Ld. Advocate(s)

                             For Complainant: Prodip Banerjee                                                         

                             For OP/OPs : Raj Kumar Mandal

          Date of filing of the case               :22.04.2022

          Date of Disposal  of the case        :29.07.2024

Final Order / Judgment dtd.29.07.2024

The concise fact of the case of the complainant is that the  complainant Mr. Anchhar Ali Mondal, is the owner of  the  vehicle  

(2)

CC/44/2022

no.WB-51B/5283 (Goods Carrier) which is the only source of livelihood  of the complainant . The vehicle is duly insured  with the OP Reliance General Insurance  Company vide policy no. 6142221233400 for the period 24.06.2021 to 23.06.2022. On 24.01.2022 about 7:00 P.M., complainant went to  his house  after locking  the vehicle  at Ranaghat Court More. After having returned  the complainant found at about 11:45 p.m. that his vehicle  was not there.  All the documents  of the vehicle  were inside  the said vehicle. Despite  thorough searching  it could not be  traced out. So, he went to the Ranaghat P.S at about 2:30 A.M for lodging complaint  but they did not give  any receipt.  On 25.01.2022 the complainant  received  one phone call from Samar Roy  that he saw  the vehicle  at Taherpur Rail Gate. On asking  the driver  of the stolen  vehicle  stated that the  said Mr. Anchhar Ali Mondal instructed  him for loading Banana  from Krishnagar. The said Samar Roy  is also a vehicle driver  of vehicle no.WB-23B/3939 TATA 107. After 4/5 days the complainant went  to Ranaghat P.S but they did not give any  receipt  of the complaint.  Subsequently,  on 01.02.2022 FIR was lodged.  There is no  negligence  of complainant  to lodge the complaint . The complainant  informed  the agent of the  OP Baban Das  on 25.01.2022. The complainant can sign only in English  and Bengali.  He is illiterate.  The complainant also informed  the OP about theft of his vehicle  on 27.01.2022 at 6:00 P.M. Having been puzzled  the complainant  informed the incident  to the National  Crime  Record Bureau in New Delhi. The complainant , thereafter,  lodged claim  vide claim no.3222000178. The Insurance  Company/OPs repudiated  the claim of the  complainant  through their  letter dated 15.03.2022. The complainant , therefore,  filed the present case  and prayed for an award  for Rs.381068/- for loss  of vehicle , Rs.1,00,000/- for mental pain and suffering  and loss of money and litigation cost.

          The OP No.1 preferred  not to contest  the case and as such  it is heard ex-parte  against OP No.1. OP No.2 contested the case  by filing W/V wherein  they denied the  major allegation  against them.  The OP No.2 challenged the case as bad for defect of parties  and barred by limitation. The positive  defence  case   of  OP No.2  is  that  the  insured vehicle  is hypothecated with the financer  Cholamondalam investment and finance company limited. So,  they are necessary party. The complainant  is not a consumer  since the  vehicle  was not purchased  by him exclusively  for his livelihood. The complainant is the owner of the disputed vehicle  which is a commercial  vehicle.  The said vehicle  was insured  with the OP Reliance General Insurance  with the terms and conditions  as per the policy . Notice shall be  given in writing  to the insurance  company immediately after the  accidental loss or  damage.  The alleged  date  of  theft  is  24.01.2022  and

(3)

CC/44/2022

the insured informed the matter  to the  P.S on 01.02.2022 after 8 days of the alleged date  of theft. Thereafter, the insured informed  it to the insurance company. So,  the complainant violated  the terms and conditions  of the policy.  The OP did not get any opportunity  to conduct  proper investigation. Therefore,  the OP company  repudiated  the claim of the complainant.  There is no negligence  or deficiency in service  by the OP.

          Conflicting pleadings of both the parties  demand  for adjudication  of the following points.

Points for Determination

Point No.1.

Whether the  case is maintainable  in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

The OP challenged the case on the ground  that the case is barred by limitation.

It appears  that the alleged  theft took place  on 25.01.2022 and the claim was  repudiated on 15.03.2022. The present case  is filed on 22.04.2022, so it is well within the time of limitation.

The OP further  challenged the case  as bad for defect of parties  but in course of  argument Ld. Defence Counsel  did not press the point. However,  after  perusing the  pleading of the parties  and the evidence  on the card record  the Commission is of the view  that the case  is not bad for defect of parties.

 Accordingly,  point no.1 is answered in affirmative  and decided in favour of the complainant to the effect  that the present case  is not barred under any provisions of law.

(4)

CC/44/2022

Point No.2&3.

Both the points are very closely interlinked with  each other  and as such  these are taken up together  for brevity and convenience  of discussion.

It is the admitted fact that the complainant is the owner  of the vehicle  no.WB-51B/5283 which was insured with the OP company. It is the specific  case of the complainant that the said vehicle was stolen on 24.01.2022.

The complainant  in order to  substantiate the case  proved the following documents:-

Annexure-A:- Is the  Insurance Policy  of the vehicle  WB51B/5283.

Annexure-B:- Is the FIR by the complainant Mr. Anchhar Ali Mondal for theft of vehicle.

Annexure-C:- Is the letter of repudiation of the claim by the OP dated 15.03.2022 issued to the complainant.

Annexure-D :- Is the  letter of  complaint  by the complainant  to the RTO, Nadia dated 16.02.2022.

Annexure-E:- Is the  letter of  the complainant to the National Crime Record Bureau dated 11.02.2022.

Annexure-F:- Is the  letter by the  complainant to Ranaghat P.S about  theft of the vehicle.

Annexure-G:- Is the  certificate of the financer as NOC covering letter dated 20.04.2022 by Cholamondalam investment.

Annexure-H:- Is the Certificate  of registration  of the disputed  vehicle no.WB51B/5283.

Annexure-I:- Is the  driving  licence  of one Samar Roy.

Annexure-J:- Is the driving  licence of complainant.

Annexure-K:- Is the final report of Ranaghat P.S dated 31.10.2022.

Annexure-L:- Are the  medical treatment  documents of complainant dated 05.03.2022 and 23.02.2022.

(5)

CC/44/2022

The OP No.2 mainly defended  the case on the ground  that there is  a delay in lodging  the complaint  and as such  the complainant has violated  the terms and conditions  of the insurance policy.

Ld. Defence Counsel  argued that both the side must abide by the terms and conditions  of the insurance  policy.  In the instant case the complainant alleged  that there is theft of the  disputed  vehicle. So, he  ought to have informed  it to the  insurer  immediately. But there is  a delay  of about 8 days  of the alleged theft.

Ld. Advocate for the complainant argued that the incident  took place  on 24.01.2022 but he  went to lodge  the complaint  to Ranaghat P.S on 25.01.2022 but the P.S did not  give any receipt.

After scrutiny of the documentary evidence  in the case  record it transpires that it is evident that as per  annexure-C which is repudiation  letter of  OP dated 15.03.2022, the OP stated inter-alia  that the insurance claim was intimated  on 27.01.2022. The theft is claimed  to have taken as place  on 24.01.2022.

So,  if there is any  delay to  inform  it as stated  by the OP then the said delay  is ¾ days  and it is not  8 days.

The complainant categorically  stated that he went to lodge the complaint  at Ranaghat P.S but police  did not give him  any receipt.

The complainant  was asked  as to whether he had informed immediately  after the theft  of the insured  vehicle  to the insurance  company  of which he  answered  “Yes orally via mobile phone  and also in writing”. The complainant also answered yes against  the question as to whether he  had any document  to show also he had lodged  any information  to the police  authority  immediately  after the alleged  theft. The case of the  complainant  is also corroborated  by another driver  PW2 Shri  Samar Roy. The OP cross-examined  the PW2 as to whether he  had any document  to show  that the complainant  several times went to Ranaghat  P.S to lodge FIR for theft of the vehicle  and the Ranaghat P.S did not lodge any FIR to that effect .

The PW2 Samar Roy  answered  in cross-examination that Mr. Anchhar Ali Mondal several times  went to the  Ranaghat P.S for lodging  FIR for the  theft of the vehicle  and Ranaghat  P.S as usual case did not lodge FIR.

(6)

CC/44/2022

Answer given  in cross-examination  has a special  force and as such  the PW2 categorically  stated that the  complainant  went several times  to lodge FIR to Ranaghat P.S did not lodge it.

Accordingly,  the evidence of the complainant  is duly  corroborated  by independent  witness  as well as  the documentary evidence. The aforesaid  oral and documentary  clearly  established  that the complainant  duly explained  the delay in a lodging  the FIR.

The complainant  in order to  strengthen  the case further referred  to one case law  repudiated  in 2023 (4) India Civil  Cases 596 (SC) wherein  Hon’ble  Apex Court  held that the  theft  of vehicle –delay in intimation- repudiation  of claim. In case of  theft insurer had given  notice immediately  to police  and cooperate with insurance  company. The delay of 6 days  in informing  insurance company would not amount to breach  of condition. Insurance company held  liable  to pay . Repudiation  of claim  was set aside.

The said  case law  is relied on  in the instant  case.

Ld. Defence Counsel  further argued that the complainant  claimed to have intimated  to National Crime Bureau  but could not  explain why it was not  informed  to the OP company.

Ld. Advocate for the complainant  argued  that the  in addition  to information  to the police  the complainant informed it  to the National  Crime  Bureau.

Ld. Advocate  for the complainant  also  submitted some documents  and argued that the complainant  was suffering  from illness, so the  minor  delay  occurred  to inform the  OP. From the medical documents  filed  by the complainant  it appears that the  complainant was  medically treated  for diabetes  and other  disease.  The  incident  took place  on 24.01.2022 and the complainant  was  under medical  treatment  for a suitable period.

Ld. Defence Counsel  further argued that  the complainant  did not submit  the FRT to the OP , so the repudiation  is proper.

 Ld. Advocate for the complainant counter argued  that it takes  some time  to obtain copy of FRT. In the instant case the FRT  was prepared  on 31.10.2022 and the complainant  could not collect  it earlier.  However,  the intimation  was  given within  very short time. Ld. Advocate  for the complainant  to support  his claim  further referred  to another case law reported in  AIR 2017 SC 4836 wherein  it was held  that delay  of 8 days –vehicle  owner  lodging insurance with company   for   theft  of vehicle-Repudiation  of claim 

(7)

CC/44/2022

by insurance  company on account of breach  of policy condition- policy condition does not bar settlement  of genuine  claims  when the delay  is due to unavoidable  circumstances - Insurance company is liable to  pay compensation.

The said  case law is relied on . Ld. Defence Counsel  could not  cite any counter ruling to discard  the said decision.

 In the backdrop  of the aforesaid discussion  and assessment  of evidence  vis-a-vis  the observation made hereinabove  the Commission comes to the finding  that the complainant  duly proved  the case against  the OP upto the hilt.

Consequently, point no.2&3 are answered  in affirmative  on behalf of the complainant.

In the result the complaint case succeeds on contest with cost.

Hence,

                              It is

Ordered

that the complaint case no.CC/44/2022 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 with cost of Rs.5,000/- (Rupees five thousand). The complainant  do get an award for a sum of Rs.3,81,068/- (Rupees three lakh eighty one thousand sixty eight) for loss of vehicle, Rs.20,000/- (Rupees twenty thousand) towards deficiency in service  and mental pain and agony and Rs.5,000/- (Rupees five thousand) towards  litigation cost. The OPs are jointly and severally  liable to pay the award  money. Both the  OP No.1&2 are jointly and severally  directed  to pay the said sum of Rs.4,06,068/- (Rupees four lakh six thousand sixty eight)  to the complainant Mr. Anchhar Ali Mondal within 30 days from the date of passing the final   order  failing which the   entire  award  money  shall

(8)

CC/44/2022

carry an interest @8% p.a  from the date of passing  the final  award money  till the date of its realisation.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.           

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)        ................ ..........................................

                                                                                                                          PRESIDENT

                                                             (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

                                                                                                    ........................................                                                 

          MEMBER                                                                

(SHRI NIROD  BARAN   ROY  CHOWDHURY)