Date of filing:- 13/04/2015
Date of Order:- 04/05/2016
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H.
Consumer Dispute Case No. 30 of 2015.
Sri Suryamani Pandey, Son of Lakhpati Pandey, aged years, resident of and P.o. - Bargarh, P.S.- Barpali, District.- Bargarh ..... ..... ..... ..... Complainant.
Branch Manager, United India Insurance Company Ltd. ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri. K. Sahu, Advocate with other Advocates.
For the Opposite Party :- Sri. A.K. Dash, Advocate with other Advocates.
-: P R E S E N T :-
Mrs Anjali Behera .... ..... ..... ..... ..... M e m b e r(w).
Sri Pradeep Kumar Dash ..... ..... ..... ..... M e m b e r.
Dt.04/05/2016. -: J U D G E M E N T:-
Presented by Sri Pradeep Kumar Dash, Member.
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act 1986. The brief fact of the Complaint is here under.
The Complainant being the owner of the vehicle Bolero SLX bearing registration No. OR-23C-7632 having Engine No. GA94K87871, chassis No. MAIPS2GAK92K80383, has insured the same with the Opposite Party by paying the requisite premium and obtained a policy bearing No.2604013113P105555957.
The Complaint contends that, during the subsistence of the policy the alleged vehicle on Dt.16/17/-02-2014(Midnight) was stolen away by some unknown person from law college Road, Bargarh when parked in his relatives house. The Complainant inspite of strenuous search for the vehicle could not able to trace it out and lodged F.I.R. On Dt.17/02/2014 at Town P.S. Bargarh relating to which P.S. Case No.68 of 2014 has been registered by the Town P.S. Bargarh under section 379 of IPC and taken up investigation.
Further Contention of the Complaint is that the Complainant submitted his insurance claim for the alleged theft of his vehicle fulfilling the required paraphernalia thereof. The Opposite Party investigated into the matter and found claim to be genuine but, repudiated the claim on the ground of lack of fitness vide its letter Dt.17/03/2015. Such rejection of the claim on some extraneous and arbitrary ground amounts to unfair trade practice and deficiency in Consumer Service and negligence by the Opposite Party towards the bonafide consumer/the Complainant and for such act and conduct of the Opposite Party, the Complainant suffered both Physically and mentally and also monetary loss besides mental agony and harassment.
The Complainant seeks the redressal of the forum to direct the Opposite Party to pay the claim amount and a sum of Rs.85,000/-(Rupees eighty five thousand)only towards compensation and litigation expense for all inconvenience caused to him by the Opposite Party.
The Complainant in support of his contention relied upon the xerox copies of the following documents :-
Copy of insurance policy of the vehicle (2 Sheets)
Copy of registration certificate particulars of the vehicle (1 Sheet)
F.I.R. Lodged by the Complainant before Town PS, Bargarh. (3 Sheets)
Being noticed the Opposite Party appeared through his counsel and filed version, denying allegations of the Complaint.
The Opposite Party in his version contends that the vehicle bearing registration No. OR-23C-7632 was insured under package policy bearing No.2604013113P105555957 by this Opposite Party which was valid upto Dt.29/11/2014. But the insurance policy subject to certain terms and condition as per contract made by the insurer and insured and accordingly to the M.V. Act and Rules in case of violation of any conditions by the insured, the insurer will not be liable for any compensation arising out of accident of the insured vehicle. The essential condition of the policy of insurance is that the insured vehicle must be driven by a valid driving license, fitness and permit etc and in order to claim compensation, the liability to prove the policy condition is with the insured for any compensation.
Further the version reveals that theft of the alleged vehicle is required to be proved by the Complainant with necessary documents. The insurance claim of the Complainant is not a genuine one as per his investigation. Further the Complainant was requested to submit fitness certificate of ;the alleged vehicle vide letter Dt.24/11/2014 of this Opposite in order to proceed with the settlement of claim of the Complainant but the Complainant did not provide the same to the Opposite Party and this Opposite Party confirmed through his investigating agency that at the relevant time of accident the vehicle was having no fitness, hence his repudiation of the Complainant's claim was justified in this score only.
Further the Opposite Party contends in his version that the allegation of Complaint as to unfair trade practice and deficiency in service by this Opposite Party is denied. Further allegation of the Complaint as to physical, mental agony, harassment and monetary loss for dragging into unwanted litigation for such acts of Opposite Party is also denied. The assessment of compensation and litigation amount by the Complainant is base less and denied by this Opposite Party as revealed from the version. Further the version discloses that the Complainant suppressed the material facts in order to get an illegal claim and has not come to the forum with clean hand hence the allegation of deficiency in service and unfair trade practice by the Complainant against the Opposite Party is denied.
The Opposite Party prays before the forum to dismiss the Complaint along with cost against the Opposite Party.
The Opposite Party has relied upon the xerox copies of following documents for his counter.
Letter Dt.17/03/2015 of the Opposite Party to the Complainant (1 sheet)
Acknowledgment of the letter Dt.17/03/2015 by the Opposite Party (1 sheet)
Letter Dt.24/11/2014 of fthe B.M. Of the Opposite Party to the Complainant (1 sheet)
Copy of Insurance policy bearing No. 2604013113P10555595) in respect of vehicle bearing No. OR 23C7632 (1 sheet)
Heard pleadings of the parties perused the documents available on record, the forum found some admitted facts in this case as under.
Bearing of an valid insurance policy by the Complainant/owner of the alleged vehicle on the date of theft of the vehicle which was issued by this Opposite Party after receiving the requisite premium amount from the Complainant/insured.
Theft of the alleged vehicle on the relevant date i.e. 16/17 – 02-2014 is ascertained from the police papers in connection with the Bargarh town Police station case No.68(27) of 2014.
Repudiation of insurance claim of the Complainant by the Opposite Party on the ground of want of fitness certificate on the alleged loss of vehicle.
On the date of occurance of theft of the alleged vehicle, it was kept stationary infront of the house of the relatives of the Complainant/insured.
The insured/Complainant was also regularly/having policies during previous years and the insured declared value fo the alleged vehicle for this policy for the year 2013-14 was Rs.3,70,000/-(Rupees three lakh seventy thousand)only.
The only issue i.e. Whether claim of the Complainant/insured can be repudiated by the Opposite Party for non availability of fitness certificate of the alleged vehicle on the relevant date of loss/theft of the vehicle, violating the provision of the Motor Vehicle Act -1988 which is a condition precedent of the policy of insurance.
There was a valid insurance policy in subsistence on the alleged date of loss/theft of the vehicle. The fitness of the alleged vehicle was also valid till 02/02/2013 as contend by the Opposite Party in its letter Dt.17/03/2015. But the Opposite Party has not filed any documents as to prove his contention as to non validity of the fitness certificate of the vehicle on the alleged date of loss /theft of the vehicle. One more thing is that on the date of theft the vehicle was not plying on the road, neither it was established by the Opposite Party that the vehicle was plying prior to the date of occurrence. Hence there is no nexus between the validity of the fitness of the vehicle with the theft of the vehicle. Had the vehicle a valid fitness certificate, the theft could not be happened, So this contention of Opposite Party that for non availability validity of the fitness of the vehicle, which is a violation of the terms of policy and provision of MV Act -1988 can be repudiated a genuine claim of the Complainant.
More over the liability of the insurance company/ the Opposite Party is two fold.
Statutory liability as provided under the motor vehicle Act, and
Liability to the insured as per the terms of the contract.
Here in this case alleged breach is with regard to the provision of Motor vehicle Act not the breach of the policy condition. It is not the case of the insurance company that the policy is a statutory policy. In our view, the Opposite Party/Insurance company can not repudiate the claim when there is no breach of terms of policy, because insurance is a matter of contracts between the paties. This contention is very well supported by a decision of our Hon'ble, NCDRC reported in Revision petition No. 1503 of 2004 between G.Kothaina Chiar and the BM United India Insurance Company Ltd, referring to the various decisions of our Hon'ble Apex Court.
Delving deep into the matter, facts and circumstance of the case and in the light of the reported decision, where the legal question of liability is in doubt. The settlement of insurance claim can be considered as per the guidelines set out for “Non standard claim”. Hence the forum order as follows.
O R D E R
The Opposite Party/Insurance company is directed to pay a sum of Rs.2,77,500/-(Rupees two lakh seventy seven thousand five hundred)only which is 75%(seventy five percent) of the IDV i.e. Rs.3,70,000/-(Rupees three lakh seventy thousand)only of the vehicle with interest at the rate of 6%(six percent) per annum from the date of filling the Complaint i.e. 13/04/2015. There is no other cost. The impugned order shall be carried out within 45(forty five) days of the date of order, failing which interest at the rate of 9% (nine percent) per annum shall be levied against the OP till actual date of realization.
The Complainant disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, (Sri Pradeep Kumar Dash)
M e m b e r.
( Smt. Anjali Behera)
M e m b e r(w).
