Orissa

Jajapur

CC/46/2015

Sk.Abdul Rahim - Complainant(s)

Versus

Authorised Signatory Reliance General Insurance Co.Ltd - Opp.Party(s)

11 Jan 2016

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Biraja Prasad Kar, President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 11th day of January,2016.

                                                      C.C.Case No.46 of 2015

Sk.Abdul Rahim  S/O Late Sk. Mamtaz

At. Khara j batira, P.O/ P.S. Korei

Dist.-Jajpur. The power of Attorney holder of

His son SK.Mustaque                                                                                    …… ……....Complainant .                                                                       .

                   (Versus)

1.The Authorised Signatory,Reliance General Insurance Co.Ltd,At.5,Janapath

  Unit-111,2^nd floor,At/P.O. Bhubaneswar, Dist.Khurda.

2. Authorised Signatory,Tata Motor Finance Ltd, C/O M/S Rajpath services N.H.5

    At.Bhatkuri, P.O.Gangapada, Dist.Khurda.

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

For the Complainant:                                        Mr. A.Ku.Pani  ,Advocate.

For the Opp.Party No.1                                    Mr. S. Ku. Mishra, Sri R.Ku. Mohanty, Advocates.

For the Opp.Party No.2 :                                  None.

                                                                                                                                Date of order:   11. 01.2016

MISS SMITA  RAY , L A D Y   MEMBER .

                                The petitioner as a power of Attorney holder  has  filed the present dispute as per direction of Hon’ble Odisha High Court  passed in W.P.(C) No.32842/2011 alleging deficiency in service on the part of the O.Ps due to non-settlement of his Insurance claim against financed vehicle bearing No.0R-04-J-1086,chasis No.426031 HRZ 220333,model No.LPT 2515 T C.

                                The relevant facts of the present dispute as per complaint petition shortly are that the petitioner’s son has purchased the above cited vehicle to maintain his lively hood under self employment basis in the year 2008 with the help of financial assistance in the form of loan from Tata Finance Company. After purchase,  the said vehicle was insured with O.P.no.1 vide policy No.2402782334003327 which was valid from 25.12.2008 to 24.12.2009 having the insured value  of Rs.14,51,500/- . It is stated by the petitioner that during subsistence of the policy the above cited vehicle was stolen away on 03.11.2009 by some unknown persons for which the petitioner has lodged F.I.R  at Korei P.S bearing Korei  P.S No.140(2) of 2009 U/S 379 IPC corresponding to G.R.Case No.791/2009 in the court of J.M.F.C, Jajpur Road . In addition to it

 

(2)

though such occurrence was also reported to finance company as well as Insurance Company without delay but the Insurance company has not yet settled the claim of the petitioner  for which as a power of Attorney holder has filed the present dispute with the prayer to direct the O.P.no.1 to settle Insurance claim of the petitioner amounting to Rs.14,51,500/- as against the above cited theft vehicle as well as award Rs.20,000/- as compensation in favour of the petitioner.

                                In the present case there are two numbers of O.Ps. out of which O.P.no.1 has appeared and filed the written version. The O.P.no.2 neither appeared nor has contested the dispute.

                                In the written version the O.P.no.1 has taken the following pleas.

1. The petitioner being the power of Attorney holder of SK Mustaqu has no right to claim  deficiency in service on the part of O.p.no.1 in absence of any authorization to file the present dispute.

2. That though it is mandatory for the insured / owner of the vehicle to follow the term and condition of the policy but in the present case the insured has intimated the police on 05.11.2009 after two days of allged theft of his truck on 03.11.2009 and to the Insurance company after 27 days which  violates the condition no.1 of the policy since  provides in case of theft of vehicle the insured is required to  intimate the fact to the Insurance company as well as police immediately preferably within 24 hours.

3.  Further the O.P.no.1 has taken the plea that though the alleged vehicle has been stolen on 03.11.2009 but the power of Attorney has been notarized on 16.03.2010 which indicates that the  truck   business was continued as on 16.03.2010. Accordingly the theft claim on 03.11.2009 is completely false and this manufactured claim.

4.   Like wise the father of the insured has informed the police authority regarding theft of Truck after lapse of 2 days as well as intimated the O.P.no.1 after expiry of 27 days which violates the provision of clause-1 of the policy in view of the observation of Hon’ble National Commission vide F.A No.321/2005 (New India Assurance Co.Ltd  Vrs.Trilochan Jena) since it has been decided by the Commission referring the citation of Hon’ble Supreme Court reported in J.T.2004(8) SC-8 (United India Insurance Co.Ltd vrs.Harachandrai Chandanlal) wherein it is held that

                                “ term of Insurance policy have to be construed strictly”.

5.More over the son of the complainant has failed to repay the financed amount of O.P.no.2 as there is high outstanding loan amount against the vehicle. Accordingly  to avoid the repayment of loan a false claim has been created by the complainant / son of the complainant .

                                As such  the present dispute is liable to be dismissed in view of the above aspects having  no deficiency of service on the part of O.P.no.1.

                                Owing to  the above assertion and counter assertions  of both the parties we are inclined to decide the dispute as per our observations below:-

 

(3)

1. Admittedly the petitioner not only as father of the hirer but also as power of Attorney holder has filed the present dispute. In support of such status the petitioner has filed the power of Attorney and authorization of his son wherein the son has authorized his father to file the present dispute . Accordingly the petitioner has filed the dead of power of Attorney, authorization of his son dt.08.2.2015 circular of Govt. of India (A.F D.Deptt. dated 19^th June 2014 ,observation of Supreme Court reported in 111(2006) CPJ-7-SC vide Annexture-D,E.F. Accordingly we are in the considered view that the plea taken by O.P no.1 vide para-1 above stating that the petitioner being the power of Attorney holder has no right to  file the present dispute  is not sustainable in the eye of law.

B (1). Similarly the O.P.no.1 also  has raised an objection stating that after theft of the vehicle on 03.11.2009 the insured has intimated the police on 05.11.2011 which is  after lapse of 2 days and Insurance company after lapse of 27 days  and it violates the provision of clause-1 of the policy. In this contest the O.P.no.1 has relied on the observation of Hon’ble National Commission vide F.A No.321/2005 (New India Assurance Co.Vrs.Trilochan jena) wherein it is held that :-

“ Notice in writing was required to be given to the Insurance Company immediately on the    occurrence of theft of the vehicle .”

                                As against such plea from the side of O.P.no.1 we have perused the F.I.R along with Xerox copy of First information report U/S 154  Crpc which clearly go to establish that the petitioner has lodged the F.I.R at Korei P.S on 05.11.2009 at 1 P.M stating that the alleged vehicle has been stolen on 03.11.2009 at about 3 A.M . Further the Xerox copy of F.I.R  U/S 154 Crpc issued by  J.M.F.C,Jajpur Road indicates that the date of occurrence is 03.04/11/2009 at 3 A.M.  As the petitioner has lodged the F.I.R at Korei P.S on 05.11.2009 at 1 P.M , it is cristal clear that after the occurrence the petitioner has lodged the F.I.R on the next day since the date of occurrence on 03.11.2009 at about 3 A.M as has been mentioned by the petitioner in the F.I.R is coming within the day of 04.11.2009.

B(11).As regards delay 27 days intimating the insurance company,  it is stated by O.P.no.1 that the intimation regarding the theft of the alleged vehicle has been given after lapse of 27 days which violates the provision of clause-1 of the policy. In support of this stand the O.P.no.1 has relied on the observation of Hon’ble National commission and apex Court which are stated below:-

(a) F.A No.321/2005 (New India Assurance Co.Vrs. Trilochan Jena)

“ delay in informing Insurance Company and to the police authority in intimating the theft of vehicle could be fatal to investigation as in the mean time the vehicle could have  travelled a long distance  or may have been dismantled by that time and sold to Kabadi. “

(b) Civil Appeal No.1557/2004 with Civil Appeal No.1553………..1547/2004 Decided on 17.01.2013 Supreme Court, para-11.

(4)

“ Thus it is not permissible for the court to substitute the terms of contract itself …… under the garb of construing terms incorporated in the agreement of Insurance . No exceptions can be made on the ground of equity. The liberal attitude adopted by court, by way of which it interfers in the terms of an Insurance agreement is not permitted. The same must certainly not to be extended to the extent of substituting words that were never intended to form a part of the agreement.”

(c)R.P No.3049/2014-M/S H.D.F.CERGO General Insurance Co.Ltd Vrs. Shri Bhagachand Saini –para-15”

“In so far as the contention of the complainant / respondent that a contract of Insurance is a contract of indemnity and the Insurance company is bound to honour the claim ,once the policy has been issued after charging premium , it is stated that the said contract has been made subject  to certain conditions . In case violation of such conditions , such violation has to be taken into account when deciding the issue of indemnity “.

As against the above cited defence pleas from the side of O.P.no.1 ,the petitioner also has relied on the observations of some appellant forums which are stated below:.

1.2015(3)CLT-476-N.C (New India Assurance Co.Vrs.Gurmeet Kaur and others)clause-1

“ notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim. Every  letter claim writ summons and / or process shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution .In quest or fatal injury in respect of any accident which may give rise to claim under this  policy”.

Para-6-the above referred clause does not require the insured to give immediate intimation to the Insurance company in case of theft of the vehicle”.

Para-7-subpara-3

“ Therefore the complainant in our opinion was not required in this case to give immediate intimation of the theft of the vehicle  to the Insurance company “.

2.2005(1) CPR-142-State commission –Odisha –Gajendra Prasad Panda Vrs. Oriental Insurance Co.ltd.

                                “ where insured vehicle was stolen claim can not be defeated by Insurance company on a technicality of some  delay in reporting matter to the police and to Insurance company .

3.2010(1)CLT-189-Odisha Oriental Insurane Co.Ltd Vrs. Kandha nayak

“ Repudiation on the ground that F.I.R lodged of the theft of motor cycle was after a month and intimation about theft given late which is in violation of policy condition. Held that the

 

(5)

repudiation in case in  hand is arbitrary and on technical ground and not in the line of the spirit of the Act or the legislation order of Dist. Forum directing Insurance company to pay the claim up held  rate of interest awarded by Dist. Forum reduced from 12% to 6%.”

4.2012(3)CPR-10-Chhatishgarh-The new India Assurance Company ltd.Vrs. Shankqar Chakrawartee though Attorney holder.

“ If irrespective of delay claim is otherwise payble- Insurnance company must settle claim insisted of rejecting it on technical ground “.

5.2014(2)CLT-390-Haryana-Shriram general Insurance Company ltd vrs. Rajesh Kumar

“Theft of vehicle-delay of 12 days in intimation to Insurance Company regarding delay in intimation but that does not mean that the Insurer can take the shelter under that condition and repudiate the claim which is other wise proved to be genuine “.

6.Circular of Insurance Regulatory and Development Authority dt.20.09.2011 to all the insurers. Para-4.

“ Therefore it is advised that all the insurers needs to develop a sound mechanism of their own to handle such claim with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay  are specifically ascertained recorded and the insurers should satisfy themselves that the delayed claim would have otherwise been rejected even if reported in time .”

Para-5

“ The insurers are advised to incorporate additional wordings in the policy documents suitably enunciating insurer’s stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured .”

D-   Similarly  the F.I.R in Korei P.S vide P.S. case No.146(2) of 2009 U/S 379 of I.P.C corresponding to G.R.case No.791/2009 has been closed   on 19.06.2010 as no clue.”

E-   Further it is also observed that as against the Quarry of O.P.no.1 vide  letter dt.2^nd February-2012 the petitioner has submitted his clarification vide letter dt.10.02.2012 clarifying that after the theft , not only the vehicle has been repaired  at B.G motors N.H.215 Andapur but also the  vehicle subsequently has been repaired on 02.06.2010,18.07.2010 and 31.08.2010 at Raskhit Enterprises-West Bengal by the miscreants who have stolen the alleged above cited vehicle.

                                Owing to the above contradicting views of both  the parties we have come across with the observations of Hon’ble Supreme Court reported in 2004(2) CLT-141-SC(United India Insurance Co.Ltd Vrs.M/S Pushpalaya Printers) wherein it is held that:-

 

 

 

(6)

“Insurance policy-construction of –if there is any ambiguity or a term is capable two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy  is taken, namely, to cover the risk on the happening of certain events”.

111- Construction of documents – where the words of a document are ambiguous ,they shall be construed against the party who prepared the documents”.

                                For the reasons recorded above as well as owing to the facts and circumstances of the present dispute it is clear that the law on the point is conclusively in the complainant’s favour and conclusively the dispute is hereby allowed.

                                                                                                O R D E R

                                The dispute is allowed against O.P.no.1 and dismissed against O.P.no.2 . The O.P.no.1 is directed to pay the insured  value  amounting to  Rs.14,51,500/- (Fourteen lakh fifty one thousand five hundred ) to the insured within one month after receipt of this order, failing which the O.P.no.1 shall be liable to pay 9% interest per annum on the awarded amount from the date of Insurance Claim till its realization . No cost.

This order is pronounced in the open Forum on this the 11th day of January,2016. under my hand and seal of the Forum.                                                                                             

 

 

(Shri Biraja Prasad Kar)                                                                                                         (Miss Smita  Ray)                                                         

          President.                                                                                                                       Lady   Member.                                                                      

                                                                                                                           Typed to my dictation & corrected by me

 

 

(Shri Pitabas Mohanty)

           Member.                                                                                                                            (Miss Smita  Ray)

                                                                                                                                                         Lady  Member.