Orissa

Cuttak

CC/167/2021

Smt Mimansita Pattanaik - Complainant(s)

Versus

Future Generali India Insurance Co Ltd - Opp.Party(s)

A K Rout & associates

09 Nov 2022

ORDER

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

                                 C.C.No.167/2021

 

Smt. Mimansita Pattanayak,

W/O:Sarata Kumar Mohanty,

Village:Gopinathpur(Mathasahi),

PO/PS:Jagatpur,Dist:Cuttack.                                                        ... Complainant.

 

                                                Vrs.

1.        The Country Head,Future Generali India

Insurance Company Limited,

Corporate and Registered Office,

Indiabulls Finance Centre,Tower-3,6^th Floor,

Senapati Bapat Marg,Elphinstone(W),

Mumbai-400013,Maharashtra..

 

2.        Future Generali India Insurance Company Limited,

Off, Code-94, 2^nd Floor,Press Chhak,

Behind Agarwal Pharmaceuticals,Link Road,

Cuttack,Pin-753012.

 

3.       The Branch Manager,

Kotak Mahindra Bank Limited,Bhubaneswar,

At:Sahid Nagar,Plot No.B-21,

Bhubaneswar,Dist:Khurda.

 

4.       The Managing Director & CEO,

       Kotak Mahindra,At;27 BKC,G Block,

Bandra Kurla Complex,Bandra (E),

Mumbai-400051,Maharashtra.                                      ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:     28.10.2021

Date of Order:   09.11.2022

 

For the complainant:          Mr. A.K.Rout,Adv. & Associates.

For the O.Ps No.1 & 2 :       Mr. D.Singh,Adv. & Associates.

For the O.P No.3 & 4:                           None.

 

Sri Debasish Nayak,President                                          

            Case of the complainant as made out from the complaint petition in short is that she had purchased one MAHINDRA 275 D1 Tractor from the O.P no.4 by obtaining finance vide loan agreement no.352119 whose Engine number is RFNE01706 and chassis No.RFNE01706.  The said tractor of the complainant was insured vide policy No.2015M0306842-FPR.  The said tractor while being parked at Sunaribana Mundasahi near the house of the driver it was stolen at about 2 A.M. in the night of 7.10.16.  After searching for the said stolen tractor when the complainant was unable to locate the same, she had lodged a written complaint before the IIC,Jagatpur P.S on 15.10.16 for which G.R.Case no.273 of 2016 was initiated before the learned JMFC,Salipur.  The matter was reported by the complainant to O.P no.2, Insurance Company on 8.10.16 and the officials of O.P no.2 had thereby visited the spot but inspite of the report to the O.P no.2 as regards to the theft of the tractor of the complainant when no action was initiated, even though the insurance policy was in force with effect from 10.11.15 to 9.11.16, the complainant had to approach this Commission by filing the complaint petition seeking therein compensation to the tune of Rs.5,55,198/- from the O.Ps by making them jointly and severally liable here in this case together with interest thereon @ 18% per annum from the date of theft and also for a cost of Rs.30,000/- towards her mental agony and harassment.

            She has filed certain copies of documents in order to prove her case.

2.         Out of the four O.Ps as arrayed in this case, having not contested this case O.Ps no.3 & 4 were set exparte vide order dt.13.4.2022.  Thus, O.Ps no.1 & 2 have only contested this case and they have filed their written version jointly.  According to the O.Ps no.1 & 2, the complaint petition is not maintainable; the complainant has suppressed material facts and had approached this Commission with a malafide intention.  The O.Ps no.1 & 2 have mentioned in their written version that when the matter was enquired by their investigator, it was learnt that the vehicle in question was not registered in the office of the R.T.O and thus, it is a violation to Sec-39 of the Motor Vehicle Act,1989.  In this connection, the O.Ps have relied upon a decision of the Hon’ble NDCDRC in the case of Oriental Insurance Company Ltd. Vrs. Bikram Kanda in Revision Petition No.1264 of 2014 wherein it is observed that non-registration of the vehicle is a fundamental breach and an Insurance Company can reject an insurance claim of a stolen vehicle on the ground that the vehicle was not duly registered.  They have also relied upon another decision of the Hon’ble Supreme Court of India in the case of Narinder Singh Vs. New India Assurance Company Ltd.(Civil Appeal No.8463 of 2014) wherein their lordships have held by rejecting the appeal against the order of NDCDRC stating that non-registration of vehicle is not only punishable offence but also a fundamental breach of the terms and conditions of the policy contract.  Thus, according to the O.Ps no.1 & 2, there was no deficiency on their part for which they have also relied upon a decision in the case of Ravneet Singh Bagga Vrs. KLM Royal Dutch Airlines [(2000) 1 SCC 66] where the Hon’ble Supreme Court has laid down that the test of deficiency in service by stating that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The burden of proving the deficiency in service is upon the person who alleges it.  The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming of inadequacy in the service of the respondent.  The deficiency in service has to be distinguished from the tortuous acts of the respondent.  In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of Forum and omission attributable to the respondent which otherwise do not amount to deficiency in service.  In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic).  If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.  If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act.  The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down.  Inefficiency, lack of due care, absence of bonafides rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”  It is further submitted that the law in this regard has been very clearly laid down by the Hon’ble Supreme Court in Kandimalla Raghavaiah and Co. Vs. National Insurance Co. & Anr (2009) 7 SCC 768 and also in State Bank of India Vs. B.S. Agriculture Industries (2009) 5 SCC 121 that Hon’ble National Consumer Dispute Redressal Commission in Bala Devi Vs. Metlife India Insurance Company Ltd.  through its Regional Manager & Another (Revision Petition No.2958 of 2013) refused to entertain a revision petition.  Accordingly, the O.Ps have prayed to dismiss the case of the complainant.

            They have also filed copies of certain documents in order to establish their stand.

3.         Keeping in mind the averments as made in the complaint petition and the contents of the written version as filed by the O.P no.1 & 2, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of the O.Ps  ?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

Issue no.ii.

            Out of the three issues as framed here in this case, issue no.ii being the pertinent issue is taken up first for consideration.

            On perusal of the complaint petition, copies of documents attached thereto, it is noticed that the complainant has not filed any scrap of paper in order to apprise this Commission as to when she had purchased her tractor by obtaining finance for it.  There is ofcourse no dispute as regards to the purchase of tractor by the complainant.  In absence of any documents, while perusing copies of the police papers available in the record, the registration number of the stolen tractor could not be ascertained and complainant had not mentioned about the registration number of her stolen tractor also.    She has not refuted the plea of the O.Ps no.1 & 2 that her tractor in question was not registered.  In case of non-registration of the purchased tractor, the same is in violation to the terms of the policy of the insurance as obtained by the complainant.  In this context the O.Ps no.1 & 2 have kept reliance on the decision of the Hon’ble NDCDRC in the case of Oriental Insurance Company Ltd. Vrs. Bikram Kanda in Revision Petition No.1264 of 2014 wherein it is observed that non-registration of the vehicle is a fundamental breach and an Insurance Company can reject an insurance claim of a stolen vehicle on the ground that the vehicle was not duly registered.  The Hon’ble Apex Court also in the case of Narinder Singh Vs. New India Assurance Company Ltd.(Civil Appeal No.8463 of 2014) have held that non-registration of vehicle is a fundamental breach of the terms and conditions of the policy contract.  Keeping the said two pertinent decisions as relied upon by the O.Ps no.1 & 2, this Commission comes to a view that the O.Ps are not at fault of deficiency in their service as alleged against them here in this case.  Accordingly, this issue goes in favour of the O.Ps.

Issues no.i & iii.

            From the aforesaid discussions, it can never be said here that the case of the complainant is maintainable and he is entitled to the reliefs as claimed by him.   Hence it is so ordered.

                                                            ORDER

            Case is dismissed on contest against O.P No.3 & exparte against O.Ps no.1 & 2 and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 9^th  day of   November,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                           Sri Sibananda Mohanty

                                                                                                                                            Member