Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.12.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to pay sum assured Rs. 1,70,000/- along with 12% interest.
- To direct the opposite parties to pay Rs. 50,000/- ( Rs. Fifty Thousand only ) as compensation.
- To direct the opposite parties to pay Rs. 10,000/- ( Rs. Ten Thousand only) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that he has taken a comprehensive Insurance policy with opposite parties vide annexure – 1 which was effective from the period 10.02.2009 to 09.02.2010. it is alleged that while the insurance policy was effective, the insured vehicle was stolen by unknown persons. Thereafter a FIR was lodged with concerned Police Station giving rise to Jalalpur P.S. case no. 48/09 dated 27.06.2009 u/s 420, 379/34 IPC against unknown persons. After registering the aforementioned case, the police began investigation and submitted a final form stating therein that “occurrence is true but clueless”. The aforesaid final form was accepted by learned C.J.M. on 30.03.2011.
It is further asserted by the complainant that after the aforementioned occurrence the complainant informed the opposite party through toll free number time to time. The insured vehicle was hypothecated by Mehindra & Mahindra Finance Ltd., but all loan amounts had been cleared by the complainant and financer had given no dues certificate to the complainant.
It has been further asserted by the complainant that the complainant has taken all reasonable care and performed duty under the law.
On behalf of opposite party a written statement has been filed stating therein that this complaint is barred by limitation as the opposite party has repudiated the claim of the complainant vide annexure – A and communicated to him vide letter dated 14.02.2009. It has been further asserted by the opposite party that the complainant had lodged the claim before insurance company for loss of vehicle on 09.03.2009. In Para – 11 of written statement it has been asserted by opposite party that “from FIR and final form it is crystal clear that the insured had handed over the insured vehicle to some unknown persons violating condition no. 4 of the policy.
It has been further asserted that the insurance company vide order dated 05.09.2014 had sought reply but the complainant failed in it and thereafter the claim of the complainant has been repudiated.
Heard the learned counsel for the parties and perused the record.
It appears that insurance policy vide annexure – A stands admitted.
From bare perusal of the FIR as well as final form and order of the learned C.J.M. it is crystal clear that vehicle was taken by some unknown persons and thus theft is also well proved.
The opposite parties have asserted that they have repudiated the claim vide annexure – A on 05.09.2009 but no cogent evidence has been submitted by the opposite party whether the repudiation letter contained in annexure – A was served on the complainant in 2009 or thereafter.
It is very surprising that the police has found the vehicle stolen but in Para – 11 of written statement it has been asserted by opposite party that the complainant handed over the vehicle to some unknown persons. This fact seems misleading and incorrect in view of annexure – 2, 3 and 4 which has been discussed in the foregoing paragraphs.
The complainant has asserted in Para – 3(C) that the complainant had paid the entire amount of loan to Mahindra & Mahindra Finance Ltd. This fact has not been denied by the opposite party in written statement.
It is needless to that the Hon’ble Supreme Court of India in citation reported in 2008 (3) P.L.J.R. (SC) page 417 National Insurance Company Ltd. Vrs. Nitin Khandelwal have been pleased to held that in case of theft the violation of any condition can not taken into account.
We think it proper to narrate the observation of the Hon’ble Supreme Court of India in Para – 13 in the aforementioned citation of the case of Nitin Khandelwal which is as follows “in the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant – insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was breach of condition of the insurance policy, the appellant – insurance company ought to have settled the claim on non – standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”
For the discussion made above we find and hold that by not paying the claim of the complainant the opposite party has committed serious deficiency, hence we direct the opposite party to pay 75% of the claim amount to the complainant contained in annexure – 1 within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party will have to pay an interest @ 10% on the said claim till its final payment.
Opposite party is further directed to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly this complaint stands allowed to the extent referred above.
Member President
