IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 17/S/2015.                          DATED : 12.08.2016.   

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI PABITRA MAZUMDAR.

COMPLAINANT             : SRI DILIP KUMAR SOVASARIA,  

  S/O Late Prem Chand Sovasaria,

  R/O. Anjali Apartment, 04^th Floor, Punjabi Para,   

  Shiv Mandir Road, P.O. & P.S. – Siliguri,

  Dist.- Darjeeling, [Pin -734 001].

O.P.                                        : ICICI LOMBARD GENERAL INSURANCE

  COMPANY LIMITED,  

  Ganeshayan Building, 03^rd Floor, Sevoke Road,

  P.O. & P.S. – Siliguri,

  Dist.- Darjeeling, [Pin -734 001].

FOR THE COMPLAINANT         : Sri S. K. Mitruka, Advocate.

J U D G E M E N T

Sri Biswanath De, Ld. President.

The case of the complainant in brief is that complainant had a vehicle Bolero No.WB-74 M/1303.  The said vehicle was insured with OP.  The insurance was valid from 11.01.2013 to 10.01.2014.  On 22.03.2013 the said vehicle was stolen by some miscreants.  The complainant informed the police on 23.03.2013.  Police Case No.192/2013 dated 23.03.2013 was started by Pradhan Nagar police.  The complainant lodged his claim before the OP.  The complainant was unable to provide two keys of the vehicle to the surveyor on the ground that said two keys of the vehicle were in the police custody  complainant was informed by letter dated 02.01.2014 from the OP insurance company repudiating the claim the complainant.  The police submitted Final Report in the Pradhan Nagar case bearing No.192/2013.  After submitting Final Report, police gave the two numbers of keys in October, 2014.  Thereafter the complainant again submitted prayer to consider the above aspect and to make payment but to no good.  The complainant served legal notice to the OP on 01.12.2014, but OP did not make any answer. 

Contd......P/2

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OP appeared and contested the case by filing written version denying inter-alia all the material allegations as raised by the complainant.  The OP repudiated the claim on the ground that the complainant misrepresented during the investigation of the claim of the complainant because the complainant was unable to produce two keys before the surveyor.  This non-production of keys to the surveyor has been considered as misrepresentation of fact.           

To prove the case, the complainant has filed the following documents:-

1.       Xerox copy of the insurance policy.

2.       Xerox copy of the certified copy of FIR, all orders passed by the Court of the Ld. ACJM, Siliguri, and FRT etc.

3.       Xerox copy of the letter dated 23.03.2013 received from the OP insurance company.

4.       Xerox copy of the motor theft claim form submitted to the OP insurance company together with claim discharge cum satisfaction voucher and also the undertaking given by the complainant duly prepared. 

5.       Xerox copy of the letter dated 10.04.2013 addressed to the Motor Vehicle Department.

6.       Xerox copy of the letter dated 24.04.2013 received from the OP insurance company. 

7.       Xerox copy of the statement dated 24.04.2013 given b the complainant to the OP insurance company through Surveyor. 

8.       Xerox copy of the certified copy of the blue book obtained from Motor Vehicle Department dated 24.04.2013. 

9.       Xerox copy of the receipt dated 18.09.2013 issued by the Surveyor.

10.     Xerox copy of the statement dated 16.11.2013 given by the complainant to the OP insurance company through Surveyor. 

11.     Xerox copy of the letter dated 02.01.2014 received from the OP insurance company.

12.     Xerox copy of the legal notice dated 01.12.2014 together with postal receipt.

13.     Xerox copy of the track record obtained from India Post Website. 

OP has filed the following documents :-   

1.       Original Motor theft claim – 3 sheets (Annexure-A).

2.       Original declaration by Dilip Kumar Sovasaria (Annexure-B).

3.       Original investigation report – 6 sheets (Annexure – C).

Contd......P/3

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4.       Original Closure letter to Dilip Kumar Sovasaria (Annexure – D).

5.       Original application for Right to Information to the S.P., Darjeeling by Arup Biswas and Arpita Moitra (Annexure – E). 

6.       Original reply of the R.T.I. by the Deputy Commissioner of Police (Annexure – F).

7.       Original letter to the Manager, ICICI Lombard G.I.C. by Arup Biswas (Annexure – G).

8.       Xerox copy of the letter of repudiation (Annexure – H). 

          Complainant has filed evidence in-chief.

OP has not filed evidence-in-chief.

          Complainant has filed Written Notes on argument. 

OP has filed Written Notes of Argument.

Points for determination

1.       Is there any deficiency in service on the part of the OP ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason             

          Both issues are taken up together for the brevity and convenience of discussion.

          At the outset of discussion, it should be borne in mind that we are dealing the case of the consumer under Consumer Protection Act, 1986 for better protection of the consumers.  Obviously, every material adduced by the both sides, shall be construed bearing in mind the objective of the Consumer protection act.  Every word of insurance policy and terms contained therein should be construed keeping the beneficial interest of the consumers. 

The background of this case is that complainant’s insured vehicle lost and police case started as per information received from the complainant just after the occurrence.  Ours have an authority of investigation pertaining the procedure laid down in Criminal Procedure Code by which the Investigation of any crime or violation of law shall be investigated by the police authority.

Accordingly, FIR was made before the police and police investigated the case independently by the established procedure of law.  No extraneous authority can make any direction to the police regarding investigation.  It is

Contd......P/4

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only the Ld. court who can accept or reject the police report as per material before the Ld. court.  In this respect, if any person aggrieved by the order of Ld Court, he shall move before the superior court.  The police report has been accepted by the Ld. Court. 

In this case, the complainant was not able to handover the keys to the surveyor during the continuance of the investigation.  So, the non-production of two keys to the surveyor, or making any statement regarding whereabouts the keys is not a challengeable fact and cannot be countenance by the OP as misrepresentation of fact and this cannot be considered as sole ground of repudiation of claim of the complainant.  During the continuance of Quasi judicial Forum, the OP did not file any document to deny the incident of theft or deny the police report and police report has been accepted by the Hon’ble Court as per law. 

So, as per material in the record there is no whisper of the OP that the complainant misrepresented the whole incident of theft.  The OP admits the insurance policy and uses this term of misrepresentation as a sword to destroy the basic point of complainant’s case.  The aim and objectives of the OPs version embodied in the written version and evidence shows the avoidance tendency and to deprive the consumer complainant from getting his valuable right of compensation from OP insurance company for theft of the insured vehicle.

It is pertinent to note that majority of the insurance company of our country are habituated in adopting such attitude of repudiation of claim with the help of surveyor and staffs, who are working for the interest of the insurance company only, flimsy trivial unreasoned and not proved facts.

The repudiation of claim of the complainant on the ground of misrepresentation deserves to be deprecated as the same is not reasoned as per materials available in the record. 

On these premises, after introspection over the records and evidence, this Forum is of opinion that the complainant is entitled to get redress as per law laid down in Consumer Protection Act, 1986. 

As such the case succeeds. 

The complainant is entitled to get Rs.3,21,429/- being the declared value of the vehicle.

The complainant is further entitled to get Rs.50,000/- on account of the negligence and deficiency in service of the OP insurance company.

Contd......P/5

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The complainant is further entitled to get Rs.20,000/- on account of mental pain, agony and sufferings.

The complainant is further entitled to get Rs.10,000/- towards litigation cost.

The complainant is further entitled to get interest @ 18% per annum on the awarded sum i.e., upon the sum of Rs.(3,21,429/- + 50,000/- + 20,000/- + 10,000/- = Rs.4,01,429/-.           

In the result, the case succeeds.                         

Hence, it is

                     O R D E R E D

that the Consumer Case No. 17/S/2015 is allowed on contest in part against the OP with cost. 

The complainant is entitled to get Rs.3,21,429/- being the declared value of the vehicle from the OP.

The complainant is further entitled to get Rs.50,000/- on account of the negligence and deficiency in service of the OP insurance company.

The complainant is further entitled to get Rs.20,000/- on account of mental pain, agony and sufferings from the OP.

The complainant is further entitled to get Rs.10,000/- towards litigation cost from the OP.

The complainant is further entitled to get interest @ 18% per annum on the awarded sum i.e., upon the sum of Rs.(3,21,429/- + 50,000/- + 20,000/- + 10,000/-) = Rs.4,01,429/- from the date of filing of this case till full realization from the OP.            

The OP insurance company is directed to pay Rs.3,21,429/- by issuing an account payee cheque in the name of the complainant being the declared value of the vehicle within 45 days of this order.

 The OP insurance company is further directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant on account of negligence and deficiency in service of the OP insurance company within 45 days of this order.

The OP insurance company is further directed to pay Rs.20,000/- by issuing an account payee cheque in the name of the complainant on account of mental pain, agony and sufferings of the complainant, within 45 days of this order.

Contd......P/6

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The OP insurance company is further directed to pay Rs.10,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost within 45 days of this order.

The OP insurance company is further directed to pay interest @ 18% per annum on the awarded sum i.e., upon the sum of Rs.(3,21,429/- + 50,000/- + 20,000/- + 10,000/-) = Rs.4,01,429/- by issuing an account payee cheque in the name of the complainant from the date of filing of this case till full realization within 45 days of this order.

In case of default of payment, the complainant is entitled to get interest @ 9% per annum on the awarded sum from the date of this order till full realization. 

In case of default, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

                                   -Member-                            -President-