Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs :Joydip Mitra
Date of filing of the case :14.03.2018
Date of Disposal of the case :23.02.2024
Final Order / Judgment dtd.23.02.2024
The pith of the substance of the case of the complainant is that the complainant Sumit Kumar Mahato purchased one Mahindra Bolero
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Pick up vehicle from the OP No.2 K.D Motors, Kalyani, Nadia for Rs.5,20,000/- by booking Rs.10,000/- and down payment of Rs.60,000/-. The OP No.2 made a liaison between the complainant and OP No.3 for a finance under loan agreement date 06.02.2016 as per terms and conditions for repayment by instalment of Rs.15,200/-. The OP did not supply the copy of the loan agreement to the complainant. So, the complainant signed on a blank agreement. Subsequently, the said vehicle was registered with M.V Department Kalyani on 05.02.2016 being registration no.WB89/1515. The vehicle was insured with OP No.1(a) the Manager Cholamandalam M.S General valid for the period 05.03.2016 to 04.03.2016 with an insurance premium of Rs.20,822/-. He took delivery of the vehicle for the purpose of maintenance of his family. The complainant paid monthly instalment regularly without any default which was apprehended by OP No.3 the Manager Mahindra Finance Limited. The said vehicle was maintained by a professional driver. The original documents like insurance certificate, registration certificate and road tax receipt were kept inside the vehicle. On 28.01.2017 the said vehicle was seen in the night but on 29.01.2017 at 6:00 a.m the said vehicle was found missing but could not be traced out subsequently. The complainant wanted to lodge a complaint to Kalani, P.S but the police advised him to obtain an order from the court of Ld. A.C.J.M., Kalyani . Accordingly, on the advise of the police a case being M.P no. 11/17 dated 09.02.2017 was filed before the Ld. A.C.J.M., Kalyani which was registered as Kalyani P.S case no.64/17. Due to refusal by the police the said case was filed. The complainant by two letters dated 10.02.2017 informed the OP No.1(b) the Manager Cholamandalam M.S and OP No.3 about the said theft of the vehicle and also to the M.V Department which was received on 27.02.2017. First insurance claim was registered as claim no.3379195235. Due to lost vehicle the complainant had no means to repay the entire loan and as such he defaulted. Subsequently, the OP appointed one ISANDA investigator on 02.03.2017 to investigate the theft and the complainant filed the relevant documents with the investigator. The said ISANDA also demanded certified copy of final investigation report. The police submitted final report on 18.11.2017. So, the complainant could not file the complaint immediately. Cholamandalam repudiated the claim of the complainant by a letter dated 10.04.2017 illegally and unreasonably . There was no serious delay on the part of the complainant. Thereafter, on 18.12.2017 the complainant received a registered letter from Advocate OP No.3 that an arbitration was invoked in that matter. The OP No.3 issued a letter on 22.11.2017 by which they recalled the loan agreement to which the complainant replied on 30.12.2017 with a request to hold the arbitration and restrain for 3 / 4 months. The OP No.1 wrongfully repudiated the
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insurance claim of the complainant. Actually OP No.3 K.D Motors kept the complainant in dark about any arbitration clause in the agreement by not supplying the copy thereof. So, the present case is filed. The complainant prayed for an award for revocation of the said repudiation of the insurance claim, Rs.5,20,000/- towards insurance claim, Rs.1,00,000/- towards litigation cost and a direction to OP No.3 to stay the arbitration proceeding.
The OP No1(a) and (b) contested the case by filing W/V denying which an every allegation.
The positive defence case of OP No. 1(a) &(b) in brief is that the complainant took a goods carrying garage policy bearing no.3379/01369629 for Mahindra Bolero Camper Vehicle . The insured declared value of the vehicle was Rs.5,20,000/-. The vehicle is insured on condition that in the event of the any theft immediate intimation must be given in writing to the company as well as the police . Intimation of theft was given to the OP belatedly for 13 days and the FIR was lodged after 29 days from the date of occurrence in violation of conditions of the contract of insurance. The complainant in their letter dated 10.02.2017 never explained about the reasons for delay. So, the OP repudiated the claim through its letter dated 10.04.2017. As per condition 9 of the policy all the terms and conditions of the policy should be followed. The intimation was given to the company after 5 months and as such the OP rightly rejected the claim. The complainant did not take proper precaution for the security of the vehicle and left the vehicle unattended on the road. The OP claimed that the case is liable to be dismissed with cost.
OP No.2 also filed W/V stating inter-alia that he was a sales associated dealer of Mohan Motors for sale of Mahindra Bolero Pick Up Vehicle. He induced complainant Sumit Kumar Mahato who purchased Mahindra Bolero Pick Up Vehicle for Rs.5,20,000/- by payment of booking money of Rs.10,000/- and down payment of Rs.60,000/- against proper receipt. Mahindra financial services financed the purchase of the vehicle by the complainant at his instance. He paid good number of instalment. Thereafter, the vehicle was lost. He came to him. He told him to inform the local office of the insurance company. His business documents were destroyed .
Case is running ex-parte against OP No.3.
Dispute involved in this case persuaded this Commission to ascertain the following points.
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Points for Determination
Point No.1.
Whether the present case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
Out of the three OPs, OP No.3 did not contest the case and as such it is heard ex-parte against the OP No.3.
OP No.2 did not deny the claim of the complainant.
OP No.1 & 2 challenged the case as not maintainable in facts and law but they could not make out any specific point of law as to why the case is not maintainable. However, they have challenged the case only on the ground that the claim is barred due to delay in lodging FIR.
However, having perused the pleadings of the parties and the evidence in the case record it transpires that the relation between the parties comes within the purview of the C.P Act. Both the parties reside within the territorial jurisdiction of this Commission. The relief claimed also falls within the pecuniary jurisdiction of this Commission.
So, the case is decided as not barred under any provisions of law.
So, point no.1 is answered in favour of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The complainant in order to substantiate the case adduced both oral evidence in the form of affidavit in chief and documentary evidence.
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The complainant proved the following documents in course of evidence.
Annexure-1 is the delivery challan.
Annexure-2 is copy of register of trade certificate.
Annexure-3 is the relevant insurance policy in the name Sumit Kumar Mahato for vehicle Mahindra Bolero in dispute .
Annexure-4 is the copy of regular loan agreement.
Annexure-5 is the receipt of the tax token.
Annexure-6 is the copy of M.P case no. 11/17 dated 04.02.2017.
Annexure-7 is the copy of FIR lodged in the court Ld. A.C.J.M., Kalyani.
Annexure-8 is the copy of final report.
Annexure-9 is the formal FIR.
Annexure-10 is letter to the Branch Manager dated 10.02.2017 by the complainant intimating the incident of theft .
Annexure-11 is the letter to the RTA, MV department for freezing the account of the vehicle dated 22.02.2017.
Annexure-12 is a letter given by ISANDA to the complainant dated 02.03.2017.
Annexure-13 is another letter by ISANDA to the complainant.
Annexure-14 is a letter by the Cholamandalam M. S General Insurance to the complainant dated 10.04.2017 and another instalment structure.
Annexure-15 is a letter issued by Advocate V. Jibon Ram to the complainant dated 18.12.2017 regarding appointment of arbitrator.
Another Annexure as 16 is also a letter issued by Mahindra and Mahindra dated 16.12.2017 to Mrs. Sarnalata as sole arbitrator.
Annexure-17 is the letter to the Mahindra Finance by the complainant restraining the arbitrator.
The complainant alleged that the OP company repudiated the claim of the complainant without sufficient.
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It is the admitted fact that a theft was taken in respect of the disputed vehicle of the complainant bearing no. WB89/1515.
The complainant pleaded that the police director him to file a case before the court regarding the said theft and the delay has caused in informing the incident of theft and lodging the FIR.
The OP repudiated the claim on the ground of delay. The said theft took place on 28.01.2017. In the said complaint the complainant stated inter-alia that the incident was informed to the P.S. Despite the said fact the Ld. A.C.J.M., Kalyani directed to lodge FIR which was registered as Kalyani P.S FIR No.64 dated 26.02.2017.
So, there is nothing within the four corners of the case record that the Ld. Court sought for any explanation from the complainant as to the delay in lodging the FIR or despite police information to the police why no separate case was started. It means that Ld. A.C.J.M. court accepted the delay and directed to investigate the matter.
It further appears that the copy of final report discloses inter-alia that attempts were made to arrest the real culprit as well as to restore stolen vehicle but to no good. With a view of reopening the case if any clue is detected in near future. So, FRT was submitted.
Thus after perusing the FRT it is crystal clear that the investigating agency could not come to any finding that the FIR was lodged falsely or that there was no theft of the disputed vehicle.
The complainant specifically answered against cross-examination by OP that from 28.01.2017 the vehicle bearing WB89/1515 was missing . So, during cross-examination the complainant confirmed that the vehicle was missing. Answer to question no.2 also affirm that the complainant informed the loss to the OP No.3 through letter dated 10.02.2017. Based on his complaint the Kalyani P.S case was also started on 26.02.2017 which is confirmed in answer to question NO.3. The OP put several questions to the complainant but did not put a single question as to whether the ground for delay was reasonable or not. Actually the OP could not discard the delay in lodging the FIR without sufficient reason.
The complainant also put some questions to the OP No.1(a).
In reply to the question put by the complainant to the OP NO.1(a) as to what are the terms and conditions of the said policy, in
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reply to which the OP answered that notice shall be given in writing to the company immediately.
The complainant took the defence that they informed it to the police immediately but they directed to file case before the court. Previously I have discussed that the complainant duly explained the delay before the court over which having been satisfied the court or the police investigated the matter. So the delay was duly accepted by the court and as such it can be held that delay if any is not caused by personal latches or it is not discretionary. The OP was further asked as to whether they will submit any report of surveyor or loss assessor. Although , the OP answered they would submit the surveyor report.
Ld. Advocate for the OP argued that intimation was given after 13 days for which the claim was repudiated . In this regard he referred to a decision reported in Civil Appeal No.4758 of 2023 passed by Hon’ble Supreme Court wherein it was held that he was no breach any terms and conditions . The said case law is applicable here.
Ld. Counsel for the complainant further referred to another decision reported in civil appeal no.5705 of 2021 passed by Hon’ble Supreme Court wherein it was held that despite delay in lodging the FIR after 7 days the appeal was allowed.
Relying upon principles set forth by the Hon’ble Supreme Court the said case law also applies here and as such the repudiation order by the OP is considered as not reasonable and justified .
Ld. Advocate for the OP referred to one decision reported in volume 4 (2012) CPJ 441 (NC) wherein it was held that a delay of 9 days was not justified. The insured shall immediate notice to the police and cooperate with the company in securing the conviction of the financer .
If, we consider the said decision it actually does not help the OP in as much as the complainant in the instant case seems to have duly cooperated with the company and gave notice to the police. That apart the said decision was passed in the year 2012, whereas the complainant referred to two decisions one of which is 2021 and another is 2023. So, the latest decision will prevail in view of the specific explanation given by the Hon’ble Supreme Court.
In the backdrop of the aforesaid discussion and after assessing the entire evidence in the case record the Commission comes to the finding that the repudiation of the claim by the OP is not sufficient.
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The complainant successfully proved the case against the OP upto the hilt.
Consequently, the point no.2&3 are answered in positive in favour of the complainant. So, the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/38/2018 be and the same is allowed on contest against OP No.1(a) and (b) and OP No.2 and ex-parte against OP No.3. The complainant do get an award for a sum of Rs.5,20,000/-(Rupees five lakh twenty thousand) towards value of the insurance policy against the Ops, Rs.20,000/- (Rupees twenty thousand) towards mental pain and agony and harassment and Rs.10,000/- (Rupees ten thousand) towards litigation cost. The Ops are jointly and severally liable to pay the aforesaid amounts. All the Ops are directed to pay Rs.5,50,000/- (Rupees five lakh fifty thousand) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a from the date of final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
