Orissa

Jajapur

CC/57/2015

Sri Bikash Parida - Complainant(s)

Versus

Sri Ram Transport Finance Co.Ltd - Opp.Party(s)

Pratap Ray,Premananda Behera,Mrutunjaya Sarangi

22 Mar 2017

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                                                Present:      1.Shri Jiban ballav Das , President

                                                                                                       2.Sri Pitabas Mohanty, Member,

                                                                                                       3.Miss Smita Ray, Lady Member.

                                                  Dated the 22th day of March,2017.

                                                           C.C.Case No.57 of 2015

Sri Bikash Parida   S/O Nrusingh ch.Parida

Vill. Krushna chandrapur,P.O.Saragada,Mukindapur

P.S.Jenapur , Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1.SriramTransport Finance Co.Ltd, Nayak Building At .Chandikhole Chhak,

P.O. Sunguda,P.S. Badachana ,Dist. Jajpur.

2.Sriram Transport Finance Co. Ltd, 101-105,1^st floor,W. Wing, Shiv Chambers

Sector-11,C.B.D,Belapur ,Navi Mumbai.

3.Reliance General Insurance Co.Ltd,38-B,8^th Floor, Himalaya House, J.L.Neheru

Road, Kolkata.

4.Branch Manager, Reliance General Insurance ,Bhubaneswar, Dist.Khurda.

5.Reliance Center,19,Walchand Hirachand Marg, Ballard Estate, Mumbai .                           ……………..Opp.Parties. 

               

For the Complainant:                                    Sri P.K.Ray, Sri P.Behera, Sri M.Sarangi, Advocates.

For the Opp.Parties No.1 and 2 :                Sri P.K.Ray,Sri A.R.Sethy,Advocates.

For the Opp.Parties No.3 to 5                     Sri S.K.Mishra,Sri R.K.Mohanty,Advocates.  

                                                                                                                                    Date of order:   22.03.2017.

MISS  SMITA RAY , LADY MEMBER

The petitioner has filed the present dispute against the O.ps alleging deficiency in service due to non settlement of his genuine Insurance claim.

The facts  stated  by the petitioner  shortly are  as follows .  The petitioner being an unemployed  youth purchased a Tipper bearing Regd. No. OR -14-O-9464 Chassis No. 373134CRZ110637 and Engine No.-697TC58CRZ11434358 in order to maintain his livelihood through financer OpNo.1`and the said Tipper was insured through the Reliance Insurance Company Limited. (OP-3 ,4 &5). On dt.5.2.2013  when its driver namely Promad Kumar Samal while returning from Paradeep parked the said vehicle near a chiken shop situated at Chandikhol Chhak and went to recharge  his mobile. On return  the driver found the Tipper is not there.  Immediately  the   fact  was  intimated  to the  brother  of   the petitioner  and attempt was made to search the vehicle.  After necessary search   made by the petitioner the vehicle could not be tressed out and after four days that is dt.9.2.13 FIR  was lodged before the Badachana P.S. regarding theft of the vehicle which was registered vide P.S. Case No. 27/13 under section 379IPC. After completion of the investigation charge sheet was submitted against four accused persons which is evident from the copy of the charge sheet filed along with the complaint petition vide Annexture -1.

After occurrence of the theft the petitioner submitted claim before the OP No3 to 5. It is further alleged  that on dt23.2.15 a letter was issued by the insurance company to the petitioner intimating that due to non submission of required documents the claim of the petitioner is closed.  On dt 1.5.15 the petitioner wrote a letter to the insurance company requesting them to reopen the claim but the insurance company has not taken any action and is sleeping over the matter. As such the petitioner has filed the present complaint against  insurance  with  the direction to OP No. 3 and 4 to pay the claim of the petitioner to the tune of Rs 7,00,000/- (Seven Lakhs) and compensation Rs. 50.000 (Fifty thousands) towards mental agony and other reliefs which  will be entitled under the law.

In response to notice issued by this forum OP No 1 and 2 appeared through the learned counsel   and filed their  written version . It is stated  that  they have financed an amount of Rs. 4,50,000/- payble on 41 monthly installments  amounting to Rs.6,87,819/-   Starting from dt 5.9.12 to dt 5.1.16 .  The statement of accounts revels  that as on on dt.08.07.2015 the petitioner has paid Rs.7,81,704/- towards outstanding dues . The petitioner is also liable to pay of Rs.92,975/- towards future installments and the total dues as on dt. 08.07.2015 in the petitioner’s loan account  comes to  Rs.8,74,679/- . That in view of aforesaid facts and circumstances the claim amount is to be paid in favour of O.P No.1 and 2.

O.P. No 3 to 5 appeared through their learned advocate  and filed  their written version mainly alleging as follows - Para 2. That there is absolutely no deficiency of service by this O.Ps. at any point of time as falsely alleged by the petitioner  rather the petitioner  has not shown any interest to supply relevant documents and comply the formalities as asked for by the O.Ps which was required at the relevant time to process his claim and he has deliberately slept  over the matter for a long time for which his claim file was closed and no such deficiency of service caused to him by this  O.Ps. for which the case is not maintainable.

 That it is mandatory duty on behalf of the insured/ owner of a vehicle to comply the terms and conditions of insurance policy  condition   in case  of   theft of the vehicle he should intimate the fact to this opp party and also to the concerned police authority immediately preferably within 24 hours but the complainant as per his  own admission has intimated the police on dt.9.2.1013 after 4days of alleged theft of his Truck and to the Insurance   Company  after   21  days  for  which    he  has   deliberately   violated  the  condition  no.1  of the

commercial vehicle insurance package policy. The further allegation of theft in the complaint petition are disputed.

Further the plea of the Op. No. 3 to 5 to the effect that there was delay of 21 days in lodging the complain before the insurance company and for the said reason the claim of the petitioner should not be entertained. At  this  juncture the letter issued by the insurance company dt.10.7.14 and dt.23.2.15 addressed to the petitioner are relevant. The insurance company requested to the petitioner vide letter dt.10.7.14 calling for production of certain documents without raising the plea of delay. The insurance company intimated the petitioner vide letter dt.23.2.15 regarding final closer of the claim on the ground of non submission of documents . That since the complainant has violated the specific terms and conditions of the Insurance Policy as cited above and has not responded the letter of this O.Ps. in supplying the original documents in time and has failed to approached this Forum in clean hands for which the dispute  is liable to be dismissed .

In view of the assertion and counter assertions we heard the arguments from the advocate for both the parties .After perusal of the records and documents and citations filed by both the parties we are inclined to decided the present dispute as per our observation stated below:

                It is admitted fact that the alleged vehicle was insured with O.Pno.3 to 5 and theft of the petitioner’s vehicle has  occurred with the  subsistence of the  policy period . It is stated by the petitioner that he has lodged the F.I.R at Badachana police station on 09.02.13 and after investigation the police has submitted the final report  mentioning that the matter is true and the petitioner also submitted that he has informed the O.p.no.3 to 5 immediately after the occurrence of the theft . On the other hand the O.P.no3 to 5 denied the same stating  that they have  received the information about theft after lapse of 21 days .

                The next point relates to consider that the delay in intimating the  insurance  company  and F.I.R lodged in  the police station .  In this contest the petitioner has stated in the complaint petition that the intimation of theft  of  the vehicle to the O.p.no.3 to 5 has been  made immediately after the incident. In addition to it the petitioner has filed the documents in support of the case which are stated below:

1. copy of the F.I.R to police dt.09.02.2013

2.Copy of the final closer letter of the claim issued by O.P.no.3 to 5 on dt.23.02.2015

3.Requesting letter  to  re-open  the claim dt.01.05.2015.

4.Certified copy of order of J.M.F.C ,Chandikhole dt.22.04.15.

The O.Ps  also filed the documents and citations in support  their  stand

1.Hon;ble National Commission vide F.A No.321/05 New India Insurance Vrs. Trilochan Jena)

2.2013(1)CPR-328(NC)

3.2013(1)CPR-394(NC)

4.2013(1)CPR-574(NC)

5.2012(3)CPR-280(NC)

6.2016 R.P.No.1054/2016  (NC)

7.2013(1)ALT-56(SC)   

                In this contest the O.Ps.  have  taken the main plea in the written version that they have received the information of theft after lapse of 21 days and F.I.R was lodged in  the police station after lapse of 4 days but in this contest we verified the final closer letter issued by the O.P no.3 to 5 dt.23.02.2015 where the O.Ps. have  admitted that the insurance claim ledged on 07.02.13 within the period of two days of the alleged occurrence .

                As such we are inclined to hold that after the occurrence  of theft of the vehicle on 05.02.13 the petitioner reported the theft claim on 07.02.13 before the O.pno.3 to 5 which is in time .

                In addition to the above we have also  came across with the circular  of IRDA and observations of Appellant Forums regarding delay in informing the Insurance Company which are stated below:-

                (O) IRDA circular dt.20.09.2011 which indicates that the insurer are not entitled to repudiate the claim of the insured merely on flimsy grounds i.e Delay in submitting information to insurer in case of genuine claim.

1.2015(3)CLT-476-N.C (New India Assurance Co.Vrs. Gurmeet Kaur and others)clause-1

“ notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim. Every  letter of claim writ summons and / or process shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution .In quest or fatal injury in respect of any accident which may give rise to claim under this  policy”.

Para-6-the above referred clause does not require the insured to give immediate intimation to the Insurance company in case of theft of the vehicle”.

Para-7-subpara-3

“ Therefore the complainant in our opinion was not required in this case to give immediate intimation of the theft of the vehicle  to the Insurance company “.

2.2005(1) CPR-142-State commission –Odisha –Gajendra Prasad Panda Vrs. Oriental Insurance Co.ltd.

“ where insured vehicle was stolen claim can not be defeated by Insurance company on                                 technicality of some  delay in reporting matter to the police and to Insurance company .

3.2010(1)CLT-189-Odisha Oriental Insurance Co.Ltd Vrs. Kandha nayak

“ Repudiation on the ground that F.I.R lodged of the theft of motor cycle was after a month and intimation about theft given late which is in violation of policy condition. Held that:

“The repudiation in case in  hand is arbitrary and on technical ground and not in the line of the spirit of the Act or the legislation. Order of Dist. Forum directing Insurance company to pay the claim up held  rate of interest awarded by Dist. Forum reduced from 12% to 6%.”

4.2012(3)CPR-10-Chhatishgarh-The new India Assurance Company Ltd.Vrs. Shankar Chakrawartee though Attorney holder.

“ Irrespective of delay claim is otherwise payble- Insurance company must settle claim insisted of rejecting it on technical ground “.

5.2014(2)CLT-390-Haryana-Shriram general Insurance Company ltd vrs. Rajesh Kumar

“Theft of vehicle-delay of 12 days in intimation to Insurance Company regarding delay in intimation but that does not mean that the Insurer can take the shelter under that condition and repudiate the claim which is other wise proved to be genuine “.

6.Circular of Insurance Regulatory and Development Authority dt.20.09.2011 to all the insurers. Para-4.

“ Therefore it is advised that all the insurers needs to develop a sound mechanism of their own to handle such claim with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay  are specifically ascertained recorded and the insurers should satisfy themselves that the delayed claim would have otherwise been rejected even if reported in time .”

Para-5“ The insurers are advised to incorporate additional wordings in the policy documents suitably enunciating insurer’s stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured .”

                Owing to the above contradicting views of both  the parties we have come across with the observations of Hon’ble Supreme Court reported in 2004(2) CLT-141-SC(United India Insurance Co.Ltd Vrs.M/S Pushpalaya Printers) wherein it is held that:-

 “Insurance policy-construction of –if there is any ambiguity or a term is capable two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy  is taken, namely, to cover the risk on the happening of certain events”.

111- Construction of documents – where the words of a document are ambiguous ,they shall be construed against the party who prepared the documents”.

                Similarly  the stand taken by O.P.no.3 to 5 that the Insurance claim of the petitioner has been closed due to non submission of relevant documents is also not sustainable  in the eye  of law in view of the observation of Hon’ble National  Commission and Hon’ble   State Commission Odisha reported in:

                O.P.No.282/1997 decided on 10.03.2006 (N.C)( Shrikrishna Woolen Souvenir Mills Pvt. Ltd Vrs. United India Insurance Co. Ltd

                C.D.No.21/1990- decided on 29.02.1992 –vol-34-OJD-1992-p-202-Odisha State Commission( Maheswar Mohapatra Vrs. D.M National Insurance Co. Ltd & Others)

                C.D.No.179/1991-decided on 07.09.1992-State Commission, Odisha(Naba Krushna Padu Vrs. D.M United Insurance Co. Ltd College square-Cuttack-3-Vol-34-OJD-p-271

                For the reasons recorded above as well as owing to the facts and circumstances of the present dispute it is clear that the law on the point is conclusively in the petitioner ’s favour and as such  the dispute is hereby allowed.                                                  

                                                                                                O R D E R

                In the result the dispute is allowed against O.P. No.3 to 5 and dismissed against O.Pno.1 and 2. The O.P. No.3 to 5 are directed to re-open the Insurance Claim file of the petitioner and settled the Insurance Claim within two  months after receipt of this order .The petitioner is also directed to co-operate with O.Pno.3 to 5 for  settle the Insurance  Claim by  supplying  required  documents as available with him .No cost.

This order is pronounced in the open Forum on this the 22th day of March,2017. under my hand and seal of the Forum.