Orissa

Dhenkanal

CC/89/2014

Bijay Ku Pati - Complainant(s)

Versus

Branch Manager , United India Insurance Company - Opp.Party(s)

28 Feb 2018

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                                C.C.Case No. 89 of 2014

Bijaya Kumar Pati, aged about 34 years

S/o Antararjyami Pati, At: Dakhinakali Road,

PS: Town, PO/Dist: Dhenkanal                                           …......Complainant

                                                                Versus

Branch Manager, United India Insurance Company,

Main Branch, Cantonment Road, Cuttack-753001           ….......Opp. Party

 

Present: Sri  Badal Bihari Pattanaik, President,

                Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant:  Ashok Kumar Rout

                  For the Opp. Party: D.P.Pattanaik

 

Date of hearing argument: 19.2.2018

Date of order: 28.2.2018

                                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President,

                In the matter of an application U/s 12 of Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service on the part of the Opp. Party.

                1) Very briefly, the case of the complainant stated are that in order to maintain his livelihood the complainant being an unemployed person purchased one TATA Truck under hypothecation agreement with TATA Motor Finance Limited.  The vehicle was registered vide No. OR-09-K-4669.  At the time of advancing loan a sum of Rs. 75,000/- was added to the loan amount of the complainant towards insurance charges for three years.  The vehicle was purchased in the year 2008 and the payment of the insurance dues was made till July-2011.  The first insurance certificate was issued to the complainant from National Insurance Company Limited.  Thereafter no insurance certificate was given to the petitioner but verbally intimated that the vehicle has been duly insured.  On 29.12.2010 the vehicle was  stolen away by some anti-social elements from  Chintapokhari on National High Way 55 under Motonga P.S in the district of Dhenkanal.  The complainant came to know about the theft on 30.12.2010 morning at 9.00 A.M and lodged an F.I.R in the Police Station at 10.00 A.M on the same day.  The matter was also reported to the Financer on 31.12.2010.  As the complainant could not recover the vehicle despite his best effort he approached to the Financer to provide him the insurance policy.  The Financer advised that the policy has been misplaced and advised to obtain a copy from National Insurance Company Limited.  On enquiry it was revealed that National Insurance Company has not insured the vehicle and ultimate it was detected that the vehicle has been insured in United India Insurance Company Limited, Cuttack branch.   The petitioner intimated the United India Insurance Company and lodged a claim of theft and also submitted the relevant documents on 12.9.2014.  The complainant received an intimation that his claim has been rejected on the ground that at the time of claim the truck was not having valid permit.   It is further stated that the permit of the vehicle was valid and there was no ground to repudiate the claim on the said ground.  In case of theft of the vehicle permit is not required for settlement of claim.  Therefore, the repudiation of the claim of the complainant on the ground that the vehicle was having no valid permit is not tenable.  Accordingly, the complainant has come up before this Forum seeking for a direction to the Opp. Party to pay a sum of Rs. 10,70,000/- towards the cost of the insured vehicle along with interest @ 18% per annum.  Besides, the complainant claims compensation and cost of the litigation of Rs. 90,000/-.  The contents of the petition are supported by affidavit.

                2)  The Opp. Party appeared and filed his written version.  It is in the version that the case is grossly barred by time.  It is admitted that the Truck bearing Regd. No. OR-09-K/4669 was insured with the Opp. Party and the present petitioner was the insured and the policy was covering from 28.6.2010 till 27.6.2011 midnight.  The complainant who was policy holder on payment of the premium and after the policy was made, the insurance policy  was in his possession.   The theft of the vehicle was committed on 29.10.2010 and the complaint has been filed in the month of December-2014 which is four years from the date of the last cause of action and as such it is barred by time.  The complainant supplied the relevant documents to the Insurance Company only on 12.9.2014 and lodged claim of theft and after the claim the Opp. Party after due  investigation repudiated the claim on 30.10.2014 without any delay as per condition No.1 of the policy and lack of fitness and tax payment. .  The policy is a contract and the petitioner has violated the condition No.1 of the Policy as he has not given notice to the Insurance Company immediately after the occurrence.  It is further stated that as per Section 56 of M.V.Act the transport vehicle shall not be deemed to be validly registered for the purpose of Section-39 unless it carries a certificate of fitness and it is mandatory that no vehicle shall be plied in any public place unless the vehicle is registered in accordance of M.V.Act.  The fact of theft was not informed to the Opp. Party or even to the financer though F.I.R was lodged on 30.12.2010.  The Insurance Company could have been immediately informed then the O.P by their own investigating agency could have taken all possible steps to ascertain the truth.  Therefore, the repudiation of the claim by the O.P is just and proper as per the policy condition and there is no deficiency of service on the part of the Opp. Party. Accordingly, it is pleaded to dismiss the case of the complainant.

3)  In support of the case the complainant has filed his affidavit and some documents.  On the other hand  the Opp. Party also has filed counter affidavit of the Branch Manager and files some documents in support of his case.

                4)       On the aforesaid pleadings of the respective parties following issues are framed for determination.

                1) Whether the complaint is maintainable?

                2) Whether the repudiation of claim is justified?

                3) Whether the Opp. Party is in deficiency of service?

                4) To what relief, if any, the complainant is entitled?

5) Issue No.1

                There is no dispute as regards that the complainant is a consumer.    Admittedly, the vehicle in question was insured with the O.P covering the period from 28.6.2010 to 27.6.2011 midnight on payment of required premium.  There is also no dispute as regards to the theft of the vehicle on 29.10.2010.  The claim  advanced by the complainant was repudiated by the Opp. Party which is beyond any controversy.  Being aggrieved, the complainant has come up before this Forum seeking for Redressal of his grievance.  The learned counsel appearing on behalf of the Opp. Party pleaded vehemently that the case is barred by limitation as the theft was committed on 29.10.2010 and the complaint was filed in the month of December-2014 for which the case is grossly time barred and liable to be dismissed on that score alone.  The learned counsel appearing on behalf of the complainant argued before us that the  on 30.10.2014  the insurance company intimated the complainant repudiating the claim for which the cause of action arose on 30.10.2014 and the complaint has been filed within the period of limitation and the case is not barred by limitation.  On our perusal of the letter of repudiation dated 30.10.2014  of the Opp. Party filed by the complainant, we find that the O.P in response to the claim repudiated the claim of the complainant on 29.10.2014 and intimated to the complainant on 30.10.2014.   In the written version at para-7 the Opp. Party also stated that after investigation the Opp. Party repudiated the claim on 30.10.2014 which supports the case of the complainant.  But in the affidavit filed by the Opp. Party  he has stated    at para-15 in sub para that he has filed the repudiation letter dated 16.3.2015 sent through Registered post with A.D .  When  Opp. Party  has admitted in the written version that the claim was repudiated on 30.10.2014 but suppressing the same he has added in his affidavit evidence that the claim was repudiated on 16.3.2015 which is not acceptable.  It is further argued on behalf  Opp. Party   that although the alleged theft was committed on 29.12.2010 but the complainant lodged his claim only on 12.9.2014 for which the case is barred by limitation.  On perusal of record we noticed that the complainant in his petition at para-2 has stated  that as per the advise of the Opp. Party the relevant documents were submitted by the complainant on 12.9.2014. Of course the complainant has not specifically stated when he has lodged the claim before the Opp. Party.  Similarly Opp. Party also not specifically stated in his written version or in his affidavit when the complainant lodged the claim. From the pleadings of the complainant we are of the opinion that on 12.9.2014 the complainant has submitted the relevant documents before the Opp. Party as per their advice but that does not mean he has lodged the claim on 12.9.2014. It is also further argued on behalf of the complainant  that from Final report it is ascertained that Insurance Certificate has been seized much before 12.9.2014 from the custody of the complainant and given in zima to the informant and accordingly the learned counsel for the Opp. Party argued that the complainant has prior knowledge regarding the policy  and he has not come to the Forum with clean hands and suppressed the truth.  On perusal of final report we noticed  that the I.O has submitted the final report on 28.5.2013 and we also noticed that the I.O has seized the Insurance paper of the truck in question and left in zima but there is nothing in the said Final Report when the I.O seized the said policy documents. It is also argued on behalf of the Opp. Party that when the Opp. Party repudiated the claim of the complainant on 16.3.2015 the complainant has filed the case in the year -2014 which is premature and as  such liable to be dismissed as no cause of action has been arose.  It is well settled that still the insurance company had taken the decision on the insurance claim the cause of action for filing the complaint is continued.   So even if as per affidavit the Opp. Party has repudiated the claim on 16.3.2015 there is cause of action for the complainant to file the case to which we are fortified by a decision of the Hon’ble National Commission in the case of Debendra Singh versus Oriental Insurance Company Ltd, 2013 (4) Consumer Law Today page 293.  So taking into consideration that the Opp. Party himself admitted in the written version that the claim was repudiated on 30.10.2014 we are of the opinion that the case is within time and not barred by limitation so also it is not a premature case.   Hence we are of the view that the complainant is a consumer and the case is maintainable and not barred by law of limitation.

                Learned counsel for the Opp. Party  argued that the Financer is a necessary party to prove the averments stated by the complainant and as such in absence of financer the case is liable to be dismissed, as per averment if it will be accepted to be true then there is deficiency in service by the financier by not giving the insurance policy  and the information.  We are unable to accept the submission of the learned counsel for the Opp. Party because the Opp. Party is liable to dispatch the policy documents to the complainant directly even if the premium is paid by the financer on behalf of the complainant.  So in absence of financer the case can be adjudicated efficiently and effectively.  In the case of Sriram General Insurance Company Ltd, versus Darbar Singh reported in 2014 (4) CLT page 415 PB it is held that the financer is not impleaded as a party in a complaint- it cannot be said that the finance company was a necessary party as the matter in controversy between the parties could have been decided even in its absence.  Therefore, it’s non-joinder was not fatal to the complaint.  So taking into consideration of the above authority, we are of the opinion that financer is not a necessary part in this case.

6) Issue No.2 & 3

                Since both the issues are very much interlinked and crucial are taken up jointly for discussion and findings. Admittedly, the impugned vehicle of the complainant was duly insured  with the Opp. Party and on the date of theft there was valid insurance covering the risk of theft which are beyond any controversy and doubt.  The Opp. Party has repudiated the claim of the complainant only on the ground that  the truck did not have valid permit and for that reason the claim was repudiated.  It is further pleaded  as per Section-56 of M.V.Act the transport vehicle shall not be deemed to be validly registered for the purpose of Section-39 unless it carries a certificate of fitness and it is mandatory that no vehicle shall be plied in any public place unless the vehicle is registered in accordance of M.V.Act.  Further it is pleaded that the Insurance Company if could have been immediately informed then the O.P by their own investigating agency could have taken all possible steps to ascertain the truth.  The complainant has violated condition No.1 of the Insurance Policy as the complainant intimated the fact of theft and supplied the relevant documents to the Insurance Company only on 12.9.2014. These are the grounds taken by the Opp. Party for repudiation of the claim.  The learned counsel appearing on behalf of the complainant vehemently argued before us that in case of theft of vehicle breach of condition is not germane.  It is further argued that this is a case where claim has been advanced for theft of the vehicle not for any accident.  Admittedly, the vehicle in question was stolen and the Final Form dated 28.5.2013 submitted by the Police  would go to show that it is a true case U/s 395 IPC , but all efforts there is no clue could be obtained towards detection of this case.  As the police report speaks in volume that the truck has been stolen we have no option except to accept the same.  From the Final report of the Police it is crystal clear that it is a case of theft of the vehicle.  When the investigating Agency of the State has taken all efforts and submitted its final report that the fact is true, the argument advanced by the learned counsel for the Opp. Party that by engaging their own investigating agency they could have taken all possible steps to ascertain the truth is having no merit.  Learned counsel for the complainant also argued that as per repudiation letter dated 30.10.2014 which admitted by the Opp. Party in the written version the Opp. Party has repudiated the claim only on the ground that the truck have no valid permit for which the claim was repudiated.    After getting notice in this case  the Opp. Party has filed his written version which was verified by him and it is also admitted that the claim of the complainant was repudiated on 30.10.2014 and he has not disputed the documents in his written version but at the time of filing his affidavit he has filed the repudiation letter dated 16.3.2015 which discloses that the claim of the complainant was repudiated on two grounds i.e. late intimation after six month of loss and fitness certificate and tax particulars of the vehicle are not valid on the date of loss and the learned counsel   for the complainant   argued that this repudiation letter dated 16.3.2015 is after thought and manufactured for the purpose of this case and the Opp. Party has no right to go beyond the repudiation letter dated 30.10.2014.   We have perused the pleadings of the parties, affidavit filed by them and also the documents filed by them thoroughly. On our perusal we noticed that in the repudiation letter dated 30.10.2014 the Opp. Party has taken the ground for repudiation on the reason that the alleged truck did not have valid permit and there was no other ground for repudiation.  The Opp. Party in his written version also admitted that the claim was repudiated on 30.10.2014.  The Opp. Party has also not disputed the repudiation dated 30.10.2014 filed by the complainant in his written version.  On our further perusal we noticed that the I.O has seized the road permit of the alleged truck No. OR-09- K-4669 which is valid till 23.7.2013.  So in our opinion the ground taken by the Opp. Party in repudiating the claim of the complainant on 30.10.2014 due to want of valid permit is having no basis. when the Opp. Party has repudiated the claim of the complainant on 30.10.2014 on the ground of no  valid permit the Opp. Party cannot go beyond that and in a subsequent letter of repudiation letter dated 16.3.2015 he will take new ground for repudiation of the claim which is not acceptable.   In this regard we are fortified by a decision of Hon’ble National Commission  in the case of United India Insurance Company Limited vrs. Bhunduram and Ors  reported in 2017(II) C.P.R 378 wherein it has been held insurer cannot be allowed to go beyond repudiation letter issued by it and it cannot be allowed to plead grounds which it had not taken for repudiating claim.  In the instant case  the Opp. Party in his repudiation letter dated 30.10.2014 has taken the cause of repudiation of the claim only due to want of valid permit.  So now he cannot take another ground for repudiating the claim by issuing another repudiation letter dated 16.3.2015 stating therein that the claim is repudiated on the ground late intimation after six months of loss and fitness certificate and tax particulars of the vehicle are not valid on the date of loss.  However, even if  we considered that the repudiation of the claim of the complainant by the Opp. Party on 16.3.2015 on the ground of delay in intimation and no valid fitness certificate, but in case of theft of vehicle breach of condition of insurance policy are not germane and the insurer is liable to indemnify the loss. In this regard we are fortified by a decision of  Hon’ble State Commission, Himachal Pradesh, Simila in the case of Natioal Insurance Company Ltd, vrs. Suresh Kumar reported in 2017 (III) CPR at page 72. Further it is argued by the learned counsel for the Opp. Party  that  there is delay in intimation regarding theft to the insurance company by the complainant as such it violates the condition No.1. It is admitted that the complainant has immediately reported in respect of commission of theft of vehicle before the Police Station. The complainant in his complaint petition has specifically stated that the financier has taken the insurance premium for three years and the financier has paid the insurance premium.  The first premium was paid to the National Insurance Company and certificate was issued to the petitioner from the said Insurance Company and thereafter no insurance certificate was issued to the petitioner.  After accident the complainant enquired about the policy and after some much persuasion he could be able to know that the insurance of the vehicle was insured with the Opp. Party and after knowing the policy was done before the Opp. Party he lodged the claim.  It is specifically stated that the premium was paid by the financier for the second year and no policy document was issued to him.  But in the written version so also in his affidavit the Opp. Party has stated the premium was paid by the complainant himself and policy document was issued by the Opp. Party to the complainant, but knowingly the same intentionally the complainant has not intimated about the theft of the vehicle to the Opp. Party immediately violating condition No.1 of the policy.  On perusal of the condition No.1 of the policy we noticed that  it is mentioned in case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the Police and co-operate with the company in securing the conviction of the offender.  But there is nothing in the said condition the time limit by which the insured shall intimate the insurer regarding theft of the vehicle.  In the instant case admittedly, the complainant has immediately intimated the Police regarding theft of the vehicle.  Further as per order of the State Commission in Revision petition No. 21 of 2017 the Opp. Party was directed to produce the insurance application proposal form, copy of instrument through which premium was received and the copy of postal receipt showing dispatch of the insurance policy and acknowledgement thereof.  But despite the orders the Opp. Party failed to produce the said documents before this Forum for which adverse inference can be drawn against him.  All the documents as stated above are supposed to be in possession of the Opp. Party.  But the Opp. Party avoided to file the said documents before this Forum despite direction of the Hon’ble State Commission.  So  we are of the view that the allegation of the complainant that the Opp. Party has not issued the policy papers to him for this said period is true and the stand taken by the Opp. Party that the complainant has paid the premium and the policy paper was issued to him is not correct.  When the Opp. Party failed to produce the above said documents which are in his possession despite direction of the Hon’ble State Commission adverse inference is to be drawn against the Opp. Party.  To this regard we are fortified by a decision Hon’ble State CDRC, Himachal Pradesh in the case of Gouri Devi versus Max New York Life Insurance Company reported in 2013 (III) CLT page 441.

                  It is not disputed that the incident of theft was immediately reported in the Police Station.  It is also not disputed after lodging claim the Opp. Party investigated the matter through his agency and thereafter the claim was repudiated on 30.10.2014 on the ground that the vehicle was not having valid road permit.  There is no specific denial by the Opp. Party that the vehicle was not stolen.  It is also not disputed that the vehicle has not been recovered.  The Opp. Party has also not filed the report of the investigator in this case.  So we are of the considered opinion that the vehicle has been stolen and it was promptly reported in the Police Station and even if there is some delay in intimating the Opp. Party the complainant has explained the delay in his letter dated 23.7.2011, so the repudiation of the claim of the complainant by the Opp. Party is not tenable and amounts to deficiency in service.  As we have already held the repudiation letter dated 16.3.2015 is not genuine which is afterthought and prepared by the Opp. Party for the purpose of the case, but in view of our above discussion we are of the view that the repudiation of the claim by the Opp. Party on 30.10.2014 is without application of mind when the road permit of the alleged truck was valid till 23.7.2014. Learned counsel appearing on behalf of the Opp. Party relied on certain decision reported in 2017-Vol.II-OLR page 416, 2015-Vol-2 CPR- Page 203, 2016-NCJ Page 498,  2015-VollII, CPR-P149 NC,  2014 Vol. I C.P.R, page 735, 2014 Vol. 1-CpR page 2014, 2014, NCJ page 300 and AIR-2017, Page 232.  The learned counsel for the complainant also relied on  some decisions  reported in 2008 (66) AIC-page-3 of Hon’ble Supreme Court , 2018 Vol.-I Consumer Law Today of Hon’ble Chhatisgarh State CDRC, page 202,  2017-(I) CPR page 787 of Hon’ble National Commission and 2017-(I) CPR page -430  of National Commission and AIR-2017 (Supreme Court) page 4836.   We have gone through the citations thoroughly  filed by both the parties and observed that the citations filed by the complainant are more applicable to the facts of the present case at hand as the Consumer Protection Act is enacted by the Parliament for the benefit of the consumer.  Taking into considerations of our above discussions and the latest principles of law as has been decided by the Hon’ble Supreme Court, National Commission and State Commission relied by the complainant we are of the opinion that the repudiation of the claim of the complainant by the Opp. Party is not justified and amounts to deficiency in service.

7) Issue No.4

                Admittedly, the vehicle was insured for a sum of Rs. 10,70,000/-. Due to theft the complainant has sustained total loss during the validity period of the insurance.  Therefore, the complainant is entitled to the sum assured of Rs. 10,70,000/-.  Accordingly, the Opp. Party is liable to indemnify the loss sustained by the complainant. Hence ordered.

                                                                                ORDER

                The complaint is allowed on contest in the light of the observations made in the preceding paragraphs.  The Opp. Party is directed to pay a sum of Rs. 10,70,000/- (Rupees ten lakhs seventy thousand) only to the complainant with interest @ 6% per annum from the date of filing of the case i.e. 30.12.2014.  The Opp. Party is further directed to pay cost of litigation of Rs. 5,000/- (Rupees five thousand) only to the complainant.  The above directions shall be complied within a period of 30 days from the date of receipt of this order failing which the Opp. Party shall be liable to pay interest @ 9% instead of 6% till  payment.

 

(Miss Bijayalaxmi Satapathy)                                           (Sri Badal Bihari Pattanaik)

                Member                                                                         President