DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Case No.4 of 2016
Smt.Jyotirmayee Tripathy, W/o. Jagajyoti Tripathy, aged about 40 years, R/o. Thanapatipada, Sonepur, P.O./P.S. Sonepur, District – Sonepur.
………….. Complainant
Vrs.
1. Magma HDI General Insurance Co. Ltd. Registered Office 24, Park Street, Kolkata – 700016.
2. Shriram Transport Finance Company Ltd., Hara Gouri Vihar, In front of TELCO Service Centre near N.H. – 6, Ainthapali, Sambalpur – 768 004.
………….. Opp. Parties
Advocate for Complainant ………. Sri S.S.Purohit
Advocate for the O.P. No.1 ………. Sri G.S.Panda
Advocate for the O.P. No.2 ………. Sri Sachikanta Mishra
Present
Sri S.C.Nayak, President
Smt.S.Mishra, Lady Member
Sri H.Padhan, Male Member
Date of Judgment Dt.04.04.2018
J U D G M E N T
By Sri S.C.Nayak, P.
Bereft of unnecessary details, the complainant’s case is described below.
The complainant is the registered owner of Tata Indigo vehicle bearing Regd. No.OR-31-3654. The vehicle is insured with the O.P. No.1. On 28.12.2015 the complainant and her family had been to her father’s house at Seledi and the vehicle was at Sonepur under the care of the driver.
On 29.12.2015 from the O.I.C. of Gania Police Station the complainant came to know that her vehicle has been stolen away by some unknown persons after assaulting the driver. On 29.12.2015 the driver lodged F.I.R. before Gania police station. Police investigated the matter, but as the culprits could not be traced, submitted final report before the J.M.F.C., Dasapalla.
As the vehicle was insured with the O.P. No.1 for Rs.3,00,000/-, claim was made before the O.P. But the O.P. repudiated her claim vide their letter dt.30.4.2016 on the ground that occurrence of theft was not intimated to the O.P. and the vehicle was used for hire although it was a private car.
-: 2 :-
The complainant alleged that she never used the vehicle for the purpose of hire. On the relevant date she and her family members were not at Sonepur. The driver of the vehicle has taken the vehicle without her consent. Police has immediately been informed regarding the theft. She and her relations searched for the vehicle. As the vehicle could not be traced, the matter was intimated to the agency of O.P. orally and in writing.
So the complainant alleged that repudiation of the claim by the O.P. is not justified. Hence she has filed this complaint case seeking Rs.4,00,000/- towards the cost of the vehicle, mental agony, harassment and allied factors.
The O.Ps. were noticed in this case. The O.P. No.1 has filed version. Though the O.P. No.2 entered appearance through advocate he has not filed any version.
The gist of version of O.P. No.1 is as follows :-
1. That, the forum lacks of territorial jurisdiction to entertain the complaint.
2. The policy of insurance disclosed that alleged vehicle was insured under private car policy, but it was used for hire.
3. The insured has intimated insurance company on dt.11.01.2016 where as the alleged incident happened on 28.11.2015. So there has been a delay of 14 days in intimating the O.P.
4. Since the insured has violated the policy conditions, the claim was rightly repudiated.
So the O.P. No.1 prayed that the complaint case be dismissed with cost.
On the inter-se pleadings of the parties the following issues are framed.
i). Does the Forum have jurisdiction to decide this case ?
ii). Is the repudiation of insurance claim by the O.P. No.1 justified ?
iii). To what relief the complainant is entitled ?
We have heard learned counsels for the parties and perused the materials on record.
So far as issue No.1 is concerned we find that the O.P. No.1 is doing business in the town of Sonepur. So this forum has jurisdiction to decide this case.
-: 3 :-
In the instant case the O.P. alleged that the vehicle was used for hire purpose which is a breach of the policy condition. Complainant alleged that driver has taken the vehicle without her consent when she and her family members were not at Sonepur. Be it as it may that the driver took passengers in the vehicle who stole the vehicle assaulting him is not in dispute. It is to be seen whether this violation of police condition is such a fundamental breach so that the claimant cannot claim any amount whatsoever.
Learned counsel for the complainant relied on the decision of the Hon’ble Supreme Court in the case of Civil Appeal No.(S) 21552 of 2017 decided on 8th December 2017.
In the case cited Supra the truck was stolen by one of the passengers whom the driver gave lift. In para 6 of their judgment their Lordships have held :-
“ 5. As far as the First ground is concerned, we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned this has consistently been held not to be a fundamental breach. ”
Holding so their Lordships directed the insurance company to pay 75% of the insured amount alongwith compensation. The facts of the case cited supra squarely applies to the facts of this case.
The O.P. No.1 in his version has also taken the stand that there has been a delay of 14 days in intimating the insurance company. We find that the vehicle was stolen on 28.12.2015 evening. Immediately the driver of the vehicle lodged F.I.R. on 29.12.2015. The complainant and her relations also searched for the vehicle. Police also investigated the matter. As the vehicle could not be traced intimation was given to the Insurance Company within a period of 14 days. So it cannot be said that timely intimation was not given to the Insurance Company. Our view is fortified by the decision of the Hon’ble Harayana State Commission in the case of the Manager, New India Assurance Co. Ltd. – Appellant Vrs. Yadram – Respondent (First Appeal No.37 of 2014) the gist of which is reproduced below :- Insurance claim (Truck) – Theft of truck – Truck was with the driver. After contacting the owner, the driver lodged. F.I.R. – Delay of 4 days in lodging F.I.R. and delay 15 days in informing
-: 4 :-
insurance company – Held – In the case of theft of vehicle, breach of condition is not germane - The delay of 15 days is not significant in such a case – Insurance company is liable to indemnify the owner of the vehicle.
In the wake of our aforesaid discussion we are of the considered opinion that repudiation of claim totally by the Insurance Company is not justified. The claim of the complainant ought to have been settled on non standard basis. Issue No.2 is answered accordingly.
Now it is to be seen to what relief the complainant is entitled ?
Since we have held that the claim of the complainant ought to have been settled on non-standard basis, she is entitled to 75% of the Insured declared vehicle. In the instant case the I.D.V. of the vehicle is Rs.3,00,000/- (Rupees Three Lakhs). So the complainant is entitled to get Rs.2,25,000/- from the O.P. No.1. In the facts and circumstances of this case we are of the opinion that an amount of Rs.20,000/- towards compensation for mental agony, harassment, allied factors and Rs.3000/- towards cost of litigation would meet the ends of justice. WE direct the O.P. No.1 to pay this amount to the complainant within one month from the date of order, Ordered accordingly.
O R D E R
It is hereby ordered as follows :-
The O.P. No.1 shall pay Rs.2,48,000/- (Rupees Two Lakhs Fourty Eight thousands) only to the complainant within one month from the date of order.
Dated the 4th April 2018
Typed to my dictation
I agree. I agree. and corrected by me.
Sri H.Pradhan, Smt.S.Mishra, Sri S.C.Nayak
Male Member Lady Member President
Dt.04.04.2018 Dt.04.04.2018 Dt.04.04.2018
