ICICI Bank Towers, Bandra Kurlla Complex,

Mumbai-400051.                                                                                    ---------- Opposite Parties

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member.

                        Smt. Sharmi Basu, Member

Order No.    35   Dated  29-04-2013.

Smt. Sharmi Basu, Member

            The case of the complainant in short is that complainant above named Dreddging & Desiltation  Co. (P) Ltd., on or about 31.1.07 purchased a Tata Indica V2 (DLG) car with H.V.A.C. unit at price of Rs.3,90,331/- from KB Motors Pvt. Ltd. The said vehicle was registered with the Motor Vehicle Deptt., Beltala Road, Kolkata. The car in question was comprehensively insured with the o.p. no.1, ICICI Lombard General Insurance Co. Ltd. with a validity period of 00.00 hrs on 29.1.07 to midnight of 28.1.08. O.p. nos.2 and 3 are the officials of o.p. no.1.

                The car was unfortunately stolen on 30.6.07 from its parking area and complainant by letter dt.30.6.07 informed the Officer-in-charge, Beliaghata P.S. regarding the theft of the car, which was registered as GDE No.2172 of 30.6.07 and treated as FIR u/s 379 IPC vide FIR No.92 dt.30.6.07 by the Beliaghata P.S. He further reported the matter to the Dy. Commissioner of Police, Detective Deptt., Lalbazar, Kolkata by its letter dt.6.7.07 and the Registering Authority, Motor Vehicle Deptt. by its letter dt.10.7.07. Complainant by its letter dt.2.7.07 informed o.p. no.1 regarding the theft of the car in question and o.p. no.1 on being intimated by complainant registered the claim as claim no.MOT 00529004 and appointed Mr. A. D. Roy as surveyor, who collected some documents from complainant to submit his report and also as per advice of the surveyor original copy of Final Police Report was submitted to the office of o.p. no.1 on 18.1.08.

                Thereafter several months were passed but the claim of the complainant remained unresolved in spite of the fact that the complainant lodged its claim with the o.p. the insurer and complied all necessary formalities and also in spite of repeated reminders, correspondences, telephonic conversations and personal meetings on this pretext or other.

                On or about 30.10.08 the complainant in process of expectation of getting release of the claim amount received a letter from o.p., (insurer) stating interalia asking the complainant to submit a withdrawal letter on the pretext that the vehicle in question was recovered and that ifc the respective document has not been submitted then o.ps. would treat the claim as ‘no claim’. After receiving the said letter of o.ps., the complainant by its letter dt.1.11.08 put strong objection to the said letter and submitted that the complainant has no knowledge of recovery of the vehicle in question, as such there is no question of issuing withdrawal letter. The complainant by letter dt.1.11.08 advised the o.p. to take possession of the vehicle in question if they have any knowledge of he alleged recovery. O.p. did not issue any reply to the said letter of the complainant. He further issued letter on 11.11.08 with some request as per letter dt.30.10.08 and he again requested the o.p. to release the claim amount immediately with interest @ 24% p.a. for the period of delay.

                On or about 11.11.08 o.p. issued another letter similar to that of dated 30.10.08 asking the complainant to withdraw the claim and treating the claim of the claimant as ‘no claim’ if withdrawal letter is not issued. By the said letter the complainant was advised to meet the concerned person of Lalbazar MTS section, who will help the complainant to recover the vehicle.

                Thereafter, ld. advocates of the complainant through a legal notice to the o.ps. pointed out that in view of the final police report dt.14.11.07, disclosing that the vehicle stolen was not recovered and that the chance of recovery was remote and that the investigation in the case was complete and also intimated the o.p. that as an insurer o.p. was duty bound to release the claim of the complainant and the said letter was sent under registered post and has been served upon the o.p. no.1. But o.p. did not reply to that letter.

                On or about 15.1.09 one Sri Binod Kumar Saraogi at his residential address received a copy of telephonic message through Beliaghata P.S. from O/C MTS, DD. The subject message was later passed on to the complainant which is as follows:

“Date: 15/01/09

From: O/C MTS, DD addresses: of 19, Hem Chandra Nasker Roiad, Kol-10, To Binod Kr. Saraogi S/o Lt. Ramnibas Sarogi

This is to inform you that your stolen Tata Indica Car bearng No.WB-02-X-2486 in/c/with – Beliaghata P.S. C/No.-92 dt.- 30/6/07 w/s 379 IPC has been recovered with fake No. plate (WB 02 –Q -6447) but identical Engine and Chassis number of your car by MTS. DD and was brought to Kolkata under court approval. You are requested to come at this office with all documents of your vehicle & to see SI, P. Chowdhury (IO of the case) for urgent investigation”.

                 But it was found by the complainant that the car was not his car which was theft and he intimated the same to the o.ps. and again requested the o.ps. to release his insurance claim amount. On the contrary the complainant could not receive his claim from the o.p. company.

                As per the complainant, the o.p. company without any reasonable ground neglected to release the claim amount in question which is deficiency in service and complainant has prayed for relief as mention in the complaint petition.

                O.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case.

                Following points are in lime light for consideration:

Points for Consideration:                       

1)       Whether the complainant is ‘consumer’ as per definition u/s 2(1)(d)(i) of the COPRA, 1986.

2)       Whether the o.ps. have committed deficiency in service under the purview of the section 2(1)(g) and 2(1)(r ) of the COPRA, 1986.

3)       Whether the complainant is eligible to get relief as prayed for.

Decision with reasons:

                All the points for consideration are taken together for discussion. After scrutinizing complaint petition, written version, evidence of both  sides and all other documents brought before this Forum and hearing minutely the contention of both side, it appears before this Forum that in the instant case the insured car of the complainant was lost due to theft and after repeated correspondence by the complainant for disbursing the claimed amount in relation to the theft insurance of the car in question but the o.ps. (insurer) did not disburse the claim and reason of non-disbursement has been explained by ld. advocate that the insured car was recovered by state power. But the ld. advocate for the complainant has stated that the car recovered by the state power and the lost care are not same and identical and this contention is substantiated by the complainant by documents. On the other hand, the o.ps. could not establish in any manner that the lost car is recovered and it is in the custody of the complainant. Moreover, in four submission of the o.ps. there is no whisper that they have no dispute about the theft of the car in question.

                Therefore, we are of the opinion that in the instant case the complainant by paying consideration i.e. premium of insurance to the o.ps. (insured) has consumed the service and is ‘consumer’ and the o.ps. are service provider within the purview of the COPRA, 1986. The claim of the complainant is justified and o.ps. have committed deficiency in service and being deprived from their reasonable claim complainant h as to sufferer financial loss and harassment due to deficiency in rendering service on the part of the o.ps. (insurer) towards their consumer / complainant (insured) and complainant is entitled to get relief as prayed for.

                Hence, ordered,

                That the case is allowed on contest with cost against the o.ps. O.ps. are jointly and/or severally directed to release the claim of the complainant in relation to the policy in question (vide no.3001/51128663) and to pay compensation in the tune of Rs.50,000/- (Rupees fifty thousand) only to the complainant for harassment and mental agony within 45 days from the date of communication of this order, failing which, o.ps. jointly and/or severally shall be liable to pay Rs.300/- (Rupees three hundred) only per day out which Rs.100/-(Rupees one hundred) only per day is payable to the complainant and Rs.200/- per day is payable to State Consumer Welfare Fund from the date of completion of stipulated period as ordered earlier till full and final execution of all the aforesaid orders.

                Complainant is at liberty to file execution case before this Forum in case of non-execution of the aforesaid order in its entirety within the stipulated period under the provision of COPRA, 1986.

                Supply certified copy of this order to the parties free of cost.