DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
CONSUMER DISPUTES CASE NO. 71 of 2014
Dated the 21st day of October 2017
Present: 1. Sri Raghunath Kar, President,
2. Sri Basnta Kumar Mallick ,Member
3. Afsara Begum, Member.
Sayed Liyakat Hossain, aged about 35 years,
S/o: - Sk. Mahahammad Ali,
At: - Mirmohalla, P.O:- Banka Bazar,
P.S/Dist: - Bhadrak
……..Complainant
(Versus)
1.) Shriram Transport Finance Company Ltd.,
Represented through it’s Branch Manager,
Jena Complex, 2nd Floor, Chhapulia, By-Pass,
Opposite Vishal Megamart,
At/P.O/P.S/Dist. :- Bhadrak- 756100.
2.) Shriram General Insurance Company Ltd.,
Represented through it Manager,
3rd Floor, R.C. Behera Market Complex,
By-Pass, At/P.O./P.S./Dist- Bhadrak - 756100
……….. Opposite parties.
For the Complainant: - Shri R.K. Nayak, & others, Advocates
For the Op No1: Sri P.K.Ray
Advocate for O.P. No: Sri P. Kanoogo,
Date of hearing : - 28.09.2016
Date of order : - 21.10.2017
Afsara Begum , Member
1 This dispute arises out of the complaint filed by the complainant alleging deficiency in service against the O.Ps.
2 The back ground facts disclosed in the complaint are to the effect that complainant is the holder of HGV (Transport) Licence and in order to earn his livelihood by means of self-employment, intended to start a transport business. Accordingly, he approached O.P. No. 1- Financier, who agreed and financed vide agreement/Contract bearing No. CHANDIO 007300004 dtd. 31.07.2010 a sum of Rs. 9,15,344/- towards purchase of Tata tipper, repayable in 56 Nos. of installments, 1st installments @ Rs. 27,218/- & others 55th installments @ Rs. 24,884/- started from 05.09.10 to 05.04.15. The said vehicle bearing Regn. No. OR-09-K-0036 was insured with O.P. No. 2 vide Policy No. 10003/31/12/617494 effective from 08.03.2012 to 07.03.2013 midnight. Complainant parked his vehicle on 05.05.2012 at about 10 P.M. at Rengalibeda near Khan Dhaba under Koira Police station. When the complainant does not find the vehicle on the next day morning at the parking place at Khan Dhaba,thereafter, the complainant searched for the same and could not trace it out and ultimately lodged F.I.R in the Koira P.S. on 02.06.2012. The local police registered P.S. Case No. 45, dtd. 02.06.2012 U/s. 379 of IPC which was subsequently converted to G.R. Case No. 222/12. During course of time the I.O. submitted the final form. Complainant also intimated to O.P. No. 1 and requested not to charge installment amount till disposal of the matter. But the O.P. No. 1 with an oblique motive illegally imposed overdue charge, cheque bounce charges etc. According to the complainant he has never committed any willful default or negligence in performance of his obligation. Subsequently, the O.P. No. 2 with malafide intention only to deprived the complainant from his legitimate claim the O.P. No. 2 appointed the surveyor to evaluate loss of the complainant, Therefore, as per the requirement of the surveyor the complainant submitted the original documents like F.I.R, Final Form, Registration Certificate, Smart card, Fitness certificate, Policy certificate, Emission test certificate, good carriage permit, tax receipt, D.L. of the Driver etc. and when the complainant insisted to the surveyor to provide the copy of acknowledgement which he received from the complainant but he refused to do and told that the O.P. No. 2 will provide the same through postal. But after submitting these material documents the O.P.No. 2 always insisting the complainant to submitting the documents like :-
(1) Satisfaction voucher duly cross signed by insured with affixing of Rs. 1/- revenue ticket.
(2) Indemnity cum Declaration undertaking on Rs. 220/- stamp paper duly notarized & signed by insured (Received with amount filled, required without amount filled)
(3) Form No. 28 (3) copies & Form No. 29, 30 (single copy) duly signed by insured.
(4) Certified final untraced report issued by court with case diary.
Accordingly the counsel of the complainant argued that when the insurance amount has not been settled it is unreasonable on the part of the complainant to give the satisfaction voucher, indemnity cum declaration without any amount, and transfer of ownership vide Form No. 29, 30, & 28 (3). That, the case diary submitted by the police is not a public document so the complainant cannot be obtained from the court. That, the certified copy of final untraced report issued by the court i.e. Final form submitted by the police also provides by the complainant to the O.P. No. 2 for settlement of claim. According to the complainant only to delay and defy the genuine claim of the complainant the O.P. No. 2 unnecessarily requires the same on the name of further processing the claim. He further argued that in the instant case the O.P. No. 2 has not followed the direction of the IRDA and that insistence for the aforesaid documents put forth by the O.P. No. 2 is unworthy and only to defeat the genuine claim of the complainnt . Subsequently the O.P. No. 2 with malafide intention in collusion with O.P. No. 1 neither settle the insurance claim nor repudiate the claim. So alleging deficiency in service by the O.Ps the complainant filed the present complaint praying inter-alia that the O.P. No. 2 insurer directed to pay Rs. 7,50,000/- with 12% interest from 02.09.2012 till actual payment to the complainant and out of settled amount of Rs. 11,04,11/- to the O.P. No. 1 by deducting the interest or charges etc. from 05.05.2012 and also not to charge the delay payment, late payment fees if any from 05.04.2012, to issue NOC and other consensual reliefs.
3 O.P. No. 1-Financier in his written version pleaded inter-alia that on the approach of Complainant to finance him on a vehicle, a Loan cum Hypothecation Agreement was executed between the complainant-loanee and the O.P.-financier on 31.07.2010 for a sum of Rs. 14,61,490/- (Finance amount Rs. 9,20,000/- + Finance charge Rs. 5,41,490/- ) . The aforesaid amount is repayable in 59 Monthly installments starting from 05.09.2010 to 05.07.2015 @ Rs. 24,884/- per month save and except the 1st installment which is Rs. 27,218/- and also the complainant availed two working capital loans of Rs. 16,620/- and Rs. 19,395/- The complainant failed to pay the installment dues on due dates and complainant was liable to pay towards installment dues and also he was liable to pay the over dues as per agreement and which reflected in statement of account. Therefore, the O.P. No. 2 is liable to pay the claim amount directly to the O.P. No. 1 –Financier/owner of the vehicle. The allegation regarding the non issuance of loan agreement along with repayment schedule so also complainant’s request not to impose the overdue charges, cheque bounce charges etc. is false and baseless. The complainant is very irregular in payment of EMIs and he is liable to pay the balance amount as per statement of account. Therefore, the question of issuing NOC at this stage does not arise.
4 O.P. No. 2-Insurer resisted the claim of the complainant and submitted that after lapse of 28 days of the alleged theft the complainant intimated the O.P. about alleged occurrence and after due investigation the police has submitted final form. In order to process the claim of the complainant the O.P. vide letter dtd. 24.03.14, 24.04.14,01.07.14, 18.07.14, 06.08.14, 19.09.14, & 06.11.14 requested the complainant on several occasions for compliance of all the required documents for necessary verification as well as for official records and instead of extending his co-operation in this regard, furthermore, without complying the required documents the complainant has directly has lodged this complaint before the forum on 01.09.14. Therefore, the complainant is liable to be dismissed and compensate this O.P.
5 Having heard the Ld. Counsels for the parties and upon careful scrutiny of case record, We find that the complainant financed his vehicle through the Sriram Transport Finance Company Ltd (O.P. No. 1) vide Loan Cum Hypothecation Agreement bearing No. CHANDIO007300004, dtd. 31.07.2010 and insured through the Sriram General Insurance Company Ltd (O.P. No. 2) vide Policy No. 10003/31/12/617494 for a period of 1 year i.e. from 08.03.2012 to 07.03.2013 and while the said policy was in force the insured vehicle of the Complainant parked vehicle at Rengalibeda near Khan Dhaba under Koira Police station on 05.05.2012 at about 10 P.M and When the complainant does not find the vehicle on the next day morning at the parking place at Khan Dhaba,thereafter, the complainant searched for the same and could not trace it out and ultimately lodged F.I.R in the Koira P.S. on 02.06.2012. The local police registered P.S. Case No. 45, dtd. 02.06.2012 U/s. 379 of IPC which was subsequently converted to G.R. Case No. 222/12 and a final report was submitted in the court of learned SDJM, Bonai. We find that the complainant has explained the reasons for the delay in informing the police authority by giving a written F.I.R and in column No. “8” of First Information Report reveals that the reasons for delay “For searching of Tipper OR-09-K0036 in different places” the delay has been committed.
6 Looking to the First Information Report, it appears that the incident took place on 05.05.2012 and First Information Report was lodged at Police Station, Koida on 02.06.2012 after lapse of 28 days of the alleged theft. In the case of National Insurance company Ltd. Vrs. Kamal Singhal, reported in IV, (2010) CPJ, Page No. :- 297 (NC), Hon’ble National Commission has held that “There has been catena of decisions of the National Commission and also Hon’ble Apex Court and the issue is no linger res Integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. Vrs. J.P. Leasing & Finance Pvt. Ltd. (R.P. No. 643/2005) (2) Punjab Chemical Agency Vrs. National Insurance Company Ltd. (R.P. No. 2097) (3) New India Assurance Co. Ltd. Vrs. Sou Bahrati Rajiv Bankar, (R.P. No. 3294/2009) and (4) National Insurance Company Ltd. Vrs. Jeetmal (R.P. No. 3366/2009.) There has been a landmark judgment of Hon’ble Apex Court in the matter of National Insurance Company Ltd. Vrs. Nitin Khandelwal, IV (2008) CPJ, 1, (SC), where the Hon’ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further “the appellant Insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the Apellant Insurance company ought to have settled the claim on “nonstandard basis”.
7 In the case of National Insurance Company Vrs. Lajwanti, II (2007) CPJ, 48 (NC), the vehicle was stolen on 19.01.2002 at about 4.00a.m. and report was lodged on the same day under Section 379 IPC and despite best efforts made by police, the car could not be traced. The claim of the complainant was repudiated by the Insurance company on the ground that stolen was doubtful. The State Commission allowed the appeal and awarded compensation to the complainant and National Commission upheld the finding recorded by the State Commission.
8 In the case of Amalendu Sahoo Vrs. Oriental Insurance Co. Ltd., II, (2010) CPJ, 9 (SC) Hon’ble Supreme Court has observed thus :-
“12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited Vrs. Gian Singh, reported in II (2006) CPJ 83 (NC)= 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission(NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this court in the case of National Insurance Company Vrs. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC)=2008 (7) SCALE 351, In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this court held : “… The appellant 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. The Respondent submitted that even assuming that was a breach of condition of the insurance policy, the appellant Insurance company ought to have settled the claim on Nonstandard basis”.
9 In the case of Baljeet Vrs. United India Insurance Company Limited, 2014 (1) CPR 61 (NC), Hon’ble National Commission has observed thus :
“12. The above issue is no more resintegra. Similar question came up for consideration before the National commission in the matter of United India Insurance Company Limited Vs. Gian Singh (2006)2, CPJ 83 (NC) wherein it has been held that in case violation of conditions of the policy so as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis.
“13. The question Whether the insurance company is justified in repudiating the claim of the insured for violation of the terms and conditions of the Insurance policy in the case of theft of vehicle came up before the Hon’ble Supreme Court in the matter of National Insurance Company Limited Vrs. Nitin Khanelwal (2008)11 SCC,259, wherein the Hon’ble Supreme Court observed thus :
“In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The Appellant 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. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance company cannot repudiate the claim on that basis.
In the facts and circumstances of the case, the real question is whether, according to the contract between the Respondent and the Appellan, the respondent is required to be indemnified by the appellant. On the basis of settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission”.
10 Learned Counsel for the complainant drew our attention to the IRDA Circular dated 20.09.2011which according to him provides that the insurer’s decision to reject the claim should be on a sound logic and valid grounds, the claims should not be rejected only on technical grounds. In the present case that the complainant had lodged an F.I.R about the theft of the vehicle and had also informed about the theft to the O.P. No. 2 but neither the O.P. No. 2 settle the claim of complainant nor repudiate the claim of the complainant. Thus the action of the O.P. No. 2 is nothing but deficiency of service.
11 Ld. Counsels for the complainant as well as O.Ps filed documents before the forum for substantiate their claim. Further, it has not been disputed that complainant has already submitted before the O.P. No. 2- Insurance company, the necessary documents like Copy of Registration, smart card, Fitness certificate, emission test certificate, goods carriage permit, receipt of tax, Copy of D.L. copy of Insurance policy, copy of F.I.R, Final form, Acceptance of FRT by the learned SDJM, Bonai Letter dtd. 18.10.13 & 07.04.14 and the O.P No. 2 filed Letter dtd. 24.03.14, 24.04.14, 01.07.14, 18.07.14 & 06.08.14. So far as question of copy of Satisfaction voucher duly cross signed by insured with affixing of Rs. 1/- revenue ticket, Indemnity cum Declaration undertaking on Rs. 220/- stamp paper duly notarized & signed by insured (Received with amount filled, required without amount filled), Form No. 28 (3) copies & Form No. 29, 30 (single copy) duly signed by insured are concerned, it is not at all necessary since case of the complainant has not been settled. No prudent men will go to sign Satisfaction voucher duly cross signed by insured with affixing of Rs. 1/- revenue ticket, Indemnity cum Declaration undertaking on Rs. 220/- stamp paper duly notarized & signed by insured (Received with amount filled, required without amount filled), Form No. 28 (3) copies & Form No. 29, 30 (single copy) when the claim is not settled . It reveals from the letter filed by the complainant the Certified final untraced report issued by court is submitted before the O.P. No. 2 to settle the claim. The document regarding the “Case Diary” demanded by the O.P. No. 2 to submitted by complainant is not a public document and it is a record in between court and Investigating Officer. Further the copy of Case Diary if so barely needed by the O.P. No. 2 –Insurance Company What prevented the O.P. No. 2-Insurance company to collect or obtained the the copy of the Case Diary from the concerned police station. Thus, all necessary documents required for the final settlement of insurance claim of the complainant are made available before the O.P. No. 2 –Insurance company but without settling the claim in a reasonable period is nothing but deficiency in service and/or unfair trade practice on his part.
12 In the instant case, the O.P. No. 2 neither settle the claim of the complainant nor repudiate the same till filling of the case though occurrence occurred on dt. 05.05.2012. On perusal of the decision cited by the complainant in the case of The Branch Manager, New India Assurance Co. Ltd. Vrs. Sri Gangadhar Biswal and another, reported in 1996 (I)OLR (CSR)-67 we found that in normal event maximum processing period to be taken is three months from the date of submission of the claim. Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations, 2002 (IRDA) stipulate the Turn Around Times (TAT) for various services that an Insurance company offer of settlement/rejection of claim after receiving first/addendum survey report is 30 days. So, we completely agree with the submission made by the Ld. Counsel for complainant that the O.P No. 2 has committed deficiency in service for settling the claim of the complainant.
13 In the instant case, the copy of the Insurance Policy is filed by both the parties. In the insurance policy, the Insured Declared Value (I.D.V) of the vehicle is mentioned as Rs. 7,50,000/-and it’s 75% comes out to Rs. 5,62,500/-. Therefore, We award compensation to the Complainant to the tune of Rs. 5,62,500/- on Non-standard basis, which is just and proper.
14 Be that as it may, so far as non issuance of the Loan Cum Hypothecation Agreement, payment schedule & statement of account of this dispute is concerned at the very step we notice that the basis on which the Loan cum Hypothecation usually decided is the “Loan Cum Hypothecation Agreement” in where the tenure of contract and rate of interest, etc. has been mentioned but astonishingly what we observed in the instant case the copy of Loan Cum Hypothecation Agreement filed by the O.P. No. 1 is not acknowledge by the complainant and the learned counsel of the O.P. No. 1 also fails to submit any acknowledgment or documents in where the copy of the Loan Cum Hypothecation Agreement has been provided to the complainant. But the O.P. No. 1 has been categorically mentioned the loan agreement along with repayment schedule was immediately supplied to the complainant . So what prevented to the O.P. No. 1 to submit the acknowledgment or documents in the forum in where the copy of the Loan Cum Hypothecation Agreement has been provided to the complainant though the O.P. No. 1 is custodian of documents and approved as “NBFC” as per Reserve Bank of India. Thus, this is not liable to be admitted that the O.P. No. 1 had given loan agreement along with repayment schedule to the complainant immediately after execution. We also observed that as per master circulars-Fair Practices code regarding the NBFC issued by Reserve Bank of India the Loan Cum Hypothecation Agreement submitted by the O.P. No. 1 does not contain bold letter though the “ the penal interest charged for the late repayment” shall be bold in the loan agreement.
O R D E R
In the result, the complainant is allowed in part on contest against the O.P. No. 1 & 2. The Opp. Party No. 1 is directed to provide complainant with copy of Loan Cum Hypothecation Agreement, payment schedule & statement of account and to pay a sum of Rs. 10,000/- (Rupees ten thousand ) only to Complainant towards mental agony and financial loss which is subject to adjustment with arrears of monthly installments payable by the complainant to the O.P. No. 1. So also the Opp. Party No. 2 is directed to pay the Complainant a sum of Rs. 5,62,500 /- (Rupees Five lakhs Sixty Two Thousand) only towards final settlement of his insurance claim with interest @ 9% per annum calculated from the date of filing of the complaint i.e. 15.09.2014 till receipt of awarded sum by the complainant. The compliance of order shall be made within one month from the date of communication of this order. Delay in any manner shall carry Rs. 100/- in each day.
This order is pronounced in the open Forum on this, the 21st day of October.2017 under my hand and seal of the Forum.
