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

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                                 ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                           (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

........................................                                                 

          MEMBER                                                                

(NIROD  BARAN   ROY  CHOWDHURY)