Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case of the Complainant is that the Complainant Kalipada Barman purchased an E-Rikshaw from ohona commercial Pvt. Ltd. having registration No WB63B/3544 Engine No ACPL 20070941 and chassis No MD9ACC3G20K533941 which was registered under Registering authority Cooch Behar. The said vehicle was insured by the O.P. Bajaj Allianz General Insurance Company which was valid from 25.09.20 to 24.09.21 midnight for total value of Rs.91000/- .Final Premium was paid for Rs.6919/-. During the validity of the insurance the said E-Rickshaw was stolen on 20.01.2021. Despite it was under lock & key. The Complainant informed it on Kotwali P.S. On same day & written complaint was filed on 22.01.2021 but police did not start specific case. Then on 10.03.2021 complainant field petition/Sec.156 (3) CR.P.C which was registered as Kotwali P.S case No 187/21 dt.25.03.2021 under section 379 (I.P.C).After investigation enquired into the matter & received all original documents from the complainant but th O.P. did not release the insurance claim hence this case. Complainant prays for an award for Rs.91,000/- & Rs.50,000/- towards mental pain & agony RS.20,000/- for unfair trade practices & Rs.10,000/- for litigation cost.
The O.P. challenged the case by filing w/v wherein they denied the major allegations. The positive defence case of the O.P. in brief is that the police submitted final report against which the complainant did not raise any objection so the complainant has no interest against the alleged theft. The Complainant also did not file any complaint to the R.T.O., Cooch Behar & as such there is latches of the complainant. On account of delayed intimation the O.P. was deprived of conducting enquiry into the alleged theft. So the O.P is not liable to pay the compensation. Even after receiving the delayed intimation the O.P. registered the complainant & issued letter to the complainant & submit documents but the complainant did not make any reply and as such due to non-cooperation of the complainant the claim was repudiated. The complainant violated the terms & conditions of the Insurance Policy. So he is not entitled to get the compensation.
After perusing the conflicting case of the parties the fallowing points are required to be decided.
POINTS FOR DETERMINATION
- Is the Present case maintainable in its Present form & prayer?
- Is the Complainant is entitled to get the relief as prayed for?
- To what other relief / reliefs the complainant is entitled to get?
DECISIONS WITH REASONS
Point No.1.
Although some formal objections were made by the O.P. in his W/V regarding maintainability of this case yet these points were not agitated in course of argument. However, after perusing the pleadings of the parties & the evidence on record it stands well proved that the complainant filed this case on the basis of the genuine claim as are evident from the documents filed by the complainant. The pecuniary limit is also within the jurisdiction of this commission.
Accordingly the case is maintainable in its present form & prayer.
Point No.1 is accordingly assured in affirmative on behalf of the complainant.
Point No.2 & 3.
Both the points are very closely interlinked with each other accordingly, these are taken up together for convenience & brevity of discussion.
Out of different defence points taken by the O.P. the main point is delay in lodging the claim by the complainant to the O.P. the claim was repudiated.
Before discussing that point the second point needs to be discussed first. The O.P. challenged that despite filing F.R.T the complainant did not raise any objection against the F.R.T.
The said defence plea has got no legal force in as much as F.R.T was given in a criminal case U/Sec. 379 of Cr. P.C against which the accused could be punished only but the complainant had no scope to get compensation against the said theft. In fact the fate of Criminal case cannot be the basis for ascertaining the geneunity of a compensation case.
Therefore it can not be the ground for repudiation of claim.
The first defence plea regarding delayed intimation has been duly explained by the complainant. The said intimation was given.
As regard not filing the document the complainant categorically stated in evidence that after the incident of theft the petitioner informed the matter to the O.P. agent. On 29.01.2021 O.P. investigation enquired into the total matter & received all original documents from the petitioner, but the O.P. did not release the insurance claim till today.
The O.P. could not deny the said fact nor did the O.P. cross examine the complainant. Therefore, the plea of the complainant that he submitted all the relevant document for receiving insurance claim stands well established.
It is also the specific case of the complainant that the O.P. did not inform about the repudiation of the insurance claim. The O.P. could not file any document to show that the information of repudiation was given to the complainant. Annexure D discloses that the complainant sent letter of demand of justice along with claim for quick release of insurance money to the O.P. through registered post on 30.12.2021.The O.P. seems to have not responded properly against the said letter.
It is also the defensible that the theft vehicle was under hypothecation and he is not the absolute owner.
The said defence plea does not hold good in as much as the complainant appears to be the registered owner.
The invoice of Torsa enterprise further discloses that the complainant purchased the said E-Rikshaw vehicle on 25.10.2020 for a sum f Rs.1,00,000/- and the making name is ohona commercial Pvt. Ltd.
The O.P. also filed some documents without explaining each and every document the main defence which came out through documents is that the investigation team of the O.P submitted a report on 23.02.21 with the observation that “hence we conclude the case as negligence.”
So the said report admitted the theft of the vehicle. It is important to note that the theft is the common phenomena, Despite all precautions & vigilance theft also takes place. So the complainant should not be blamed for the theft of his vehicle. Out of two investigation agency like police & the investigation of O.P. nobody observed that the complainant had caused the theft by conspiracy. Therefore, the repudiation of claim appears to be not justified. The O.P. referred to a decision dt. 24.03.2017 of Hon’ble National Commission. The said case law does not apply in as much as in the reported case the appellant was deprived of its right to enquiry due to delayed intimation. But in the instant case the O.P. conducted their own enquiry on the basis of the intimation of the incident moreover the investigation report in the relevant coloumn of the first page of the report it is mentioned clearly that there was no delay.
The Ld. Advocate of the complainant relied upon a decision of Hon’ble state commission , Siliguri Circuit Bench in appeal No A/12/21 where it was held that latches on the part of a drive can not be the good ground for repudiation of claim of a genuine looser who has insured the vehicle by paying the premium.
The case law is relied on.
In the back drop of the aforesaid discussion & observation it is held that the complainant is entitled to get the relief as prayed for.
Point No.2 & 3 are accordingly decided in favour of the complainant.
Accordingly, the complainant case succeeds on contest with cost.
Hence, it is
Ordered
That the compliant Case No CC/6/2022 be and the same is allowed on contest with cost of Rs.10,000/-.
That the Complainant do get an award for Rs.91,000/- towards value of the stolen E-Rikshaw Rs.50,000/- towards mental, pain & agony. The O.P. is directed to pay Rs.1,51,000/- to the Complainant within 30 days from the date of passing the Final order failing which the complainant shall be entitled to get interest @6 % p.a on the awarded money from the date of order till the date of realization. The CC/6/2022 is accordingly disposed of.
D.A to mote in the trail registrar.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
