Date of filing: 04.03.2016 Date of disposal: 23.04.2019
Complainant: Sudhir Sarkar, S/o. Late Monoranjan Sarkar, Resident of Rail Yard Camp, Vill. & PO: Mankar, PS: Budbud, District: Burdwan, PIN – 713 403.
Opposite Party: 1. Cholamandalam Ms. General Insurance Co. Ltd., represented by its Branch Manager, having its office at Chhabildas Towers, 3rd Floor, 6A Middleton Street, Kolkata – 700 071.
2. HDFC Bank Ltd., represented by its Branch Manager, having its office at Retail Loan Service Centre, Old Dutta Automobiles Building, Nachan Road, Benachity, Durgapur, PIN – 713 213.
Present: Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Ms. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurav Kuamr Mitra.
Appeared for the Opposite Party No. 2: Ld. Advocate, Sumit Ranjan Bhadra.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Op-1 repudiated the claim of the complainant illegally and arbitrarily.
The case of the complainant in brief is that the complainant purchased a vehicle, namely, Mahindra Scorpio EX bearing No. GNE4F88003 and chassis No. MA1TH2GNKE5G6470 from Saluja Auto Retails Pvt. Ltd., Burdwan on 16.08.2014 for a consideration amount of Rs. 8, 18,756=00 with financial help from the OP-2. After purchasing the vehicle the complainant registered the vehicle before the Registration Authority and also insured the vehicle before the OP-1 after depositing premium vide policy No. 3362/00929597/000/00 valid from 19.08.2014 to 18.08.2015.
After few months of purchasing the vehicle he gave the vehicle to one of his friends for his personal use but he never sold out the same in favour of the said friend but one Power of Attorney was executed by the complainant in favour of his friend. Thereafter on 05.03.2015 the complainant received a phone call from the said friend and came to learn that his vehicle had been theft by some miscreants on 26.02.2015 when the vehicle was proceeding towards Purulia From Durgapur and his friend lodged a FIR before the Durgapur Police Station vide Durgapur P.S. Case No. 123/15 dated 04.03.2015. the complainant requested the said friend for supplying all the documents of the vehicle along with copy of FIR and on perusal of the FIR the complainant became surprised as his friend declared himself as owner of the vehicle and on enquiry from his friend he learnt that as he is a semi-literate person one Law Clerk of Durgapur has drafted the same who asked him that except the owner of the vehicle no one can lodge an FIR for theft of vehicle but the said Law Clerk assured him as he has the Power of Attorney, he can be treated as owner.
Thereafter the complainant the incident of theft of his vehicle to OP-1&2 ad one person representing himself as Surveyor of Insurance Company and complainant produced all the documents before him. After that on 22.06.2015 the Insurance Company –OP repudiated the claim in illegal and arbitrary manner, which is deficiency in service and unfair trade practice on the part of the OP-1. As the vehicle was hypothecated with the OP-2, they have been impleaded as OP-2.
The complainant prayed for an order directing to pay Rs. 8, 18,756=00 as compensation for their act of deficiency in service and unfair trade practice and an interest @18% per annum from the date of repudiation of the claim and to pay Rs. 25,000=00 as compensation towards mental pain, agony and harassment and a sum of Rs. 20,000=00 as litigation cost.
The complaint is contested by the OP-1 by filing written version denying all the material allegations made by the complainant in his petition of complaint.
The case of the OP-1 is that the complainant is not a consumer u/S. 2 (1) (d) of the C. P. Act, 1986 and the dispute ventilated by the complainant cannot be considered as consumer dispute as envisaged under the provisions of C. P. Act and as such the present complaint is beyond the purview of jurisdiction of this Ld. Forum.
The further case of the OP-1 is that a policy of insurance bearing No. 3362/00929597/000/00 valid from 19.08.2014 to 18.08.2015 by covering the risk of the vehicle with Engine No. GNE 4F 88003, Chassis No. MA1TH2GNKE5G 96470 in favour of Sudhir Sarkar subject to terms and conditions as stipulated thereof. The said policy was a policy type of Package – Pvt. Car policy and the limitation as to use of the said vehicle was restricted only for using for private purpose.
The OP-1 also stated that claim was lodged after 17 days of the alleged theft. Surveyor was appointed for assessing the loss and collecting documents. On production of documents by7 the complainant it came to the knowledge of this OP that the vehicle was purchased by the complainant for commercial purpose where the policy was issued for using the vehicle for private use. Moreover the complainant sold the vehicle to Samir Pyne. On the date of alleged theft the vehicle was given to some person on hire which is an utter violation of the policy and above all as the complainant has transferred the vehicle he has no right to get indemnification.
As per terms of the policy the insured is under obligation to intimate the police personnel as well as this OP forthwith but the FIR was lodged after 5 days and intimation to this OP has been given after 17 days of the alleged incident and no suitable explanation for such huge delay has been given by the complainant. For this reason the claim was repudiated and was intimated vide letter dated 22.06.2015.
The OP-1 further submits that contract of insurance is a contract of good faith and trust. At the time of proposal for insurance in respect of a newly purchased vehicle proposal was made for using the said vehicle as private car but subsequently it was detected that the complainant was issuing the vehicle on hire by suppressing the purpose for using the same. Moreover the complainant also violated the terms of the policy for not intimating the Insurance Company and Police forthwith of the alleged theft. For the above reason the claim was repudiated and intimated the same to the complainant. There is no deficiency in service and unfair trade practice. This OP strongly denied that the vehicle was given to Samir Pyne for his personal use and strongly believes that the vehicle was sold to Samir Pyne and the same was using on hire at the time of alleged theft. The instant complaint has been filed with all sorts of false and frivolous allegations snatching money illegally from this OP, the complaint should be dismissed with exemplary cost treating the same as vexatious complaint.
The OP-2 though appeared through the ld. Advocate but did not file any written version. The OP-2 filed an application with a prayer to expunge the OP-2 from the cause title and also relinquish the OP-2 from the case. The said application was registered as Miscellaneous Application being No. 91/2016 and after hearing; the said Application was dismissed on contest without any cost.
Complainant and the OP-1 filed evidence-on-affidavit. The complainant filed questionnaire to the OP-1 and the OP-1 replied the same. The OP-1 filed written notes of argument where the OP-1 referred the following Rulings of NCDRC, New Delhi but did not submitted the extract of the said Rulings.
- Revision Petition No. 4576 of 2013 reported in 2016 (1) CPR (NC) 262,
- Revision Petition No. 728 of 2012 reported in 2016 (4) CPR (NC) 151,
- Revision Petition No. 4419 of 2014 reported in 2015 (3) CPR (NC) 306,
- First Appeal No. 115 of 2014 reported in 2015 (3) CPR (NC) 399,
- Revision Petition No. 2983 of 2013 reported in 2015 (3) CPR (NC) 474 and extract of Motor Vehicles Act, 1988 regarding Transfer of Ownership u/S. 50 of the said Act and extract of policy condition.
The complainant also filed brief notes of argument along with some Rulings of NCDRC, New Delhi reported in
- 2003 (1) CPR 85 (NC),
- 2012 (2) CPR 228 (NC),
- 2012 (1) CPR 62,
- 2014 (4) CPR 759 (NC),
- Revision Petition No. 1894 of 2008 and one ruling of
- SCDRC, Himachal Pradesh, Shimla reported in 2012 (3) CPR 161.
-: Decision with reasons :-
To prove the case the complainant has already filed his evidence-on-affidavit stating the fats. He also stated in his evidence that there was five days delay in informing the theft by lodging FIR in the Police Station and actually he did not give any sufficient explanation as to why such delay in making FIR. The FIR was lodged by Samir Pyne and in this regard the complainant cited decision as reported in 2012 (1) CPR 62 of Kerala SCDRC that “mere fact that FIR lodged by another person stating that vehicle belongs to him will not entitled insurer to repudiate claim when RC Book and Insurance are in name of insured/complainant.
For use of vehicle as commercial purpose instead of privatized, the complainant cited another decision reported in 2012 (2) CPR 228 (NC) that the OP/Insurance Company failed to substantiate the allegation “that the vehicle was being used on hire and reward purpose. There was no sufficient evidence or convincing documents in this regard on the side of the OP.” Admittedly there was a delay in informing case to the Insurance Company. The claim for the insurance policy was made after 17 days of such incident and how far the delay in this case is explained is a matter of fact in this case. In this regard complainant cited decision of Hon’ble NCDRC in Revision Petition No. 1894 of 2008 where Hon’ble NCDRC placed reliance on the judgement of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC) “that the vehicle was insured for personal use and in case of theft of vehicle, nature of their use cannot be made the basis for repudiation. It is a fact that the vehicle declared untraced. The claim was repudiated by the Ops stating the fact that FIR was lodged belatedly by 5 days and intimation was given to the insurer after 17 days. Therefore it caused gross prejudice to the OP for recovery of the vehicle and it also amounts to serious preach of Condition No. 1 & 9 of the insurance policy.
OP did not adduce any evidence but prays for treating their written version supported by affidavit be treated as its evidence. After hearing both sides and on perusal of the evidence of the complainant, the questionnaires and replies to questionnaires and from the written version of the OP it appears that OP did not deny that the vehicle was stolen away and it remains untraceable. OP repudiated the claim on the ground of delay in FIR, as well as, intimation to the insurer. But from the decision of Hon’ble NCDRC as reported in 2017 (1) CPR 430 (NC) Hon’ble Commission hold that as per IRDA Circular dated 20.09.2011 “no genuine claim should be repudiated on purely technical grounds in a mechanical fashion. It will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.” The Hon’ble Commission come to a conclusion taking the spirit of the IRDA Circular into account, “we are of the view that the insurance claim of the complainant for theft of his vehicle may be allowed but not to the tune of 100% because there has been deficiency on the part of the complainant in informing the insurance company in writing and in time as per the terms and conditions of the policy.” In this context Hon’ble NCDRC placed reliance on the landmark judgement of Hon’ble Supreme Court passed in the case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC).
Hon’ble Supreme Court passed in the case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC) has observed “that the insurance claim may be allowed up to 75% in cases of breach of warranty/condition of policy.” The Hon’ble NCDRC has come to a conclusion that “from the facts of the case and the final report/charge-sheet filed by the police in the instant case, we reach to the conclusion that interest of justice would be served if the insurance claim is allowed for 60% of the insured value of the vehicle.”
In the case in hand the complainant is also deficient in informing the matter before the Police Station and also delayed in informing the incident to the Insurance Company as per terms and conditions of the Policy. The delay in making FIR is explained by the complainant that the vehicle was in possession of Samir Pyne who lodged FIR belatedly in 5 days and informed the complainant. Therefore, the complainant has no opportunity to have the knowledge of theft before such lodging of FIR by Samir Pyne. The complainant thereafter made hurry in procuring the copy of FIR and all the documents of the vehicle so that he can make claim before the Insurance Company. In this case the complainant must have taken some time to procure all those documents. Therefore the delay of 17 days is not so abnormal. Therefore the OP cannot repudiate the claim on the allegation, mainly, for delayed information and it is a case of genuine theft, OP should have considered the claim of the complainant and therefore OP is deficient in service in repudiating the genuine case of theft.
OP took the plea that the vehicle was transferred to third party for violation of policy and never informed to this OP regarding such transfer. But there was no document to show that the vehicle was transferred in favour of such transfer to Samir Pyne or any third party. OP must produce some documents in support of such allegation. Therefore we cannot support the Op’s case in this regard that vehicle was transferred in violation of insurance policy and the insurer is not liable to pay the claim amount.
Following the observation made by the Hon’ble NCDRC and keeping in view the observation made by the Hon’ble Apex Court, we find that justice will be made if the claim is not repudiated only on the ground of delay in information as it is a genuine case of theft. In such circumstances we can come to the conclusion that justice would be served if the insurance claim is allowed for 60% of the insured value of the vehicle in the light of the aforementioned decision of Hon’ble NCDRC in the abovementioned case.
Based on the above discussion, the complaint is partly allowed.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 34 /2016 be and the same is allowed in part on contest against the O.P. No. 1 Insurance Company with cost and dismissed ex parte against the O.P. No. 2 without any cost and the O.P. No. 1 Insurance Company is directed to pay the complainant 60% (sixty per cent) of the total insured value of the vehicle within a period of 45 (forty five) days from the date of this order, failing which, interest @8% (eight per cent) per annum shall be payable on this amount from the date of this order till actual payment. The O.P. No. 1 Insurance Company is also directed to pay the complainant compensation to the tune of Rs. 5,000=00 (Rs. Five thousand) only for mental pain, agony and harassment and litigation cost Rs. 2,000=00 (Rs. Two thousand) only within 45 (forty five) days from the date of passing of this award, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Purba Burdwan
President
DCDRF, Purba Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Purba Burdwan DCDRF, Purba Burdwan
