The complaint is averred by the complainant in the matter of RBT/CC/213/2019 filed before DCDRC, Barasat (and subsequently transferred to ADCDRC, Rajarhat) U/s 12 and 13 of the Consumer Protection Act, 1986 for gross negligence, deficiency and unfair trade practices against the Insurance Company represented by OP no 1 and OP no. 2 being respectively the Company and their Manager (Claim). The case was transferred from DCDRC, Barasat to ADCDRC, Rajarhat on 03.01.2020 when the OPs entered appearance and contested. The gist of the complaint is that the complainant purchased a 4-wheeler vehicle of make :Maruti Udyog Ltd, Model: Ritz AC (LXI) bearing registration number as WB 24K 5122 registered on 05.10.2009 and got it insured vide policy no. MOP 2475368000100 under a package plan. The complainant averred that on 22.04.2015 early morning it was revealed to them that main door of the house of the complainant as open and almost all articles of all rooms lying scattered and the grill of the kitchen was found broken when unknown persons entered the house with theft of cash and key of the car and taken away the said vehicle which was lying in front of the house of the complainant. The complainant lodged FIR on 22.04.2015 and a Police case no. 281 of 2015 u/s 380 of IPC was registered at Baranagar Police Station. The complainant also informed the insurance company about the theft but sometimes during middle of 2015 the complainant received a letter dated 20.06.2015 from the insurance company asking to submit documents to process the insurance claim, which was complied with by the complainant. But vide a letter dated 05.10.2016 the claim was repudiated.  The complainant made several follow ups and again approached the insurance company on 30.03.2017 to enquire about the status of the claim but the OP no. 2 refused to entertain the insurance claim. Being aggrieved, the complainant filed petition before this Court seeking relief with a direction on OP 1 and 2, jointly or severally, to settle the insurance claim no. MP 00924637 dated 22.04.2015 of Rs. 1,65,000/- regarding the said vehicle no. WB 24K 5122 along with Rs. 1,00,000/- as compensation for mental agony and harassment and Rs. 15,000/- as litigation cost.

The OP 1 and 2 contested the instant case by filing Written Version (alongwith Exhibit no D1 to D5) and denied all the allegations as framed by the complainant. The gist of the contesting points of the OPs is that the complainant had taken the private car package policy from the OPs for the vehicle with descriptions as mentioned therein for the period 29.09.2014 to 28.09.2015 vide policy certificate no. MOP 2475368000100 and a claim was received by the OPs regarding loss arising out of the alleged theft of the insured vehicle on 22.04.2015 along with a claim form duly filled by the insured with narration and details of the theft. The insurance company sent a letter on 22.04.2015 explaining the claim process to the insured and simultaneously appointed an investigator. The investigator submitted report dated 22.09.2015 with following observations inter alia:-

1. The insured and his family members were sleeping throughout the theft incident when miscreants ransacked and made noise while cutting open the kitchen window’s grill at the ground floor, second floor grill gate lock and office room lock and also taken away the said vehicle.
2. The insured vehicle was kept parked outside opposite his house
3. Miscreants seem to know that the vehicle and cash box keys were inside the office
4. Driver should have handed over the keys and original documents of the vehicle on daily basis to the insured
5. Insured is supressing original facts and placing different stories by manipulating to earn money out of insurance
6. Local people not admitted the facts and vehemently reiterated that they came to know about the incident after few days when policy came to the residence of the insured.

Based on above observations of the investigator, the OPs claimed that said investigation report confirms the misrepresentation of facts about the loss. The OPs also claimed that the complainant had not brought anything contrary to the findings of the investigator and the chain of events and circumstantial evidence confirms the fact as discovered by the investigator. Due to misrepresentation of facts, the OPs repudiated the claim of the insured by letter dated 05.10.2016.  

In their Written Argument, the complainant submitted that the description of the vehicle and the description about insured condition has not been contested by the OPs when the complainant duly filed FIR at local PS and when a case was registered and police investigation started. Subsequently the complainant submitted insurance claim on 20.06.2015 along with relevant papers but the OPs neglected the claim repudiating the said claim only on the basis of investigation report dated 22.09.2015 submitted by their own investigator and based on their internal report and conclusion about misrepresentation of fact, insurer has refused the claim but the OPs have never challenged the evidence adduced by the complainant in their affidavit-in-chief, neither they submitted any questionnaire on the evidence adduced by the complainant by filing any questionnaire. Moreover while giving their part of evidence, the OPs did not answer the questionnaire of the complainant and the OPs have lost the chance. Under the above circumstances and by reliance upon the OPs’ version, the complainant raised question that on what account the investigation report dated 22.09.2015 on theft arose as doubtful. Neither the said investigation report bear any signature of local witness. Since the pivotal document for the entire repudiation is how the observation of misappropriation of facts about theft of vehicle was arrived upon is never clarified and neither the OPs have submitted that under what circumstances and on what materials in hand they are claiming that the complaint is based on misappropriation of fact is unclear.

We have carefully considered the arguments advanced by the learned counsel for both the parties and have examined all records, documents and exhibits from both sides. As per Exhibit no. 1 to 31 by the Complainant, the complainant lodged complaint with local Police station (Baranagore) as General Diary on 22.04.2015 i.e. on the day of discovery of theft incident by him which was converted to FIR (Ex7) on 22.04.2015 and a Police case no. 281 of 2015 u/s 380 of IPC was registered. The FIR includes the description about the property stolen as Rs. 25,000/- and one vehicle bearing no WB 24K 5122 with vehicle papers and vehicle key in the column of ‘property stolen’. The insurance policy depicts that the theft vehicle was having IDV (insured declared value) as Rs 1,65,000/- vide Policy no MOP2475368 (Ex-8). The Final Report (FRT) no 199/15 dated 31/08/2015 (Ex 13 & 14) u/s 380 of IPC was submitted by the IO which was concluded with remarks that ‘in view of such, as it seems that the defacto complainant is deposing voluntarily, the FRT is accepted. The case is dropped. Accused discharged and seized alamat, if any, be released’. In the instant facts, there is no serious dispute with regard to the timing of  lodging FIR or providing all documents and records of the vehicle as demanded by the Insurance time to time vide letter dated 20.06.2015, (Ex 22) 19.08.2015 (Ex 23), 26.11.2015 (Ex 24), 17.03.2016 (Ex 25), 07.06.2016 (Ex 26), 08.07.2016 (Ex 27), 22.04.2015 (Ex 28/29/30) or the Final Report (FRT) (Ex 13,15,16,17,19) from IO of Police duly concurred by the ACJM, Barrackpore (Ex 14) with mention of ‘Case dropped’. Even by the contention put forth, it is noted that the loss caused by the theft or the availability of documents before the Insurer received from Insured after the incident is not much of an issue. At no stage the Opposition contested any factual matter about the vehicle or the description of insured condition or details or timing of FIR or the submitted insurance claim details or non-receipt of any paper and the OPs have never challenged the evidence adduced by the complainant in their affidavit-in-chief, neither they submitted any questionnaire on the evidence adduced by the complainant by filing any questionnaire. OPs also refrained from giving any answer on the questionnaire of the complainant. The main dispute for the repudiation of claim is the observation of misappropriation of facts about theft of vehicle is centering around Private investigator’s report dated 22.09.2015, who is appointed by the Insurance company. It is observed that there is no sufficient material to establish the contentions of the Investigator on each of the 6 points viewed as below :-

1. Agreed with the rebuttal of Insured.
2. No violation of policy condition was adduced in their evidences or at any other stage of the proceedings  
3. No supportings submitted about this findings leading to assumption
4. Agreed with the rebuttal of Insured.
5. No supportings submitted about this findings leading to assumptive remarks
6. No supportings or witness by local people submitted by investigator leading to assumptive remarks. Neither any document exhibited from any local people as witness, in support of this contention.

In the circumstance and the facts herein, whether the investigation report is a document which is exhaustive enough to arrive at a conclusion is the issue. Having noted the said points raised by the private investigator, it is our considered opinion that the same can not alter the position in the instant case. On the proposition of law that the surveyor’s report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity was available to Insurance company to produce rebuttal material. 

In a catena of judgements, it was viewed that, although the assessment of loss by the approved surveyor is a prerequisite for payment or settlement of the claim by insurer, but surveyor's report is not the last and final nor it is that sacrosanct that it cannot be departed from. It is not a document for a conclusive inference. The surveyor's report may be the basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. On the said proposition, there can be no quarrel. It is certain that the surveyor’s report can be taken on note as a piece of evidence until more reliable evidence is brought on record. But is is also by this forum of adjudication, where a conclusion is to be reached about the merit of the documents including surveyor’s report etc. so as to examine the claims to the very nature of the incident, under reference. In that circumstance, even though at the first instance, there was an  investigation initiated by police, the private investigation held by the insurer would have the question to decide as imperative that the their report was to be considered threadbare and a decision ought to be taken.

Further,

In support of their claim, the insurance company further relied upon following judgments:-

1. Banerjee and Banerjee v/s National Insurance Company Ltd. On 08.07.2013, CS no. 334 of 1989 at High Court of Calcutta about insurance principle which is based on good faith (Ubberima fide)
2. From Hon’ble Supreme Court in the matter of United India Insurance Company Ltd. v/s Harchand Rai chandran Lal reported in 2005 (1) RCR (civil) 2017 who held that insurance policies are bound by the terms of contract and terms of the policy cannot be added for subtracted under the scope of liberalism
3. Oriental Insurance Company v/s Sony Cherian (1999) 6 SCC 451 when Hon’ble Supreme Court observed that insurance policy is a contract between insurer and insured and the compensation to the loss or risk covered by the policy are guided by the terms of the agreement.

And the insurance company by relying upon above said judgements, repudiated this insurance claim for misrepresentation of facts.

The Judgements relied upon by the OPs were examined with reference to this case in hand and their applicability and derived as below : -

The aforesaid Judgement of Hon’ble Apex Court on Oriental Insurance Co. Ltd. Vs Sony Cheriyan of 19.08.1999 relates to the accident where the main or contributory cause of accident was carrying hazardous goods inflammable in nature violating MV Act by the respondent at the relevant time of the accident. The instant case relates to the theft of the car. It is not a case of third party risk. In this case, the vehicle has not been recovered. It is also incorporated in the counter affidavit that it is not disputed that the vehicle was comprehensively insured. Since the vehicle in question had been stolen, therefore, in the case of theft of vehicle, the breach of condition is not germane. Similarly in the matter of  United India Assurance Insurance Co. Ltd. Vs Harchand Rai Chandal Lal of SLP no 19771 of 2003 before Hon’ble Apex Court, the theft was due to Burglary and / or House breaking which involved the question whether any forcible means or violent means or assault or threat to the insured occurred or not. Here the Insurance Company repudiated the claim on the ground that the definition given in the policy is binding on both the parties, which is contract between them, by which both parties are bound. The Apex Court observed in this case inter alia, that a policy should be meaningful so that a common man can understand what is the meaning of burglary in common parlance. Though (we) have interpreted the present policy strictly in terms of policy but (we) hope that the insurance companies will amend their policies so as to make them more meaningful to the public at large……than become more technical so as to not to defeat the cause of the public at large.  In the case in hand, there is no breach of contract which has been brought out by the Insurance company at any stage. It was the duty of the insurance company to file the terms and conditions of the policy, before the District Forum and it should have clearly pointed out as to which condition has been violated. In the absence of the said assertion, the insurance company does not have any legal basis to repudiate the claim. The insurance company cannot be allowed to specify the condition at this stage and to file the terms and conditions of the policy.

Similarly, in the matter of Banerjee & Banerjee Vs National Insurance Co. Ltd. At High Court, Calcutta which deals with ‘good faith’, Hon’ble Court has observed that ‘it is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he knows, to draw the other into bargain, from his ignorance of the fact and his believing the contrary. Just as the insured has to disclose, similarly, it is duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured’. This case was related to prior knowledge of the respondent about the loss due damage of insured leather goods, damaged due to strike by labour force that was already in their knowledge of the respondent but by the exclusionary clause of liability on the insurer, who admittedly undertaken liability for the damages, due to strike by the labourers and covered in MD clauses of the contract. In the case in hand, the vehicle has been stolen. In the case of theft of vehicle breach of condition is not germane. The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. Even assuming that there was a breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company can not repudiate the claim in toto in case of loss of vehicle due to theft. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of insured like sleeping in the night during alleged theft, cannot be contested and the Insurance Company cannot repudiate the claim on that basis.

Hence in all the references cited by the respondent have no application so far as the instant case is concerned.  So, the answer to this question, in our opinion, should be in the negative, as reliance placed by the OPs on those Judgements do not come to the aid of the Insurance Company in repudiating a claim for the case in hand, whatsoever.

The Hon’ble Supreme Court of India has upheld the decision of NCDRC and SCDRC in the flagship case of  National Insurance Co. Ltd vs Nitin Khandelwal on 8 May, 2008 {Appeal. no (civil)3409 of 2008 when the respondent’s vehicle was snatched away, report lodged at police station and the Insurance Co. was informed same day. The insurance co repudiated the claim as the respondent was using it as a taxi The District commission also viewed that the respondent had violated the terms and conditions of the insurance policy and that the appellant Insurance Company was justified in rejecting the claim of the respondent. But the State Commission observed that the theft of the vehicle has not been denied by the Insurance Company. However, the claim of the respondent under the policy was repudiated by the Insurance Company solely on the ground that the vehicle though registered and insured as a private vehicle, at the time of theft, was being used contrary to the terms and conditions of the insurance policy. This Order was upheld by the National Commission that even if in a case of violation of condition of the policy unless directly contradicting, the claim ought to be settled on non-standard basis. Similar view was taken by the State Commission in Appeal No.1463 of 2004 (Track Way Securities & Finance Pvt. Ltd. v. National Insurance Co. & Others) decided on 23.3.2006. Relying on the said judgment, the State Commission observed that the claim of the respondent herein ought to be settled on non-standard basis and the complainant respondent was thus entitled to the 75% of the sum insured. from the date of the complaint till payment. The appellant preferred a revision petition before the National Commission who also upheld the decision of the State Commission. The Hon'ble Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited  (Supra) has held that if the policy condition is violated in a motor vehicle policy the claim may be settled by the insurance company on non-standard basis upto 75% of the otherwise admissible claim. It is not necessarily to settle the claim in all cases of violation @ 75% of the insurance claim..

In view of the above discussions, the complaint of the complainant under section 12 of the Consumer Protection Act is partly allowed and it is Ordered that :-

The OPs (Insurance company) are directed to jointly and severally pay 75 % of the IDV (Rs.1,65,000/-) i.e. Rs.1,23,750/- (Rupees One Lac Twenty Three Thousand Seven Hundred and Fifty) only, to the  complainant within a period of 45 days from the date of this order along with simple interest @ 9% per annum from the date of filing of the complaint, i.e. 30.12.2019 till the actual date of payment failing which the rate of interest shall be escalated to 12% per annum. The petition for the compensation of Rs.10,000/- for mental agony is not being considered, as the interest is being allowed in the form of compensation only. The litigation cost of Rs.10,000/- is allowed which the OPs shall pay over and above the aforesaid amount of compensation.

Let plain coopy be given to the parties, free of cost, as per CPR. 

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER