard vehicle from loss or damage. Negligence on part of driver of vehicle established. Repudiation justified.

But we find that in the present case the driver of the vehicle stopped the vehicle in a Dhaba and while he was in Dhaba and unmindful some persons had stolen out the vehicle with key and documents.

So, it cannot be said that the driver kept the vehicle in unsafe condition and out of his sight and talking advantage of that the miscreants had stolen the same.

So, in view of the facts and circumstance of the case we think said ruling is not applicable in this case.

Considering overall matter into considerations and materials on record we are constrained to hold that the O.P Insurance Co. repudiated the claim of the complainant illegally which amounts to deficiency in service and unfair trade practice.

So, O.Ps No. 1, 2 and 4 are liable to pay claim amount of the complainant i.e. Rs. 653573/- with 6% interest from the date of filing of claim application till realization.

We find that the complainant has not asked from any relief against the O.P No.3 Mahindra and Mahindra Financial Services Ltd. So, the case is liable to be dismissed against the O.P No.3.

Thus, both the points are decided in favour of the complainant. Case fails.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 108/2015 be and the same is allowed on contest against the O.P No. 1, 2 and 4 with cost of Rs. 2000/- and dismissed against the O.P No.3 without any cost.

            The O.Ps No. 1, 2 and 4 are jointly and severally directed to pay Rs. 653573/- as insurance claim with 6% interest per annum since the date claim preferred till realization within one month from this date failing which the complainants shall be at liberty to execute the order as per law and procedure. 

Copy of this order be supplied to the parties each free of cost.