Consumer Complaint No.200 of 2016
Date of filing: 23.11.2016 Date of disposal: 20.3.2017
Complainant: Mr. Ujjal Ghosh, S/o. Sri Debiprasad Ghosh, Vill: Idilpur, Kanchannagar, PO: Kanchannagar, PS. & Dist: Burdwan, PIN – 713 102.
-V E R S U S-
Opposite Party: 1. ICICI Lombard General Insurance Co. Ltd., City Tower Building, PO., PS. & Dist. Burdwan, PIN – 713 101 representedg by its Branch Manager.
2. The Chairman, ICICI Lombard General Insurance Co. Ltd., Registered office at ICICI Lombard House, 414, Veer Savarkar Marge, near Siddhi Vinayak Temple, Prabhadevi, Mumbai, 400 025.
3. Sandip Dey, S/o. Sri Bimal Kanit Dey,Vill: Idilpur, Kanchannagar, PO: Kanchannagar, PS & Dist: Burdwan, PIN – 713 102.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh & Debdas Rudra.
Appeared for the Opposite Party: Ld. Advocate, Sourav Kumar Mitra & Suvro Chakraborty.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not decide the insurance claim of the Complainant till filing of this complaint.
The brief fact of the case of the Complainant is that being the registered owner of the vehicle manufactured by Mahindra & Mahindra Limited he obtained a Private Car Package Policy covering the vehicle from the Insurance Company which was valid for the period from 15.10.2014 to 14.10.2015. The OP-3 is the agent of the OP-1. The said policy was issued by the OP-1 through the OP-3. The insured declared value of the vehicle was for Rs.3,09,645/-. On 25.03.2015 the driver of the Complainant namely Subhas Roy was going to the house of the sister of the Complainant at Hazaribag and accordingly the driver left his house. While he reached at Nababhat he stopped his car beside the road for taking tea. At that time one person came before him and gave him his identity as Debasis Roy and requested him to get him down at Galsi. The driver of the Complainant denied providing such help primarily but after several requests the driver agreed with his proposal and started for Galsi. Thereafter Debasis Roy gave a cigarette to the driver and after smoking the same the driver became senseless. When the driver regained his sense he found that he was lying beside the road of Bakreshwar nearby Bidyut Kendra. Then the driver realized that Debasis Roy has stolen away the said vehicle. On the next date the driver of the vehicle intimated the fact to the Complainant and upon receipt of the intimation the Complainant went to the Police Station at Burdwan and requested the concerned Police Station to lodge an FIR but the concerned P.S. did not take any FIR as per the request of the Complainant. Thereafter the Complainant lodged an FIR before the Ld. CJM, Burdwan which was registered as FIR case no-467/2015 as per the order of the Ld. CJM, Burdwan the Police Station, Burdwan treated the original complaint of the Complainant as FIR being no-439/2015 dated 14.05.2015. On 27.03.20015 the Complainant intimated the OPs about the theft of the said vehicle and lodged the claim through mobile which was registered as claim no- MOT04489792. Upon receipt of the claim the OPs informed the Complainant stating that Shakti Services would assist the Complainant and the Complainant was told by the OPs to make contact with Claims manager, Arpita Moitra for further assistance. The OPs issued a letter to the Complainant dated 31.03.2015 mentioning therein that they have received the intimation regarding theft of the insured vehicle and they have noted the same as motor theft claim against his private car package policy. It was also mentioned by the OPs that an external surveyor is appointed to survey the incident and the Complainant was requested to extend his co-operation with the surveyor by producing relevant papers and documents as per requirement. The Complainant issued a letter to the RTO, Burdwan of MV Department on 20.05.2015 stating the entire fact about the theft of the vehicle and requested the RTO to lock the said vehicle as well as not to change the ownership of the said vehicle. The surveyor being appointed by the OPs came to the house of the Complainant and the Complainant extended his assistance by providing required papers and documents in connection with the theft claim case. Being fully satisfied with the documents the surveyor assured the Complainant that he would submit his report to the OPs and the OPs will settle the claim as early as possible. But the OPs have neither intimated about any settlement of the claim lodged by him nor settled the claim till filing of this complaint, which clearly indicates deficiency in service and unfair trade practice on the part of the OPs. The Complainant went to the office of the OP-1 on several occasions and requested to settle the claim but on each and every time the OP-1 took one plea after another and avoided the Complainant and as a result the Complainant has been suffering great mental pain, agony and harassment. Inspite of several requests from the side of the Complainant the OPs did not settle the claim of the Complainant. As per IRDA guideline the Insurance Company is under obligation and duty bound either to settle the claim or repudiate the same within a specified period, but the Insurance Company has no authority to hold the claim lodged by the Complainant for an indefinite period. As the grievance of the Complainant had not been redressed by the OPs, having no alternative the Complainant had to approach before this Ld. Forum by filing this complaint praying for direction upon the OPs to pay a sum of Rs.3,09,645/- towards IDV of the vehicle, compensation to the tune of Rs.1,50,000/- due to mental pain, agony and harassment and litigation cost of Rs.25,000/- to him.
After admission of this complaint notices were issued upon the OPs through this Ld. Forum and the postal track reports reveal that the OPs inspite of receipt of notices choose not to turn up before this Ld. Forum to contest the complaint either orally or by filing written version. After expiry of the statutory period for filing written version by the OPs, this Ld. Forum was pleased to fix the hearing of the complaint ex parte against the OPs.
The Ld. Counsel for the Complainant has filed a photocopy of the order sheet of the Ld. CJM, Burdwan and placed reliance on some rulings i.e. 2008 (4) Supreme 60, 2011 3 CPR (NC) 218 & 2006 1 CPR 148 in support of the contention of the Complainant. The Complainant has adduced evidence on affidavit along with some documents.
We have carefully perused the averment as mentioned in the petition of complaint, order of the Ld. CJM, Burdwan, papers and documents and rulings filed by the Complainant and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that admittedly the vehicle of the Complainant was under an insurance policy obtained from the OP-1 which was valid for the period from 15.10.2014 to 14.10.2015, the insured declared value of the vehicle was for Rs.3,09,645/-, on 25.03.2015 the driver of the Complainant namely Subhas Roy was going to the house of the sister of the Complainant at Hazaribag, while he reached at Nababhat he stopped his car beside the road for taking tea, at that time one person came before him and gave him his identity as Debasis Roy and requested him to get him down at Galsi, after several requests the driver agreed with his proposal and started for Galsi, Mr. Debasis Roy gave a cigarette to the driver and after smoking the same the driver became senseless, when the driver regained his sense he found that he was lying beside the road of Bakreshwar nearby Bidyut Kendra, the driver realized that Debasis Roy has stolen away the said vehicle, on the next date the driver of the vehicle intimated the fact to the Complainant, upon receipt of the intimation the Complainant went to the Police Station at Burdwan, request was made for lodgment of an FIR, but the concerned P.S. did not take any FIR, subsequently the Complainant lodged an FIR before the Ld. CJM, Burdwan which was registered as FIR case no-467/2015, as per the order of the Ld. CJM, Burdwan the Police Station, Burdwan treated the original complaint of the Complainant as FIR being no-439/2015 dated 14.05.2015, on 27.03.20015 the Complainant intimated the OPs about the theft of the said vehicle and lodged the claim, surveyor was appointed by the Insurance Company, relevant papers and documents produced by the Complainant to the surveyor as per requirement, the Complainant issued a letter to the RTO, Burdwan of MV Department on 20.05.2015 stating the entire fact about the theft of the vehicle and requested the RTO to lock the said vehicle as well as not to change the ownership of the said vehicle. the allegation of the Complainant is that though assurance was given to him by the surveyor that he will submit the survey report to the Insurance Company and the Insurance company will settle the claim as early as possible, but till filing of this complaint the Insurance Company had neither settled the claim nor repudiate the same and the claim is still pending with the Company. Hence by filing this complaint the Complainant has sought for certain reliefs.
It is argued by the Ld. Counsel for the Complainant that as per the IRDA guideline the Insurance Company is duty bound to decide any claim within a specified period and it is not empowered to keep any claim as undecided for an indefinite period. According to the Complainant such action of the Insurance Company can be termed as deficiency in service on its part. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble NCDRC in the case of Sindhudurg District Central vs. The National Insurance Company Limited, decided on 14.07.2011, reported in 2011 3 CPR (NC) 218, wherein it has been observed that ‘non-decision on insurance claim without any acceptable justification amounts to deficiency in service’. In our view such observation is applicable in the case in hand as in the instant complaint the Insurance Company has failed to decide the claim of the Complainant for a prolonged period and still it is pending with the Insurance Company. So in view of the abovementioned judgment of the Hon’ble NCDRC it can easily be said that such action of the Insurance Company suffers from deficiency in service. Moreover it is necessary to mention that the Insurance Company cannot keep pending any claim for an indefinite period as per the IRDA guideline. Hence the Insurance Company in this respect has violated its own guideline, which is not permissible in the eye of law.
From the FRT no-302/2015 dated it is revealed that the theft of the vehicle and untraced of the same are admitted and charge could not be established against Mr. Debasis Roy due to want of his full particulars. The Ld. Counsel for the Complainant has submitted that where theft of vehicle is admitted the nature of use of the vehicle cannot be looked into. . In this respect the Complainant has placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Nitin Khandelwal, decided on 08.05.2008, reported in 2008 (4) Supreme 60, wherein Their Lordships have held in the paragraph no-13 which runs as follows-
13. ‘In the case of theft of vehicle breach of condition is not germane. ….. The Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of vehicle due to theft.’
Upon careful perusal of the aforementioned judgment of the Hon’ble Supreme Court we are of the view that the said observation is applicable in the case in hand because in the instant complaint the vehicle of the Complainant was stolen and it remained untraced. Therefore the insured is entitled to get the claim on non-standard basis. The Complainant had lodged his claim under the insurance policy for an amount of Rs.3, 09,645/- towards the Insured Declared Value of the vehicle. Therefore the Complainant is entitled to get a sum of Rs. 2, 32,234=00 i.e. 75% of the IDV. It has been mentioned earlier that the action, performance and attitude of the Insurance Company proves that there is deficiency in service on the part of the Insurance Company, for which the Complainant is entitled to get compensation from the Insurance Company. As the Complainant has approached before this Ld. Forum for redressal of his grievance by filing this complaint and for such proceedings he has incurred some expenses hence in our considered view the Complainant is also entitled to get litigation cost from the Insurance Company.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed ex parte with cost against the OP-1 and 2 and dismissed ex parte against the OP-3. The OP-1 and 2 are directed either jointly or severally to pay a sum of Rs. 2,32,234=00 to the Complainant within a period of 45 days from the date of passing of this judgment, in default the abovementioned amount shall carry penal interest @9% p.a. for the default period. The OP-1 and 2 are further directed either jointly or severally to pay a sum of Rs.5, 000=00 as compensation due to mental agony, harassment and pain and litigation cost of Rs.2, 000=00 to the Complainant within a period of 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire order into execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
