DATE OF DISPOSAL: 23.02.2021.

Dr. Aswini Kumar Mohapatra,President:

               The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties  (in short the O.Ps.) and for redressal of his grievance before this Forum.   

               2. Briefly stated the case of the complainant is that the complainant is the sole owner of one black colour pulsar bike bearing Model No.DTS-150CC and bearing Registration No. OD-07-J-8883 having insurance policy in the name of the complainant bearing  policy No.69654107 dated 22.10.2016 insured by IFFCO-TOKIO insurance company covering the period of insurance from 22.10.2016 to mid night on 21.10.2017 on payment of Rs.1530.28 as yearly premium for an assured sum of Rs.65,800/-. While the insurance policy is in force on 09.04.2017 one Balaram Sahu, C/O Abhiram Sahoo, who is a friend of complainant requested to spare his vehicle to go to nearest Humma weekly market to purchase some household articles. Balaram Sahu parked the said bike in the market area and properly locked the same and went to make marketing. After marketing, Balaram Sahu came to the spot where he parked the said bike and did not find it.  He immediately intimated the fact to his friend, the owner of the bike i.e. the present complainant. The complainant immediately moved to Humma outpost and orally informed the police regarding missing of his bike. The In-charge officer of Humma  outpost advised the complainant to search the bike in the nearby villages. The complainant searched the same in the near villages like Kalipur, Santoshpur, Ramagarh, Kanamana and Bhikaripalli but could not trace out the missing bike. When the complainant failed to find out his missing bike, he lodged a written FIR before in-charge of Humma outpost on 15.04.2017. The Police registered a theft case under section 379 of IPC and inquired into the matter. The police investigated the matter and submitted a report in the court of  learned J.M.F.C. Khallikote on 09.12.2017 with the report that “the fact is true but no clue” as per charge sheet submitted by IIC Rambha on 29.07.2017. After the registration of the FIR on 15.04.2017 the complainant on 18.04.2017informed to the insurance company regarding theft of the bike and on 22.12.2017 on request of the insurance company submitted all relevant documents i.e. (a) certified copy of entire G.R. including order sheet, (b) the original registered certificate witch smart card of the vehicle (c) two set of original keys (d) the original insurance policy (e) certified copy of the R.C. with theft endorsement  (f) the copy of the invoice (g) the original statement of the insured and the user of the vehicle (h) sport photograph (j) three sets of form no 28 and two sets of form no 29 and 30 to the insurer company the settle the claim of the complainant. On 23.01.2017 the insurance company repudiated the insurance claim of the complainant vide their letter No. H2/311/141001 stating that non-admissibility of claim No.37030134 arising out of lose dated 09.04.2017 on the flimsy ground of non-report of the incident immediately to the insurance company. It is shocking and surprising to submit that the insurance company has brushed aside the fact by stating that it was not immediately reported to the company. However, it is an admitted fact that the company has admitted to have received the intimation on 18.04.2017 regarding report of the loss by the complainant.  Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay insured amount of Rs.65,800/- with 12% interest from the date of repudiation of the claim by the complainant, exemplary compensation of Rs.10,000/- towards mental agony and harassment and Rs.5000/- towards cost of litigation in the best interest of justice.

               3. Upon notice the O.Ps filed version through his advocate and it is stated that the averments made in the petition are all false and baseless and the applicant is put to strict proof of the same. The complaint is not maintainable in law in its present form against this O.Ps as such liable to be dismissed.   The averments made in petition arte all false and baseless, and hence the present claim is not maintainable and the same is liable to be dismissed. The alleged theft of motor cycle bearing Regd. No. OD-07-J-8883 was stolen at 10.00 A.M. on 09.04.2017 and soon after the theft of the alleged vehicle the insured not lodged any intimation before this O.P. and intimated the matter to the police on 15.04.2017 and intimated to the insurance company on 18.04.2017 (after long lapse of 8-9 days of the incident). Soon after the receipt of the intimation the O.P. engaged investigator and investigated about the theft of the motor cycle. (i)Left the vehicle unattended on the road which caused/contributed for theft of the vehicle. (ii) Violation of condition No.1 of the Insurance policy “ as you have lodged the FIR after 7 days of the occurrence, and submitted the loss intimation with the insurance company after long lapse of 8 days of the theft of the vehicle. The allegation made in para-6, 7 &8 in the complainant are absolutely false, fabricated and created for the purpose, and hence the complainant is called upon to prove the same by way of filing of authentic documentary evidence.  The complainant with an ulterior motive taking the advantage of reported incident is typing to make fortune out of it. The complainant lodged FIR after seven days of the incident and submitted the intimation after 8 days of the theft, soon after the receiving of the intimation, the O.P. collected information and finally repudiated the claim as the applicant has committed the violation of condition No.1 of the insurance policy “as the applicant lodged the FIR after 6 days of the occurrence, and submitted the loss intimation with the insurance company after long lapse of 9 days of the theft of the vehicle”.  Hence the present claims made against the O.P. are all baseless, and fraudulently created exclusively for the purpose of putting a claim against this O.Ps. The complainant has not approached with clean hands and he has played fraud has misled, has adhere to all such frivolous activities, has deliberately suppressed the material evidence, has concealed the truth for the purpose of the claim. Hence the complainant is not entitled to any such relief. It is therefore prayed to dismiss the complainant and pass suitable order with a direction to the complainant for payment of cost and damages towards the vexatious litigation against these O.Ps in the interest of justice.

               3. On the date of hearing of the case, we heard the learned counsel from both sides at length, gone through the case record and also perused the materials on the case record.  The complainant filed this case against the Insurance Company as his vehicle one Black colour pulsar bike bearing Regd. No. OD-07-J-8883, Model No. DTS 150CC insurance policy No.69654107 dated 22.10.2016 which was in force at the time of the theft i.e. on 09.04.2017 was stolen from weekly vegetable market (Hatta) at Humma. The complainant immediately moved to Humma outpost and orally informed the police regarding missing of his bike. The In-charge Officer of Humma out post advised the complainant to search the bike in the nearby villages.  The complainant searched the same but in vain.  In memo of written argument filed by the O.P. is just and proper procreation of repudiation letter issued by the Kolkota office of Insurance company where O.P. took only one stand that the case was lodged in delay. In this present case it reveals from the record that the facts are undisputed the theft of the insured vehicle had occurred on 09.04.2017 while the insurance coverage period was in force. The FIR was lodged at Humma outpost on 15.04.2017. The police had admittedly lodged FIR and submitted charge sheet U/S 379 IPC accused as unknown. The learned court of J.M.F.C. Khallikote on 09.12.2017 had submitted report that “The fact is true but no clue” as per charges sheet submitted by IIC Rambha. The O.P. repudiated the claim on the ground of delay filing of FIR.

               In the facts and circumstances of the case the repudiation of the claim by the O.Ps is unjustified. In our considered view the claim is genuine and the complainant is entitled for such claims. In this regard  this Commission  relied upon a  citation passed by the Hon’ble National Commission, New Delhi in New India Assurance Company ltd. Versus Shariff Ahmed 2019 CJ Page 83 such as: Insurance- Theft of Insured bus- claim repudiated on the ground of delay in lodging F.I.R. as well as delayed intimation to Insurance Company- Complaint allowed by State Commission- Delay of 71 days in filing appeal condoned at a costs of Rs.1,00,000/- to be paid to complainant by Insurance Company- On merits, FIR has been lodged after delay of 10 days of theft and intimation was given to Insurance Company after 15 days-No proper explanation has been given by complainant for delay in lodging FIR or delay in intimation to Insurance Company- Order passed by State Commission set aside.  In another citation of Hon’ble Supreme Court of India held that mere delay in intimating insurance company about occurrence of theft can not be a ground to deny claim of insurer in Gurushindere Sing versus Shriram General Insurance Co. ltd. and another 2020 C.J. 604 (SC) in civil appeal No. 653 of 2020 arising out of SLP (C ) No. 24370 of 2015 decided on 24.1.2020.

               On foregoing discussion and in view of the above decisions of law, it is clear evident that the O.Ps are negligent in rendering proper service to the complainant. Hence in our considered view there is deficiency in service on the part of the O.Ps for which undoubtedly the complainant has sustained mental agony as such he is to be compensated.  

               In the result the case of the complainant is allowed on merit.  The O.Ps are jointly and severally liable as such they are directed to pay the insured amount of Rs.65,800/-only to the complainant within sixty days from receipt of this order. Further the O.Ps are directed to pay Rs.3000/- as compensation and Rs.2000/- as cost of litigation to the complainant with the above stipulated period failing which all the dues shall carry 12% interest per annum. The case of the complainant is disposed of accordingly.

               The order is pronounced on this day of 23rd February 2021 under the signature and seal of this Forum. The office is directed to supply copy of order to the concerned parties free of cost and a copy of same is to be sent to the server of