For the Complainant - Mr. Gopal Basu, Advocate
For the OPs - Mr. Debesh Halder, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is a complaint case under section 12 of the C.P. Act, 1986.
The fact of the case in brief is that the Complainant Mr. Kalam Ansari is the owner of Hero Honda Achiever Motor Cycle bearing Registration No. WB-01Z 1883 having Engine No. 06HBCM0652 & Chasis No. 06HBC000197. The registration of the vehicle is valid from 26.09.2006 to 24.09.2021. The said two wheeler was insured with the National Insurance Co. Ltd. for the period from 12.10.2013 to 11.10.2014 under Policy No. 39010231136202316235. The IDV of the said vehicle was Rs.20,697/-. The said vehicle is stated to have been stolen between 01.09.2014 to 03.09.2014 while it was parked in front of the complainant’s office situated in front of the container terminal inside Netaji Subhas Dock near Gate No.7. The complainant was on duty at his Kolkata Port Trust Office. He immediately lodged complaint with the Inspector-in-Charge, CISF, Kolkata Port Trust and also lodged a complaint with the Officer-in-Charge, West Port Police Station on 03.09.2014. On the same day, the complainant intimated the facts to the OP and also to the Taxing Officer, PWD, Kolkata–700020. The petitioner further stated that the fact of theft was registered with the West Port Police Station under Case No. 246 dated 04.09.2014 u/s 379 of the IPC vide G.R. No. 1248/2014. The OP started investigation by their authorized person who had submitted his report on 22.10.2014 and the complainant handed over necessary documents including two keys of the said vehicle to the said authorized person. The OP vide their letter dated 28.10.2014 asked the complainant to submit the relevant documents. The complainant submitted all documents in original to the OP’s office on 25.08.2015 under proper stamp and seal of the office of the OP. He also submitted the final report of the police case bearing no. C-8387/117/Ld.ACJJM, 2nd Court, Kolkata. The complainant also received letters from the OP on 08.11.2017 and 28.11.2017 requesting to clarify the discrepancies as observed in the case vide their above mentioned letters. On receipt of the above mentioned letters dated 08.11.2017 & 28.11.2017, the complainant sent Advocate’s letter dated 18.12.2017 & 20.12.2017 mentioning the facts and circumstances of the case in brief but till date the OP has not taken any action in respect of the petitioner’s claim of Rs. 1,00,000/-. This is a clear case of deficiency of service and unfair trade practice on the part of the OP for which the OPs are liable to pay the claim of Rs.1,00,000/- with interest at the rate of12 percent p.a. along with compensation of Rs.50,000/- for which he has come to this Forum for justice.
The OP has contested the case by filing W.V. contending inter-alia that the instant case is bad both in law and in fact and it is not maintainable in the eye of law and there is no cause of action in the instant case. The issues mentioned are baseless and arbitrary and liable to be dismissed in limine. The instant case is also barred by limitation. The complainant submitted the claimed form with the OP on 08.09.2014. Upon getting the said intimation of theft the OP has appointed investigator who after investigation submitted his report on 22.10.2014. Thereafter, OP asked the complainant to submit the relevant papers vide letter dated 28.10.2014 which was not responded by the complainant. The OP, thereafter, sent reminder letter dated 11.08.2015 to the complainant. Thereafter, complainant submitted few papers on 25.08.2015 after a lapse of 10 months without clarifying the reason for such inordinate delay in submission of papers. During investigation, the complainant submitted a written statement to the investigator stating that out of two keys, one key due to long use had become rusted, damaged and misplaced. The complainant has shown the other key to the investigator. But on the day of submission of papers on 25.08.2015 the complainant submitted two keys of the said theft two wheeler. Surprisingly, the upon verification it is revealed that those two keys are completely different from the original keys, those are not connected with the said theft two wheeler and the statement of the complainant given to the investigator has proved to be a false one. It is a clear violation of the policy condition as a numerated in general exception Clause No. 6 of the policy which says that “in the event of any claim hereunder the insured shall prove that the accidental loss, damage and/or liability arose independently of and was in no way connected with or occasioned by or contributed to by or traceable to any of the said occurrence or any consequences thereof and in default of such proof, the company shall not be liable to make any payment in respect of such a claim”. Moreover, the complainant/policy holder has submitted final police report on 29.08.2017 after prolonged period of 3 years which is beyond the stipulated time as per policy condition but no clarification for such inordinate delay in submission of papers/documents has been given by the policy holder/complainant to the insurance company. The aforesaid discrepancies have been communicated by the insurance company to the policy holder vide their letter dated 08.11.2017. Another letter dated 28.11.2017 was sent to the complainant for clarification of the aforesaid points but no reply has been given by the complainant till date. Instead of given any clarification the complainant has sent legal notices and finally filed the instant case against the OP to this Forum.
On the pleading of both the parties, the following points have necessarily come up for determination:
- Whether the complainant is the owner of a valid insurance policy of the OP.
- Whether the OP is deficient in rendering service to the complainant and has adopted unfair trade practice.
- Whether the complainant is entitled for the relief / reliefs as prayed in the complaint petition.
Decision with Reasons
Point Nos. 1 to 3:
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered their evidence on affidavit. They have also given reply against the questionnaire set forth by their adversaries. Both parties have also filed their BNAs.
We have travelled over the documents placed on record. Facts remain that the complainant is the owner of a two wheeler vehicle bearing Registration No. WB 01Z 1883 and he had a two wheeler general insurance policy bearing No. 39010231136202316235 with the OP for the period from 12.10.2013 to 11.10.2014. The IDV of the insured vehicle was Rs.20,697/-. This is admitted facts by both the parties. This is also admitted that the insured vehicle was stolen in between the period from 22.00 hrs. on 03.09.2014 to 01.15 hrs. on 04.09.2014 and afterwards FIR was lodged by the complainant on 04.09.2014 and claim intimation was sent to the OP on 08.09.2014. On receipt of the intimation of theft it has been stated by OP that an investigator was appointed and the investigator submitted his report on 22.10.2014 along with the written statement of the complainant But neither the copy of the investigation report nor the statement of the complainant has been furnished by OP. As such, we have no idea about the said report and the statement of the complainant. The OP vide his letter dated 28.10.2014 asked the complainant to submit relevant documents which were submitted by the complainant on 25.08.2015. From the available record it has been observed that documents under Sl. No.5 (original tax token) and document under Sl..No.7 (final police report in original) were not submitted on 25.08.2015. The above submission of document was due to the effect of the reminder letter of the OP dated 11.08.2015. Thereafter, the final police report in original was submitted on 29.08.2017. The OP thereafter sought for clarification for late submission of documents from the complainant vide their letter dated 08.11.2017. In the said letter the OP also sought for clarification in the matter of keys of the two wheelers. Reminder to submit clarification was also issued by the OP vide their letter dated 28.11.2017. The complainant, thereafter, sent letter dated 20.12.2017 stating the facts of the case along with relevant clarifications and getting no response from the OP in the meanwhile the complainant finally sent the legal notice dated 29.01.2018 to the OP for non settlement of his claim. But the letter of the complainant dated 20.12.2017 and the legal notice dated 29.01.2018 were not responded by the OP. Moreover, the claim of the complainant was also not repudiated by the OP as per their rules and regulation.
Full documentation is found complete on 29.08.2017 by submitting the final police report in original excepting the document of original tax token. From the available records it is observed that the submission of original tax token has not been reminded by the OP anywhere thereafter. The relevant clarification as asked for by the OP was given by the complainant on 20.12.2017 and the OP has not raised any question thereafter. As such, it is presumed that complete documentation was done on 20.12.2017.
As per General Exception Clause No. 6 of the policy the OP has got the right to repudiate the claim for clear violation of the policy condition. But the OP has neither refused the claim nor admitted the claims since 20.12.2017 to till date.
Documentation part in the matter of Insurance Claim was completed by the complainant on 20.12.2017. But the OP Insurance Company had not taken any action either settlement or repudiation of the claim from that date to till date. Repudiation of claim could have been done by them showing the policy condition and necessary repudiation letter could have been issued to the insured in due time. But the Insurance Company had remained silent over the issue for a long time & did not fulfill the contractual obligation.
As per Insurance Regulatory & Development Authority of India (Protection of Policyholders’ Interests Regulations,2017) the Insurer is bound to settle the claim within 30 days from the date of receipt of last relevant document otherwise they are liable to pay interest at a rate which is 2 percent above the Bank Rate from the date of receipt of last relevant document from the insured / claimant till the date of actual payment.
Here the OP Insurance Company has not taken any decision either settlement or rejection of claim within the time limit of one month prescribed by IRDA rather they have not yet taken any action in the said matter. Documentation for settlement of claim of the instant case was completed on 20.12.2017. As per the decision of the Apex Court in the matter of United India Insurance Company –Vs- MKJ Corporation, the reasonable time for taking decision in the matter of settlement of claim has been arrived at to two months. Here the insurance company even after lapse of around 08 months could not take any decision. This is a clear case of deficiency in service. The OP insurance company cannot avoid their responsibility of not taking any decision in the said matter within the reasonable time. Moreover, keeping the matter pending for unlimited period of time without any cogent reason definitely tantamount to unfair trade practice. As such, we are of the considered view that there is deficiency in service and unfair trade practice on the part of OP Insurance Company.
All the points under determinations are disposed of.
In the result the complaint succeeds in part.
Hence,
ORDERED
That the Complaint Case be and the same is allowed on contest in part against the OPs with the following directions.
- The OP is directed to pay Rs.20,697/- being the Insured Declared Value with interest 2 percent above the Bank Rate from 20.02.2018 till realization.
- The OP is further directed to pay Rs.5,000/- to the complainant as litigation cost.
The above order is to be complied with by the OP within a period of 45 days from the date of this order. Liberty be given to the complainants to put the order in execution if the OP transgresses to comply the order.
