Orissa

Jajapur

CC/37/2013

Sk.Nasin - Complainant(s)

Versus

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

Alok Kumar Pane

16 Sep 2015

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                          Present:  1.Shri Biraja Prasad Kar, President,

                                                                                              2.Sri Pitabas Mohanty, Member,

                                                                                              3.Miss Smita Ray, Lady Member.                                                                   

        Dated the 16th day of September,2015.

                                        C.C.Case No.37 of 2013

SK.Nasin,  S/O SK.Hasim

At . Jhariakula, P.O. Charinangal, P.S.Balichandrapur

Dist. Jajpur.                                                                                                               …… ……....Complainant .                                                        .                                     (Versus)

1.Divisional  Manager ,Oriental Insurance Co.Ltd,Balasore Division,

   At.Azimabad near F.M.College,P.O,Dist.Balasore.

 2. Branch Manager, Oriental Insurance Co.Ltd,At/P.O.Jajpur Road,

  Dist.Jajpur. 

                                                                                                                    ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                          

For the Complainant:                      Mr. A.K. Pani, Advocate.

For the Opp. Parties:                       Mr. A.K. Dash, Advocate.                                                                                                                  

                                                                                                                 Date of order:   16. 09. 2015.

MISS  SMITA  RAY , L A D Y MEMBER .

                                The petitioner has filed the present dispute against the O.Ps. alleging deficiency in service due to non settlement of his Insurance claim which was claimed against the stolen of the financed vehicle.

                                The facts as stated by the petitioner in the complaint petition shortly are that the petitioner is a permanent inhabitant of Balichandrapur P.S within the district of Jajpur and the O.ps are the officials of Insurance company. The petitioner is the owner of Tata Truck bearing No.0R-09-G-6272. The said vehicle was insured with the O.P. no.2 bearing policy  No.34502/31/2011/4731/001 covering the risk period 15.04.2011 to 15.02.2012. It is stated by the petitioner that during subsistence of the policy the above vehicle was stolen from the residential house of the petitioner at Jharkul on 01/02/01/2012 at about 2P.M in the night. The matter being reported  in Balichandrapur P.S and as per investigation the I.I.C Balichandrapur submitted the final report as true but no clue U/S 379/34 I.P.C. Further it is stated by the petitioner that soon after the occurrence the petitioner informed the matter over telephone to O.P no.2 and due to non receipt of the claim form the petitioner informed the matter  by way of U.P.C but till yet the O.P no.2 has not issued the claim form which amounts to unfair trade practice and coming under deficiency of service . Accordingly the petitioner has filed the present dispute with the prayer to allow rs.30,000/- for mental agony Rs.10,000/- litigation charge as well as Rs.4,60,000/- towards cost of the vehicle.

                                There are two O.Ps. who after appearance have filed their counter in support of their defence. The main defence taken by the O.Ps. that after the occurrence the petitioner neither has informed the matter to O.Ps by way of telephone nor written information by way of U.P.C for which the O.Ps have not given an opportunity to settle the claim after fulfillment of official formalities. As such the dispute is liable to be dismissed having no deficiency in service on the part of the O.Ps.

                                We heard the argument from both the sides . Perused the pleadings ,documents and citiations filed from the side of the petitioner and owing to the above assertion and counter assertions inclined to dispose of the dispute as per our observations stated below.

1. It is undisputed facts that the petitioner is the owner of a Truck bearing No.0R-0G9-6272 and as per complain petition due to theft of the vehicle the petitioner has intimated the matter by way of written intimation through U.P.C as well as over telephone. As against such intimation the O.Ps. have taken the stand that no intimation has been receipt regarding theft of the vehicle from the petitioner either by way of intimation through U.P.C or telephone.
2. In this context the O.Ps. have filed a letter dt.15.04.2014 from postal Deptt. Which indicates the U.P.C has been discontinued from 23.02.2011. Accordingly we are inclined to hold that the stand taken by O.Ps. are correct for which intimation through U.P.C regarding theft of the vehicle to O.Ps can not accepted due to discontinuance of U.P.C from 23.02.2011  the vehicle has been stolen after 23.02.2011.
3. As regards telephonic message regarding theft of the above vehicle though O.P no.1 and 2 have filed the written version stating that they have not received any information regarding theft of the above vehicle but O.P no.1 have only filed the affidavit regarding non receipt of information over telephone. As against such filing the affidavit the petitioner has filed some citation on 10.03.2015 along with written note of argument and the copy of the said written note of argument has been received by O.P . After perusal of the citation reported in 2008(2) CPR-391-NC (National Insurance Co. Ltd, Vrs. Ajay Kumar) it is observed that in the said citation the Hon’ble Commission has come to the finding that

“ Branch Manager is the right person to file affidavit denying such telephone information since the petitioner had intimated the Branch Manager of Insurance Company. The division Manager’s affidavit would at best be constructed as a hear say “.

In the present case the petitioner has stated vide para-4 of the complain petition that he has intimated the Branch Manager Oriental Insurance Co. Jajpur Road over telephone regarding theft of the above vehicle  since the alleged vehicle has been insured with O.P.no.2.  As such Branch Manager is the right person who is required to file the affidavit regarding non receipt of telephonic message. Owing to the above observation of Hon’ble N.C, the O.Ps. after receipt of copy of the written note of argument filed an affidavit of the Branch Manager Oriental Insurance Co. Jajpur Road on 13.07.2015 with the  copy to the petitioner regarding non receipt of telephonic message regarding  theft of the vehicle  and the petitioner also filed an objection to such belated filing of affidavit basing on the observation of Hon’ble Supreme Court and National Commission reported in AIR 1988-Supreme Court-1381 (Smt Sudha Devi Vrs. M.P Narayan) and 111(2006)CPJ-378-NC (Narush Kripalari Vrs.George Abraharm & others) wherein it is held that  by Hon’ble Supreme Court vide para-4

“ plaintiff was not allowed to fill up the lacuna in evidence belatedly  by filing affidavit at the Supreme Court stage”- “ permission to produce document at such belated stage rightly declined.”-N.C .

In addition to it the petitioner also has relied on the observation of Hon’ble H.P,State Commission and Chandigarh State Commission reported in 2008(2)CPR-159-Simla( Rajesh Kapoor Vrs.Kusuma Sharma) and 2014(2)CLT-374-Chandigarh (Avneet G Singh Vrs. ICICI Lombard General Insurance Company) wherein it is held that

“ it is settle principle of law that when two inter pretations are possible from the contents of documents then the interpretation which is favourable to the consumer is required to be taken into consideration”.

The above view is also supported by Hon’ble Supreme Court reported in 2004(2)CLT-141-SC(United India Insurance Co Vrs.M/s Pushpalaya Printers) wherein it is held vide parfa-6 that

“if there is any ambiguity or a term is capable is two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken namely to cover the risk on the happening of certain event”.

Similarly we have also come across with the order dt.31.08.2012 of Hon’ble J.M.F.C  Chandikhole  vide G.R case No.361/2012 wherein basing on the final report U/S 379/34 of I.I.C, Balichandrapur P.S the Hon’ble J.M.F.C has  closed the G.R. Case  as no clue is found.

                                In view of the above observation of the Appex Court and Appellant Forum as well as owing facts and circumstances of the present case to meet the ends of justice we dispose of the dispute as per order below:-

                                                                                O R D E R

                                In the result the dispute is disposed of. The O.Ps. are directed to settle the Insurance claim of the petitioner against the above cited vehicle within three months treating this complain petition of the petitioner as information. The petitioner is also directed to produce the relevant documents as per requirement of the O.Ps. without delay. No cost.                                                    

                                                Pronounced in the open Forum on this the 16th day of September ,2015. under my hand and seal of the Forum.                                                                                          

                  

(Shri Biraja Prasad Kar )                                                                  (Miss Smita Ray)                                                         

           President.                                                                                             Lady  Member.                                                                      

                                                                                                      Typed to my dictation & corrected by me                                                                                                                                                            

 

 (Shri Pitabas Mohahty)                                                                             (Miss Smita  Ray)                                                         

        Member.                                                                                                  Lady Member.