The case of the complainants Mr. Yead Ali and others, in brief, is that the complainants Yead Ali and another were the owners of the vehicle being WB 41D/3150 which was covered under insurance policy of the O.P for the period 02.12.2010 to 01.12.2011.
It is the further case of the complainants that on 13.05.2011 said truck was loaded with rice at Alamganj under Burdwan District. Thereafter, the driver of the truck became ill and he brought the said truck at Rampurhat and after some repair on 16.05.2011 the said truct left for Assam. But even after three days the complainant did not get any information regarding the said vehicle and did not get any response from the driver as his cellphone was switched off.
It is the further case of the complainant thereafter the complainants were trying to find out said vehicle in different places but in vain. They lodged Rampurhat P.S. G.D entry No. 924/11 dated 22.05.2011 in this regard. But the police did nothing. Lastly they have taken shelter of Court and lodged the written complaint U/s 156(3)Cr.PC before Ld. ACJM, Rampurhat. The police started Rampurhat P.S case No. 161/12 dated 20.01.2012 U/s 381/406/120B IPC. Police started investigation but the investigation ended FRT being No. 317/13 dated 31.12.13.
It is the next case of the complainants that immediate after detection of hijacking of the vehicle they informed O.P over telephone and thereafter in writing.
It is the further case of the complainant that the complainants have complied all the formalities so for required by the O.P and submitted all relevant documents to settle the insurance claim regarding theft truck but inspite of several request the O.P did not settle the claim.
It is the further case of the complainants that lastly the O.P demanded latest investigation report of police and they collected the same with final police report and submitted to the O.P on 03.08.2014 but they did not pay any heed.
It is the case of the complainant the O.P did not consider the legitimate claim of the complainants which is nothing but violation of law of insurance as well as guideline of IRDA as they did neither reject or allow the claim.
Hence this case for directing the O.P to pay Rs. 7,96,250 to the complainant as insurance claim with 18% interest P.A and to pay Rs. 5000/- as litigation cost.
The O.P Insurance Co. has contested the case by filing written version denying all material allegation of the complainants contending, inter alia, the case is not maintainable and the case is bad for defect of parties.
It is the specific case of the O.P that the complainants had applied for motor insurance policy with respondent company, by filing the proposal form for his vehicle and on payment of insurance premium and submission of requisite documents and on the basis of declaration made in the proposal form on good faith respondent company had issued insurance policy for the period 02.12.2010 to 01.12.2011 and insurance policy certificate was issued in favour of the complainants. The said policy bond contains the terms and conditions governing the insurance policy, which in itself became a contract upon the receipt of the policy bond by the complainants.
It is the further case of the complainant that though the said vehicle was stolen away on 16.05.2011 but the company denied the relief prayed for as because delay of 249 days in lodging of FIR i.e. clear violation of condition No.1 of the policy.
It has been also alleged by the O.P that original key was not deposited with the claim application.
Lastly the O.P has contended that ultimately they repudiated the claim of the complainants by sending letter dated 11.05.2012,
Ultimately the O.P Insurance Co. has prayed for dismissal of the case.
Point for determination.
- Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
- Whether this Forum has jurisdiction to try this case?
- Whether there is any deficiency in service on the part of the O.P.?
- Whether the complainant is entitled to get any other relief or reliefs as prayed for?
DECISION WITH REASONS
During the trial of one of the complainant Yead Alli has been examined himself as P.W.1 and some documents have been submitted by complainant.
On the other hand the O.P has not adduced any oral or documentary evidence.
Point No.1: Evidently the complainant obtained an insurance policy in respect of vehicle No. WB-41D/3150 on payment of premium from O.P. So, the complainants are consumers u/s 2(1)(d)(ii) of C.P. Act.
Point No.2: O.P Insurance Co. has Office at Suri within jurisdiction of this Forum.
The total valuation of the case is Rs. 8,01,250 with interest which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-. So, this Forum has jurisdiction.
Point No. 3 and 4: Both points are taken up together for convenience of discussion as they are related to each other.
One of the complainant Yead Ali in his evidence stated that they were owners of the vehicle No. WB41D/3150.
Copy of the registration certificate, fitness certificate, and delivery challan show that the complainants Yead Ali and Sk. Bablu were owners of the vehicle in question.
Copy of the insurance certificate shows that said vehicle was coverage of insurance for the period 02.12.2010 to 01.12.2011 i.e. theft comments within coverage period.
It is the case of the complainants that the said truck was left for Assam on 13.05.2011 with loaded rice from Burdwan but after some repair of truck and due to ailment of the driver said truck started on 15.05.2011from Rampurhat. But they did not receive any information regarding the said truck for three days as driver of the same switched off his mobile. They have tried to trace out the vehicle in deferent places but in vain. Lastly they have lodged Ramputhat P.S G.D E No. 924/11 dated 22.05.2011.
Copy of the G.D issued by police shows that complainant No. 1 Yead Ali lodged said G.D on 16.5.2011 alleging that his driver Swapan Mondal left for Assam with said loaded truck but they were unable to contact with said driver and requested the police to find out said truck, driver and khalashi.
It is the further case of the complainant that the police did not nothing in this regard and they have also failed to trace out the said truck and lastly they have lodged written complaint through Ld. ACJM, Rampurhat U/s 156(3)CR.PC.
Certified copy of the formal FIR and FIR show that Yead Ali lodged said FIR alleging that on 13.05.2011 his driver Swapan Modal started from Burdwan with loaded truck in question. But he became ill and after repair of the truck on 16.05.2011 he left for Assam with said truck from Rampurhat. But they were unable to make contact with driver for three days as his mobile found in switched off condition. On 22.05.11 he lodged GD No. 924 dated 22.05.11. But police took no action. He met with I.C, Rampurhat on several occasions and sent complaint to SDPO Rampurhat and SP Birbhum through registered post with A.D but no consequence.
Lastly he lodged the said complaint before Ld. ACJM, Rampurhat.
From certified copy of the formal FIR and FIR we find that police started Rampurhat PS Case No. 16/12 dated 20.01.2012 U/s 381/406/120(B) of IPC against Sk. Rafiqul and Swapan Mondal.
Certified copy of the FRT shows that police after completion of the investigation submitted FRT in the said case.
Evidently the claim of the complainants have been repudiated by the O.P Insurance company and main ground for repudiation is that said vehicle was stolen on 16.05.2011 but the complainant took 249 days’ time in lodging the FIR, which is nothing but clear violation of the condition of the policy.
Certainly it was the duty of the complainant to lodge FIR and to inform Insurance Co. immediate after committing of theft.
Evidently in the present case FIR was lodged after 249 days. But the facts of the present case is peculiar. We find that in the present case the complainants were not aware about the fate of their loaded truck and they were unable to ascertain actually what happened. They waited for three days and unable to make contact with driver by mobile phone and on 16.05.2011 lodged G.D stating everything.
Police might have treated the said GD as FIR considering gravity of offence.
Evidently the complainants have tried to search out the said truck and kept close contact with police but no consequence. They sent written complaint to SDPO, Rampurhat and SP Birbhum through registered post but police did nothing.
Lastly, under compailing circumstances the complainants lodged written complaint before Ld. ACJM Rampurhat on 27.07.2011 U/S 156(3) CR.PC for forwarding the same to Rampurhat P.S and in compliance of the order of Ld. ACJM, Rampurhat police started specific case on 20.01.2012.
So, in view of our above made discussion the complainants were not liable for lodging FIR immediately and inordinate delay for lodging FIR was cropped up not due to fault or laches on the part of the complainant.
In recent ruling reported in 2016(1)CPR 541(NC) where the complainant could not have even known about murder of his driver and theft of his car till dead body of recovered. Hon’ble National Commission pleased to hold that there was no occasion of complainant to intimate Insurance Co. about theft of his car within 24 to 72 hours of the incident and this is not a case of intentional delay of intimation which may be treated as violation of the condition of insurance policy which may justify repudiation of claim and Fora below rightly allowed consumer complaint filed by the respondent.
So, in view of the facts and circumstances of the case and above cited ruling by Hon’ble National Commission the delay in lodging the FIR and intimating the Insurance Co. may be condoned, as in the present case also the complainants have no intention of lodging FIR or intimating the Insurance Co. in late stage.
It is the further case of the O.P the present case is bad for defect of parties as the truck in question was under loan and financier has not been made party to the case. But we find from the no objection in terminating the loan agreement. So, Financer is not necessary party.
Considering overall matter into considerations and materials on record we are constrained to hold that the complainants have been able to prove their case that the O.P Insurance Co. repudiated their claim illegally which amounts to deficiency in service and unfair trade practice.
Thus these points are decided in favour of the complainants and they are entitled to get Rs. 7,96,250 as insurance claim with 8% interest per annum since the date claim preferred till realization.
Thus the case succeeds.
Proper fees have been paid.
Hence,
O R D E R E D
that C.F case No. 101/2014 be and the same is allowed on contest with litigation cost of Rs. 5000 payable to the complainants.
The O.P ICICI Lombard General Insurance is directed to pay Rs. 7,96,250 as insurance claim with 8% interest per annum since the date claim preferred till realization within one month from this date failing which the complainants shall be at liberty to execute the order as per law and procedure.
Copy of this order be supplied to the parties each free of cost.
