Orissa

Jajapur

CC/306/2012

Raghunath Mohapatra - Complainant(s)

Versus

Manager ICICI Lombard General Insurance Company Ltd. - Opp.Party(s)

Ld.Adv

29 Dec 2015

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Biraja Prasad Kar, President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 29th day of December,2015.

                                                      C.C.Case No.306 of 2012

Raghunath Moharana  S/O Chaitanya Moharana

Vill/ Tolkali, Chitri, P.S.Tomka

Dist.-Jajpur.                                                                                     …… ……....Complainant .                                                                       .

                   (Versus)

1.Manager,I.C.I.C.I,Lombard General Insurance Company Ltd,Regd.Office

  I.C.I.C.I Bank Tower Bandra Kurla Complex,Mumbai.(India)

2. Branch Manager, ICICI Lombard General Insurance Co.Ltd,Kailash plaza

     Link Road, P.S. Madhupatna, Dist.Cuttack.

3.Branch Manager,Sriram Transport Finance Co.Ltd,At/P.O.Chandikhole

Dist.-Jajpur.                                                                                            …………………..Opp.Parties.                                                            

For the Complainant:                                  Sri S.K.Panda, Sri P.K.Panda ,Advocates.

For the Opp.Party No.1 and 2:                    Sri G.C.Panda, Miss B.R.Rout,Advocates.

For the Opp.Party No.3 :                             Sri P.K.Ray, Sri P.K.Mohapatra, Advocates                                                                                                                                           Date of order:   29. 12. 2015.

SHRI  PITABAS  MOHANTY,   MEMBER .

                                The petitioner has  filed the present dispute against the O.Ps. alleging deficiency in Insurance service due to repudiation of Insurance claim.

                                The facts relevant for the present dispute as per complaint petition shortly are that the petitioner being an unemployed youth in order to maintain his lively hood purchased a Tata Truck bearing No.0R-09-E-6862 by availing loan from O.P no.3. After purchase the said Truck was insured with O.P no.1 and 2 bearing policy No.30031586572971011000. It is stated by the petitioner that on 09.06.2011 while the vehicle was returning after unloading the Iron ore at some distance from Chandikhole Chhak in Paradeep Daitari  N.H. Road at about 9.30.P.M 5 persons obstructed the vehicle by the help of a number less Truck. Thereafter the five persons insulting the driver took the vehicle to a hilly area where they tied the driver in a tree and took away the vehicle as well as snatched the driving license ,mobile phone from the driver. In the mean time the driver of the vehicle by his own motion untied the rope and from the police check post informed the occurrence to the petitioner from the mobile of the police. The helper who was taken away by the culprits left him after Choudwar who after returning to unloading point at Manguli informed the petitioner about the occurrence. Accordingly the petitioner lodged F.I.R on 10.06.2011 at Jenapur P.S vide P.S Case No.55 dt.10.06.2011 U/S 342,379,34 IPC, G.R case No.514/2011 of J.M.F.C court Chandikhole. As per investigation though the police seized the Truck which was used to obstruct the theft truck as well as identified the culprits but did not able to recover the theft truck. Accordingly the police submitted charge sheet against 9 persons in the Court of J.M.F.C ,Chandikhole U/S 342,379,34 I.P.C which is at present sub0judice in the court of J.M.F.C Chandikhole . Further it is stated by the petitioner that the O.P no.1 through vide his letter dt.23.03.2012 admits the petitioner’s claim no.MOT02072028 lodged on 12.06.2011 . On the other hand subsequently has stated that the petitioner has lodged the Insurance claim on 16.06.2011 .Similarly according to petitioner though all the relevant documents have been submitted by the petitioner but  the O.P no.1 has repudiated  / rejected  the claim of the petitioner on 04.07.2012  taking the stand that theft of the vehicle has been occurred due to negligence of the driver which is violation of term and condition of the policy. Thereafter the petitioner though filed objection before the legal manager but no action has been taken at his level. Owing to such illegal action of O.P no.1 and 2 the petitioner finding no other way has filed the present with the prayer to direct the O.P no.1 and 2 to pay Rs.4,20,000/ towards Insurance claim and Rs.40,000/- as litigation cost  + Rs.30,000/- as compensation for mental agony.

                                There are three numbers of O.ps who after appearance have filed their respective written version in support of their defence.

                                In the written version the O.P no.1 and 2 have denied the allegation as raised by the petitioner. The stand taken by the O.P no.1 and 2 are as follows

1.Though the vehicle(tipper) of the petitioner has been insured with the O.Ps but the theft of the vehicle is imaginary on the ground.

a. Since the capacity of the cabin is only 2 persons  it is not possible for live 5 unknown persons to enter in the cabin.

b. In case the driver of the alleged vehicle tied in a tree then  how he himself escaped which is silent in the F.I.R and this clearly go to establish that driver is involved in the conspiracy . The driver has not taken any care and caution to safe guard the insured vehicle. The vehicle has not yet been seized by the police since the petitioner has joined his hands with the police to gain illegal Insurance claim.

2. The petitioner has delayed 3 days in intimating the theft to the Insurance Company which violates the term and condition of the policy.

3. The petitioner has not come with clean hands since the financer has not been impleaded as party in the present case.

                                Owing to the above reasons the dispute is to be disallowed with cost.

                                In the written version the O.P no.3 has stated that:

In the present case the petitioner has not raised any allegation against O.P.no.3.

b. Similarly the O.P.no.3 being the financer of the alleged vehicle bearing No.0R-09E-6862 at present is entitled to get Rs.4,12,864/- towards balance outstanding financed amount which is to be paid directly to O.P no.3 as per provision of law governing  such Insurance claim settlement . In this contest the O.p.no.3 has relied on observation of Appex Court reported in (1996) II SCC 23 Civil Appeal No.7515 of 2001 with CA Nos.84958496 of 2001,3393,4024,8000 and 8002 of 2002   Krisha, Food & Banking Industry Pvt. Ltd Vrs. New India Assurance Co. Ltd,& another reported in 2009(I) CPC-1. Accordingly the O.P.no.3 has prayed to settle the Insurance claim in favour of O.P.no.3.

                                In view of the above assertion and counter assertion of both the parties we are inclined to decide the present dispute as per our observation stated below:-

                                1.It is admitted facts that the alleged above cited vehicle has been insured with O.P no.1 and 2 and after verification of the policy it is also cristal clear that the policy was valid  from 12.04.2011 to 03.02.2012 mid-night and as per allegation of the petitioner the theft of the alleged vehicle has been occurred within the subsistence of policy.

                                2.It is stated by the petitioner vide para-5 of the complain petition that he has lodged the F.I.R at Jenapur police station on 10.06.2011 U/S 342,379,34 I.P.C vide G.R case No.514/2011 of J.M.F.C Chandikhole and after investigation the police has submitted charge sheet against 9  persons  to take cognizance U/S 342,379,34 I.P.C which is now sub-judice in the court of J.M.F.C Chandikhole. In this contest we have verified the Xerox copy of F.I.R which  indicates that the police has received the F.I.R on 10.06.2011. The investigation Officer in the spot visit also admits that the mark of violence has been marked where the driver was confird by the accused persons tied with rope in a tree. Accordingly  after investigation the investigating officer has submitted charge sheet against 9 persons . As such we are inclined to hold that after occurrence of theft of the vehicle on 09.06.2011 the petitioner has lodged the F.I.R on 10.06.2011 in Jenapur police station.

                                3. The next point relates to consider delay in informing the Insurance company. In this contest the petitioner has stated vide para-6 of the complain petition that the O.P no.1 and 2 vide their letter dt.23.03.2012 has made a reference to their earlier reference. No MOTO 2072028 dt.12.06.2011 which though indicates that after receipt of the Insurance claim prior to 12.06.2011 the O.P.no.1 and 2 have asked to submit the relevant documents but in the said letter dt.23.03.2012 the O.P.no.1 and 2 has made a reference indicating “ your motor  Theft claim No MOTO 2072028 lodged on 16.06.2011 “ which is arbitrary on the part of O.P.no.1 and 2.

                                In addition to it the petitioner has filed the observations of Appellant Forums regarding delay in informing the Insurance Company which are stated below:-

1. IRD circular dt.20.09.2011 which indicates that the Insurer are not entitled to repudiate the claim of the insured merely on flimsy grounds ie. Delay in submitting information to insurer in case of genuine claim .
2. Revision petition No.629 /2015 the Hon’ble National Commission has come to the finding that the insurer is not  entitled to repudiate the Insurance claim  since in case of theft the clause no.1 of the police is not applicable in case of theft . Accordingly in case the insured has lodged his theft claim belatedly, the insurer is liable to settle the Insurance claim of the insured.
3. 2014(2)CLT-390-Hariyana

“Theft of vehicle- Dealy 12 days in intimation to Insurance company-Held-There may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition  and repudiate the claim which is other wise proved to be genuine.”

4. 2014(4)CLT-161-Hariyana

‘ Insurance claim-Repudiation –on the ground there was 15 days in lodging the F.I.R and 36 days in giving intimation to Insurance company IRDA  has given direction to the Insurance Company not to reject genuine claims simply because of late registration of F.I.R and late intimation to the Insurance Company-Held-IRDA is the controlling Authority of all Insurance companies and being statutory Authority is competent to frame guide lines and issue instructions to Insurance companies which are binding upon them “.

                                In addition to the above citations from the side of the petitioner we have come across with the observation of our own State Commission Odisha reported in 2010(1) CLT-P-189-Odisha,C.D.Appeal No.318 of 1998 Oriental Insurance Co.Ltd, Vrs. Kandha Nayak wherein it is held that

“ mear some delay in reporting police or Insurance Co. will not entitle the Insurance    Co. to repudiate claim”.

                                In view of the above narrated analysis it is cristal clear that after theft of the cited vehicle on 09.10.2011 as per F.I.R the petitioner (insured) has lodged the F.I.R on 10.06.2011 and delay in intimating the Insurance company will not dis- entitle the petitioner for his Insurance claim as per observations of the appellant forums cited above. For the reasons recorded above it is clear that law on the point in conclusively in petitioner’s favour and consequently the dispute must succeed and hereby allowed.

                                                                                                O R D E R

                In the net result  the dispute is allowed against the O.P no.1 and 2 and dismissed against O.P.no.3.

1.The O.P no.1 and 2 are directed to pay the Insurance claim of the petitioner amounting to Rs.4,20,000/- within one month after receipt of this order, failing which the O.P.no.1 and 2 shall liable to pay 9% interest on the awarded Insurance amount from the date of filing the present dispute till its realization .

2.After receipt of the Insurance claim the petitioner is also directed to clear up the entire outstanding loan amount of O.P.no.3 immediately, failing which the O.P.no.3 is at liberty to recover the outstanding loan amount against the above cited financed vehicle as per law. No cost.                                  

 

This order is pronounced in the open Forum on this the 29th day of December,2015. under my hand and seal of the Forum.                                                                                             

 

(Shri Biraja Prasad Kar)                                                                                      (Shri Pitabas Mohanty)                                                         

          President.                                                                                                              Member.                                                                      

                                                                                                              Typed to my dictation & corrected by me

 

(Miss Smita Ray)

  Lady   Member.                                                                                                 (Shri Pitabas Mohanty)

                                                                                                                                           Member.