Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainants u/s 12 of the Consumer Protection Act, 1986. According to the complainants, the Complainant No.2 had taken a Global Trotter Overseas Individual Travel Insurance Policy from the O.P., bearing Policy No.4030/2869843/00/000, which was valid for the period 04^th October, 2009 to 10^th October, 2009. The said copy was sent to the Complainant via e-mail.  However, terms and conditions of the policy were not sent by the O.P.  The complainant No.2 traveled to Geneva for official work as Principal General Manger of M.T.N.L. Limited.  On 10^th October, 2009, the Complainant No.2 carried all his baggage and luggage and was waiting at bus stop for travel to the airport.  At about 05.30 A.M. in the morning, the complainant No.2 found that one of his bag was stolen thereby he lost his camera, souvenirs purchased by him, various official documents including the printout of the insurance policy and cash of US$1100.  The complainant No.2 immediately lodged policy complaint.  Due to theft, the complainant No.2 suffered hardship and mental anguish.  It was not possible for him to lodge the claim immediately as the policy documents were stolen from his bag.  However, he tried to telephone the O.P. to intimate the loss but he could not.  After returning to India, the complainant informed the O.P. about his loss.  The intimation was given on 11^th October, 2009 via e-mail.  He made claim for US$1250 i.e. loss of US dollar 1100 and value of Camera and souvenirs US$150.  The said US dollars were purchased by the complainant No.2 at the rate of Rs.48.75 =US$1. The complainant No.2 submitted claim form to the O.P.  The O.P. repudiated the claim by e-mail and letter dated 28^th October, 2009.  Aggrieved by this repudiation, the complainant No.2 approached Insurance Ombudsman.  The Insurance Ombudsman vide order dated 1^st November, 2010 directed the O.P. to pay Rs.3,000/- as ex gratia settlement of the claim.  The complainant No.2 does not agree therefore he has filed this complaint for the claim of Rs.60,600/- with interest at the rate of 12% per annum and compensation of Rs.10,000/- for harassment. 

2)                The opponent appeared and filed written statement.  It is submitted that the complainant No.2 is not the consumer. Claim is barred by limitation.  The complainant No.2 could not provide details of the articles which were lost.  The alleged loss was not substantial.  There was no detrimental effect taken in the travel plan of the complainant No.2.  The complainant No.2 completed his trip without any hustle and the alleged incident of theft had not effect on his travel plan.  The complainant No.2 was never in financial emergency therefore he is not entitled for the claim as prayed.

3)                After hearing both the parties and after going through the record following points arise for our consideration

POINTS

REASONS

4) As to Point No.1 & 2 :- It is not disputed that the complainant No.2 had taken travel insurance policy.  It is also not disputed that he traveled at Geneva during the insurance period.  According to the complainant No.2, while he was returning on 10^th October, 2009, he found at bus stop that he lost his one baggage. According to him, there was camera, souvenir, official documents including printout of his insurance policy and cash of US$1100. Immediately, he lodged police complaint.  According to him, he was to rush for airport. There was no insurance printout with him therefore he could not lodge claim immediately. But, after return to India, immediately he lodged insurance claim.  He has produced copy of email on record.  This fact is not disputed by the O.P. The claim is repudiated on the ground that there was no detrimental effect in the travel plan and he completed his trip without any hustle and theft had no effect on his travel plan.  There was also no financial emergency.  It is pertinent to note that the complainant No.2 was traveling at Geneva.  He lost his baggage while traveling.  Certainly it will affect his journey. However, he could manage to travel and to come to India.  He lost his insurance policy printout and there was no time.  Therefore, he could not lodge insurance claim immediately. However, he lodged police complaint immediately.  He has produced copy of it alongwith English translation.  It corroborates the averments of the complainant about the theft and loss of camera, documents, and cash US$ 1100.

5)                According to the complainant he had not received the terms and conditions of the policy.  He received policy documents via e-mail.  The opponent has not produced any evidence to show that term and conditions of the policy were sent to the complainant or those were disclosed to the complainant No.2.  The learned complainant has placed reliance on the judgment of Hon’ble Supreme Court reported in I (2000) CPJ 1 (SC). In para 9 of the judgment, the Hon’ble Supreme Court has held as under :

In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause.  Therefore, the finding of the National Commission is untenable in law.

In view of the above law laid down by the Hon’ble Supreme Court, the terms and conditions of the policy are not binding on the complainant No.2 as those were not disclosed to the complainant No.2. The Insurance Ombudsman in his award has observed that immediate intimation to the insurance company was beyond control of the complainant.  However, there was detrimental effect on the complainant’s travel plan. The learned Insurance Ombudsman concluded that it would not be proper to conclude that complainant did not face any hardship.   The learned Ombudsman observed that the repudiation of the claim appears to be technically in order.  However, the learned Ombudsman directed to pay Rs.3,000/- to the complainant No.2 on ex gratia basis.  The learned complainant has submitted that the award of the Ombudsman is not binding on the Forum.  For this purpose, he has placed reliance on the judgment of Hon’ble National Commission, reported in I (2005) CPJ 107 (NC).  In this judgment, the Hon’ble National Commission has held that role of Ombudsman is altogether different and his award is not binding on the complainant. 

6)                Thus, there is no dispute about of the policy and travel of the complainant No.2 during the policy period.  The evidence on record shows that one baggage of the complainant No.2 was stolen during travel.  The complainant No.2 lost his camera, official documents and cash US $1100.  This fact is corroborated by the police complaint on record which was lodged immediately after the incident. The repudiation of claim on the ground that the complainant No.2 could manage to come to India will not be proper.  The complainant No.2 suffered loss during travel. However, he could manage to travel.  Therefore, the repudiation of claim is not proper.  The evidence on record show that the complainant suffered loss of US$1100= Rs.53,625/- camera and other articles worth Rs.6,975/-, total Rs.60,600/-.  The complainant No.2 is entitled to recover it from the O.P. 

7)                The complainant No.2 lodged his insurance claim with the opponent. The opponent wrongly repudiated it, thereby the complainant No.2 suffered from mental agony.  The complainant No.2 is entitled for compensation for mental agony. His claim of compensation of Rs.10,000/- appears to be reasonable.  Besides this, the complainant No.2 is entitled for the cost of this proceeding Rs.5,000/-. Therefore, we proceed to pass the following order.

ORDER

1. Complaint is allowed.
2. The opponent is directed to pay to the complainant No.2  Rs.60,600/- with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 7^th December, 2011 till realization.
3. The opponent is also directed to pay Rs.10,000/- to the complainant No.2 as compensation towards mental agony.
4. The opponent is further directed to pay Rs.5,000/- to the complainant No.2 towards cost of this proceeding.
5. The above order shall be complied with within a period of one month from today.
6. Copies of this order be sent to the parties free of cost.

Pronounced

Dated 11^th April, 2014