Orissa

Cuttak

CC/113/2021

Amulya Kumar Nayak - Complainant(s)

Versus

New India Assurance Co Ltd - Opp.Party(s)

B S Das

03 Feb 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.113/2021

 

          Amulya Kumar Nayak,

         S/O:Harekrushna Nayak,

         Vill:Ramakrushnapur,P.O:Natkai,

         P.S:Salipur,Dist:Cuttack.                         ... Complainant.

                 Vrs.

 

           1.The Manager,New India Assurance Co. Ltd.,

               Choudwar Branch,PS-Choudwar,Dist-Cuttack.

 

2.  The New India Assurance Co. Ltd.,

Represented through it’s authorized Officer,

Having its registered office at-87,

Mahatma Gandhi Road,Fort,Mumbai,

Pin No.400001.                                                        ...Opp. Parties.

 

Present:            Sri Debasish Nayak,President.

                             Sri SibanandaMohanty,Member.

 

Date of filing:    30.07.2021

Date of Order:  03.02.2023

 

For the complainant:            Mr. B.S.Das,Adv. & Associates.

For the O.Ps.                :          Mr. A.A.Khan,Adv.& Associates.

 

Sri Debasish Nayak,President              

          Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that the complainant had purchased one Ashok Leyland truck of model L/2516 bearing Regd. No.OR-05AC-9477, Chassis No./Engine No.JNE654737/JNH538996 after obtaining finance for the same.  The said truck of the complainant was insured with O.P no.1 vide policy no.55030231140100000414 effective from 14.5.2014to 13.5.2015.  The said truck of the complainant was carrying ultra-cement from Jharsuguda to Dhenkanal being driven by one driver namely,Kailash Mallickand the said truck had reached Dhenkanal on 5.2.15. But on 9.2.15the helper of the said truck reported to the complainant about missing of the said truck.  The matter was reported at Dhenkanal P.S and the said driver was arrested by the police thereafter, but the missing truck of the complainant could not be recovered or traced.  The complainant had reported the matter about the missing of his truck to the O.Ps on 11.2.15.  O.P no.1 had sent a letter dt.12.2.15 to the complainant that he was to report about such missing within 24 hours.  The O.Ps even after repeated persuasionsby the complainant had refused to settle the claim and ultimately  had closed the claim of the complainant on 29.3.2016.  It is for this, the complainant has filed this case claiming the insured amount of Rs.8,00,000/- alongwith interest thereon @ 12% per annum from the O.Ps with effect from the date of filing of the complaint petition.  The complainant has further claimed from the O.Ps a sum of Rs.24,00,000/- towards his mental torture and harassment.  The complainant has further sought for any other order as deemed fit and proper.

          Together with the complaint petition, the complainant has filed copies of several documents alongwith copy of the FIR in order to prove his case.

2.       The O.Pshave contested this case and have filed their written version jointly wherein they have stated that the complaint petition is not maintainable which is liable to be dismissed with cost.  According to them, the claim of the complainant was repudiated by letter dt.29.3.16 but the present case has been filed on 30.7.21 which is after lapse of 5 years of the cause of action.  The O.Ps admit about the insurance policy of the truck of the complainant which was effective from 14.5.2014 to 13.5.2015.They have harped upon the condition of the policy in order to lodge the claim within 24 hours of the cause of action which according to them, was not done by the complainant in the present case.  Thus, the O.Ps have urged through their written version to dismiss the complaint petition with cost.

          To support their case, the O.Ps have annexed certain copies of documents as regards to the policy terms and conditions as entered into in between the complainant and themselves.

3.    Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether the case as filed by the complainant is barred by limitation ?

iii.        Whether there was any deficiency in service on the part of the O.Psand if they have practised any unfair trade ?

iv.        Whether the complainant is entitled to the reliefs as claimed by him?

The complainant in order to further his case has filed his evidence affidavit in this case.  On perusal of the same, it is noticed that the contention of the evidence affidavit is only a reiteration of his averments as made in the complaint petition and nothing else.

Issue No.ii.

Out of the four issues, Issue no.ii being the most pertinent issue is taken up first for consideration here in this case.

On perusal of the copies of the documents as filed and available here in this case, admittedly the truck of the complainant was insured which was effective from 14.5.2014 to 13.5.2015.  It is also not in dispute that the said truck of the complainant was stolen for which FIR was lodged at Dhenkanal P.S on 9.2.2015.  The matter was intimated to the O.Ps by the complainant on 19.2.2015 which is also not in dispute.  The claim of the complainant was repudiated by the O.P no.1 on 29.3.2016 on the ground of delay information.  In this case, the police had submitted chargesheet in the court on 5.9.2019.  The case was filed in this court on 30.7.2021.  Thus, the plea taken by the O.Ps in this court do not hold good and it cannot be said that the case is barred by law of limitation since because the complainant has filed the case well within two years of filing of the charge sheet in the court as he was waiting for the outcome of the police investigation. In this contest it would be pertinent to quote the pertinent decision as held by the Hon’ble Supreme Court of India in the case of Jaina Construction Company Vrs. The Oriental Insurance Company Ltd and another wherein their lordships have held that in case of theft of vehicle, the Insurance Company cannot repudiate the claim merely on the ground that there was delay in intimating the Insurance Company about the occurrence of theft.Moreso, it would be pertinent to quotethe decisions in the case of Kashi Prasad Cotton Pvt. Ltd. Vrs Kamaladevi Kanhaiyalal Shrawagi.               The law of Limitation is made in order to advance Justice and not to punish the Parties.  If there is Pardonable excuse even long duration can be condoned and in the case of Punjab Urban Development Authority & Others Vrs. S.Gurjinder Singh reported in 2004 3 CPR(NC) 122.  Delay condoned if complainant is able to satisfy that he had sufficient cause.  In the case of National Insurance Co. Ltd. Vrs. Reena Panwar reported in 2012(3) CPR 161.  ConsumerProtection Act,1986-Sections 5 & 17- Insurance-Theft of vehicle by driver-Insurance Company directed to indemnify complainant to extent of Rs.1,80,000/- alogwith 9% interest and cost of Rs.2,500-Insurance Company is liable where vehicle was taken away by driver and case was declared untraced-No infirmity in order of Forum Below-Appeal dismissed.

From the above quoted pertinent citations and since because after filing of the chargesheet in the court which was the last cause of action accrued in this matter, the complainant had filed this case well within two years of filing of the chargesheet in the court.  Thus, this issue goes in favour of the complainant.

 

Issue no.iii.

From the above discussions as it is made out that the repudiation of the claim of the complainant as made by the O.Ps here in this case appears to be unilaterally, arbitrarily made which is never proper and thus it can be safely concluded here that the O.P no.1was infact deficient in his service and had also practised unfair trade by repudiating the claim of the complainant.  This issue also goes in favour of the complainant.

Issues no.i& iv.

From the discussions as made above, the case of the complainant is definitely maintainable and the complainant is entitled to the reliefs as claimed by him.  Hence, it is so ordered;

                                    ORDER

The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  Thus, they are directed to pay the insured amount of Rs.8,00,000/- together with interest thereon @ 12% per annum to the complainant fromthe date of filing of this case i.e., from 30.7.2021 till the total amount is quantified.  The O.Ps are further directed to pay a sum of Rs.3,00,000/- (Rupees Three Lakh) only to the complainant towards his mental agony and harassment and a sum of Rs.50,000/- towards cost of his litigation within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 3^rd   day of February,2023 under the seal and signature of this Commission.  

                                                                                                                   Sri Debasish Nayak

                                                                                                                             President

         

 

                                                                                    Sri Sibananda Mohanty

                                                                                                                           Member