Ld. Advocate(s)

                                    For Complainant: Makbul Rahaman

                                    For OP/OPs :Avijit Gope

            Date of filing of the case                      :16.08.2018

            Date of Disposal  of the case              :29.02.2024

Final Order / Judgment dtd.29.02.2024

The dispute regarding refusal of claim by the OP NO.1 Insurance Company led the complainant to file this complaint. The concise fact of the

(2)

CC/133/2018

dispute is that the complainant  Biswajit Modak  after being  approached for  purchasing  the disputed insurance policy contacted with the OP No.1 Branch Manager, New India Assurance Company, Krishnagar OP No.2 Branch Manager, New India Assurance Company, Berhampore  is an authorised sub-dealer  under OP No.1. The complainant  for the purpose of purchasing  the insurance policy paid premium amount with Motor Cycle price and registration charge etc. through Bajaj Finance Limited . The OP No.3, Manager /Owner  of S.S Auto, Authorised Dealer  of Bajaj Auto Limited handed over the said Motor Cycle bearing no.WB-52W-6311 with other  papers. Thereafter, the said Motor Cycle bearing no. WB-52W-6311 was theft on 03.06.2015 for which Dhubulia  P.S. case no. 176/2015 dated 03.06.2015 u/s  379 IPC was started. The complainant informed the said incident to the OPs over which the OP No.1 appointed  and investigator  namely Ratan Kumar Dey. The complainant  also informed it to the RTO, Nadia. Subsequently,  the complainant sent a letter  on 11.12.2015 for getting which  his claim amount along the with relevant documents. The complainant also submitted documents  to the investigator of the OPs on 18.12.2015. On 18.07.2018 the complainant further  filed an application to the Ops for getting  the claim along with original documents, deed of indemnity  letter of subrogation , sale letter, original cheque, NOC, copy of letter dated 18.12.2015, copy of insurance policy etc. The complainant  again filed  a letter for getting his claim on 19.03.2018. Lastly the complainant  sent a legal notice through his advocate  on 29.03.2018. Having not received the insurance claim the complainant filed the present  case. The cause of action arose on 29.03.2018 and on subsequent dates. The  aforesaid acts of the Ops has caused harassment  and mental pain and agony, breach of trust, deficiency in service and unfair trade practice for which the complainant  claimed  the relief. The complainant prayed for an award for Rs.68,579/- as IDV with 12% interest, Rs.30,000/- towards compensation for harassment and mental pain and agony.

OP No.3 Manager/Owner S.S Auto Authorised Dealer  of Bajaj Auto Limited preferred  not to contest the case and as such it was heard ex—parte against the OP NO.3.

OP No.1&2 contested the case by filing W/V  wherein  they denied the major allegations. The Ops challenged  the case on the ground  that it is not maintainable in law bad for non-joinder and mis-joinder  of parties  and the Commission has no territorial jurisdiction  to entertain  the case . The positive defence case of the OP no.1&2 in brief is that the complainant failed  to provide  the essential requirement as per the rules and norms of the policy. The complainant 

(3)

CC/133/2018

failed to lodge complaint to the  police within due  time and also to the Ops insurance company within due time. The Ops are not negligent in rendering the service. OP No.2 is not a sub-dealer  under OP No.1  as OP N.2 is a separate  branch office. The complainant took the policy from the OP No.2 which is not within the jurisdiction of this Commission and as such it suffers from pecuniary jurisdiction. If, there is any violation of the terms of the policy , the party cannot claim any relief. The insurer under taken to indemnify  the loss suffered by the insured on account of risk  covered by the policy. The complainant  failed to maintain the norms of the company and to submit the claim and documents  within the stipulated period. So, question of deficiency  in service by the OPs  does not arise. The OPs , therefore,  prayed for dismissal of the complaint in limini.

The points of dispute involved  in the case persuaded this Commission  to ascertain the following points for just an effective adjudication of this case.

Points for Determination

Point No.1.

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

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 OPs challenged the case as not maintainable on the ground that it is barred by territorial jurisdiction. Ld. Defence Counsel argued that the OP No.2 has office outside the jurisdiction of this Commission, so the case is not maintainable.

Ld. Advocate  for the complainant argued that as per the provisions of C.P. Act if there is any office of OPs within the jurisdiction  of this Commission the case is maintainable.

OP No.1 Branch Manager, New India Assurance  Company appears to have office at Krishnagar Branch.

The present case is governed  under the Consumer Protection Act, 1986. It transpires  that the present case  is filed u/s 12 of the  C.P

(4)

CC/133/2018

Act. The said Act provides for inter-alia  that a complaint shall be instituted in a District  Forum (Now Commission) within the local limits of whose jurisdiction  the opposite parties  or each of the opposite parties where there are more than  one at the time of the institution of the complaint actually and voluntarily resides or carries on business or as a branch office or personal works for gain.

So, the present case is filed against  the OPs of which there is an office/business  place at Krishnagar branch. Therefore, the case is not barred by the provisions  of law due to alleged lack of territorial jurisdiction.

The claim raised  by the complainant  also falls within the pecuniary jurisdiction  of this Commission.

The OPs could not explain  who others are necessary parties to this case. So, the present case cannot be said  to be bad for defect of the parties.

Accordingly,  the present case is duly maintainable  and not barred by any provisions of law. Point No.1 is therefore, decided  in favour of the complainant.

Point No.2&3.

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

The complainant in order to substantiate  the case proved the following documents by filing affidavit in chief.

Annexure-1 is the insurance policy in the name of the complainant Biswajit Modak having policy no.51290031140100046060 in respect of Bajaj Pulser  Motor Vehicle.

Annexure-2 is the certificate  of registration of the M.V bearing no.WB-52W-6311.

Annexure-3 is the  copy of product of Dhubulia P.S case no. 176/2015 dated 08.06.2015 showing  FRT accepted.

Annexure-4 is the final report of the police case for theft of the vehicle.

Anneuxre-5 is the  letter given  by the investigator Ratan Kumar Dey dated 18.12.215 to the complainant.

(5)

CC/133/2018

Annexure-6 is the letter issued by the complainant  to the RTO, Nadia dated 18.12.2015.

Annexure-7 is the  letter dated 10.12.2015 issued by the complainant  to the OP No.1.

Annexure-8 is the letter dated 18.07.2017 given by Biswajit Modak to the investigator.

Annexure-9 is the  letter  by the complainant  to the OP No.1 by which he sent all the documents demanded  by the investigator  along with the postal slip for registration of the said letter.

Annexure-10 is the deed of indemnity executed by the complainant.

Annexure-11 is the letter of subrogation.

Annexure-12 is the letter given  by complainant  to the OP NO.1 for not getting  the claim amount.

Annexure-13 is the Xerox copy of advocate’s letter.

After perusing  all the documents it appears  that the  complainant  has complied  with the requirement  for getting the said claim. The different annexure discloses  that the complainant sent the documents as per the demand of the investigator.

There is no denial that the disputed motor cycle was not stolen. The FRT is duly proved. The OP No.1 has not assigned any reason through any document or letter as to why the claim was disallowed.

The Ld. Defence Counsel argued  that there is no document to show that the claim was repudiated.

It is evident from the different documents that the complainant has bonafide  for raising  the claimed and getting the insurance amount.

The OP No.1 has taken  the defence that the information of theft of the disputed  vehicle  was not given  immediately  and the claim was raised. So, since  delay has caused in raising the claim and lodging  the FIR, the complainant  is not entitled to get the claim money.

After perusing  all the documents it transpires  that there was a delay of about the 5 days in lodging  the complaint. It is fact that the complainant  informed  the incident to the OPs insurance company  on 11.12.2015. After perusing  the questionnaires put by the OPs to the

(6)

CC/133/2018

complainant it is revealed  that the complainant  was asked that due  to delayed intimation  to the insurance  company about theft  the insurer was  deprived of its legitimate right to get an enquiry  conducted into the cause and nature of the loss. The complainant  answered against the question no.19 that he does not understand the question.

But the OPs through their evidence could not establish  as to how they were deprived from getting opportunity  to enquire  due to delayed  intimation.

It is the admitted fact that the OPs company  appointed  an investigator  but curiously  enough the OP No.1 company  did not  produce  or prove the report of the investigator. The OPs also failed to prove any document to show that the claim of the complainant was repudiated  by the OP No.1&2.

The complainant also cross-examined  the OP No.1&2 wherein it was specifically  asked as to when the OPs received the claim application. The OPs answered that the document will speak. It means  the OP No.1 has avoided to answer the specific question.

The OP No.1 was further asked as to whether they repudiated the said claim but the OP No.1 deliberately avoided  the answer by saying that he failed  to understand the  question.

Thus, the OPs could not explain as to why the claim was repudiated or why it was not informed to the complainant or as to whether the claim was repudiated or not.

The OPs repeatedly  pleaded in defence that the complainant measurably  failed and neglected  to provide the  requirements to the insurance company but the OPs company  could not satisfy as to what requirement  was not fulfilled.

As regards  delay in giving  intimation to the OPs. Ld. Defence Counsel referred  to one decision  reported in 2018 (9) SCC 798 wherein  it was held that the repudiation  of insurance claim on ground of delay, insured duty bound to inform insurer about the loss immediately  after the incident.

The said case law is not applicable  in as much as there is nothing to show that in the present case, the OPs company repudiated the claim of the complainant.

The OPs further referred to one decision  reported in revision  petition no.22 of 2015 wherein it was held that report of theft  must be

(7)

CC/133/2018

lodged immediately. Information given after a considerable time, impugned order of State Commission be set aside.

The said case law is not applicable  in as much as, in the reported case of Hon’ble National Commission, there was a delay  of more than 120 days  to lodge the FIR but in the instant case the FIR was lodged within 5 days .

So, both the case law referred  by the Ld. Defence Counsel  do not come to his help on the contrary. Ld. Advocate for the complainant referred to one decision  of Hon’ble State Commission in Civil Appeal No.4758 of 2023 wherein it was held  that the intimation  to the police  was immediate. If there was  some carelessness  on the peculiar  facts of this case it is not fundamental  breach  of condition warranting  total repudiation .

The said  case law is relied on.

Ld. Advocate  for the complainant also referred  to another decision  reported in Civil Appeal No.5705 of 2021 wherein  FIR was lodged  after 7 days  but he informed  to Insurance Company after about 78 days. Hon’ble Apex Court condoned  the delay and allowed compensation.

The said case law is also relied upon .

In view of the specific opinion of the Hon’ble Apex Court  the alleged delay  in the instant case  cannot be  a just ground  to refuse the claim  of the complainant. That apart, there is  nothing  to show  that the claim of the complainant  was repudiated .

In the back drop  of the aforesaid discussion  and assessment  of evidence  the Commission comes  to the finding  that the complainant  is entitled to get  the relief claimed.

Accordingly,  Point No.2&3 are answered in affirmative  and decided  in favour of the complainant.

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

Hence,

                              It is

Ordered

that the complaint case no.CC/133/2018 be and the same is allowed on contest against OP

(8)

CC/133/2018

No.1&2 and ex-parte against OP No.3. The complainant Biswajit Modak do get an award for Rs.68,579/- (Rupees sixty eight thousand five hundred seventy nine) towards  IDV together  with interest @12% p.a  , Rs.20,000/- (Rupees twenty thousand) towards compensation  for harassment  and Rs.5,000/- (Rupees five thousand) towards litigation cost against the OP No.1&2. The OP No.1&2 are directed to pay Rs.93,579/- (Rupees ninety three thousand five hundred seventy nine) within 30 days from the date of passing the final order  failing which the entire award money shall carry an interest @8% p.a from the date of passing the final order  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                                                                

(NIROD  BARAN   ROY  CHOWDHURY)