Orissa

Jajapur

CC/76/2015

Barada Prasad Biswal - Complainant(s)

Versus

Branch Manager ,Oriental Insurance Co.Ltd - Opp.Party(s)

Bijaya Kumar Mohanty

31 Jan 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray,Lady Member.

                                                    Dated the  31st day of January,2017.

                                                             C.C.Case No.76 of 2015

Barada Prasad Biswal   S/O Janaki Biswal

At.-  Kopanda ,P.O/ P.S- Jajpur Road

Dist.-Jajpur.

At present:Gayatri Vihar,Sapagadia

P.O.Ferro Chrome Project,Jajpur Road.                                                          ……....Complainant .                                                                      

                   (Versus)

1.Branch Manager Oriental  Insurance Co.Ltd, At/P.O/- Jajpur Road, Dist.- Jajpur.

Represented by Divisional Manager,Oriental Insurance Company Ltd,

At/P.O. Azimabad,Balasore, Dist.Balasore.

                                                                                                                            ……………..Opp.Party. 

                

For the Complainant:                       Sri B. K. Mohanty, Sri G.S. Das, Advocates.

For the OPP.Party :                          Sri A.K. Dash, Advocate.

                                                                                                     Date of order:  31.01.2017.  .

SHRI JIBAN BALLAV DAS , PRESIDENT .

                        The petitioner has  filed the present dispute against the O.Ps. alleging deficiency in service due to non settlement  of Insurance claim.

                        The fact relevant for the present dispute as per complaint petition shortly are that the petitioner being a very poor and unemployed youth in order to maintain his livelihood purchased a Truck bearing Regd. No.0R-04-C-1228. After purchase, the said Truck was insured with the O.P bearing policy No.345702/31/2009/3035 which was valid from 31.03.2009 midnight to 30.03.2010 covering the Insurance period. It is stated by the petitioner that on 05.12.2009 when the truck was coming on N.H.5 near Koudikhol chhak at about 2.00 A.M to 3.oo A.M in the night, the driver  got down from the Truck for passing Urine. At that time two persons coming by a Bolero assaulted the driver and tied him by means of plastic rope and pointing the gun tied the leg and mouth of the driver and took away the truck. The driver was tied there till 6 A.M 0n 06.12.2009 . The local people knowing the fact made a telephonic call to him at 6.30 A.M and there after the complainant  reported the matter at Mahanga Police station on 06.12.2009 at about 4 P.M vide P.S. Case No.170/09. The police investigated the matter and polygraph test was done by S.F.S.L but inspite of all efforts the accused persons and the vehicle Truck could not traced out and the I.I.C submitted the final report on 15.02.2011.

                        That after the above incident immediately the petitioner has lodged the claim with the O.P by telephonic message about theft of the Truck. But the O.P. did not pay any heed to it. That in the mean time the petitioner’s mother affected by cancer was admitted at Acharya Harihar Regional Cancer Center, Cuttack and petitioner is the only son to look in the matter and unable to move  to the office of Insurance Company  for settlement of the claim. Thereafter the petitioner suffered  from “Dengu fever”.

                        That the petitioner is a very poor man who  purchased the above truck by  taking loan from Cholamangalam Finance Ltd. Due to non payment of loan dues an execution proceeding bearing No.213/14 is pending against him for recovery the outstanding loan dues. That in the mean time the complainant visited the office of the O.P  several time for settlement of  his Insurance claim. But the O.Ps did not respond. Thereafter the petitioner send a pleader notice on dt.27.04.2015 to the O.P for immediate steps for finalization of  the Insurance claim. But the O.Ps replied on dt.08.05.2015  the petitioner intimated that as per policy condition the Insurance claim is not payble because it was not reported to the company within 48 hours of its occurrence .

                        Accordingly finding no other way the petitioner has filed the present dispute with a prayer to direct the O.ps to pay the Insurance claim of Rs.5,20,000/- with 1,00,000/- as compensation for harassment, mental shock   and cost  with interest  to the petitioner.

                        After  receipt of notice the O.P  appeared and filed their respective written version in support of their defence. In the written version the O.P. had denied the allegation as raised by the petitioner . The stand taken by the O.Ps  are  as follows:-

1. The vehicle of the petitioner has been insured with the O.P.

2.There is no cause of action  made against the O.P.

3.The case is liable to be dismissed due to non joinder and mis-joinder of necessary parties.

4.The case is liable to  be dismissed as per limitation clause since  alleged occurrence  took place                  on 05.12.09 and information was given to police on 06.12.09 vide P.S Case No. 170/09 corresponding to G.R.Case No.693/09 at J.M.F.C Salepur and after conclusion of inquiry the police has submitted FRT on 15.02.11 and same has been accepted on 24.02.11 .But surprisingly the petitioner filed the case after lapse of period of long four years.

5.That the O.P completely ignorant about the fact of alleged theft of the vehicle which was occurred on 05.12.09. The O.P has also no knowledge about the filing  F.I.R at  Mahanga P.S  vide P.S. Case No.170/09 .

6.That the O.Ps nor any officer of Opp.parties office has received any telephonic message about the alleged loss from anybody till 27.04.15. Surprisingly received the information of alleged loss only on 27.04.15 through pleader notice of the petitioner.

7.That as per policy conditions it is mandatory that ‘Notice shall be given in writing to the company immediately upon the occurrence of any loss and event of any claim……………claim for theft of vehicle not payble if theft not reported to the company within 48 hours of its occurrence.

8.That as the petitioner has given no information about the alleged loss to the O.P immediately after the alleged loss, there is violation to the stipulations made by the IRDA in the alleged policy. So there is absolutely no deficit of service from the side of the O.P.

                        Owing to the above reasons the dispute be  dismissed with cost.

                        In view of the above assertions and counter assertions of both the parties we are inclined to decide the present dispute as per  our observations stated below:-

It is admitted facts that the alleged vehicle has been insured with the O.P  and after verification of policy it is also cristal clear that the policy was valid from 31.03.2009  to 30.03.2010 mid night  and as per allegation, theft of  the petitioner’s vehicle has been occurred within the subsistence of policy. It is stated by the petitioner that he has lodged the F.I.R at Mahanga police station on 06.12.2009 vide P.S. Case No.170/09 corresponding to vide G.R.Case No.693/09 J.M.F.C,Salepur . After investigation  the police has submitted the  F.I.R on 15.02.11 . As such we are inclined to hold that after occurrence of theft of the vehicle on 05.12.09  the petitioner has lodged the F.I.R on 06.12.09 in Mahanga police station, which is in time.

                        The next point relates to consider delay in informing to the Insurance company .In this contest the petitioner has stated in the complaint petition that the information of theft of vehicle to the O.P vide telephonic message was immediately made after the incident and the petitioner did not perused  this matter due to his mother illness.

                        In addition to it the petitioner has filed documents in support of his claim which are stated below:-

1.Daily News paper cutting of Sambad dt.11.12.2009.

2.O.P.D ticket Acharya Harihar Regional Cancer Center, Cuttack regarding mother illness .

3.Discharge certificate of S.C.B, Cuttack regarding his illness.

4.Affidavit regarding theft given information to the O.P by the petitioner / and friend of petitioner .

5.Reply of the O.P of the legal notice dt.08.05.15 where as the O.P stated that they received the information about  theft of the vehicle on 29.12.2009 lapse of 23 days from the date of occurrence.

                        The O.P also filed documents in support of his stands:-

1.Affidavit  of  Branch Manager dt.24.02.16.

2.Affidavit of Branch Manager dt.02.01.17

3.Order of R.P.No.3049 /14 of N.C.D.R.C.

4.Letter of O.P dt.08.01.2010 to the petitioner .

5.Reply of legal notice dt.08.05.2015 .

                        In this contest the O.P has taken the main plea in their written version as well as affidavit filed from the side of the B.M that they have not received any information over telephonic message regarding  the incident  but after receipt of the legal notice, in the  reply to the legal notice the O.P categorically mentioned that they have received the information after lapse of 23 days of the occurrence ,whereas the petitioner mentioned   in his counter affidavit that it was within the  knowledge of the O.P.

                        Thereafter the O.P again filed an affidavit of the B.M and additional written statement to admit the same.

                        In addition to the above we have came across with the circular  of IRDA and observations of Appellant Forums regarding delay in informing the Insurance Company which are stated below:-

                        (O) IRDA circular dt.20.09.2011 which indicates that the insurer are not entitled to repudiate the claim of the insured merely on flimsy grounds i.e Delay in submitting information to insurer in case of genuine claim.

1.2015(3)CLT-476-N.C (New India Assurance Co.Vrs. Gurmeet Kaur and others)clause-1

“ notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim. Every  letter of claim writ summons and / or process shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution .In quest or fatal injury in respect of any accident which may give rise to claim under this  policy”.

Para-6-the above referred clause does not require the insured to give immediate intimation to the Insurance company in case of theft of the vehicle”.

Para-7-subpara-3

“ Therefore the complainant in our opinion was not required in this case to give immediate intimation of the theft of the vehicle  to the Insurance company “.

2.2005(1) CPR-142-State commission –Odisha –Gajendra Prasad Panda Vrs. Oriental Insurance Co.ltd.

                                “ where insured vehicle was stolen claim can not be defeated by Insurance company on a technicality of some  delay in reporting matter to the police and to Insurance company .

3.2010(1)CLT-189-Odisha Oriental Insurane Co.Ltd Vrs. Kandha nayak

“ Repudiation on the ground that F.I.R lodged of the theft of motor cycle was after a month and intimation about theft given late which is in violation of policy condition. Held that the

repudiation in case in  hand is arbitrary and on technical ground and not in the line of the spirit of the Act or the legislation order of Dist. Forum directing Insurance company to pay the claim up held  rate of interest awarded by Dist. Forum reduced from 12% to 6%.”

4.2012(3)CPR-10-Chhatishgarh-The new India Assurance Company ltd.Vrs. Shankqar Chakrawartee though Attorney holder.

“ If irrespective of delay claim is otherwise payble- Insurnance company must settle claim insisted of rejecting it on technical ground “.

5.2014(2)CLT-390-Haryana-Shriram general Insurance Company ltd vrs. Rajesh Kumar

“Theft of vehicle-delay of 12 days in intimation to Insurance Company regarding delay in intimation but that does not mean that the Insurer can take the shelter under that condition and repudiate the claim which is other wise proved to be genuine “.

6.Circular of Insurance Regulatory and Development Authority dt.20.09.2011 to all the insurers. Para-4.

“ Therefore it is advised that all the insurers needs to develop a sound mechanism of their own to handle such claim with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay  are specifically ascertained recorded and the insurers should satisfy themselves that the delayed claim would have otherwise been rejected even if reported in time .”

Para-5

“ The insurers are advised to incorporate additional wordings in the policy documents suitably enunciating insurer’s stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured .”

D-   Similarly  the F.I.R in Mahanga  P.S vide P.S. case No.170 of 2009 U/S 395 of I.P.C/25/27  Act  corresponding to G.R.case No.693 /2009 J.M.F.C,Salipur  has been closed   on 24.02.2011 as no clue.”

                                Owing to the above contradicting views of both  the parties we have come across with the observations of Hon’ble Supreme Court reported in 2004(2) CLT-141-SC(United India Insurance Co.Ltd Vrs.M/S Pushpalaya Printers) wherein it is held that:-

 “Insurance policy-construction of –if there is any ambiguity or a term is capable two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy  is taken, namely, to cover the risk on the happening of certain events”.

111- Construction of documents – where the words of a document are ambiguous ,they shall be construed against the party who prepared the documents”.

                                For the reasons recorded above as well as owing to the facts and circumstances of the present dispute it is clear that the law on the point is conclusively in the complainant’s favour and as such  the dispute is hereby allowed.

                                                                                                O R D E R

                                The dispute is allowed against O.P. . The O.P. directed to pay the insured  value  amounting to  Rs 5,20,000/-(five lakhs twenty thousand) only   to the insured within one month after receipt of this order, failing which the O.P. shall be liable to pay 9% interest per annum on the awarded amount  from the date of Insurance Claim till its realization . No cost.

This order is pronounced in the open Forum on this the 31st day of January,2017. under my hand and seal of the Forum.