Orissa

Cuttak

CC/101/2015

Mrs Khirodini Tripathy - Complainant(s)

Versus

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

B M Mohapatra

12 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.101/2015

 

Mrs. Khirodini Tripathy,

W/O:Gopabandhu Tripathy,

At:Old Bus Stand,P.S:Athagarh,

Dist:Cuttack.                                                                                  ... Complainant.

 

                                                Vrs.

1.         Branch Manager,

Oriental Insurance Co. Ltd.,

Branch Office,Dhenkanal,

Dist:Dhenkanal.

 

2.         Divisional Manager,

                                Oriental Insurance Co. Ltd.,

                             Bajrakabati Road,Cuttack,

                             Dist:Cuttack.                                                                                 ... Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    23.09.2015

Date of Order:  12.05.2022

 

For the complainant:          Mr. B.M.Mohapatra,Adv. & Associates.

For the O.Ps       :                 Mr. A.A.Khan,Adv. & Associates.

 

Sri Debasish Nayak,President.

 

            The case record is put up today for orders

            The case of the complainant as made out from her complaint petition in short is that she has a truck bearing No. OR-05-AD-7776(TATA LPT 2515 Truck)-which was insured vide policy no.345901/31/2012/6318.    On 25.1.13 night, the driver and helper had parked the said truck near Indian Oil Petrol Pump and went away to their village.   In the morning at 6.00 A.M of 26.1.2013 the complainant was informed by one local garage owner namely Santosh Kumar Sahani, that her truck is missing.  Inspite of repeated search here and there, they could not traced the vehicle for which the matter was reported at Khuntuni Police Station on 26.1.13 vide Khuntuni P.S Case No.14 dt.26.1.13.  The complainant had claimed before the O.Ps for her policy amount as because the police after investigation had submitted final form with a note “Case true no clue”.  Inspite of several approaches to O.P No.1, the claim was not settled, rather, a letter dt.11.4.14 was communicated by the O.P No.1 to the complainant that her claim was not tenable since because her policy has been repudiated.

            As it appears from the petition of the complainant, she owns two trucks having Regd. No.OR-05-AD-7776 and O.R-05-AD-7976.  It is alleged by the complainant that O.P No.1 clandestinely had insured both of her vehicles without submitting proposal form which is well evident from the statement of the bank.  According to the complainant, the ground of repudiation of the policy is not sustainable for which the complainant had written twice vide letters dt.9.6.14 and 25.6.14 to the O.P No.1 in this context.  Ultimately, she was constrained to send a legal notice on 9.7.15 to the O.P No.1 and thereafter being aggrieved had filed this case claiming settlement of the claim with the O.Ps to the tune of Rs.1,00,000/-, a sum of Rs.50,000/- towards their deficiency in service and illegal trade practice, a sum of Rs.15,000/- towards litigation cost and a sum of Rs.35,000/- towards her mental agony together with interest @ 12% per annum from the date of the theft till the final payment is made.

2.             Both the O.Ps have jointly contested this case and have filed their written version.  According to the written version of the O.Ps, this case is not maintainable.  The O.Ps have further submitted that the complainant has filed this case 12 months after repudiation of her claim, for which this case is not maintainable.  According to them, on the complaint of the complainant, the claim bearing No.345901/31/2014/000007/31/2012/6318 was registered and one Sambhunath Pattnaik was deputed to find out the matter.  The said deputed person could know that both the driver and the helper had kept the key of the vehicle and all the original documents as well, in a box named as “Thakur Box” of  the vehicle and had gone away.  The O.Ps thus urged that this fact is violation of the terms and conditions of the policy as because due care and caution was not taken by the complainant.  Thus according to the O.Ps, the complaint petition as filed is illegal, arbitrary and  not sustainable in the eye of law which is liable to be rejected with exemplary cost.

3.         Keeping in mind the contentions of the complaint petition and that of the written version of the O.Ps as well, this Commission feels it proper to settle the following issues for proper adjudication of this case.

1. Whether the case as filed is maintainable?
2. Whether the complainant has any cause of action to file this case?
3. Whether the complainant is entitled for the reliefs as claimed by her?

Issues No.1 & 2.

            For the sake of convenience issues No.1 & 2 are taken up together first for consideration.  It is not disputed that in the night of 25.1.13 the truck of the complainant bearing Regd. No. No.OR-05-AD-7776  which was parked as usual at the parking space of Indian Oil Petrol Pump, was found to be missing in the morning of 26.1.13.  The copy of F.I.R of the complainant as filed by the O.Ps vide Annexure-B when perused, it is noticed that the box called “Thakur Box” contained the key and the relevant documents of the vehicle when it was parked.  On perusal of the copy of the letter sent by the O.Ps to the complainant dt.11.4.14 vide Annexure-E it is noticed that the repudiation of policy was intimated through the same letter to the complainant.  The O.Ps have relied upon the terms and conditions of the policy by virtue of which the repudiation of the policy of the complainant was made.  But on scrutiny, there is no specific clause noticed by this Commission in the said policy as envisaged, as regards to repudiation of contract done by the O.Ps where the vehicle was theft/lost/missing.   Of course the policy terms include due care of the complainant.  It is the specific case of the complainant that both the helper and driver went away keeping all the relevant documents as well as the key of the truck in the “Thakur Box” of the said truck.  The O.Ps have not proved that if there was any implied consent of the complainant for so doing by the driver and the helper.  The O.Ps have mentioned in their letter dtg.11.4.14 to the complainant that they had repudiated her claim basing on page-8 & 9 of reference No.SAI/SNP/JAN/1282/14/2014 of the empanelled investigator but the said report of the investigator is not filed in order to support the plea as taken by the O.Ps.  Moreso, as it appears from the complaint petition that the driver and the complainant used to park the said truck of the complainant at the parking space of the Indian Oil Petrol Pump of Khuntuni area which was stolen and nothing in contrary is proved.  Thus, this Commission feels it proper to come to a conclusion that in fact this case as filed by the complainant is maintainable and she had a definite cause of action for filing this case.  Accordingly, both these issues are answered in favour of the complainant.

Issue No.3.

            From the above discussion, it can well be said that the complainant is entitled to her claim as made before the O.Ps and the O.Ps are thus liable to entertain the policy of the complainant which they had repudiated arbitrarily.  Hence, it is so ordered;

 

                                                            ORDER

            The case is decreed on contest against both the O.Ps and the O.Ps are jointly and severally liable.  The O.Ps are directed to pay a sum of Rs.1,00,000/- to the complainant towards the loss caused due to delay in settlement of claim along with interest @ 10% per annum from the date of theft i.e. 26.1.13 till final payment is made together with the insured amount.  O.Ps are further directed to pay a sum of Rs.50,000/- to the complainant for mental agony and harassment caused  along with litigation cost.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 12^th day of May,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                        

                                                                                                                            

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.