IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

CASE No.CC/93/2012.

 Date of Filing:            17/08/2012                                                          Date of Final Order: 31/05/2017

Complainant:  Md. Raihan Sk., S/O-  Abu Bakkar, Vill.&P.O. – Kagish,

                        P.S.- Beldanga. Dist.- Murshidabad.

-Vs-

Opposite Party:  Divisional Manager, National Insurance CO. Ltd

                              26/23/1 S.S. Sen Road. P.O.& P.S.- Berhampore,

                              Dist.- Murshidabad. PIN.- 742101. (W.B.)

                       Before:      Hon’ble President, Anupam Bhattacharyya.

                                          Hon’ble Member, Samaresh Kumar Mitra.                                            

FINAL ORDER

Sri Samaresh Kumar Mitra, Presiding Member.

            The case of the complainant is that on 08.07.2009 he came to Berhampore from his house Kagish   and parked his motor cycle being No. WB 58J/5258 in front of Berhampore Super Market near Mohona Bus terminal with proper locking. After some time at 2 p.m. at noon he found that his motor cycle was not there. He searched here and there nearby the Super Market and asked to the people who were on the spot but none gave him any clue regarding his vehicle till date. Then he went to Berhampore P.S. and filed a written complaint. The on duty officer Mr.Tapan Kr. Chatterjee received the complaint and started a P.S. Case being No.449/09, U/S- 379 IPC dated 16.09.2009. Police started investigation and submitted final report before Ld. CJM Murshidabad at Berhampore on 31.12.09. The investigating officer admitted the fact in his opinion. The complainant informed the matter to the OP and claimed the insured amount. The OP received the claim vide claim No. 15400031096290000087 but did not take any necessary action. The complainant gave a reminder application to the OP on 21.06.2010 to look after the matter. But get no results. The policy was with the OP so he is entitled to get market value of the motor cycle amounting to Rs.50000/- only as compensation from the OP. He prayed to pay compensation amounting to Rs.50000/- and also Rs.10000/- for mental pain & sufferings. 

     The sole OP appeared and filed written version denying the allegations as leveled against him and averred that the complainant did not follow the mandatory provisions of the policy, so he is not entitled to get any relief as prayed for and the complaint is liable to be rejected.

     The complainant filed affidavit -in -chief by way of affidavit on 20.07.2016 where he admitted his case in line of his complaint.

       Argument as advanced by the agents of the complainant and opposite parties heard in full.

    From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1.Whether the Complainant Raihan Sk. is a 'Consumer' of the opposite party?

2.Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3.Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the       Complainant?

4.Whether the complainants proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Raihan Sk. is a 'Consumer' of the opposite party?

              From the materials on record it is transparent that the Complainant insured his Motor Cycle before the OP, so he is a "Consumer" as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.  As such the complainant herein being the consumer of the OP is entitled to get service from the OP.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

          Both the complainant and Opposite Party are residents/carrying on business within the district of Murshidabad. The complainant prayed Rs.50000/- market value of the theft vehicle as compensation from the OP and Rs.10,000/- for mental pain and sufferings ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

      It appears from the case record and the documents as produced by the parties in dispute that the complainant insured his motor cycle before the OP and the said motor cycle was stolen in front of Berhampore super market on 08.07.2009 at 2 p.m. at noon. He searched here and there nearby the Super Market and asked to the people who were on the spot but none gave any satisfactory answer. Then he went to Berhampore P.S. and filed a written complaint and on the basis of his complaint a police case started being Berhampore P.S. Case being No.449/09, U/S- 379 IPC dated 16.07.2009. Police started investigation and submitted final report before Ld. CJM Murshidabad at Berhampore on 31.12.2009. The complainant informed the matter to the OP and claimed the insured amount. The OP received the claim vide claim No. 15400031096290000087 but did not take necessary action. The complainant gave a reminder application to the OP on 21.06.2010 to look after the matter but of no result. Getting no alternative the complainant preferred the redressal of this Forum as prayed in the prayer portion of the complaint petition.

         It is pertinent to mention that the F.R.T No.830/09 dt.31.12.2009 U/S-379 IPC in C/W Berhampore P.S. Case No.449/2009 dt.16.07.2009 being GR.No.1950/09 submitted by the investigation officer Tapan Kumar Chatterjee S.I of Police, Berhampore P.S. was accepted by the Ld. CJM Murshidabad on 26.04.2010 as the defacto complainant (complainant herein) has no objection regarding the investigation. So the investigation regarding the theft of the vehicle is over and the motor cycle of the complainant became untraceable.

        After perusing the policy schedule of the impugned motor cycle it appears that the policy valid from 16.06.2009 to midnight 15.06.2010 and the vehicle Regn No.WB 58 J  5258 and the declared value of vehicle is Rs.46000/- & othrs. So there is no dispute regarding the validity of the insurance policy.

      The agent on behalf of the complainant argued that the OP could not settle the valid claim of this complainant which tantamount to deficiency of service on the part of the OP so this complainant is entitled to get the market value of the lost/theft vehicle alongwith compensation for mental pain& sufferings. The agent on behalf of the OP argued that the complainant violated the terms and conditions of the insurance policy for which the OP could not settle the claim of the complainant.

     If we go through the Clause-6 of the Insurance policy, to the extent it is relevant required the insured to forthwith give notice to the insurer on the happening of any loss or damage. It is difficult, if not impossible, to fathom any reason why the complainant, who is said to have lodged first information report on 16.07.2009 about the theft of the motor cycle did not inform the insurance company about the incidence. In terms of the policy issued by the opposite party, the complainant is duty bound to inform it about the theft of the vehicle immediately after the incident. Nowhere in the complaint petition as well as affidavit and in the written argument had the complainant stated the date of giving first information to the opposite party but always mentioned the date of reminder. But tried to evade his onus to inform the opposite party immediately as it is interpreted as reasonable time after the incident. On account of delayed intimation, the opposite party was deprived of its legitimate right to get an enquiry conducted into the alleged theft of motor cycle and make an endeavour to recover the same.   

        We may refer one case decision of Apex court in National Insurance Company Ltd. Vs. Nitin Khandelwal  Civil Appeal No.3409 of 2008 in which the Hon’ble Apex court observed that in the case of theft of vehicle breach of condition is not germane. The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was breach of condition of the insurance policy; the insurance company ought to have settled the claim on non- standard basis. The Insurance Company cannot repudiate the claim in Toto in case of loss of vehicle due to theft.

      We may also refer a circular No. IRDA/HLTH/ MISC/Cir/216/09/2011 dated 20.9.2011, Insurance Regulatory and Development Authority has advised the insurers not to repudiate the claims on account of delay in intimating the loss to the insurer, without first ascertaining the reason for the said delay and satisfying themselves that the delayed claim would have been otherwise rejected even if reported in time. The aforesaid circular is binding on the insurers with effect  from 20.09.2011 as stated in an affidavit dated 27.7.2016 filed by the IRDA before National Commission in revision petition No. 2850 of 2015, Reliance General insurance Company Ltd Vs.- Harleen Kaur.

       The OP herein tried to escape his responsibility by not settling the claim of the complainant on flimsy ground of delay information to the OP which leads to breach of contract.

        Insurance Company (OP herein) should extend their co-operation regarding the claim of the insured motor cycle. It is not desirable from the end of the OP for not settling the claim of the insured merely on technical ground.

        Banking upon the above discussion we are in a opinion to allow the claim of the complainant in part as this OP failed to prove the breach of contract on the part of this complainant as well as the act of this complainant leads to violation of policy agreement by filing written version & hearing argument.

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

       The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party could not avoid his responsibility of paying the claim of the complainant including interest thereon as ascertained by this Forum.

ORDER

       Hence, it is ordered that the complaint case being No.93/2012 be and the same is allowed in part on contest against the Opposite Party with a litigation cost of Rs.4000 payable to this complainant.

The Opposite Party is directed to pay a sum of Rs.46000/- to this complainant including interest @8% since the date of filing this complaint petition within 45 days from the date of final order.

No other reliefs are awarded to the complainant for harassment and mental agony.

At the event of failure to comply with the order the Opposite Party  shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

Dictated and corrected by me.

                  Member,                                                                                                 President,