DATE OF FILING: 25.04.2013
DATE OF DISPOSAL: 04.09.2017
O R D E R
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in insurance service against the Opposite Party ( in short the O.P) and for redressal of his grievance before this Forum.
2. The brief facts that are relevantly required for disposal of this consumer dispute are that the complainant is the registered owner of one Hero Honda Motor cycle which he purchased in the year 2009, and the said vehicle bearing Registration No.OR-07-S-3671. On 23.6.2011 the complainant being the owner insured the said motor cycle with the O.P. for an amount of Rs.31,745/- for a period of one year till 22.6.2012. The said policy was accepted by the O.P. The policy was commenced in the year 2011 for a sum of Rs.31,745/- with a yearly premium of Rs.991/-. The O.P. accordingly issued policy bond bearing No. 3005/3637458/10221/000 to the complainant affecting the policy. The said policy was covered under first party damage compensation as well as insurance for theft. While the said policy in question was in force, on 30.04.2012 the complainant came to Berhampur and kept his said vehicle at the Bada Bazar market and went for marketing after due locking, but after ten minutes when the complainant came back he found that the said vehicle is missing. The complainant made effort to search the vehicle near by the market but in fact the said vehicle was stolen away by miscreants. Thus, after his all efforts gone in vain the complainant lodged a written report before the Bada Bazar police station regarding the loss of the vehicle. The report was registered by the Bada Bazar Police station U/S 379 IPC vide P.S. Case No.70 dated 30.04.2012. The police started searching for the vehicle. The complainant immediately informed the O.P. about the theft of the vehicle. Thereafter the complainant waited for the result of the police search and after one month the complainant sends a letter to the O.P. regarding the loss of the vehicle along with his claim of the vehicle on 24.5.2012. But days after months passed no action were taken by the O.P. After about five months of investigation Bada Bazar police closed the investigation as no clue and issued a letter to the complainant regarding the inability of the police to search or recover the lost vehicle. Thereafter the complainant again visited the office of the O.P. for the lost claim but this time also the complainant was not responded. Since more than one year passed from the lost of the insured vehicle and submission of loss claim, the O.P. have not made any settlement leading to mental harassment and suffering of the complainant. Though the policy of the complainant for the vehicle was accepted by the O.P. and during the policy in force it is lost and police after due investigation could not able to trace out and final reports is submitted, the O.P. supposed to have been settled the claim of the complainant or at least the O.P. should have been made an enquiry for the lost but nothing action taken by the O.P. Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to pay the loss claim of Rs.31,745/- along with penal interest from the date of real loss of the insured vehicle, Rs.10,000/- towards compensation for the mental agony and suffering due to the deficiency of service from the part of the O.P. and grant cost of the dispute as the Forum deems fit in the best interest of justice.
3. Upon notice the O.P. filed version through his advocate. It is stated that the averments made in the complaint are all not true and correct and those are not specifically admitted herein and deemed to have been denied and the complainant is put to strict proof of the same. The complaint is not maintainable in law in its present form against this O.P. as such liable to be dismissed. The complainant has not given intimation of theft of the alleged motor cycle OR-07-S-3671 to the O.P. as per the conditions of the policy. The complainant has given intimation on 25.05.2012 and the same is after long lapse of 26 days of theft of the above alleged motor cycle which violates the conditions of the insurance policy. Soon after receiving the intimation of the theft of the above alleged motor cycle, the O.P. has issued a claim form to submit the same supported will all such information as well as documents. Instead of submitting the claim form the complainant has filed the present dispute against the O.P. is not maintainable and the same is liable to be dismissed. A cause of action against an Insurance company would arise when a claim is lodged after which either no decision is given or delayed decision is given or a claim is wholly or partially repudiated. When no such claim is lodged, occasion would not arise for this O.P. to give a decision. In the present case no such claim was ever raised with the insurance company for which no occasion arose before it to render any service. Hence the complainant is not backed by any legitimate cause of action. For the purpose of the present litigation a cause of action was attempted to invent by the present complaint, which did not possess any merit and the question of deficiency of service does not arise and hence the case against this O.P. is not maintainable. After long lapse of more than one year of the occurrence, for the first time the intention of lodging of the complaint before the Hon’ble Forum and the same was brought before the Insurance Company through the notice dated 01.05.2013, which is not maintainable and the present complaint also suffers from this inherent vice, for which it deserves to be dismissed. There is no such claim ever made by the complainant before the O.P. Hence allegations of deficiency of service as well as the allegation of negligence in providing of service are all false and fabricated, and the same are created for the purpose, and hence the complainant is called upon to prove the same by way of filing of authentic documentary evidence. The averments made in the complaint against this O.P. are all baseless and fraudulently created exclusively for the purpose of putting a claim against this O.P. The complainant has not approached with clean hands and he has played fraud, has misled, has adhered to all such frivolous activities, has deliberately suppressed the material evidence and has concealed the truth for the purpose of the claim. Hence the complainant is not entitled for any such relief. The present dispute suffers from wrong joinder of necessary parties and hence claim is not maintainable against this O.P. Hence the O.P. prayed to dismiss the complaint and pass suitable order with a direction to the complainant for payment of cost and damages towards the vexatious litigation against the O.P. in the interest of justice.
4. On the date of final hearing of the consumer dispute, we have heard the learned counsel for the O.P. at length and have also carefully gone through the documents/materials placed on the record. On the basis of documents/material on record, it is not in dispute that the complainant had obtained the policy in question from the O.P bearing Policy certificate No.3005/3637458/10221/000 and policy No.3005/11432646/10221000. It is also beyond doubt or dispute that the alleged incident of theft took place on 30.04.2012 as is evident from the copy of FIR and a case was registered under Section 379 of IPC vide case No.70/12 dated 30.04.2012. It is also not in dispute that an intimation regarding the alleged theft was given by the complainant to the O.P. insurer on 25.05.2012 who did not appoint any surveyor and remained silent on the matter. As already stated, the claim of the complainant under the policy was even not repudiated by the O.P. Insurance Company. Even after notice from this Forum, the O.P. though appeared through the learned counsel Shri R. K. Panigrahi, Advocate, Berhampur but did not file written version of the case within the statutory period hence declared as ex-parte on 05.02.2014. However, the O.P. was allowed to participate in the hearing by setting aside the ex-parte order on 12.03.2014. During the course of hearing of the dispute, the learned counsel for the O.P. contended that it is admitted that the alleged theft was occurred on 30.04.2012 at 7.30P.M but the intimation was given to the O.P. on 25.05.2012 after long lapse of 25 days of alleged theft. It is also contended the complainant has not produced the ignition key of alleged motor cycle either to the police or to the surveyor. Hence it is proved that the motor cycle was left on the spot unlocked. This clearly reveals the negligence, inaction and passivity of the petitioner. It is further submitted that no claim was lodged before the O.P. by the complainant. The matter was brought before the Insurance Company through notice from this Forum so the claim is not maintainable and the question of allegation of deficiency in service on part of the O.P. does not arise. The learned counsel has also submitted a decision of the Hon’ble National Commission in support of his arguments decided on 26.5.2014 in the case of Jagdish Prasad Bakshi versus Oriental Insurance Company Ltd, decided vide R. P. No.3045 of 2013 and stated that in view of the above submissions the same is liable to be dismissed with heavy cost.
5. In the foregoing context of the dispute, the question requires consideration is as to whether in this case there was intimation to the O.P. regarding theft of the alleged motor cycle? Whether the claim of the complainant could be vitiated due to non production of the ignition key either before the surveyor or before the police? And whether the complainant is entitled for the insurance claim?
6. On a perusal of documents/materials on record it is apparent that it is an admitted fact that the motor cycle was insured with the O.P. on payment of Rs.991/- towards yearly premium for a declared value of Rs.31,745/- as is evident from the case record placed as Annexure-A/3. The motor cycle was duly registered with registering authority bearing Regn. No.OR-07-S-3671 dated 25.06.2009. It is also a fact not in dispute that the fitness of the vehicle was valid up to 22.06.2024 and the complainant was holding valid and effective driving license to ride the motor cycle in dispute. We further find that the complainant soon after theft of the motor cycle had intimated to the police and the police registered theft case U/S 379 of IPC through an FIR vide bearing No. 70/12 dated 30.04.2012 as is evident from the case record. We further find that after the theft of said motor cycle, the complainant had also intimated to the O.P. on 25.05.2012 through an intimation letter for settlement of the claim along with documents like copy of FIR, R.C. Book and insurance certificate as is evident from the case record placed as an Annexure A/6. On further perusal of case record and documents, we find that the investigating police officer has submitted the final form of the case to the Court duly completing the investigations with the report that ‘the fact is true but there was no clue’ as is evident from the certified copy of GR case No. 619/12 placed on the case record. On careful perusal of the materials, we also find the complainant had intimated the theft of the motor cycle to the O.P. on 25.5.2012 along with documents as discussed above, so we are not agree with the arguments of the learned counsel for the O.P. that there was no claim intimation. So it is clear that the complainant had intimated the incident of theft to the O.P. as discussed above. It is a fact beyond doubt that even after claim intimation was sent with required documents, the O.P. Insurance Company did not take any swift action either to appoint a surveyor or to send the claim form to the complainant for settlement of his claim. The O.P. remained silent and slept over the matter for which the complainant was forced to file this consumer complaint before this Forum praying to direct the O.P. for settlement of his claim as prayed. On perusal of the insurance policy in dispute, we came to knew that the complainant has paid Rs.518/- out of total premium of Rs.991/- towards net own damage. In fact, this is an own damage claim since the motor cycle of the complainant was theft by some miscreant while he was doing marketing in Badabazar, Berhampur. However, the learned counsel for the O.P. Insurance Company vehemently argued that the complainant after theft of his motor cycle neither produced the ignition key of the alleged motor cycle before the police nor handed over it to the surveyor. So, this proves that the motor cycle was left unlocked on the spot for which the motor cycle was theft which is due to his own negligence. The learned counsel drew our attention towards a decision of Hon’ble National Commission in support of his argument decided on 26th May 2014 in the case of Jagdish Prasad Bakshi versus Oriental Insurance Company Ltd vide R. P. No.3045 of 2013. In the foregoing context of the dispute, the vital point to be decided by this Forum - whether the claim of the complainant could be vitiated due to non production of the ignition key either before the surveyor or before the police?
7. To adjudicate the above vital point in dispute, we would like to view that in this case, there is no proof on record to show that the O.P. Insurance Company had appointed any surveyor or investigator for assessment of loss of the complainant due to the alleged theft of the motor cycle in dispute ever after intimation. Hence, when there was no surveyor appointed, how the complainant could handover the ignition key to the surveyor during his investigation of the claim? It is clearly borne out from the record that the insurer though was informed after 25 days of the alleged theft of the motor cycle but did not act swiftly to appoint the surveyor. The surveyor could have contacted the investigating police officer about the incident of theft requesting proper investigation into the theft report of the complainant and make available the investigation report to the insurer. In fact, in this case as discussed above, soon after the incident of theft the complainant had reported the matter to the concerned police station and immediately an FIR was registered bearing No.70 of 2012 dated 34.04.2012 under Section 379 of IPC as is evident from the copy of FIR placed on the case record. However, the insurer neither appointed the surveyor nor requested to the complainant or to the police to provide the final investigation report and never asked the complainant to complete the necessary formalities for the settlement of the claim but slept over the matter even after intimation by the complainant. The most unfortunate thing is that even after receipt of notice from this Forum, the O.P. Insurance Company failed to file his written version with in statutory period as a result on 05.02.2014 the O.P. was declared ex-parte. However, the ex-parte order was set aside on 12.3.2014 and the O.P. was allowed to proceed with his case. Moreover, in this case the concerned police officer has completed the investigation of the case and has also submitted the final form in the Court of competent jurisdiction. On careful perusal of the documents of GR Case No.612/12, we find that the final form has been submitted to the Court by the police on 29.9.2012 and in the final report it is specifically reported that the fact is true but no clue with the request to the Court to accept the final form of the case. In the Zimanama, the police has seized the original driving license, original RC Book of the motor cycle and original insurance documents. However, the concerned police officer did not mention anything about the ignition key of the motor cycle. In this case, the surveyor was not appointed by the insurer even after duly intimated the incident to the O.P. by the complainant. So there was no scope for the complainant to handover the key to the surveyor. Similarly, the investigating police officer perhaps not asked for the key to the complainant, so he could not handover it to the police since in this regard police has not recorded any adverse remark that the complainant failed to produce the key of the theft motor cycle before police when asked. However, from the police report it is crystal clear that the motor cycle of the complainant was theft by some miscreant which is beyond any doubt or dispute. It is also a fact that there is no proof of dishonesty lies with the complainant that he has intentionally left the motor cycle unlocked for theft. So it is upon the Insurance Company to establish that the insured had not locked the motor cycle when the same was being theft by some miscreant. In this case the insurance policy of the motor cycle was in force at the time of alleged theft and the seized documents of the motor cycle proves that the driving license and R.C. Book of the motor cycle are OK and it was properly registered with the concerned transport authority. Hence, a genuine claim of an insured should not be allowed to be defeated on technical ground of ignition key of the theft vehicle was not handed over either to the police or to the surveyor. In the foregoing context, we feel that the benefit of doubt should go in favour of the insured complainant. In view of the above and in our considered view, the O.P. Insurance Company is liable to settle the claim of the complainant since this is an own damage case. The contentions of the learned counsel for O.P. failed to convince us that this is a case of late intimation and due to non-production of ignition key of the alleged motor cycle either before the police or before the surveyor, the claim was repudiated. In fact on careful perusal of the case record we could not find a single document regarding repudiation of the claim. The O.P. has mechanically argued the matter since in this case the insurer neither deputed a surveyor for investigation of the alleged theft incident nor repudiated the claim of the complainant but slept over the claim of the complainant and even after receipt of notice from this Forum did not prefer to settle the claim as was elicited from the case record. The contentions of the learned counsel for O.P. is not supported by any qualitative or quantitative evidence to believe that the motor cycle was left on the spot unlocked by the complainant. He failed to prove his contention on record and has cited only a decision of Hon’ble National Commission in the case of Jagdish Prasad Bakshi versus Oriental Insurance Company Ltd decided on 26.05.2014 vide R.P. No. 3045 of 2013 to fortify his arguments but the said decision does not impress us fully since the fact of this case is different from the authorities citied in the said case. In that case, the Hon’ble National Commission has relied on the indication of orders of Hon’ble State Commission that there was quite possible that the driver may work in cahoots with the thief so the driver failed to produce the key before police as it was a dishonestly theft case. But in the instant case, the fact is something different and there is no proof that the complainant was left the motor cycle on the spot unlocked and there was no cahoots of complainant with the theft since no prudent man can believe or leave his motor cycle unlocked in a rush area like Badabazar Market area of Berhampur. Hence, the said citation is not applicable in this case due to factual differences of both cases so we are not inclined to accept the same hence rejected. In our considered view when the policy was in force at the time of theft of the motor cycle in dispute, the O.P. Insurance Company is bound to compensate the loss by settling the genuine claim of the complainant.
8. As far as the claim of the complainant is concerned, the motor cycle was insured for a declared value of Rs.31,745/- at the time of insurance i.e. on 23.06.2011. The insurance was valid from 23.06.2011 to midnight of 22.06.2012. The theft of the vehicle was occurred on 30.04.2012 which squarely comes under the validity period of the insurance policy in dispute. Accordingly, the complainant has prayed before this Forum to direct the O.P. to pay declared value of the motor cycle i.e. Rs.31,745/- with penal interest from the date of loss of the motor cycle along with Rs.10,000/- as compensation for mental agony and suffering due to deficiency in service on part of the O.P. and to grant cost of the dispute in the best interest of justice. In the aforesaid context, we feel that as per the policy conditions the complainant is entitled for declared value of the motor cycle i.e. Rs.31,745/-. In this regards we would like to cite the authority of Hon’ble National Commission in the case of National Insurance Co. Ltd. Vs. N.K. Financers & Another reported in 2014(I) CPR 40 (NC) where it was held that “loss on account of theft of vehicle had to be assessed by Surveyor by taking value of vehicle declared at the time of renewing policy and not market value of vehicle at the time of theft”. In fact, in the instant case, no surveyor was appointed by the insurer even after intimation to the O.P. to assess the loss of the complainant. Similarly, in this case the policy was renewed by the complainant and at the time of renewal of the policy the declared value of the motor cycle was Rs.31,745/ as is evident from the policy document since in the policy document the previous policy bearing No.3005/11432646/10221000 has also been mentioned besides the certificate number of the policy. In the above peculiar fact and circumstance of the case, in our considered view, the insurer is liable to settle the claim of the complainant as per the declared value of the motor cycle but at liberty to deduct the depreciation value of the vehicle as per rule. In this case, since the O.P. Insurance Company did not settle the claim and even not repudiated the same and remained silent over the claim of the complainant, so we are interested to direct the insurer to pay interest @ 6% per annum on the amount settled from the date of filing of this dispute in this Forum till the actual payment is made to the complainant. Besides the complainant is also entitled for cost of litigation because he has asserted his rights by filing a complaint in this Forum by engaging an Advocate for contesting the case. He has also attended the case for the last five years so an amount of Rs.3,000/- towards cost will meet the needs of justice. But we are not inclined to pass any order as to payment of compensation by O.P. since we have already directed the O.P. to pay interest from the date of institution of this complaint as has already been discussed above. In the light of the above discussions and considering the peculiar fact and circumstances of the case, we partly allowed the case of the complainant against the O.P.
9. Resultantly, the complaint of the complainant is allowed against the O.P. Insurance Company. The O.P. insurance company is directed to pay the declared value of the motor cycle to the complainant after deducting the depreciation value as per law with interest at the rate of 6% per annum on the amount settled from the date of institution of this complaint in this Forum i.e. from 25.04.2013 till actual payment is made to the complainant. The O.P. is at the same time directed to pay an amount of Rs.3,000/- to the complainant towards cost of litigation. The above orders shall be complied by the O.P. within two months from the date of receipt of this order failing which the complainant is at liberty to recover the whole amount under Section 25/27 of Consumer Protection Act, 1986. The case of complainant is disposed of accordingly. No orders as to compensation.
10. The order is pronounced on this day of 4th September 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
