OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANGUL
PRESENT:- SRI DURGA CHARAN MISHRA.
PRESIDENT
A N D
Mrs. S.MALLICK & Sri K.K.Mohanty,
MEMBER .
Consumer Complaint No. 68 of 2015
Date of Filling : - 16.06.2015.
Date of Order :- 27 .02.2017.
Birakishore Rout,S/O.Late Baban Rout,
Residing At-Baddanda Sahi,Word No-1,
P.O/P.S/S.D-Talcher,Dist.Angul.
_________________________Complainant.
Vrs.
01.M/S.The New India Assurance Co.Ltd,Having registered
Office at 4,Mangoe lane 2nd Floor,Kolkata- 700001, West
Bengal,Represented through The Sr.Branch Manager,
At- Angul,Near Daily Market,P.O/P.S/Dist.Angul.
02.M/s.Magma Finocrop Ltd,Registered Office at
24 ,Park Street,Kolkata-7000016,West Bengal.
_________________________ Opp. parties.
For the complainant :- Sri P.Sahu(Adv.)
For the opp.party No. 1:- Sri J.N.Mishra & associates(Advs.)
For the opp.party No.2 :- Sri M.K.Panda & associates(Advs.)
: J U D G E M E N T :
Sri D. C. Mishra, President.
The complainant has filed this case with prayer to direct the opp.party No.1 to pay the insured value of his truck bearing Regd No. OR-19B-4943 i. e Rs.6,40,500.00 only with interest, compensation and cost of litigation.
2. That, the complainant Birakishore Rout had purchased a Tata Ten wheeler truck bearing Regd. No. OR-19B-4943 , taking a loan of Rs. 5,48,600.00 from the opp.party No.2( M/S.Magma Fincrop Ltd.) and had insured the truck with opp.party No. 1(M/s.The New India Assurance Co.Ltdd) vide package policy No. 51170131120100003982 for the period from 18.9.2012 till 17.9.2013 midnight for Rs. 6,40,500.00 only by paying premium of Rs. 24,905.00 only. It is alleged that in the night in-between 25.4.2013 and 26.4.2013 , during valid insurance period, while the truck was parked at Koira parking place was stolen by unknown criminals and on the next morning , the driver noticed the fact and intimated the complainant. The complainant immediately rushed to Koira from Talcher, searched the near by place for 3-4 days but in vain, for which ultimately on 2.5.2013 the complainant lodged F.I.R at Koira Police Station. According to the complainant, police drawn F.I.R U/s. 379 of I.P.C vide P.S Case entry No. 29 dt. 2.5.2013 , took up the investigation and ultimately submitted final report on 4.1.2015 stating that “fact true but no clue” .The complainant has also submitted that he got certified copy of the final report of the police from the Court on 2.2.2015 and thereafter collecting all the relevant documents submitted insurance claim to opp.party No.1 through opp.party No.2. on 18.2.2015 .It is alleged by the complainant that since the insured truck was stolen within the valid insurance period and it could not be recovered, he is entitled to get full insurance amount i.e Rs.6.40,500.00 only from opp.party No.1 but despite repeated approaches and discussions ,the opp.party No.1 did not pay the same. The complainant has also averred that the interest burden on his loan is mounting day by day and he is unable to earn his livelihood. So the complainant has filed this case claiming the reliefs as already stated above in Para- 1.
3. Opp.party No.2 has contested the case by filing written version stating that the case is not maintainable against it. According to opp.party No.2, it is the financer company and entitled to recover the loan amount but he has nothing to say as regards insurance and theft of the truck. It has specifically averred that the dispute was referred to Arbitrator and on 12.11.2012 the Arbitrator has awarded some amount in favour of the opp.parties for which this case cannot proceed against it.
The opp.party No.1 has contested the case by filling written version with prayer to dismiss the case as not maintainable since the petitioner has made gross violation of policy condition No.5 by not reporting the fact of the theft immediately or in the earliest opportunity.
4. In view of the rival pleadings of the parties the following issues are arising for consideration.
Issues:-
- Whether there is any cause of action to file the c ase and the case is maintainable ?
- Whether the case is barred by limitation or any other law ?
- Whether there is consumer and service provider relationship between the complainant and opp.parties ?
- Whether the opp.party No.1 has committed deficiency in providing service to the complainant ?
- Whether the case is maintainable against opp.party No.2 or not ?
- To what reliefs the complainant is entitled to ?
: F I N D I N G S :
Issue No.(iii):- As per the case, the complainant had insured his truck bearing Regd. No. OR-19B-4943 vide package policy No. 51170131120100003982 with the opp.party No. ( Insurance Company ) for the period from 18.9.2012 to 17.9.2013 midnight by paying premium of Rs. 24,905.00 only for the purpose of insurance. Therefore, the complainant is a consumer under the opp.party No.1 and opp.party No.1 is the service provider. According to opp.party No.2, the case is not maintainable against it. Admittedly the complainant has not claimed any relief against opp.party No.2 .Thus, this issue is answered in favour of the complainant and against opp.party No.1.
Issue No. (iv):- The opp.party No.1 is the insurance company and the complainant had insured his truck by paying policy premium of Rs. 24,905.00 only and the period was valid from 18.9.2012 to till 17.9.2013 midnight . Thus when the insurance policy was valid, the truck was stolen in the intervening night in between 25.4.2013 to 26.4.2013. The complainant has reported the fact at Koira Police station vide P.S case entry No. 29 dt. 2.5.2013. After investigation police has submitted the final report stating that “Fact true but no clue” .Since the truck was stolen during valid insurance period and police has certified the fact of theft to be true, the complainant is entitled to get the full policy amount of Rs. 6,40,500.00 from the date of theft but opp.party No.1 refused payment on the ground of 12 days delay in reporting the fact to opp.party No.1 .Opp.party No.1 has also taken the stand that the complainant did not keep the truck by taking all reasonable steps to safeguard the vehicle insured from loss or damaged. The policy condition as narrated by opp.party No.1 in its written version is quoted below for proper appreciation of the case.
Policy Condition No.1:-
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 and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to company immediately the insured shall have knowledge of any impending prosecution, inquest or any fatal inquiry in respect of any occurrence which may give rise to a claim under the policy. In case of the theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.
Policy Condition No.5:-
The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured .In the event of any accident or breakdown, the vehicle insured shall not left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extensions of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk .
According to the complainant the truck was stolen in the night when it was kept in the parking place at Koira which is the best and secured place for keeping the truck. He has also explained that on the next morning the driver intimated him about the theft and he immediately rushed to Koira and searched the stolen truck in the nearby places of Koira for 3-4 days and then reported the fact at Koira P.S on 2.5.2013.The certified copy of final report submitted by the complainant reveals that the case was reported on 2.5.2013. There is 5/6 days delay in lodging the F.I.R but the complainant has suitably explained that he went to Koira from Talcher and enquired about the missing truck in nearby area and then lodged the F.I.R. This explanation of the complainant is quite reasonable and probable .Further the police has certified the fact of the theft to be true. When the theft of the truck is true, violating some technical grounds i.e reporting the fact in slight delay will not hamper the complainant’s demand and it is not fatal to this case. Thus, opp.party No.1 has made deficiency in service by not paying the policy amount, despite the fact of the theft is proved since the driver of the truck had slept , keeping the truck in the parking place , it cannot be said that the truck was kept carelessly. Though there is little delay but in view of the fact that the theft has been certified by the police(Investigating Agency) , the delay cannot debarred the complainant from getting his claim. Thus, the opp.party No.1 has made deficiency in service by not paying the insurance amount.
(Issue No. (i),(ii) & (v):- It appears that there is cause of action to file the case and the case is maintainable. The complainant has not claimed against the opp.aprty No.2 but opp.aprty No2 is entitled to recover the loan amount if any from the complainant. In the written version, opp.party No.2 has admitted that the Arbitration Authority vide order dt. 12.11.2012 awarded some amount in favour of opp.party No.2 but it has not clearly mentioned the amount nor submitted the copy of any order. The arbitrator has awarded some amount in favour of opp.party No.2. So as per the decisions of Hon’ble State Commission & Hon’ble National Commission relied on by the opp.party No.2, no order in favour of it can be passed as because the arbitration authority have already decided the matter on 12.11.2012(as stated by opp.party No.2 in the written version ).
Issue No. (vi):- In view of the above discussions made in issue No.(iii) & (iv) the complainant is entitled to get the full insurance amount of Rs. 6,40,500.00 only from opp.party No.1. Since opp.party No.1 has made the delay , the complainant is also entitled to get 5% simple interest per annum and litigation charges.
6. Hence ordered :-
: O R D E R :
The case is disposed of on contest against the opp.parties.
Opp.party No.1 (Insurance Company) is directed to pay the insurance amount of Rs. 6,40,500.00(Rupees Six Lakh Forty Thousand Five Hundred) only to the complainant within 2(two) months from the date of order along with 5% simple interest per annum from the date of theft till the date of actual payment is made. Opp.party No.1 shall also pay Rs. 10,000.00 (Rupees Ten Thousand) only to the complainant towards cost of litigation within the above stipulated time.
Order delivered in the open forum
today the 22nd February,2017 with hand and seal of this Forum.
Typed to my dictation
and corrected by me
(Sri D. C. Mishra)
President.
(Sri D. C. Mishra)
President .
(Mrs. S. Mallick)
Member.
(Sri K.K.Mohanty),
Member.
