FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the complainant obtained banks loans to purchase three brand new Maruti Alto 800 LX private vehicles to maintain his livelihood as he is an unemployed person.The complainant was convinced from one Mr Pratik Bhattacharjee of North Dum Dum,Kolkata that he would pursue in the Tollywood to engage the complainant’s vehicles in the film studio on hire basis.All the vehicles were insured with OP M/s ICICI Lombard General Insurance Company Ltd vide certificate cum policy schedule for two motor vehicle Nos WB-02AL-6724 with an IDV of Rs,3,05416’/policy No.3001/MI-04928818/00/000 and WB-02L-8619 with an IDV of Rs,3,08,994/ policy No.3001/MI-05031322/00/000.On 09.02.2018 Mr Bhattacharjee approached the complainant and asked to provide all the vehicles for a day to arrange for transport facilities to the guests of one of the celebrities in the Tollygunge film studio for attending a marriage party.The complainant handed over all the three vehicles on good faith to one Bapi Majhi and two other drivers whom sent by Mr Bhattacharjee and engaged by him too and assured to return all the vehicles at the next day.The complainant stated that when the vehicles did not return at the next day,the complainant tried to contact over phone to Mr Bhattacharjee but the mob.phone found switched off.Later, he visited at his residence too but not traced.The complainant further stated that at that time he has having some medical issue in his family for that reason he was unable to contact Mr Bhattacharjee until 14.02.2018.The complainant went to film studio but no one could recognize Mr Bhattacharjee.The complainant could realize that Mr Bhattacharjee was a cheater and committed breach of trust,fraud and cheating to many persons including the complainant.The complainant decided to lodge complaint to Chetla P.S on 17.08.2018 but Chetla P.S did not accept the complaint initially.Then again the complainant sent the letter of complaint about the theft of the vehicles through speed post on 19.02.2018.The complainant also sent mail to joint Commissioner of Police,Lal Bazar,Kolkata.The Chetla P.S finally accepted the FIR on 28.02.2018.The effort,co-operation of the complainant one vehicle was recovered.
The complainant also intimated the loss of the vehicles to the OP vide letter dated 23.02.2018 and lodged the claim for the missing vehicles under Motor policy No’s.and the same intimation was acknowledged by the OP vide their letter dated 06.04.2018 for vehicle No.WB-02L-8619 and letter dated 09.04.2018 for vehicle No.WB-02L-6724.The complainant further informed the concerned Banks regarding theft of the vehicles on 07.07.2018.The OP sought certain clarification from the complainant regarding theft of the vehicles and accordingly the complainant replied the OP explaining the reasons for the delay in intimation of loss vide letter dated 14.04.2018.
That despite explaining the reasons in detail to the OP for the delay,the OP denied the liability under policy vide letter dated 01.06.2018 citing the reasons that immediate notice of theft was neither given to the Police nor it was intimated to the OP.The rejection of the claim by OP due to non compliance with policy condition No.01 by the complainant is absolutely irrelevant,basless and bad in law and caused mental agony and harassment to the complainant.
Finally,the complainant approached the Commission with the prayer as mentioned in the complaint petition for ends of justice.
The OP has contested the case by filing their WV contending inter alia that the complainant has not yet completed payment of consideration amount for vehicles under dispute as these were taken on loan. The complainant is not at present the actual owner under hire and purchase agreement with the said financer. Hence the instant complaint petition is defective for want of necessary parties.The OP stated that the complainant had no permanent source of income and have taken three vehicle loan and started plying vehicle for commercial purpose and purchased private car package policy from the OP insurance company.The complainant does not know the names of drivers and not even posses the copy of the driving license who had taken his vehicles from his custody. The complainant intimated the OP after 18 days of loss and 19 days in intimating the police authorities. This is violation of policy condition.The vehicle is insured on the condition that in the event of any theft, immediate intimation must be given in writing to the company as well as to Police.The complainant flouted government rules and regulations of the Motor vehicles Act and hatched conspiracy to ply private vehicle for commercial purpose without paying govt.Road tax for commercial vehicles,govt.Route permit charge and premium for commercial vehicles.The OP has not committed any deficiency in service nor created any mal practices.The complainant is not entitled to any claim, compensation and litigation cost.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OP is deficient in rendering proper service to the Complainant?
2) Whether the OP has indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. All parties have tendered their Evidence supported by affidavit. They have filed replies to the questionnaire set forth by their adversaries.They have also filed their BNAs.Facts remains that the complainant purchased three brand new Maruti Alto 800 LX private vehicles for livelihood for his families.The said vehicles were insured with OP M/s ICICI Lombard General Insurance Company Ltd vide certificate cum policy schedule for motor vehicles Nos WB-02AL-6724 with an IDV of Rs,3,05416’/policy No.3001/MI-04928818/00/000, WB-02L-8619 with an IDV of Rs,3,08,994/ policy No.3001/MI-05031322/00/000 and WB-02AL-9463 with an IDV of Rs,3,08,994.00 policy No.3001/MI-05127778/00/000.
As stated by the complainant that he was an unemployed person and for his family’s livelihood he purchased three vehicles on Bank loans from the advice of one Mr Pratik Bhattachrjee who assured the complainant to create an opportunity for his livelihood and for this he would engage all the vehicles in Tollygunge film studio on hire basis as he has having good reputation and relation with influential persons in the film studio.From the statement of the complainant it is reflected that on good faith and with an expectation to develop a good business with the help of his influence on Tollygunge Film Studio he handed over his three vehicles to Mr Bhattacharjee.Later, it came to the knowledge that he had been cheated by the Mr Bhattacharjee like many other people who were also dodged by the same person.
It is admitted that the vehicle was purchased on loan through different banks and the same was insured with the OP.
It is also admitted fact that these three vehicles were theft/Fraudulently taken by one Mr Pratik Bhattacharjee through the FIR dated 28.02.2018.Later one vehicle was recovered by police.
It is also observed from the documents attached that the complainant have paid vehicle loans liability to Banks and obtained No Objection Certificate from HDFC Bank and only a small amount remains dues in Axis Bank which has to be cleared.So,the claim of the OP Insurance company that the petition is defective for want of necessary parties has no leg to stand.
It is admitted fact that the both the Insurance policy was valid from 11 August 2017 to midnight 10 August 2018 and another policy valid from 12 September 2017 to midnight on 11 September 2018,so there are no dispute on validity of insurance policies.
It is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay. “The Supreme court of India observed that a person who has lost his vehicle may not straightaway go to the insurance company to claim compensation and would first make efforts to trace the vehicle.It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds,”
Now if we analyse the genuineness of the delay of the information to Police and the Insurance company we find that,the complainant’s wife was admitted in Hospital as per discharge summary attached,still the complainant tried to register the case in Chetla PS but utterly dismayed they did not accept the complaint initially.The complainant issued mail too to Joint commissioner of Police,Lalbazar.The complainant tried his level best to inform the concerned authorities regarding the theft/cheating of the vehicles.The complainant ran from pillar to post to trace his vehicles but he failed to do so.
A non maintainability petition was filed by the OP, which was registered as MA/322/2020 but that was rejected on 22.12.2021 being not moved by the OP.
Several judgements were placed both by the OP and the complainant.
In fact the judgment of the Hon’ble Supreme court in Om Prakash Vs Reliance General Insurance & Anr(supra)has observed the following.
“The decision of the insurer to reject the claim has to be based on valid grounds.Rejection of claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained,such a claim cannot be rejected on the ground of delay”
The direction of the IRDA issued vide Circular No.IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 reads as “The insurers decision to reject a claim shall be based on sound logic and valid grounds.It may be noted that such limitation clause does not work in isolation and is not absolute.One needs to see the merits and good spirit of the clause,without compromising on bad claims.Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry,giving rise to excessive litigation.
Therefore,it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained,recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time” .
Considering all the actions and inactions of the OP against the non settlement of claims of the theft vehicles in question we are of the opinion that there is deficiency in service as well as unfair trade practice on the part of the OP. We 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.
In view of what has been stated above we are of the considered view that the complainant has established the case against the OP.
In the result, the consumer complaint succeeds.
Hence,
Ordered
- The OP is directed to settle the claim and pay the complainant of Rs,6,14,410 (Rupees Six Lakhs Fourteen Thousand Four Hundred Ten)only for Car No,WB-02AL-6724 and Car No.WB-02AL-8619
- The OP is further directed to pay a compensation to the complainant of Rs,50,000(Rupees Fifty Thousand)only for harassment and mental agony with litigation cost of Rs,20,000/ (Twenty Thousand)only.
The above order is to be complied by the OP within a period of 45 days from the date of this order. In default, the complainant will be at liberty to put the order into execution.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.
