In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 405 / 2008 .

1)                   Sri Bikash Kumar Nandi,

47, Satyan Roy Road, Kolkata-7000034.                                                 ---------- Complainant

---Versus---

1)                   Bajaj Allianz General Insurance Company Limited,

G.E. Plaza, Airport Road, Yerawada Pune-411006.

And local office at 10B, O.C. Sarani (Lee Road), Kolkata-700020.

2)                   Jalan Insurance Agency Private Limited.

3)                   ICICI Bank Limited,

14, A.J.C. Bose Road, Kolkata-700020, P.S. Shakespeare Sarani.                      ---------- Opposite Party

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member

                        Smt. Sharmi Basu, Member

Order No.   36    Dated  20/12/2012.

SHARMI BASU, MEMBER.

            In a nutshell the case of the complainant in short is that complainant availed car-loan under Hire Purchase Scheme from o.p. no.3, ICICI Bank Ltd. for purchasing a brand new car and it was intimated by o.p. no.3 that the car purchased with the loan provided under its Hire Purchase Scheme would be insured under the insurance policy of o.p. no.1 against payment of premium and the complainant o.p. no.2 is the agent of o.p. no.1 and the o.p. no.1 issued certificate cum policy schedule of insurance for the total sum insured of s.6,65,225/- for the period from 10:30 – 25.09.2006 to 24.09.2007 upto midnight. As per the complainant it was assured by the o.p. no.2 that the complete insurance policy, containing the detailed terms and conditions of the insurance policy issued would be forwarded. But, the o.p. nos.1 and 2 even after repeated requests of the complainant, o.p. nos.1 and 2 did not forward the complete policy and as a consequence thereof the detail terms and conditions of the policy in question were not within the knowledge of the complainant. it is submitted by the complainant that this inaction of o.p. nos.1 and 2 tantamounts to deficiency of service and unfair trade practice and for this inaction of o.p. nos.1 and 2, complainant has to suffer harassment and mental agony.

            On 22.12.06 the car in question was stolen from the night parking zone of the KMC which is within the jurisdiction of this Forum. On 25.12.06 FIR of theft of the car was lodged with the Hare Street P.S.  On 3.1.07 the complainant personally visited the office of o.p. no.1 and intimated about the theft of the insured car and requested for settlement of claim in question (Claim no.OC-07-2401-1801-00005108 dt.4.1.07).

            Pursuant to the registration of the police case, due investigation was made by the concerned P.S. and as per FRT dt.12.4.07 theft was admitted but the investigation did not lead to any arrest of responsible and involved persons in the theft of the aforesaid car. But, even after all efforts of the complainant, complainant could not receive the claim in question from o.p. nos.1 and 2 and the claim of the complainant was repudiated by o.p. no.1 with reason that as the complainant purchased a private car comprehensive parkage policy for his vehicle from o.p. no.1 and the insured car was used for hiring purpose by the consumer / complainant but using of the car for hiring purpose war barred by the terms and conditions of above-mentioned policy. As per the complainant this repudiation of the claim was unjustified.

            Hence, the complainant has no alternative but to file the instant case before this Forum with prayer for relief as mentioned in the complaint petition.

            O.p. nos.1 and 3 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. O.p. no.2 did not contest the case by filing w/v and matter has been heard ex parte against o.p. no.2.

Decision with reasons:-

            We have gone through the pleadings of the parties, evidence and documents in particular and we have found that in the instant case o.p. no.3 is not liable for the grievance of the complainant due to non-receiving of the claim amount in question from the insurer i.e. o.p. nmo.1, where o.p. no.2 is the agent of o.p. no.1and in this instance of non-payment and repudiation of claim of the complainant by o.p. nos.1 and 2, o.p. no.3, the bank from where car loan was received from the complainant, has no liability in this regard.

            It is admitted fact that complainant has never defaulter in payment in relevant premium in question and the insured car was stolen and as per FRT dt.12.4.07 of concerned P.S. There is no dispute that theft of the insured car was occurred. Now the crux of the case is whether the repudiation of claim by the insurer is justified or not. To decide it following discussion is advanced. In the petition of complaint as well as evidence on affidavit of complaint it was submitted by the complainant that the documents in relation to the terms and conditions of the policy in question have not been handed over to him by the insurer, o.p. nos.1 and 2. We find no reason to disbelieve in this contention of the complainant. In this regard it is needed to be mentioned that it settled principle of law that insurer is duty bound to hand over all the documents in relation to any insurance policy on or before the issuance of policy to the insured person. Therefore, o.p. nos.1 and 2 are liable for deficiency in service towards the complainant / consumer.

            Relying on the submission of the complainant that he was not aware of the fact that hiring of insured car is barred by the terms and conditions of the policy, the repudiation of the claim by the insurer in the instant case is considered as unjustified. Moreover, in this regard we are relying on the judgment of Hon’ble Apex Court in the case of National Insurance Co. Ltd.  vs.  Nitin Khandelwal in the case vide no.3409 of 2008, delivered on 8.5.08. In this landmark judgment, in more or less a similar case Hon’ble Supreme Court has been pleased to observe that claim for vehicle being stolen cannot be repudiated solely on breach of condition – insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for loss caused to the insurer – insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

            Considering the above discussion we are of the opinion that being insurer, o.p. no.1 and being agency of o.p. no.1, o.p. no.2 jointly and/or severally liable for deficiency in service and complainant has to suffer financial loss and immense mental agony and harassment for this inaction of o.p. nos.1 and 2 and complainant is eligible to get relief.

            Hence, ordered,

            That the case is allowed on contest with cost against o.p. no.1 and exparte with cost against o.p. no.2 and without cost against o.p. no.3. O.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.6,65,225/- (Rupees six lakhs sixty five thousand two hundred twenty five) only being the sum assured under the policy in question and compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Complainant is at liberty to file execution case before this Forum for non-compliance of the aforesaid order.

            Supply certified copy of this order to the parties free of cost.