DATE OF FILING—17.2.2010
DATE OF DISPOSAL- 24.7.2013
O R D E R
Miss Soubhagyalaxmi Pattnaik,President
1. Deficiency in insurance service against the Opposite Parties( in short ‘O.Ps’) is the grievance of the complainant.
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Briefly stated, the case of the complainant is that the complainant purchased a Hero Honda Motor Cycle Passion Plus bearing Registration No.OR-07M 6385 availing vehicle loan from the O.P. No.3 vide loan Account No.LTBEP0000797245 under hypothecation agreement on dated 29.4.2006. On the advise of O.P.No.3 the said motor cycle was insured with the O.P.No.1 and 2 vide Policy No.35321943 on payment of required premium for the period starting from 29.4.2006 to 28.4.2007. The insured amount was Rs.42,292/- . Unfortunately, during the subsistence of the insurance policy, the motor cycle in question was stolen by some unknown person on dated 23.11.2006 at about 8 .00P.M. evening when it was parked near Labour Office, Aska Road, Berhampur. Complainant took all possible steps to track down the stolen motor cycle but failed to get it recovered. So the complainant reported the fact to the local police,Berhampur Town on dt.23.11.2006 and on the basis of the said report ,a P.S.Case vide No.223/2006 was registered and investigation proceeded. The complainant also intimated the O.Ps. regarding the theft of the vehicle on dt.24.11.2006 by lodging claim. The O.P.No.1 deputed Surveyor for investigation of the fact of theft and losses thereof and assured that the claim will be settled in due course after completion of police investigation and report thereof.
After completion of police investigation, the police submitted the Final
Form before the court of S.D.J.M.,Berhampur. On receipt of the information the complainant submitted all the original relevant documents of vehicle i.e. R.C.Book, Insurance Policy, Payment Receipt and Claim Form before the Opposite Party No.1 and copy thereof to the O.P.No.3 on dt.11..5.2007 for early settlement of insurance claim but no settlement was made despite approaches.
From the date of stolen of the motor cycle and report thereof from 24..11.2006, the complainant pursuing the matter since 2009 for early settlement of the insurance claim with O.P.No.1 and 2 at Ananta Nagar, Berhampur and at Bhubaneswar after shifting of the office premises to Bhubaneswar, thereafter at Berhampur when the new office started at Sai Complex at Berhampur but unfortunately with some pretext or other, the claim of the complainant laws not settled.
After failing from getting insurance claim from the Opp.Party No.1 and 2 the complainant on dt.22.9.2009 issued Lawyer’s notice of demand for early settlement of insurance claim to the O.Ps No.1,2 and 3. The O.P.No.1 received the notice but neither given reply nor settled the claim, the notice sent to the O.P.No.2 returned unserved with
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endorsement left and the O.P.No.3 received the notice and send account sheet alongwith letter showing loan over dues as increased by Rs.94,684/-,decreased by 50,418/-,OD Charges Rs.675/- which are not tenable and sustainable since the account has been prepared illegally.
Time passed and even after continuous requests the Opposite Parties neither settled the claim nor repudiated the same for which the complainant suffered monetary loss as well as mental sufferings . Hence, the complainant filed this Consumer Complaint with a prayer for payment of insurance claim of Rs.42,292/- with interest, to receive the insurance claim amount by the O.P Nos.1 and 2 as full and final settlement, to declare the Account Sheet issued by O.P.No.3 for Rs.94,684/- as null and void and Rs.70,000/- as compensation and cost of litigation as a whole.
2. The complainant in support of his case filed Affidavit of Sri Santosh Kumar Sahu and placed reliance upon a number of documents i.e. copy of registration ;certificate of motor cycle bearing No.OR-07M-6385, copy of Insurance Policy and cover note dt.29..4.2006,copy of money receipts; towards payment of insurance premium, copy of money receipts; towards down payment for Rs.4,588/-,copy of F.I.R.and Final Form,copies of Advocate Notices to Opposite Parties, Notice of District Legal Service Authority to the complainant, Statement of Account copy with letter issued by O.P.No.3 to the complainant, Postal cover returned unserved and postal receipts
3. The complainant also filed written arguments alongwith decision of Hon’ble Supreme Court which are placed in the case record.
4. Notices were duly served on the Opposite Parties Nos.1 to 4. The Opposite Party Nos.1 to 3 appeared and submitted their written version separately. But Opposite Party No.4 did not put appearance as result he was set exparte on 9.7.2010.
5. The Opp.Party controverted the claim of the complainant on the following grounds:
i) Firstly, non-receipt of intimation regarding theft of motor cycle till 22.9.2009.
ii) Secondly, no such claim lodged with the Opposite Parties.
iii) Thirdly, dispute regarding the cause of action is attempted to invent; by serving notice on dt.22.9.2009 and the claim is not referred within the period of limitation.
iv) Fourthly, the complainant’s case is not maintainable and non-joinder of necessary parties.
v) Fifthly, the complainant has deliberately suppressed the material evidence and has concealed the truth for the purpose of the claim.
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6. Therefore, the Opposite Party No.1 and 2 prayed before this Forum for dismissal of the complaint; as the case is not maintainable. In support of their case, the Opposite Party No.1 and 2 also filed certain decisions of Hon’ble National Commission and State Commission of Chhatisgarh.
7. The Opposite Party No.3 in its written version has stated that the complainant had taken a two wheeler loan for an amount of Rs.38,700/- under hypothecation agreement duly executed between them and the Opposite party bank fixing the EM at the rate of Rs.1388/- for 36 instalments against the principal amount of Rs.38,700/-. It is further stated that the complainant after receipt of the loan amount from the Opp.Party Bank failed to repay the monthly instalment(EMI) for which the O.P. bank made several requests and demands for payment of the EMI but the complainant failed to respond. Since the complainant is an intentional defaulter and only with an intention to avoid the legitimate dues of the O.P. has filed this case.
8. Thus, the Opp.Party No.3 pleaded that since the insurance contract is between ..IFFCO-TOKIO General Insurance Co.Ltd. and the complainant and the O.P.No.3 is no way connected with that and since violation of terms and conditions of the hypothecation agreement by the complainant is prima-facie made out can not be termed as deficiency in service and hence the O.P.No.3 pleaded for dismissal of the complaint as it is; not maintainable either on facts or in law in the Consumer Forum for the ends of justice.
9. On the date of hearing, we heard arguments from both the sides at length. Perused the pleadings and documents available in the record. It is the admitted fact that the complainant had insured his two wheeler for Rs.42,292/- with the IFFCO-TOKIO General Insurance Co.Ltd. and the date of alleged theft of insured two wheeler is well within the period of validity of insurance from 29.4.2006 to 28.4.2007. But the O.P submitted that the complainant is not entitled for any relief since the complainant has deliberately suppressed the material evidence and concealed the truth for the purpose of the claim. But here onus lies on the insurance company to prove that there was any suppression of material evidence by the complainant. It has been time and again held by several courts and various State Commission that the onus is heavy on the insurer to prove that the insured has deliberately concealed the truth and material evidence relating to the theft of the motor cycle.
10. On this point we rely on the decision reported in AIR 2000 SC 1014 M/s.Modern Insulators Ltd. Vrs.Oriental Insurance Company where it was held that it is the fundamental
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principle of insurance law, that utmost good faith must be observed by the contracting parties and good faith for bids either party from non-disclosure of the facts which the parties knew. There insured has a duty to disclose and similarly it is the duty of the insurance company and its agent to disclose all material fact in their knowledge, since obligation of good faith applies to both equally. In the instant case, the Opposite Party No.1,2 and 4 has neither adduced a single piece of evidence nor has proved through any oral or documentary evidence that the insured has suppressed the material evidence and; concealed the facts. The O.P.No.1 and 2 failed to produce any cogent and convincing evidence to prove contrary. Therefore, the allegation of concealment of fact and suppression of material evidence by the complainant is not acceptable in absence of any evidence. So no presumption can be taken in absence of evidence.
11. As per the complaint’s case, vehicle was stolen on 23..11.2006 and l F.I.R was got registered on the same date and the intimation about the theft of the motor cycle was given to the O.Ps on 24..11.2006. Thus, there is; no delay of information about theft of the insured vehicle. We perused the F.I.R. where it is clearly mentioned about the date of information. In the present case, since there is no delay in informing about the theft of the motor cycle. Thus there is no violation of the terms and conditions of the insurance policy. More so breach of terms and conditions of insurance policy in case of theft of vehicle is immaterial as per decisions of higher courts. In case of violation claim can not be completely rejected as per the various decisions of Hon’ble Apex Court.
12. This Forum by relying upon a citation passed by Hon’ble Supreme Court in the case of National Insurance Vrs.Nitin Khandelwal IV(2008)CPJ 1 (SC) where it has been held that in case of theft of vehicle breach of conditions is not germane- the insurance company is liable to indemnify the owner of the vehicle which the insured has obtained from the insurance company i.e. comprehensive policy for the loss caused to the insured.
13. Further,this Forum by relying upon another citation passed by the Hon’ble Supreme Court reported in JT 2004 (8) SC 8 in the case of United India Insurance Company Ltd.Vrs.M/sHarchand Rail Chandan Lal where it has been held that the terms of policy have to be construed as it is and nothing can be added or subtracted from the ;same. The Policy provided that in the case of theft, the matter should be reported “immediately”. In the context of a theft of the car ,word “immediately” has to be construed strictly to make the insurance company liable to pay the compensation..
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14. That apart as per the version of the O.P.No.1 and 2 no such intimation about the theft has given to the O.Ps. at any point of time and they only knew when the legal notice issued on 22.9.2009 to them that the instant complaint was filed on 17.2.2010 and in the meantime five months passed but O.P. No.1 and 2 did not communicate the fate of insurance claim to the complainant-policy holder. So it is arbitrary and unreasonable. Thus complainant deserves to get the insured amount .
In the present case, since there is no delay in lodging the F.I.R.about theft of the vehicle, there is no violation of the terms and conditions of the insurance policy.
15. Admittedly. the insured had paid premium in this policy and as such as per the terms of the policy, the Opposite Party No.1 and 2 and 4 are bound to pay the insured amount. Refusal to make the payment, amounts to deficiency in service. Since the O.Ps without proper verification and without any valid ground refused the claim and as such they are liable to pay the insurance claim amount as well as the compensation for causing mental agony to the complainant.
16. The complainant submitted that, the O.P.No.3 has send the statement of account sheet alongwith letter showing loan over dues which are not at all tenable and sustainable since the account has been prepared without his consent and without authority only to extract huge amount keeping silence without perusing the claim of the complainant with the O.P.No.1 and 2. So he prayed before this Forum to declare the account sheet issued by the O.P.No.3 for Rs.94,684/- as null and void. On perusal of the Account Statement of the complainant where there is balanced amount is still outstanding against the complainant, so the above prayer will not be considered by the Forum.
17. In the result, keeping in view the observations made above the complaint is hereby allowed with a direction to the Opposite Party Nos.1,2 and 4 to pay the insured amount of Rs.42,292/- to the complainant along with interest at the rate of 7 (seven) percent per annum from the date of filing of this complaint till payment together with compensation of Rs.2,000/- towards mental agony, harassment and litigation expenses as a whole. Further, the Opposite Party No.3 being the financier is exonerated from any charges and allegations but is free to realize the outstanding financed amount from the complainant in a lump sum or as per rules or can make any settlement with the complainant. Compliance of the order shall
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be made within a period of 30 days from the date of receipt of this order. The case is disposed of accordingly.
The order is pronounced in the open Forum today on this 24th day of July,2013 under the signature and seal of the Forum. Copy of the order shall be supplied to the parties free of cost.
Typed to my dictation and corrected by me.
PRESIDENT
PRESIDENT
MEMBER
MEMBER
