West Bengal

Birbhum

CC/92/2020

Rajesh Sekh - Complainant(s)

Versus

Board of Directoes, IFFCO TOKIO Gen. Ins. Co. Ltd - Opp.Party(s)

Alok Kr Choudhury

21 Dec 2023

ORDER

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 35 of Consumer Protection Act, 2019. The fact of the case in brief is that the petitioner/complainant, Rajesh Sekh is the permanent resident of Bichubandh Goara, Bolpur and Dist. – Birbhum.

            That the complainant is the owner of a four wheeler vehicle bearing Registration No. WB 54 W7538, Engine No. D13A-3489630, Chassis No. MA3CZF03SKE547370, Model- Maruity Dzire VDI, Vehicle Make- Maruti Suzuki India Ltd. and the said vehicle has been insured under long-term Package Policy- 3 year (Private Vehicle) having Policy No. 11419022 issued by the OP No. 2 through OP No. 2. The said policy was valid from 20-06-2019 to 19-06-2022 and the Insured Declared Value (IDV) of the said vehicle is Rs. 7,17,697/-.

           

 

(Page 1 of 8)

 

 

 

It is the further case of complainant that on 19/08/2019 the complainant who was at Berhampore then some personal work asked his driver named Samirul Sk., S/o. Habibur Rahaman having Driving License NO. WB54091959 which was valid up to 12/10/2035 issued by the office of Road Transport Authority at Suri, to bring the complainant from Berhampore to Bolpur by the said insured vehicle. Accordingly, his driver during the evening hours started his journey from Bolpur to bring his master back from Berhampore after work by the said insured vehicle. Thereafter, on the way two unknown male and female persons approached for help from his driver near Kandi Bus Stand due to certain medical emergency claiming that their relative is admitted in hospital at Berhampore. Out of humanity his driver accepted their request and thereby they boarded the said vehicle. When the insured vehicle reached nearby Purandarpur under P.S.- Kandi, those two unknown accompanied persons sprayed some poisonous gas in the vehicle and as a result, his driver started feeling suffocated and loss of breathe said that compelled his driver to stop the said vehicle however, consequences to such situation when his driver stepped out from the said insured vehicle to get relief, he got senseless and those two unknown accompanied person fled away with the said insured vehicle along with the mobile phone of his driver. There, pursuant to this incident, complainant submitted a police complaint immediately to the Inspector-in-Charge of Kandi P.S. vide letter dated 23/08/2019.

            But the Kandi P.S. refused to provide a receipt copy for the same to the complainant. Thus, the complainant informed the said police complaint to the SDPO, Kandi, S.P. Murshidabad, P.S. Kandi through speed post accordingly.

            Thereafter, due to non-action by the police department towards his complaint, the complaint filed a case U/S 156 (3) of Cr.P.C., 1978 before the Ld. Additional Chief Judicial Magistrate at Kandi, Murshidabad. As per direction of the Ld. Court, the said complaint was taken by Kandi P.S. as FIR being No. 420/19 dated 21/09/2019.

            After the FIR, the complainant intimated to the OP No. 2 through customer care number towards the claim of insurance amount for the theft of the said insured vehicle. Moreover, the   OP No. 2 has duly appointed the OP No. 3, an independent investigator. OP No. 2 issued a letter dated 24/10/2019 thereby requesting the complainant to send certain documents. But, the complainant was unable to send all the documents within the stipulated period because most of the same were not available to the complainant at that point of time. The complainant also intimated the matter to OP No. 2.

            It is the next case of the complainant that the complainant received a letter dated 11/11/2019 from the OP No. 3, whereby, the OP No. 3 stated that he has been appointed by the OP No. 2 as an investigator

 

(Page 2 of 8)

 

 

 

for the instant claim. Thereafter, he stated that he has duly visited the incident spot from where the subject vehicle has been stolen and gather information both from the concerned P.S. as well as the local people and also requested to send certain documents such as NCRB Letter, RTO Intimation Letter (Original), Hospital Treatment paper of the involved driver, both in original and photocopy manner respectively.

            Thereafter, the OP No. 2 again forwarded a reminder letter dated 24/12/2019 in context of the earlier letter dated 24/10/2019 to the complainant towards the process and settlement of the insurance claim.

            Finally, the OP insurance company sent the repudiation letter dated 28/02/2020 to the complainant and stated that due to the inordinate delay of 33 days in lodging FIR and delay of 65 days in intimating the claim to the OP Nos. 1 and 2 respectively form the date of theft, thereby, his claim stands inadmissible as per the terms and conditions of the insurance policy.

            Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper reliefs and prays for:-

1. To settle the claim on payment of the claim amount of Rs. 7,17,697/- only towards loss of articles under insurance which may be considered as just and proper along with 18% interest till the date of realization of the insurance claim amount.
2. The order may be passed to make payment of an amount of Rs. 2,00,000/- for harassment, mental agony and financial loss sustained by the complainant due to non-settlement of the claim which have attributed the deficiency in service from the part of the insurer who have deliberately avoided to pay any damage to his consumer and violated the existent rule.
3. May pass necessary order to pay an amount of Rs. 1,00,000/- towards litigation cost in this regard and along with claim amount interest should be payable from the date of submission of the claim from with IFFCO-Tokio General Insurance Company Ltd. that is, on 23/10/2019.
4. An award to personal loss/interest loss for delayed payment of the loss of an articles under a valid insurance coverage as to your Honour deem fit and proper.
5. And to pass such further order/orders as to this Hon’ble Commission may deem fit and proper for ends of justice.

The OP/IFFCO-TOKIO General Insurance Company Ltd. repudiated the insurance claim by vide letter dated 28/02/2020 to the complainant and stated as- “the FIR was lodged in the police station after a

 

 

(Page 3 of 8)

 

 

 

gap of 33 days from the date of theft and moreover no reason has been provided by the complainant in the FIR for such delay in lodging the FIR. Father the incident of theft was intimated to our office on 23/10/2019, after a gap of 65 years. For this inordinate delay, the insurers were deprived of first information and investigation for recovery of stolen vehicle with help of associated agencies.”

It also may be it mentioned that by virtue of order No. 03, dated 24/02/2020, the complainant added OP Nos. 4 and 5 as proforma opposite parties to this case.

It appears from case record that none appears from OP Nos. 3, 4 and 5 before this District Commission after receiving the notice. OP Nos. 3, 4 and 5  have not taken any step. No written version has yet been filed by the OP Nos. 3, 4 and 5.  As a result, vide order No. 12 dated 02/06/2022,  this Commission stated for running of the instant case exparte against the OP Nos. 3, 4 and 5.

Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and those were compared with original documents. Thereafter, respective Ld. Advocates for both sides made oral argument in support of their case.

Heard Ld. advocates for both sides.

 Considered.

Perused all the documents.

 

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Op?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

Decision with reasons

Point No. 1:

In this case, the complainant purchased an insurance policy for his vehicle vide policy No. No. 11419022 dated 20-06-2019 to 19-06-2022. Thus the complainant is a consumer under the OP Nos. 1 and 2 and the OP Nos. 1 and 2 are the service providers. Hence, the complainant is a consumer as per Sec. 2(7)d(ii) of the Consumer Protection Act, 2019.

 

 

(Page 4 of 8)

 

 

Point No. 2:

            In this case, the cause of action arose on and from 28/02/2020. The case has been filed on 22/12/2020 and as such it can be said that the complainant has been filed this case within the statutory period of the C.P. Act, 2019 and as such the instant complaint is not barred U/S 69(1) of the C.P. Act, 2019.

            Pecuniary Jurisdiction of this District Commission as per Notification No. G.S.R. 892(E). dated 20^th December, 2022 by Consumer Affairs Department, Govt. of India, New Delhi is Rs. 50 lakh.

            That the complainant is resident under P.S.- Bolpur, Birbhum, which is under the Territorial Jurisdiction of this District Commission as per Sec. 34(2) of C.P. Act, 2019.

            Hence, this Commission has Pecuniary Jurisdiction as well as Territorial Jurisdiction.

 

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant

purchased an insurance policy for his vehicle vide policy No. 11419022 valid from  20-06-2019 to        19-06-2022, for Registration No. of the vehicle WB 54 W7538.

            The vehicle in question was theft on 19/08/2019 at Purandarpur under the jurisdiction of Kandi P.S. The complainant also informed the said incident to the Kandi P.S. on 23/08/2019 and SDPO, Kandi, S.P., Murshidabad through speed post, accordingly. Kandi P.S. refused to provide with the receipt copy for the same.

            The complainant also filed a case U/S 156 (3) of Cr.P.C, 1973 before the Ld. Additional Chief Judicial Magistrate, Kandi, Murshidabad. As per direction of Ld. Court the P.S. Kandi took the FIR being No. 420/19 dated 21/09/2019.

            The complainant has produced a Vehicle Enquiry Report from  National Crime Record Bureau dated 02/12/2019 vide Receipt No. 1971 as:

            Vehicle Type: CAR

            Make: MARUTI SWIFT DZIRE

            Registration No.: WB54W7538

            Chassis No.: MA3CZF03SKE547370

            Engine No.: D13A3489630

            As per the information available with NCRB till date (based on data received from States/UTs police) the above mentioned vehicle is not recovered yet.

           

 

(Page 5 of 8)

 

 

 

Thus, it is proved that the vehicle in question was theft and it is not recovered yet. The OP/IFFCO-TOKIO General Insurance Company Ltd. could not negate it anyway. So, the claim of the petitioner stands.

            OP Nos. 1 and 2 files their reply against the question No. 2 filed by the complainant as: “Yes, it is a fact that upon intimation of the complainant after 21/09/2019, the insurance company issued the letter dated 24/10/2019.”

            Thus, the OP Nos. 1 and 2 admitted the fact that the complainant has given intimation on 21/09/2019.

            Moreover, Ld. Advocate on behalf of the complainant cited some ruling from Gurshinder Singh Vs. Shriram General Insurance Company Ltd. and Another’s (2020) 11, SCC 612 directed on January 24, 2020 as:

 Om Prakash V. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759

“18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.

19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”

(Page 6 of 8)

 

           

 

 

 

In the light of observation made by their Lordship in the above decision we find us safe to follow them and apply the ratio in the present dispute.

From the above discussion, this Commission is of the view that the cause shown by the OP Nos. 1 and 2 for repudiation of the said claim is baseless and vexatious one.

            It is proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(11) of the C.P. Act, 2019 as well as unfair trade practice as per Sec. 2(47) of C.P. Act, 2019 on the part of the OP.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubts.

 

Point No. 4:

From the documentary evidence as available in the case record it is crystal clear that the complainant is a consumer under the OP members.

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

• We find in Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• We also find in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be levied @ 9% per annum on and from 22/12/2020 (i.e., the date of filing of this case).

Hence, it is,

            O R D E R E D,

                                    that the instant C.F. Case No. 92/2020 be and same is allowed on contest with cost. The OP Nos. 1 and 2/ IFFCO-TOKIO General Insurance Company Ltd. are jointly or severally directed to pay Rs. 7,17,697/- (Seven lakh seventeen thousand six hundred

 

(Page 7 of 8)

 

 

 

 

 

ninety seven only) as insurance claim to the complainant along with interest @ 9% per annum calculation on and from 22/12/2020 (i.e. from the date of filing of this case ) till its realization. The OP Nos. 1 and 2 are also jointly/severally directed to pay Rs. 5,000/- (Five thousand only) to the complainant as cost of litigation.

The entire decree will be complied by the OP Nos. 1 and 2 within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

 The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.