West Bengal

Birbhum

CC/142/2016

SK Hasibul, S/o Abdul Rajjak - Complainant(s)

Versus

Manager, HDFC ERGO Gen INS Co Ltd. - Opp.Party(s)

Sanjit Kr Acharya

19 Mar 2019

ORDER

The case of the Complainant SK. Hasibul is brief is that he purchased a Swaraj Tractor, being no Engine No. 331008SSK3375A, Chassis No. WRT424418130720, Registration No. WB 52B 5122, with the financial help of the OP No. 2. That on 07/07/2015 the complainant kept the vehicle in front of his house as usual. That on 08/07/2015 at dawn i.e. at 3A.M he did not find his tractor at the parking place. He looked for to and fro, but did not trace out the same.

            It is the further case of the Complainant that immediately after the incident the complainant informed the Murarai P.S about the incident, but they did not start any case thereafter he also filed a petition before the P.S, but they did not take any step. Thereafter the complainant informed the S.P Birbhum and then on 26/08/2015 the Murarai P.S as per instruction of the S.P Birbhum, asked him to submit on fresh written complaint ignoring the previous complaint of the complaint. That the complainant was compelled to submit further complaint before the Murarai P.S and Murarai P.S stated Murarai P.S case being No. 234/2015 dated 26/08/2015, U/S- 379 I.P.C. That the Murarai P.S after completion of investigation submitted FRT Murarai FRT No. 295 dated 28/12/2015 before the Ld. Additional Chief Judicial Magistrate, Rampurhat, Birbhum and the Ld. A.C.J.M accept FRT on 29/03/2016. That the complainant immediately after the incident informed the insurance company over telephone being No. 1800-2-700-700 and lodged claim and thereafter submitted claim from along with all the relevant documents, but the OP insurance company did not consider the claim of the complainant.   

            It is the further case of the Complainant that he is a handicapped person with 80% disability and he is unable write himself and do anything and needs help of others and delay if any has been cropped up due to his inability.

            It is the next case of the Complainant that he is entitled to get Rs. 4,09,500/- as insurance claim of his vehicle which has been stolen away. That the OP insurance company did not consider the claim of the complainant intentionally in order to deprive him from the legitimate claim. That the OP insurance company repudiated the claim of the complainant arbitrary on the hyper technical ground. That the aforesaid act of the Ops are amounting to deficiency in service.

            Hence this case for directing the OP/Insurance Company pay Rs. 4,09,500/- as compensation with 12% interest P/A from the date of claim preferred till realization.

The OP No. 1/Ins. Co. has contested the case by filing written version denying all material allegation of the complainant contending inter alia the case is not maintainable and complainant has no cause of action to bring this case.

 

It is the specific case of the OP/Ins. Co. that the Insurance Company that after receiving the claim and intimation for the alleged loss, the Insurance Company has appointed an investigator who started investigation and the documents submitted by the complainant revealed that the insured vehicle had been used for commercial purpose of loading and unloading stone chips prior to the vehicle was stolen and that such use was a breach of the terms and conditions of the policy.

            It is the further case of the OP/Insurance that the complainant by his act of belated intimation to the company has committed violation of condition 1 and condition 9. According to, condition No. 9 “The due observance and fulfilment of the terms, conditions and endorsement of the policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under the policy”.

            It is the specific case of the OP/Insurance Company that the complaint has filed is false, frivolous and/or vexatious one and as such the same should be dismissed under Sec. 26 of the C.P Act and complainant should be ordered to pay cost amounting to Rs. 10,000/- to the O.P/Insurance Company. That this O.P/Insurance Company has neither violated any law of insurance nor any rules of IRDA and also there is/was no any such this complainant is liable to be dismissed with cost.

            The OP No. 2 HDFC Bank has contested the case denying and material allegation of the Complainant.

            It is the specific case of the OP No. 2 that as per loan agreement dated 16/12/2014 the Complainant took loan from the OP No. 2 to purchase tractor in generation. But he become on defaulter in payment of loan since 8^th instalment and succeeding instalments due and OP No. 2 is entitled to get back such dues and a direction is to be given to the Complainant to pay such dues.

            It is also the case of the OP No. 2 that all the allegations have been browning of against the OP No. 1 and no relief has been claimed of against the OP No. 2.

            So, the case is liable to be dismissed of against the OP No. 2 with costs.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant SK. Hasibul has examined himself as P.W.1 and he was cross examined by O.Ps by way of filing questionnaires. Some documents have been submitted by him.

O.P No. 1 and 2 have not adduced any oral evidence but submitted some documentary evidence.

Argument of the Ld. Advocate/Agent of the both parties has been heard.

Point No.1:: Evidently The Complainant SK. Hasibul as PW 1 stated that he purchased a Swaraj Tractor, being no Engine No. 331008SSK3375A, Chassis No. WRT424418130720, Registration No. WB 52B 5122, with the financial help of the OP No. 2 and the same was duly insured under OP/Ins. Company.

            During hearing of argument Ld. Advocate/Agent of the OP/Ins. Co. submitted that evidently at the relevant time stone was carrying in the said vehicle. So purpose of use of the vehicle was commercial and the Complainant is not Consumer under S2 (1) (d) (ii) CP Act.

 

            In this reply Ld. Advocate/Agent submitted that the present case relates/ to insurance policy, so contract before the complainant and Ins. Company cannot be treated as commercial matter.

            In support of this contention he cited a ruling reported in (iv) 2012 CPJ 6 25(Nc). Where respondent hospital has entered into an agreement with petitioner Insurance Company for obtaining a tailor made group insurance policy (Mediclaim) for children in a particular age group.

            Hon’ble National Commission pleased to hold that Insurance contract cannot be termed as commercial activity.

So, it can be safely said the complainant is consumer u/s 2(1) (d) (ii) of C.P. Act.

Point No.2:- The O.P No.2 HDFC Bank has Branch Office within jurisdiction of this Forum.

The total valuation of the case is Rs. 4,09,500/- with interest which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

 So, this Forum has territorial and pecuniary jurisdiction.

Point No. 3 and 4:- The Complainant SK. Hasibul as PW 1 stated that he purchased a Swaraj Tractor, being no Engine No. 331008SSK3375A, Chassis No. WRT424418130720, Registration No. WB 52B 5122, with the financial help of the OP No. 2 and the same was duly insured under OP/Ins. Company.

            Copy of sale invoice dated 12/12/2014 shows that the complainant purchased a Swaraj Tractor at price of Rs. 5,25000/-.

            Copy of the Registration certificate shows that vehicle No. WB 53B 5122 (Tractor) stands in the name of complainant Hasibul.

            Copy of the policy certificate shows that tractor in question was duly insured for the period 12/12/2016 to 11/12/2017.

            The complainant as PW1 further stated that on 07/07/2015 the complainant kept the vehicle in front of his house as usual. That on 08/07/2015 at dawn i.e. at 3A.M he did not find his tractor at the parking place. He looked for to and fro, but did not trace out the same. That immediately after the incident the complainant informed the Murarai P.S about the incident, but they did not start any case thereafter he also filed a petition before the P.S, but they did not take any step. Thereafter the complainant informed the S.P Birbhum and then on 26/08/2015 the Murarai P.S as per instruction of the S.P Birbhum, asked him to submit on fresh written complaint ignoring the previous complaint of the complaint. That the complainant was compelled to submit further complaint before the Murarai P.S and Murarai P.S stated Murarai P.S case being No. 234/2015 dated 26/08/2015, U/S- 379 I.P.C. That the Murarai P.S after completion of investigation submitted FRT Murarai FRT No. 295 dated 28/12/2015 before the Ld. Additional Chief Judicial Magistrate, Rampurhat, Birbhum and the Ld. A.C.J.M accept FRT on 29/03/2016. That the complainant immediately after the incident informed the insurance company over telephone being No. 1800-2-700-700 and lodged claim and thereafter submitted claim from along with all the relevant documents, but the OP insurance company did not consider the claim of the complainant.

            Copy of intimation dated 08/07/2015 shows that the Complaint in writing informed the Murarai P.S that in the might of 07/07/2015 his tractor being No. WB 53B 5122 has been stolen away from in front of his house.

            Murarai P.S received the said information by putting seal and signature.

            It is the case of the Complainant that inspite of such intimation the police did nothing and at instance of S.P. Birbhum police started Murarai P.S Case No. 234/2015 dated 26/08/2015 on receiving fresh

 

Complainant.

            Copy of the application addressed to S.P Birbhum shows that S.P Birbhum was intimated that inspite of filing a written Complaint police did nothing and O/C Murarai is to be directed to start FIR regarding theft of his tractor.

            Copy of formal FIR, FIR and charge sheet show that on the basis on the Complainant lodged by the Complainant police started Murarai P.S Case No. 234/15 dated 26/08/2015 U/S 379 IPC against unknown person regarding theft of his tractor and said case was ended in final report and the same was accepted by Ld. ACJM Rampurhat.

            Copy of the letter dated 19/02/2016 and 17/03/2016 sent by the OP/Ins. Company to the Complainant show that the claim of the Complainant was repudiated mainly on the ground of late intimation to police after 49 days of occurrence and intimation to the Ins. Co. 14 days after the occurrence.

            But we find from the copy of intimation dated 08/07/2015 that on the next date of occurrence of theft i.e. on 07/07/2015 in the might police was informed about theft of tractor No. WB 53B 5122 of the Complainant and police received the same by putting seal and signature.

            But, it was mandatory duty of the police to start FIR regarding cognizable offence of theft of Tractor No. WB 379 IPC on 08/07/2015.

            We find that police lodged FIR regarding said theft on 26/08/2015.

            According to evidence of the Complainant on oath police started said case long after incident on 26/08/2015 as per direction of the S.P Birbhum and receiving fresh written Complaint from the Complainant.

            No contrary evidence is forth coming before the forum from the OP/Ins. Co. in this regard.

            So, considering over all matter into consideration it can be safely concluded that there was no fault on the part of the complainant regarding lodging FIR at deleted stage.

            More so copy of handicapped certificate dated 18/12/2019 issued by SD Hospital, Rampurhat shows that he was 80% orthopedically handicapped.

            So, during consideration of delay cropped up in lodging FIR his physical condition is also to be considered.

            During hearing of argument Ld. Advocate/Agent of the Complainant submitted a ruling reported in 2018(1) ICC 237 (SC) where Hon’ble Apex Court has been pleased to observe that 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 efforts 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 and delay of 8 days condoned. Hon’ble Apex Court farther pleased to hold that it needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.

            He cited another ruling reported 2012 (2) CPR 279 (NC) where Hon’ble National Commission pleased to hold that bonafide insurance claim. Cannot be dismissed on hyper-technical ground i.e. delay in intimation about accident/theft of vehicle etc.

            He also submitted copy of judgement passed in FA/695/2013 by Hon’ble State Commission West Bengal, where in a case of theft of motor cycle being No. WB 54B/2154 the Complainant lodged GD on

 

20/08/2010 i.e. on the date of theft. He submitted claim but the same was repudiated. It is the case of the OP/Ins. Co. that they were informed about 34 days after incident Ld. District Forum allowed the case relying upon the ruling reported in 2012 (2) CPR 279 (NC) and Hon’ble State Commission has been pleased to confirm the said order but modified some portion.

            We find that in the present case the OP/Ins. Co. has mentioned as many as 10 rulings in his written argument.

            But copy of no such ruling has been forthcoming before the Forum and we are in dark whether facts and law discussed in the said rulings are applicable in the present case or not.

            We find from the copy of policy certificate that IDV of such vehicle was Rs. 4,09,500/- and the same was stolen away on 07/07/2015.

            So, considering over all matter into consideration and materials on record and relying upon  rulings cited above we are constrained hold that the OP No. 1/Ins. Co. has repudiated the claim of the complainant illegally and he is able to prove his case of deficiency in service  against the OP No.1/Ins. Co. He is also entitled to get compensation of Rs. 4,09,5000/- with 6% from the date of claim preferred till realization.

            Regarding OP No. 2 HDFC we find that no relief has been claimed against them. So the case is liable to be dismissed of against OP No. 2.

            However the claim of the OP No. 2 regarding nonpayment of EMI by the Complainant to them is not subject matter on this case.

            Accordingly all the points are decided in favour of the complainant in part.

            The complainant is sufficiently stamped.

            Thus the case succeeds in part.

Hence,

O R D E R E D

that C.F case No. 142/2016 be and the same is allowed in part on contest with costs of Rs. 2000/-  against the OP No. 1 and dismissed on contest  against the OP No. 2 without any cost.

The OP No. 1/HDFC is directed to pay to the Complainant Rs. 4,09,500/- as compensation with 6% interest from the date claim preferred till realization.

The aforesaid order will be complied with by the O.P No. 1 within one month from this order failing which the complainant shall be at liberty to resort to due process of law and procedure. 

Copy of this order be supplied to the parties each free of cost.