Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Subedi Sanyal
Date of filing of the case :19.07.2022
Date of Disposal of the case :08.08.2023
(2)
Final Order / Judgment dtd.08.08.2023
Complainant above named filed the present complaint against the aforesaid opposite party u/s 35 of the Consumer Protection Act, 2019 praying for an order directing the OP to pay insured sum of Rs.5,16,000/- with interest, compensation amounting to Rs.2,00,000/-, cost of the case and other reliefs.
He alleged that complainant had purchased a policy from the OP which was valid for the period from 13.06.2019 to 12.06.2020 and sum assured of the said policy was Rs.5,16,000/-. OP issued certificate of insurance to the complainant. On 16.08.2018 one tractor (Sonalika) being Registration No. WB52AJ 0140 was stolen from the side house of complainant and matter was informed to Mira ROP on 16.08.2019. After receiving the information Kaliganj P.S. started a case vide no.12 of 2020 dated 08.01.2020 u/s 379 IPC. After investigation C.I. Nakashipara had filed FRT on 02.07.2020 and left CJM Krishngar had accepted the same on 24.12.2021. OP sent a letter to the petitioner on 17.12.2019 and directed to submit the necessary documents but complainant did not get the policy amount hence this case.
OP filed W/V and denied the entire allegations. He stated that on 19.08.2019 after an inordinate delay of 3 days OP gave an intimation to the complainant towards theft of aforesaid vehicle. Complainant violated the policy condition number 1 as he did not submit the intimation of theft immediately after the occurrence. He also violated the policy condition number 5. In the policy condition number 5, it has stated that insured shall take all reasonable steps to safeguard the vehicle insured from loss of damages. He referred the decision of Hon’ble S.C.D.R.C dated 11.01.2016 in revision petition number 2479 (Reliance General Insurance Company Limited Vs. Joy Prakash ). He also cited another decision of Hon’ble N.C.D.R.C dated 12.08.2013 revision petition number 2416/2013 (Devendra Kumar Varma Vs. Oriental Insurance). He also cited another decision of Hon’ble Supreme Court reported in (2000) 1 SCC 66. He further stated that in view of the aforesaid decision complainant is not entitled to any claim.
Trial
During trial complainant filed affidavit in chief. He also filed another documents. OP was absent on the date of filing questionnaire and he lost the opportunity to file questionnaire.
OP did not file any affidavit in chief.
Documents
Complainant filed the following documents:-
- Original copy of HDFC ERGO General Insurance Company Limited dtd.13.06.2019............(One sheet)...........(Annex-I)
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- Xerox copy of receiving document...........(One sheet)............(Annex-II)
- Xerox copy of receiving document dtd.06.05.2019...........(One sheet)..........(Annex-III)
- Xerox copy of HDFC ERGO General Insurance Company Limited dtd. 17.12.2019...........(Two sheets)
- Original copy of HDFC ERGO General Insurance Company Limited dtd.14.09.2017...........(One sheet)
- Original copy of Without Prejudice dtd. 15.11.2019..........(One sheet)....(Anex-6)
- Original copy of HDFC ERGO General Insurance Company Limited dtd. 13.06.2019..........(One sheet)
- Original blank document of HDFC ERGO General Insurance Company Limited...........(One sheet)
- Original copy of HDFC ERGO General Insurance Company Limited dtd.14.09.2017...........(One sheet)
10)Original blank document of HDFC ERGO General Insurance Company Limited...........(One sheet)
11)Original copy of HDFC ERGO General Insurance Company Limited.....(One sheet)
12)Original copy of HDF ERGO General Insurance Company Limited dtd.13.06.2019..........(One sheet)
13)Original copy of HDF ERGO General Insurance Company Limited dtd.13.06.2019..........(One sheet)
14)Original copy of State Transport Department Nadia RTO, WB dtd.28.08.2018...........(One sheet)
15)Original copy of Registration Certificate dtd. 14.09.2017..........(One sheet)
16)Original copy of GDE No.480 dtd. 16.08.2019..........(One sheet)
17)Original copy of PUC Certificate dtd. 19.07.2019..........(One sheet)
18)Original copy of Computerised Emission Test Certificate dtd. 20.01.2019......(One sheet)
Brief Notes of Argument
Complainant filed BNA. OP did not file any BNA nor participated in the argument.
(4)
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP, documents filed by the complainant, affidavit in chief filed by the complainant and BNA filed by the complainant. We have carefully considered these documents.
On perusal of affidavit in chief filed by the complainant, we find that complainant corroborated the allegation of petition of complaint. Moreover, OP did not file any questionnaire. So the affidavit in chief filed by the complainant is nothing but unchallenged testimony. Accordingly, we do not find any reason disbelieve the same.
On perusal of original policy, we find that OP issued the said policy. Said policy was valid for the period from 13.06.2019 to 12.06.2020.
On perusal of document dated 16.08.2019, we find that complainant wrote a complaint before the I.C, ROP Mira Policy. He alleged in the said complaint that he has a tractor vide model Sonalika RR 47. Said tractor was kept beside his house but in the night that is on 16.08.2019 said tractor was stolen. Number of the said tractor is WB-52AJ 0140. Mira ROP received the same on 16.08.2019.
We also find that complainant lodged one complaint before the CJM, Nadia. Thereafter, CJM, Nadia forwarded the same before the O.C Kaliganj P.S. u/s 156(3) CRPC and Kaliganj P.S. had received the same on 04.01.2020 and started Kaliganj P.S. case number 12 of 2020 dated 08.01.2020. S.I Nihar Kanti Datta took up investigation of the said case as per order of O.C Kaliganj P.S. datd 08.01.2020. Said case was ended with FRT. Later CJM accepted the same on 24.12.2021. OP vide his letter dated 17.12.2019 disposed off the claim of the complainant. They closed his claim as “No claim in their records” they further stated that complainant was asked to produce some documents but complainant did not produce the same.
On perusal of certificate of Registration, we find that aforesaid tractor stands in the name of complainant.
On perusal of document dated 15.11.2019 we find that OP directed the complainant to produce 21 documents relating to his claim application dated 19.08.2019.
From the aforesaid discussion, it is clear before us that complainant informed the incident of theft before the OP on 19.08.2019. OP further alleged that in spite of his direction complainant did not produce documents before him. Complainant could not produce any document before this Commission in support of the fact that he submitted documents before the OP as per direction of his letter dated 15.11.2019.
(5)
But petitioner said in the affidavit in chief that petitioner did not receive the FRT copy from the court .
OP in his W/V referred some decisions but he did not place those decisions before this Commission. As a result this Commission did not get any chance to go through the same.
Moreover, OP is not taking any steps in this record since 23.06.2023 even he did not participate in the argument held on 24.07.2023. On perusal of record we find that OP filed his claim after three days from the date of aforesaid theft. OP No.1 in his letter dated 17.12.2019 clearly mentioned that the date of theft took place on 16.08.2019 and complainant reported the aforesaid fact before the OP on 19.08.2019. OP alleged in the said letter that complainant did not file some documents as per their demand. He by the said letter refused the claim.
Three judges bench of Hon’ble Supreme Court in Gurshinder Singh Vs. Shriram General Insurance Company Limited and another reported in (2020) 11 SCC 612 held:-
“When an insured has lodged the FIR immediately after the theft of vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine , then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
Having regard to the facts and circumstances of this case and documents on record, we are of the firmed view that complainant has established his grievance by sufficient documents beyond reasonable doubt and he is entitled to relief as per his prayer.
On perusal of record, we find that complainant is consumer and OP is a service provider.
Accordingly, complainant is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against OP with cost of Rs.5,000/-(Rupees five thousand) to be paid by OP in favour of the complainant.
(6)
OP is directed to pay Rs.5,16,000/- (Rupees five lakh sixteen thousand) in favour of the complainant within a period of 45 days from
this day failing which aforesaid amount shall carry interest at the rate of 9% per annum from this date to till the date of actual payment and complainant shall have liberty to put this order into execution.
OP is further directed to pay Rs.50,000/-(Rupees fifty thousand) as compensation in favour of the complainant for his harassment, mental pain and agony within a period of 45 days from this date.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
