For the Complainant                       -  Mr. Saikat Mali, Advocate

For the OPs                                      - Mr. Debjani Banerjee, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is a complaint case under section 12 of the C.P. Act, 1986.

The fact of the case in brief is that the Complainant is the owner of a truck bearing Registration No. WB-23A 9464 made by Tata Motors, Model No.  2515 being represented by its Partner Sri Prithvi Raj Velechha. The said vehicle was covered  under insurance package policy of the OPs for the period from 11.02.2015 to 10.02.2016 and the insured sum assured was Rs.5,10,300/-. On 07.12.2015 the driver of the said vehicle after completion of the trip parked the vehicle at Mrigala, Dankuni, Hooghly, the place of the complainant at about 10.00 AM  and the driver intimated the complainant that due to the death of his nephew he is going to his brother’s house at Domjur.  On 10.12.2015 the complainant did not find the vehicle at the parking place  and after extensive searching he did not get the whereabouts of the said vehicle. Thereafter he went to the Police Station on 10.12.2015 to lodge the FIR but the Police Authority advised him to search the vehicle thoroughly and to try to contact the driver first. They also assured necessary help as and when required. In spite of extensive searching, neither the vehicle nor the driver of the vehicle was traced out and thereafter FIR was lodged  with Dankuni Police Station on 06.01.2016.  On 12.-01.2016  the complainant informed  the fact to the OPs and also lodged the claim form on the said date with supportive documents.  The OPs issued letter dated  04.03.2016 asking some more documents. The complainant thereafter, vide letter dated 21.03.2016 submitted the documents as asked for except the copy of FRT to be obtained from Dankuni P.S as and when it would be available.  Then OPs  vide letter dated 25.03.2016 asked the same document and the complainant  vide letter dated 28.03.2016  clarified the facts for not submitting the FRT. The Dankuni Police Station thereafter submitted FRT to the Ld. ACJM at Serampore, Hooghly on 09.08.2016  and the complainant after obtaining a copy of FRT submitted to the OPs vide letter dated 26.08.2016. The matter was pursued by the complainant for settlement of the claim vide letters dated 19.09.2016 and 16.11.2016. The complainant visited the offices of the OPs on several times for settlement of the claim which yielded no result and finally on 10.08.2018 a registered letter with A.D was sent to the OPs  for settlement of the claim. In spite of receiving of all such letters, the OPs did not settle the insurance claim.  The claim has neither been settled nor been repudiated by the OPs by this time. In view of the above, the complainant has filed the instant case to this Forum for justice.

The OPs have contested the case by filing W/V  contending inter alia that  the said vehicle was insured with them for the specified period  from 11.02.2015 to 10.02.2016 under Policy No. P 011 5400002/4103/232358  with IDB of Rs.5,10,300/- . The OPs have submitted  that the claim was lodged on  12.01.2016 for the theft of the insured vehicle which alleged to have been stolen  between 07.12.2015 and 10.12.2015

As such, the complainant has intimated the police authority after a delay of 26 days and intimated  the Insurance Company  after a delay of 32days after the alleged theft.  This is as per OPs, a willful violation of  condition no. 1 of the Motor Policy by the complainant. What is condition No. 1? The said condition is reproduced herein below :

“ Notice shall be given  in writing to the company  immediately upon the occurrence of any accidental loss or damage in the event of  any claim thereafter the insured give all such information and assistance as the company shall require.” The OPs have mentioned several interpretation of the word immediately to establish the violation  of  terms and conditions of the complainant. The relevance of the word immediately has been brought to the notice for the following reason :

            “The insurer can also coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the vehicle for six months, should be considered as a serious violation of condition of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace / help in tracing the vehicle”. 

            The OPs have further mentioned the policy condition No. 5 to establish the gross negligence on the part of the insured /complainant. The said condition No. 5 is reproduced herein below. “ The insured shall take all reasonable steps  to safeguard  the vehicle from loss or damage  and maintained it efficient condition  and the Company shall have all the time to free and full access to examine the vehicle  or any part thereof  or any driver, or employee of the insured. In the event of any accident,  or breakdown vehicle shall not be left unattended without proper precautions  being taken  to prevent further damage or loss and if vehicle be driven before the necessary repairs are effected any extension of the vehicle shall be entirely at the insured own risk “.

            Since the complainant has violated the condition No. 1 and condition No.5 of the said policy, the OPs are not bound to settle the claim.  No believable explanation for the delay in intimation to the insurers / OPs has been given by the complainant .

On the pleading of the parties, the following points necessarily have come up for determination.

1. Whether the complainant  is the holder of the valid Motor Car Insurance policy.

2. Whether there is any deficiency in service on the part of the OPs.

3.Whether the OPs have adapted unfair trade practice.

4.. Whether the complainant is eligible for the relief as prayed for.

Decision with Reasons

Point Nos. 1 to 4.:

            All the points are taken up together for the sake of convenience and brevity in discussion.

            Both the parties have tendered evidence on affidavit. They have also given reply against the questionnaire set forth by their adversaries. Both parties have also filed their BNAs.

            We have travelled over the evidence coupled with documents on record. Facts remain that the complainant had a  motor car insurance policy with MAGMA HDI GENERAL INSURANCE CO. LTD  for the period from 11.02.2015 to 10.02.2016 (midnight) vide policy No. P 011 5400002/4103/232358 with the coverage of Rs.5,10,300/- for the truck bearing registration No. WB 23A 9464 manufactured by Tata Motors Ltd. There is no dispute in between the parties regarding the Policy and the vehicle.. The said truck was not found at the parking place on 10.12.2015 in the morning at Mrigala, Dankuni, Hooghly by the complainant. FIR for missing the truck was lodged with the Dankuni Police Station on 06.01.2016 and thereafter, on 12.01.2016 the claim was lodged to the OPs. The OPs issued letter to the complainant on 04.03.2016  to submit some more documents including FRT. Reminder to submit those documents as asked for vide letter dated 04.03.2016 was again issued by the OP on 25.03.2016. Full documentation is found complete on 26.08.2016 including the document FRT being collected from Dankuni Police Station. In fact the FRT report also supports the missing of the vehicle wherein there was no role of the driver  engaged earlier for the purpose. The OPs have rightly pointed out that  there was a delay of 26 days  to intimate the Police authority for the alleged theft of the vehicle and the complainant took 32 days after the alleged theft to intimate the OP Insurance Company.  As per condition No.1 and condition No.5 of the insurance policy the OP Insurance Company had the option to repudiate the claim submitted by the complainant within the time limit prescribed by IRDA. Documentation part in the matter of Insurance Claim was completed by 26.08.2016. But the OP Insurance Company  had not taken any action either settlement or repudiation of the claim from that date to till date. Repudiation of claim could have been done by them showing the policy condition and necessary repudiation letter could have been issued to the insured in due time. But the Insurance Company had remained silent over the issue for a long time  & did not fulfill the contractual obligation.

As per Insurance Regulatory & Development Authority of India (Protection of Policyholders’ Interests Regulations,2017) the Insurer is bound to settle the claim within 30 days from the date of receipt of last relevant document otherwise they are liable to pay interest at a rate which is 2 percent above the Bank Rate from the date of receipt of last relevant document from the insured / claimant till the date of actual payment.

Ld. Advocate for the complainant  has cited one judgment reported in ‘Vol-III (1996) CPJ 8 (SC) of Hon’ble Apex Court in the matter of United India Insurance Company Ltd  -Vs- M.K.J Corporation wherein it has been decided that the claim should be settled or rejected in accordance with the policy within a reasonable time of two months’. Ld. Lawyer for the complainant has also cited another judgment of Supreme Court of India vide Civil Appeal No. 15611 of 2017 (Arising out of SLP (C) No. 742 of 2015, wherein it has been mentioned that  “ it  is common knowledge that a person who lost his vehicle may not straightaway go to the insurance company to claim compensation. At first, he will make effort to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly, when the delay in intimation or submission of documents is due to unavoidable circumstances. Rejection of the claim on purely technical ground in a mechanical manner will result in loss of confidence of policy holders in the Insurance Industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.

Here the OP Insurance Company has not taken any decision either settlement or rejection of claim within the time limit of one month prescribe by IRDA rather they have not yet taken any action in the said matter. Documentation for settlement of claim of the instant case was completed on 26.08.2016. As per the decision of the Apex Court in the matter of United India Insurance Company –Vs- MKJ Corporation, the reasonable time for taking decision in the matter of settlement of claim has been arrived at two months.  Here the insurance company even after lapse of  more than 27 months could not take any decision. This is a clear case of deficiency in service. The OP insurance company cannot avoid their responsibility of not taking any decision in the said matter within the reasonable time. Moreover, keeping the matter pending for unlimited period of time without any cogent reason definitely tantamount to unfair trade practice. As such, we are of the considered view that there is deficiency in service  and unfair trade practice on the part of OP Insurance Company.

All the points under determinations are disposed of.

In the result the complaint succeeds in part.

Hence,

                                   ORDERED

That the Complaint Case be and the same is allowed on contest in part  against the OPs with the following directions.

1)         The OPs are directed to pay Rs.5,10,300/- being the Insured Declared Value with interest  2 percent above Bank Rate from 26.10.2016 till realization.

  2)       The OPs are further directed to pay Rs.15,000/- only to the complainant as compensation for causing harassment, mental pain and agony with litigation cost of Rs.10,000/- within a period of 45 days from the date of this order.

 Liberty be given to the complainants to put the order in execution if the OPs transgress to comply the order.