Advocate Prithpalsingh Nahal for the
Complainant
Advocate Shruti Sankpal for the
Opponent
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 16th April 2013
This complaint is filed by consumer u/s 12 of the Consumer Protection Act, 1986 against the Opponent Insurance Company who has repudiated the insurance claim illegally. Brief facts are as follows-
[1] The complainant had purchased a truck bearing No. MH-12-FC 6755 in the year 2008. It was insured with the opponent for the period from 19/11/2010 to 18/11/2011. On 22/1/2011 the said truck was stolen from Wagholi Alandi Road, Pune. The complainant lodged F.I.R. No.18/2011 in Vishrantwadi Police Station. Copy of F.I.R. was sent to the Insurance Company for claim alongwith policy. But the claim was repudiated by the Insurance Company on 15/22/2011 by giving false reasons. It is the case of the complainant that on 22/1/2011 he was driving the said truck from Balaji Petrol Pump Wagholi and parked near Mangal Society at Alandi Road. He had received message from his brother that his mother is not feeling well and it is necessary to hospitalize her. Hence complainant called his Manager and asked him to look after the truck. However wife of the Manager was also undergone for scissory operation and he was taking his wife for check-up. Instead of this he came on the spot and locked all the doors of the vehicle. One of the key of the truck was kept in the truck. After taking his wife to hospital for treatment he returned on the spot. Then complaint was lodged with the police station. Police investigated the matter but the truck as well as the thief were not traced. It is the case of the complainant that he was earning his livelihood by driving the truck. The Insurance Company has wrongly repudiated the claim. Hence he has filed this complaint and claimed compensation of Rs.10,50,000/- i.e. the price of the truck and compensation for mental and physical sufferings as well as costs of the proceeding to the tune of Rs.25,000/-.
[2] The Opponent resisted the claim by filing written statement on 5/7/212. The contents of the complaint are denied by the opponent in toto. It is flatly denied that the Opponent has repudiated the claim by false and vague reasons. It is the case of the Opponent that the complainant is running transport business and hence the transaction between the complainant and the opponent amounts to commercial transaction and the complainant is not entitled to knock the doors of this Forum. It is further contended that the complainant was negligent in informing the incident of theft to the complainant promptly hence he is not entitled for insurance claim. The Opponent has prayed for dismissal of the complaint.
[3] After considering the pleading of both parties and hearing the argument of both counsel following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that there is deficiency in service on the part of the opponent ? | In the affirmative |
2 | Whether the transaction between the complainant and the opponent is commercial transaction ? | In the negative |
3 | Whether the complainant was negligent in informing the incident of theft to the opponent promptly ? | In the negative |
4 | What order ? | Complaint is partly allowed |
REASONS
As to the Point Nos.1 to 4-
The undisputed facts in the present complaint are that the complainant is owner of the truck which was stolen on the fateful day. It is also not in dispute that the said truck was insured with the opponent for the period from 19/11/2010 to 18/11/2011 and the said truck was stolen on 22/1/2011. The insurance Company has repudiated the claim on two grounds that the transaction between the parties is a commercial transaction hence complainant has to approach Civil Court instead of Consumer Forum and the next contention of the opponent is that the complainant has not informed about the theft to the Insurance Company immediately and there is delay of three days.
As regards commercial transaction the learned Advocate for the Opponent argued before me that it is referred in the complaint itself as well as in the F.IR. that complainant is dealing in the business of transport and that is a commercial business carried by the complainant for making profits. Hence the complaint is not maintainable in this Forum. In that context the complainant has placed reliance upon the Judgment of the Hon’ble National Consumer Disputes Redressal Commission between Harsolia Motors vs. National Insurance Co. Ltd. reported in I (2005) CPJ 27 NC. Phrase ‘commercial purpose’ is discussed in detailed in the said rule and it is observed in that proceeding that the contract of insurance is contract of indemnity and therefore there is no question of ‘commerce’ in obtaining insurance coverage. It is also observed that the contract of insurance is contained in a fire or marine policy is a contract of indemnity and of indemnity only and that this means that the assured in the case of loss against which the policy has been made, shall be fully indemnified but never more than fully indemnified. Under such contracts the insurer undertakes to indemnify the insurer for the actual loss suffered by him as a result of event insured against. It is also observed that the availing of insurance policy is for indemnifying loss which may be suffered by the assured and the services of the Insurance Company though connected with commercial activity yet it would be within the purview of the Act. Any person who is found to have hired services for consideration shall be deemed to be consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act. Eventhough the complainant is running transport business the transaction between the complainant and the opponent is for indemnifying the contract. The present transaction is not as regards commercial activity between the parties i.e. there is no case of loss of goods which is typical commercial transaction but the present complaint is filed for indemnifying the contract of insurance and it is not a commercial transaction. Hence I held that the transaction between the parties is not a commercial transaction.
It is the case of the opponent that the complainant has not informed promptly the incident of theft hence he is not entitled for insurance claim. It reveals from the record that the complainant has promptly lodged F.I.R. on the same day in the police station and also intimated to the Insurance Company by toll-free number promptly. There is no inordinate delay in lodging the F.I.R. as well as intimating the incident of theft to the opponent. It is true that the key of the truck was kept in the box of cabin but if the situation of the day is considered that the complainant and his manager had no alternative but to park the vehicle near Mangala Society at Wagholi Alandi Road, Pune as both were required to attend the hospital to look after their relatives. In such circumstances I held that there was no deliberate delay and negligence on the part of the complainant and the reasons stated by the opponent while repudiating the claim are not satisfactory.
It reveals from the documents which are produced on behalf of both the parties that the complainant lodged F.I.R. in Vishrantwadi police station and J.M.F.C. has passed ‘A’ summary as the truck as well as thief were not found. It reveals from the certificate cum policy that the I.D.V. of the vehicle has been shown as Rs.10,50,000/-. There is no dispute between the parties that the complainant has paid the premium. The period of insurance is from 19/11/2010 to 18/11/2011. The theft of the vehicle was committed on 23/1/2011. This indicates that there was insurance cover at the time of theft. The theft was committed after near about three months from the date of insurance. After considering the depreciation for that period I held that the complainant is entitled for the cost of truck as Rs.10,00,000/-. The complainant is also entitled for Rs.5000/- by way of physical and mental sufferings and Rs.3000/- by way of costs of proceeding. I answer points accordingly and pass the following order –
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the Opponent has caused deficiency in service by repudiating the insurance claim of the complainant.
3. The Opponent is directed to pay to the complainant amount of Rs.10,00,000/- by way of cost of truck within six weeks from the date of receipt of copy of order. If the amount is not paid or deposited within the stipulated period the complainant is entitled to get interest on the said amount @ 9% p.a. from the date of filing of complaint till its realization.
4. The Opponent is directed to pay to the complainant Rs.5000/- by way of compensation for physical and mental sufferings and Rs.3000/- by way of costs of proceeding within six weeks from the date of receipt of copy of order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 16/04/2013
