The case of the complainant is that he is the registered owner of the vehicle bearing Registration No. WB-73C-4761. The said vehicle was covered by insurance under Tata Aig General Insurance Company Limited being Policy No. 015784601300 which was valid from 27/12/2017 to midnight of 26/12/2018. He purchased the vehicle for carrying goods on hire with a view to earn his livelihood on 16/11/2018. Unlike the other days on 16/11/2018, the said vehicle of the complainant was parked in front of his house and after parking the vehicle driver closed and locked the door and handed over the key of the complainant. On the following day morning, the complainant found his said vehicle missing then the complainant and his men searched the vehicle but failed to trace out. He lodged a written complaint to the I/C, Falakata Police Station at about 8:30 A.M. on 17/11/2018. The complainant immediately after lodging the FIR and went to the house of the O.P No. 4 who is the local agent of Tata Aig General Insurance Company Limited and informed everything to him then O.P No. 4 registered a complaint and informed the matter to O.P No. 3 on behalf of the complainant. Thereafter, the complainant also submitted claim petition before the O.P insurance company and his claimed was registered being claim No. 0821129896A/02. Thereafter the complainant visited the local police station on several occasions. On 04/12/2018 the complainant once again went to the local police station to know the progress of the investigation but on that date I/C, Falakata police station asked to complainant to resubmit the said FIR submitted on earlier dated 17/11/2018 since he disclosed that the FIR submitted by the complainant was missing. Then the complainant resubmitted the FIR on 04/12/2018 as per instruction of the police authority then a case started being Falakata PS Case No. 497/18 dated 04/12/2018 u/s. 379 I.P.C. On the basis of the claim petition a investigator deputed by the O.P insurance company who visited the house of the complainant for the purpose of inquiry. The investigator collected all the relevant documents from the complainant but surprisingly on 04/11/2019 the O.P insurance company issued a letter to the complainant stating inter alia that on perusal of FIR being submitted by the complainant to the investigator M/S Shakti Services. They observed that the theft occurred on 16/11/2018 but the FIR was registered on 04/12/2018 i.e. after 18 days delay from the date of theft and due to that delay the filing in intimating the fact to the police station, no opportunity was given by the complainant for proper investigation of the case and due to delay intimation the condition No. 1 of the policy was violated besides the O.P insurance company sought an explanation with regard to any relevant fact overlooked by the O.P insurance company within 15 days from the date of the said notice. After receiving the said notice the complainant visited the office of the O.P No. 3 and stated him everything that immediately after the occurrence of theft of his vehicle, he lodged FIR on 17/11/2018. The receipt copy of the said FIR was handed over to the O.P No. 3 and intimation of theft of the vehicle was also given to the O.P No. 3 on 17/11/2018.and after hearing everything and after going through the O.P No. 3 assured the complainant that the matter will be settled very soon as it was forwarded to the O.P No. 1. Thereafter the complainant continuously visited the office of the O.P No. 3 on several occasions then on 16/01/2020 the O.P insurance company stated that they are unable to accept any liability of the vehicle of the complainant which was covered by O.Ps insurance company since it was alleged that the complainant violated the condition No.1of the policy. The O.Ps insurance company willfully and deliberately denying the legitimate claim of the complainant by showing a vague reason with a view to avoid their liability. At the time of covering the vehicle of the complainant under the O.P insurance company the value of the vehicle was assessed at Rs. 3,50,000/-. The O.P insurance company is liable to pay the said amount as compensation to the complainant and also liable to pay losses being suffered by the complainant due to gross negligence and deficiency in service and also liable to pay the cost of the litigation. The O.P insurance company denying the gross negligence on his part. The complainant has claimed Rs. 2,00,000/- as compensation for mental agony and harassment and Rs. 20,000/- as litigation costs.
O.P Nos. 1, 2 and 3 filed their written version and denying all the allegations made by the petition. They admitted that the policy was insured being No. 0157846013 was issued in respect to the vehicle being Registration No. WB-73C-4761 with coverage from 27/12/2017 to 26/12/2018 in the name of insurer Ananda Sarkar. They stated that it appears the date of FIR was lodged on 16/11/2018 where as the FIR was filed on 04/12/2018. The complainant failed to give any suitable explanation of delay due to inordinate delay the police authority no opportunity was given to investigation of the case and the complainant visited the general condition of rule – 1. The O.Ps insurance company submitted the concern Falakata police station filed the final report wherein I/O has said that the FIR was lodged on 04/02/2018. The O.Ps submitted that the averments to make by the complainant with respect to lodging on 07/12/2018 with a misrepresentation of facts. The O.Ps further stated as the complainant was violated the provision of under general condition of B(1)(2) for delay of information to the police station he is not entitled to get any benefit here from.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
The complainant has filed the Registration certificate of the vehicle Annexure – A, Insurance policy Annexure – B, Copy of written complaint dated – 17/11/2018 Annexure – C, Copy of the written complaint dated – 04/12/2018 Annexure – D, Letter of O.Ps dated - 04/11/2019 Annexure – E, Letter of repudiation dated – 16/01/2020 Annexure – F.
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
Point Nos. 1 & 2:- It is an admitted position that complainant is the owner of vehicle No. WB-73C-4761 and which was covered with insurance being Policy No. 0157846013 (Annexure - A and B) are the document to prove the same. So according to the provision of C.P. Act the complainant is the consumer as he made payment of premium for insurance of his vehicle and the case is filed on 19/082020 after amendment of C.P. Act and the complainant is residing within the jurisdiction of this Commission. He has right to file the case before this Commission according to the amendment of the C.P. Act. We find that the complainant is the consumer and this Commission has the jurisdiction to try the case.
Point Nos. 3 & 4:- In this case the allegation is that the vehicle of the complainant is stolen infront of his house in the midnight of 16/11/2018 and on the next morning i.e. on 17/11/2018 he detected the same and tried to searched out of his vehicle but it was untraceable. Then on 17/11/2018 he lodged the written FIR of theft in respect of his vehicle before the Falakata police station and on that date he informed the matter to the O.P No. 3. Annexure - C is the documents to show that he lodged the FIR on 17/11/2018 just the following day of the incident. But the police authority had misplaced the said written FIR and asked the complainant to resubmit the same and accordingly the complainant resubmit the said FIR on 04/12/2018 Annexure - D is the document to prove the same. The allegation is that when the complainant filed the claim petition before the insurance company the insurance company sent one investigator to inquire the matter and the complainant submitted all the documents to him including the copy of FIR but on 04/11/2019 (Annexure – E). The O.P insurance company asked the complainant that he has violated the condition No. 1 of the policy by delaying the FIR before the police station and the complainant tried his level best to clarify the incident that the police station has misplaced the FIR but the O.Ps did not pay head to his explanation and ultimately repudiated his claim due to violation of policy condition No. 1. Annexure - F is the document to prove the same. During argument Ld. Lawyer for the O.Ps submitted that according to the policy condition immediate information should be given to the local police station after theft is occurred. But the complainant has filed the written FIR on 04/12/2018 although the incident occurred in the midnight of 16/11/2018. So there is a delay for giving information to the local police station regarding theft and the complainant for that reason is not entitled to get any benefit as because the police authority is not investigate in time. After considering all these documents we find that the general policy condition as it is mentioned in rule - B (1)(2) “in case of theft or criminal act which may be the subject of a claim under this policy the insurer shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender”. The Hon’ble Supreme Court in case law reported in Civil Appeal No. 653/2020 dated – 24/01/2020 Gurshinder singh vs Sriram General Insurance Company Ltd. has opined in Para - 15 “We find, that the second part of Condition No. 1 deals with the ‘theft or criminal act which may be the subject of a claim under the policy, the insurer shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.” But we find that here the complainant has filed the written FIR on 17/11/2018 that is on the following day of the incident Annexure - C is the document but the contention of the complainant is that police has misplaced the same and he was asked to resubmit the FIR again for which he has filed the same on 04 /2/2018 Annexure - D is the document. When the objection was raised by the O.P regarding the genuinity of the contention of the complainant the Commission asked the I/C, Falakata police station to produce all the documents relating to this matter and the I/O of the instant case appeared before this Commission and filed the copy of GD Entry No. 840 dated 17/11/ 2018 wherein the complainant filed the FIR regarding the theft of his vehicle and on 04/ /12/2018 another copy of GD was filed being No. 177 from which it appears that the complainant filed one FIR on 17/11/2018 regarding the theft of his vehicle and the said complainant was misplaced and the complainant was asked to resubmit the FIR And accordingly the complainant filed the same on 04/12/2018 GD No. 177 dated 04/12/2018 clearly mentioned the statement made by the complainant that he is lodged first FIR dated 17/11/2018 was misplaced and he was asked to resubmit the same. So from this documents we find that the complainant did not violate the general provision of rule - B(1)(2) of the policy. He informed the local police station by lodging FIR after few hours of the incident. The incident took place in the night of 16/11/2018 and the first FIR was lodged on 17/11/2018 at 13:15 hours. It also appears that the complainant has submitted both the FIR before the O.Ps and clarifying everything to them regarding reason of filing FIRs but the O.Ps did not relying or believe the explanation of the complainant . The O.Ps further did not enquire the matter to the local police station and the act on the basis of the second FIR and repudiated the claim of complainant. We find that there is deficiency in service from the part of the O.Ps. The complainant did not violate the provision of the general condition of the policy. He submitted the FIR on the following day of incident to the police station. The complainant is entitled to get the insurance claim of Rs. 3,50,000/- from the O.Ps. But the O.Ps have the laches and negligence from their part to repudiated the said claim. The complainant is also entitled to get compensation of Rs. 1,00,000/- for his mental agony and harassment and he is also entitled to get Rs. 10,000/- as litigation cost.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is allowed on contest against the O.P Nos. 1, 2 and 3 and dismissed against O.P No. 4 as he is the agent of the Insurance company without any liability of making payment. The complainant do get an award amounting to Rs. 3,50,000/- (Three Lakh Fifty Thousands) for his insurance claim due to theft of vehicle along with interest of 6% Per Annum from the date of filing to till the realization of the amount. The complainant is also do get an award amounting to Rs. 1,00,000/- (One Lakh) as compensation for his harassment, mental agony and sufferings and also Rs. 10,000/- (Ten Thousands) as his litigation costs; total decreetal amount of Rs. 4,60,000/-(Four Lakh Sixty Thousands) excluding interest. The O.P Nos. 1, 2 and 3 are jointly liable to pay the said award amount and they are hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him. There is no direction upon the O.P No. 4 as he acted as an Agent of O.P No. 1 and did not receive any amount from the complainant personally.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
