09-02-2015 - Heard Mr. Alok Lal, learned counsel appearing for the Appellant- Insurance Company on the prayer for condoning the delay and also on merits.
2. Admittedly the Insurance Company got the copy of the impugned order dated 25.5.2014 on 26.5.2014 but thereafter it took more than three months in filing appeal due to the purported internal procedural delay of the Insurance Company. Such delay has not been properly explained in the petition for condonation of delay.
However, in the interest of justice it was ignored and the appeal was heard on merit.
3. Mr. Alok Lal submitted that the Insurance Company paid the insured value after deducting 25%, which the complainant/ Respondent accepted without any protest and the discharge voucher was signed by him and the Financer-Bank. He further submitted that the learned Lower Forum had no territorial jurisdiction, as the alleged theft of the vehicle took place in Hugli, West Bengal.
4. The case of the complainant in short was that, the Insurance Company paid the insured value after deducting 25% and therefore he claimed balance amount. The Insured vehicle was stolen at Hugli for which F.I.R. was lodged in which final form was submitted. The driver was not at fault, as he kept the key of the vehicle in locker box which is a safe place of the vehicle, before going to attend the call of nature.
5. On the other hand from the show cause/ written statement filed on behalf of the Insurance Company, it appears that the stand of the Insurance Company was that the driver of the vehicle was fully responsible for the theft of the insured vehicle since he went to attend the call of nature without having the key with him and therefore 25% of the claim amount was rightly deducted.
6. The said pleas taken by Mr. Alok Lal were not taken in the said show cause/ written statement of the Insurance Company wherein it was not said that the amount paid to the Financer–Bank was duly accepted by the complainant without any protest and the discharge voucher was signed by him and the Financer-Bank in full and final settlement of claim. Further from the copy of the discharge voucher produced by Mr. Alok Lal it appears that the complainant had only put his signature without mentioning that such payment was in full discharge of the claim.
7. Moreover the objection with regard to territorial jurisdiction was also not taken by the Insurance Company in the said show cause/ written statement which was necessarily a question of fact. Furthermore it appears that the complainant being resident of Koderma took loan from the Bank and the Insurance Policy at Koderma and the Insurance Company has also got a branch office at Koderma.
8. The submission of Mr. Alok Lal that in the judgement of Hon’ble Supreme Court in the case of Amlendu Sahoo Vs Oriental Insurance Co. Ltd. reported in II (2010) CPJ 9 (SC),it was held that in case of breach of warrantee / condition of policy including limitation as to use , only 75% of admissible claim was to be paid and therefore the Insurance Company rightly deducted 25% of the claim is not acceptable. It was not the case of the Insurance Company in it’s show cause/ written statement that there was breach of warrantee / condition of policy including limitation as to use.
9. The learned Lower Forum has directed the Insurance Company to pay the balance amount after deducting only 10% which comes to Rs. 2,08,727/- with interest @ 9% from the date of filing of the complaint case i.e. 18.1.2012 besides Rs. 5000/- as compensation and litigation cost within 30 days of the order.
10. After hearing Mr. Alok Lal at length and considering the materials brought on the record by the Insurance Company, in our opinion, no grounds are made out for interference with the impugned judgement.
11. In the result even if the un explained delay of more than three months in filing this appeal is ignored, there is no merit in this appeal, which is accordingly dismissed.
Issue free copy of this order to all concerned for information and needful.
Ranchi,
Dated:- 09.02.2015
