Orissa

Jajapur

CC/71/2014

Nirmala Kanta Mohalik - Complainant(s)

Versus

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

Alok Kumar Pane

26 Apr 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 26th day of April,2017.

                                                      C.C.Case No.71 of 2014

Nirmala Kanta Mohalik  S/O Kishore ch.Mohalik

Vill. Sukinda,P.S.Sukinda

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

Branch Manager,  Oriental Insurance Co. Ltd, Jajpur Road Branch

At/P.O. Jajpur Road, Dist. Jajpur.

 

                                                                                                                          ……………..Opp.Parties.                  

For the Complainant:                            Sri A.Ku.Pani, Advocate.

For the Opp.Party :                                Sri A.Ku.Dash,Advocate.

                                                                                                     Date of order:   26.04.2017.

SHRI  JIBAN BALLAV DAS, PRESIDENT .

The petitioner has filed the present dispute against the O.P alleging deficiency of service since the O.P has  repudiated the insurance claim of the petitioner .

            The fact relevant for the present dispute as per complaint petition shortly are that the petitioner  is registered owner of truck bearing No.0R-04-C-8601 which was insured with the O.P bearing policy No.345702/31/2012/2042 covering risk from 09.08.11 in the mid-night to 08.08.2012. During subsistence of the  policy the vehicle was stolen away by some unknown criminal on 28.06.12 near Bulu Dhaba at Tata mines bazar Kaliapani .The petitioner informed the matter of theft of his truck to the I.I.C, Kaliapani police station vide P.S. Case No.44 dt.29.06.12 corresponding to G.R. Case No.601/2012 of J.M.F.C, Jajpur Road. The investigation was taken up by I.I.C, Kaliapani P.S and charge sheet has been  submitted against the accused persons  . As the vehicle was cut in two pieces  and sold away,  the I.O was  unable to seize the stolen vehicle.

            That the petitioner informed the incidence of theft to the insurer ( the Oriental Insurance Company vide claim No.345702/31/2013 /000027. Thereafter in considering the claim the O.P repudiated the claim on 31.10.13 on the ground that “as the theft is not reported within 48 hours of occurrence and fitness of vehicle was not valid at the material time of theft”.

Accordingly finding no other way the petitioner knocked  the door of this Fora with a prayer to direct the O.P to settle the  genuine Insurance claim and also allow compensation of Rs.10,000/- for mental agony .

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

            That there is absolutely no cause of action as made against the O.P.

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

            Admittedly the O.P had issued Insurance policy bearing No.345702/31/2012/2042 for the period from 09/08/11 to 08/08/12 against vehicle No.0R-04-C-8601 of the petitioner after taking necessary premium as alleged by the petitioner .

            The O.P received the information of the alleged theft of the vehicle on 02/07/12 . Immediately after getting the information of theft , the Divisional Office of the O.p deputed Mr.Sambhunath Patnaik  for conducting necessary investigation . After conducting necessary investigation Mr.Patnaik submitted his report. Which is enclosed As Annex-1. On going through the same it came to the knowledge of the O.P that the vehicle of the petitioner was reportedly stolen on 28/06/12 and the matter was reported to the Kaliapani Police and accordingly P.S Case No.44/12 (corresponding to GR case No.601/12 of JMFC, Jajpur Road) was registered and investigation was on. That apart on verification of the vehicular documents as submitted by the petitioner,  it came to the knowledge of the O.p that the fitness against the alleged vehicle was not valid at the time of alleged theft. The O.p after going through the above irregularities like fitness of the vehicle was not valid and the alleged theft was reported to O.P after expiry of 48 hours the claim was repudiated as per guidelines of the company. The letter was also submitted to the O.P  vide Regd. Post with A.D on 31.10.13.

            Apart from this the  O.P also submitted that  the statement given by the petitioner that on the alleged date of loss the vehicle was not engaged in carriage of goods to the above submission the O.p after conducting necessary investigation came to know that the alleged vehicle was regularly hiring chromite ore at Kaliapani Mines and one day before the date of alleged theft (27.06.14) and on 28.06.14 the vehicle was waiting for loading chromite ore from Kaliapani mines which clearly establishes the fact that on the date of alleged theft the vehicle was in use, Which requires a fitness as per provisions of MV Act. As there is violation in the provisions of MV Act the repudiation of claim was genuine.

            The O.P being an Insurance Company is governed by the terms and conditions as laid down by the Insurance Regulatory Authority and accordingly deal with each and every matter. Like wise the O.P  also dealt with the alleged matter in the instant case .  So the question of deficiency in  service in any manner  never arose.  As there is no deficiency  of service in any manner , the case as made out  against this O.P is laible to be dismissed with proper cost to this O.P.

            On the date of hearing we heard the arguments from both the sides. Perused the pleadings and documents available on record.

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

It is admitted fact that the alleged vehicle has been insured with the O.P and after verification of the policy ,  it is also cristal clear that the policy was valid from 09/08/11 to  08/08/12 midnight and as per allegation of the petitioner the theft of vehicle  occurred within the subsistence of the policy .It is stated by the petitioner that he has lodged the F.I.R at Kaliapai Police station on 29.06.12 vide P.S. Case No.44/12 corresponding to GR Case No.601/12 JMFC, Jajpur Road soon after the theft . After investigation the police has submitted the charge sheet against the accused persons ,As such we are inclined to hold that after occurrence of theft the vehicle on 28.06.12 the petitioner has lodged the FIR on 29.06.12 at Kaliapani P.S is within the time so there was no delay .

The next point relates to consider, delay in informing the Insurance Company. In this contest the petitioner has stated in the complaint petition that the information of theft of the vehicle has been given to the O.P  vide Claim No.   345702/31/2013/000027 immediately after the incidence . In addition to it the petitioner has filed the documents in support of his claim which are stated below:

1.Copy of FIR to Kaliapani P.S dt.29.06.12

2.The Final repudiation letter of the O.P dt.31.10.13

3.Order of Hon’ble National Commission vide R.P.No.629/2015

4.Order of Hon’ble National Commission vide R.P.No.1503/2004

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

1.Affidavit of B.M,N.Behera of O.p

2.Final Investigation Report of Sambhunath Patnaik(Investigator)

3.Motor Insurance Certificate –Cum-policy Schedule.

            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 the theft  claim of the vehicle  within 48 hours of incident  and fitness of  the alleged vehicle was not  valid at the time of alleged theft .On the other hand the petitioner has categorically stated that the vehicle was not engaged in carriage of goods at the time of theft,  so the validity of fitness is  not applicable in the present case . In this connection , we  are inclined to hold that  repudiation of  the claim on the ground of fitness not applicable in the present case because  the cause of theft is not due to the validity of the fitness  of the vehicle   . As regards  delay in intimation to Insurance Company ,  we have come across  with the circular of IRDA and observation of Appellant Forum regarding delay in informing  to the Insurace 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 lately  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 .”

                                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 on contest against O.P. . The O.P.is  directed to  settle the Insurance Claim of the alleged vehicle within  one month after receipt of this order, failing which the O.P. shall be liable to pay 9% interest per annum  as repudiation of claim by the O.P is not sustainable and bad in law . No cost.

This order is pronounced in the open Forum on this the 26th day of April,2017. under my hand and seal of the Forum.