Date of Filing- 7.1.2010
Date of Disposal-6.8.2013
O R D E R
Miss S.L.Pattnaik,President
1. The present complaint is filed against the Opposite Parties(in short O.Ps) alleging deficiency in service regarding non-settlement of insurance claim of the vehicle of the complainant.
2. The factual back grounds leading to the filing of the complaint by complainant are that the complainant is the owner of a Truck bearing Chassis No.444026ATZ102573 and Engine No.697TC57ATZ102912 having registered before the Registering Authority, Ganjam bearing Regn.No.OR-07M/3002 being financed by TATA Motors Ltd., Bhubaneswar. The above Truck was insured with the Opposite Party
-2-
No.1 namely The New India Assurance Company Ltd., Bhubaneswar vide Policy No.550100/31/07/01/00002097 valid for the period from dt. 30.1.2008 to dt. 29.1.2009. It is further submitted by the complainant is that the said Truck was purchased for the purpose of earning his livelihood by means of self-employment being engaged in the vehicle and using the vehicle for movement of goods. While the insurance of the Truck was in force, the vehicle after unloading a consignment transport from Visakhapatnam and while it was halting at Dusaraka Town under the jurisdiction of Molana Police Station in Haryana State in an anticipation of procuring a consignment for its return journey, the said Truck was stolen on 24/25.2.2008 by some unknown miscreants after being assaulted to the attendant. The case of theft was informed to the local Police Station and an F.I.R.was lodged vide P.S.Case No.21 dated 25.2.2008. Despite several search operation by the local police the Truck could not be traced out and the complainant returned back to his home. Thereafter, he intimated the Opposite Party No.1 on dt.27.5.2008. The complainant subsequently filed claim form alongwith relevant documents on dt.7.1.2009 with the Opposite Party No.1 as desired by the O.P No.1 as per letter dt.27.5.2008. But the O.P No.1 repudiated the claim on dt.12.3.2010 on the ground of late intimation about theft as well as non-submission of original documents which is against the principle of natural justice. So, the entire action of the O.Ps amount to gross deficiency in service. Hence alleging deficiency in service on the part of O.Ps, he filed the present case with a prayer to direct the O.Ps to pay the cost of the truck of Rs.7,75,141.33 alongwith interest calculated thereon and compensation of Rs.2,00,000/- for the loss, mental
-3-
agony and harassment from the O.Ps. alongwith other cost as the Forum deems fit.
3. The Complainant in support of his case has filed the following documents.
a) Copy of F.I.R.
b) Copy of letter Dt.27.5.2008 of O.P.No.1 to the complainant for supply of documents regarding the Truck to proceed in the claim.
c) Copy of letter dated 7.1.2009 to the O.P.No.1 by the complainant regarding submission of Documents.
d) Copy of letter dt.27.3.2009 by the O.P.No.1 to the complainant supplying the claim form.
e) Copy of letter dt.20.7.2009/dt.9.10.09/dt.3.7.2009 by the complainant to O.P.No.1
f) copy of letter dt.19.8.2009 by the O.P.No.1 to the complainant.
g) Copy of motor claim form.
h) copy of legal notice dt.18.7.2009 on behalf of Tata Motors, the financier to the complainant.
4. Upon notice, the Opposite Parties put in appearance and filed reply version resisting the allegations averred in the petition of complaint. According to the Opposite Parties, the allegations averred in the petition of complaint are all false, baseless and the complaint being vexatious is liable to be dismissed in limine with costs and further controverted the claim of the complainant on the following grounds:
-4-
i) Firstly, the complainant is not a consumer, as he is not coming under the purview of definition of consumer because the vehicle was used for commercial purpose.
ii) Secondly, this forum has no jurisdiction to adjudicate the matter.
iii) Thirdly, the complainant has violated the conditions stipulated in the policy by late intimating the matter of theft to the insurance company.
iv) Fourthly, the complainant has not produced the original or certified copies of vehicular documents for verification.
Therefore, the O.Ps prayed before this forum for dismissal of the complaint case, as the repudiation was legitimate and closed the file as ‘No claim’.
5. The Opposite Parties in support of his case have relied upon the Policy Bond of the Commercial Vehicles Package Policy and the repudiation letter dated 12.3.2010 which are marked as Annexure-A and B respectively and several decisions of Hon’ble Supreme Court and Hon’ble National Commission attached to the case record. The complainant and O.P also filed their written arguments to substantiate their respective cases.
6. Perused the complaint petition, written statement, written arguments and the documents submitted by both the parties to prove their respective claims and denial plea as per annexed list of document, the following issues are framed for proper adjudication of the case:-
I S S U E S
i) Whether this Forum has jurisdiction to entertain the matter?
ii) Whether the complainant is a consumer?
iii) Whether repudiation of claim due to late intimation of the
-5-
matter of theft to O.P and non-submission of original documents is illegal constituting deficiency in service and whether he is eligible to get his claimed amount?
i) Whether this Forum has jurisdiction to entertain the matter:- It is the admitted fact that the complainant has insured his Truck with the New India Assurance Company Ltd., Bhubaneswar Branch for the period from dt.30.1.2008 to dt.29.1.2009 and the date of alleged theft of insured truck is well within the period of validity of insurance i.e. dt.24/25.2.2008. It is also not disputed that cause of action i.e. occurrence of alleged theft arose at Dusaraka Town in Haryana State but the only dispute is that this Forum has no jurisdiction to entertain this matter. But in the instant case the plea of O.Ps that the complaint is not maintainable before this forum as barred by jurisdiction fails because the New India Assurance Company has carrying its business through out the country and has a branch office situated at Berhampur, Ganjam. According to Section-11 of the Consumer Protection Act A complaint shall be instituted in a District forum within the local limits of whose jurisdiction the O.P or any of the O.Ps carries on business or has a branch office.
Thus the O.P’s contention is not sustainable in this regard.
ii) Whether the complainant is a consumer?
Learned counsel for the O.P raised objection on the point that the complainant is not a consumer as the said vehicle was used for commercial purpose.
In this context the complainant has disclosed that he is a consumer as the vehicle was used by him for the purpose of his livelihood by means of self-employment.
-6-
On this point, we rely on the decision of Hon’ble supreme court in case of “Laxmi Engineering Works Vrs. P.S.G.industrial Institute reported in 1995(2)CPR-II wherein it has been held that “ A person who buys goods
and use them himself, exclusively for the purpose of earning his livelihood by means of self employment is within the definition of expression “consumer”.
Another decision of Hon’ble National Commission reported in 2005(I) CPJ 26 NC-M/s.Harsolia Motors Vrs. M/s.National Insurance Co.Ltd. and others, where it has been held that petitioner has to be treated as a consumer qua insurance company providing insurance cover for his vehicle even if it was used for commercial purpose. Even if the vehicle is being used for commercial purpose, the vehicle had been insured against the loss and the insurance cover by it self can not be directly related to the generation of profits and hence the insurance company having accepted to insure the vehicle can not be allowed to repudiate the claim on the ground that, it was being used for commercial purpose.
The purpose of insurance is to indemnify the loss of insured. Hence dispute of insurance is different from dispute for commercial purpose. In the present case, the complainant has taken the plea that he was maintaining his family by plying the truck in question. In other words he himself was plying it without assistance of any other person to maintain his family, so he is a consumer.
iii) Whether repudiation of claim due to late intimation of the matter of theft to O.P and non-submission of original documents is illegal constituting deficiency in service and whether he is eligible to get his claimed amount?
-7-
The O.P in his written version has submitted that the alleged claim can not entertained by him as it is barred by limitation i.e. reporting of occurrence of theft is not immediately after the alleged occurrence of theft which is a violation of policy condition. Practically this is the only plea of the O.Ps and for the said reasons they had not gone for enquiry and investigations into the case matter through their agencies. Stricts to the rules and regulations itself not bad but strong attachment to them and blind attachment to them certainly kills the efficiency of work. The plea of time barred claim in the instant case by the Opposite Parties is not acceptable. Such delay of 3 months in lodging the instant insurance claim by the complainant needs to be condoned as the; complainant/policy holder could not go for lodging to insurance claim within time because he had to remain at Haryana State to assist the police in their effort and attempt to trace the vehicle, but when the said attempt proved futile, the complainant returned back to his home state and informed to O.P. which in no case be rigidly caught hold up. More so breach of terms and conditions of insurance policy in case of theft of vehicle is immaterial as per the decision of higher court.
On this point we rely on the decision of Hon’ble Supreme Court in case of National Insurance Company Ltd. Vrs. Nitin Khandelwal reported in (2008) II SC 256 where it has held that “ in the case of theft of vehicle breach of condition is not germane”. That apart as per the version of the O.P., he received the intimation letter of the complainant on dt.27.5.2008 and the instant complaint case was filed on dt.7.1.2010 and in the meantime years passed but the O.P company on dt. 12.3.2010 communicate the fate of instant claim to the complainant policy holder. As per number of decisions
-8-
of higher court, the repudiation of the claim of the complainant after filing of the complaint by the insurance company is arbitrary and unreasonable.
Thus complainant deserves to get relief When the O.P company neither settled the claim nor communicate the fate of claim before filing of
this case before the forum it amounts to deficiency in service on his part. In case of minor policy violation, claim can not be completely rejected as per various decisions of Apex Court. It is further alleged by the O.Ps that the complainant has neither submitted the original nor the certified copies of vehicular documents like DL, Route Permit, Fitness, etc. for verification. So the claim was rightly repudiated.
According to the complainant subsequent to receipt of intimation from him on dt. 27.5.2008 the O.P called upon the complainant to submit vehicular documents which the complainant submitted the Xerox copy of F.I.R, certified copy of R.C. book duly endorsed by R.T.O., through his letter dt.7.1.2009. Since the original documents of the vehicle were inside the vehicle when it was theft, so it is not possible to submit the original ones.
From the record, it appears that, the insurance company admitted the ownership of the Truck and its insurance and validity of the period of insurance. Since the insured did not produce the original DL, Route permit, fitness the insurance company was not obliged to entertain the claim.
On this point we rely on the decision of Oriental Insurance Company Ltd. Vrs. M.Sunil Sekhar reported in 2003(1) CPR 327,where it has been held that “there was no necessity for complainant to prove Driving License and Registration certificate by original only. Xerox copies of documents is sufficient.
-9-
In our considered opinion, the instant complaint bears merit and order passed accordingly.
ORDER
In the result, the complaint is allowed against the Opposite Parties . The Opposite Parties are hereby directed to pay the sum of Rs.7,75,141.33
paise being the cost of the vehicle and interest calculated thereon to the complainant alongwith compensation of Rs.1,000/- towards mental agony, harassment and litigation cost within one month from the date of receipt of this order failing which the total awarded amount shall carry 6% interest per annum till realization of the same.
The complaint case is allowed and disposed of accordingly.
The order is pronounced in the Open Forum on this 6th day of August, 2013 under the signature and seal of the Forum. Copy of the order be served on the parties free of cost..
Typed to my dictation
and corrected by me.
President
President.
Member
Member
