West Bengal

Siliguri

CC/13/153

SRI KAMAKHYA DUTTA - Complainant(s)

Versus

The Branch Manager, Bajaj Allianz General Insurance Co. Ltd. - Opp.Party(s)

14 Aug 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. :153/S/2013.                          DATED : 14.08.2015.

                

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI BHATTACHARYYA &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                           SRI KAMAKHYA DUTTA,

S/O Late Gopal Dutta,

Nabin Sen Road, Mahananda Para,

Ward No. 10 of S.M.C.,

P.O. & P.S. - Siliguri, Dist. - Darjeeling

Pin Code -734001.

 

O.P.                         The Branch Manager,

 Bajaj Allianz General Insurance Co. Ltd.

 Saharan House, 2^nd Floor, above ICIC Bank^,

 2^nd Mile, Sevoke Road, P.O. - Siliguri,

 Dist- Darjeeling, Pin Code-734001.

 (Insurer of Vehicle No.WB-74Z-0863 Motorcycle).

                                  

FOR THE COMPLAINANT         : Sri Subhash Gupta, Advocate.

FOR THE OP                                   : Sri Kanak Lal Kundu, Advocate.­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________________________________________________________________________________

 

J U D G E M E N T

 

 

 

Mr. Biswanth De, Hon’ble President

 

The case of the complainant’s germane in the petition in a precise form can be reproduced herein as follows :-

The petitioner is an old aged having 61 years citizen of lower class family.  He is a registered owner of a vehicle bearing No.WB-72Z-0863 (Pulsar-220, Motorcycle).  He purchased the same from Siliguri Auto Works Pvt. Ltd. on 21.08.2012 at Rs.93,234/-.  The vehicle was insured with OP from 24.08.2012 to 23.08.2013.  The vehicle was lost/theft on 02.06.2013 from his sister’s house at Kawakhali, P.S.-Matigara.  Complaint was lodged before the O.C., N.B.M.C. & H Outpost under Matigara P.S., vide Matigara P.S. Case No.60/2013, dated 06.02.2013, U/S 380 of I.P.C.  This shows that the appropriate authority has been informed just after the loss of the vehicle. 

Contd…..P/2

-:2:-

 

 

The complainant informed to the OP about the lost/theft on 08.02.2013.  The staff of the OP gave one set of original Motor Insurance Claim Form, and told them to file the same.  The police filed FRT on 16.07.2013.  The claim form and FRT was deposited before the OP on 26.08.2013.  The OP repudiated the claim by mentioning delaying of 201 days.  It is contended by the OP in that letter that they did not find time for investigation to establish the fact of the case.  But fact remains that the matter of lost/theft was informed to the OP on 08.02.2013 i.e., after two days from the date of theft.  So, after coming no alternative, this complainant has approached before this Forum. 

From the above two things, it appears that motor cycle was lost/theft.  After lost/theft at once FIR was made before the police authority and just after 48 hours or lost, the matter was orally informed to the OP as per verified petition of complaint on oath. 

OP has contested the case by written version denying inter-alia all the material allegations as raised by the complainant and submitted that the complainant has informed the OP after 201 days.  So, the OP did not get any opportunity to investigate the case and for this reason OP has repudiated the claim of the complainant. 

Complainant has filed the following documents :-       

1.       Copy of Voter Identity Card of claimant.

2.       Copy of certificate of registration of vehicle bearing No.WB-74Z-0863 (Bajaj Pulsar-220).

3.       Copy of money receipt issued by Siliguri Auto Works Pvt. Ltd. dated 21.08.2012.

4.       Copy of Insurance Policy of vehicle bearing No.WB-74Z-0863 (Bajaj Pulsar-220) valid from 24.08.2012 to 23.08.2013.

5.       Copy of receipt of an application dated 17.07.2013.

6.       Copy of Formal F.I.R. and Final Report dated 06.02.2013.

7.       Copy of application before the Branch Manager, Bajaj Allianz Insurance Co. Ltd. dated 26.08.2013.

8.       Copy of duly filled up Motor Insurance Claim Form.

 

Contd…..P/3

-:3:-

 

 

9.       Copy of repudiation letter dated 28.08.2013.

10.     Copy of reply letter dated 26.08.2013.

11.     Copy of postal receipts dated 24.10.2013.

12.     Copy of Lawyer’s notice dated 24.10.2013.

13.     Copy of acknowledgement dated 26.10.2013.

 

OP has filed the following documents :-

1.       Xerox copy of Certificate cum policy schedule bearing policy No.OG-13-2404-1802-00016348 in the name of Kamakhya Dutta.

2.       Letter dated 26.08.2013 submitted by the complainant to the OP Insurance Company. 

3.       Repudiation Letter dated 28.08.2013 issued by the OP to the complainant.

 

Points for consideration

 

1.       Whether the vehicle lost/theft ?

2.       Whether claim was within time ?

3.       Whether the complainant is entitled to get benefit of the insurance act or other benefits?

 

Decision with reason

 

The complainant has field evidence in chief on oath.

OP has filed evidence in chief on oath. 

In the evidence-in-chief, the complainant has stated his case. 

The complainant in this case is Kamakhya Dutta.  His daughter Sushmita Dasgupta (Dutta) has deposed on oath that theft of the vehicle was done from the house of the complainant’s sister.  She stated her father is old aged about 62 years suffering from old age problem.  The motor cycle ( Bajaj Pulsar-220) bearing No.WB-74Z-0863 was purchased on 21.08.2012 at Rs.93,234/- and the same vehicle was insured with the OP by Policy No.OG-13-2404-1802-00016348, valid from 24.08.2012 to 23.08.2013.  Thereafter, FIR was lodged and a case bearing Matigara P.S.

Case No.60/13 dated 06.02.2013 under Section 380 of I.P.C was started.

 

Contd…..P/4

-:4:-

 

 

 This witness also stated that her father went to the office of the OP/Insurance Company after two days from the date of incident i.e., on 08.02.2013, and her father intimated regarding the incident i.e., lost/theft of motorcycle.  This witness also stated that a staff of OP gave her father one set of original Motor Insurance Claim Form, along with list for requisite documents and told them to deposit the same.  This witness categorically stated in para-10 that after getting information the OP/Insurance Company made an investigation through their investigator namely Advocate Niloy Roy of Siliguri Court, who enquired everything and submitted a report to the OP and as per instruction of the OP, the complainant applied for settlement of theft claim.  On 25.05.2013, when I.O. of this case submitted FRT, and FRT was accepted.  Thereafter, taking/collecting certified copy of the FIR, FRT and other sheets from Siliguri Criminal Court, the claim petition has been filed on 20.08.2013 and finally the claim, along with all papers submitted before the OP on 26.08.2013.  The OP W No.1 emphatically stated that her father informed the OP after two days and at that time this witness was present (vide para-13).  So, the contention stands that after theft i.e., theft of dwelling house Punishable under 380 of I.P.C. which the cognizance offence FIR was lodged before the police and police registered the same and started a police case. 

It is pertinent to note that as per provision of Criminal Procedure Code, information of omission of cognizable offence shall be made before the nearest police station without unreasonable delay as laid down in 154 of Cr. P.C., and the police are the investigating agency regarding any cognizable offence.  The FIR shows that on the FIR lodged by the complainant’s sister Kanan Ghosh wherein the motor cycle was kept and the owner of the vehicle and PW No.1 was stayed in the house of Kanan Ghosh on that night.  At about 2 a.m. on 06.02.2013 theft on dwelling house was done.  Some important articles, gold ornaments and motor cycle were taken away by theft party.  This FIR was lodged at 18.15

 

Contd…..P/5

-:5:-

 

 

hours on 06.02.2013.  Police register the case and the matter was taken up for investigation as per law.  So, the incident of theft of the vehicle and other ornaments came before the investigating authority in law within 12 hours and case was started on the basis of FIR.  So, it cannot be said that the incident of theft have not been informed to the investigating agency.  In such circumstances, when it is in record regarding theft of vehicle and other properties, the insurance authority cannot raise the plea that the matter was not informed to the investigating agency.  The Insurance Company is not the investigating agency as per law of the land.  They are only to assess the loss.  The main contention of the insurance company is that the incident of theft should be informed to the Insurance Company immediately. 

‘Immediately’ mean as per WEBSTER New dictionary “occurring at once, direct, not separated by others and it is used as adverb”.

‘Immediately’ means as per Oxford Dictionary at once, very close or adjacent in time or space – in direct relation. 

The Apex Court made conclusion that the word ‘immediately’ has to be construed, within a reasonable time having due category to the nature and circumstance of the case. 

The record shows that the police was informed at once just after the occurrence and police started specific criminal case.  There is nothing in record to contradict the evidence on oath of PW No.1 for the complainant regarding no other documents to contradict the FIR and investigation.  The complainant has acted rightly by informing the Police Station by lodging FIR for which specific case has been started.

The letter dated 28.08.2013 shows that as per Policy Condition No.1 “notice of theft would be served immediately upon the occurrence of any accident or loss or damage and the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require”.  In para-2 it is written that “you have deprived the investigation agency an opportunity for timely action to recover the vehicle”

 

Contd…..P/6

 

-:6:-

 

 

and the conclusion of the authority is that in the light of the above your claim stands repudiated. 

The letter dated 28.08.2013 which is only the document are expressedly repudiated the claim of the complainant only on the ground stated therein. 

But record shows that immediately upon the occurrence the matter was given to the police authority and police authority is the only investigating agency in the law of the land and within the Territory of India.  So, the para-2 showing depriving the investigating agency and opportunity for timely action to recover vehicle is not sustainable because the OP/Insurance Company is not an investigating agency and after theft the police was informed and police started a specific case.  Thereafter, police filed FRT, due to want of adequate evidence that does not mean that motor cycle was not lost/theft.  Police failed to trace or recover the vehicle that does not mean that the vehicle was not lost/theft.  The OP cannot take this plea that the matter had not been informed them in writing.  But fact remains that the matter has been informed to police in writing.  Cause of offence is cognizable offence. 

It is settled law that OP/Insurance Company has no right to make any investigation regarding the lost or regarding the cognizable offence. 

However, police filed FRT, then the complainant collected all the papers from the Criminal Court and sent the same before the authority to sanction claim on 24.10.20134 and OP replied on 28.08.2013.  But OP has avoided one information that after two days the complainant and PW No.1went to the office of the OP and orally informed the theft when they were given two forms to file the same duly filled in.  This evidence in chief of daughter of the complainant has not been impeached in any way.  The information has been given to the police immediately after the occurrence. 

So, the contention of the OP in the letter dated 28.08.2013 is not acceptable as per material of this case and as per objective of the Insurance Act. 

 

Contd…..P/7

-:7:-

 

 

The basis of the Insurance Act is nothing but a contract between the two parties and mainly to give protection to the party who make payment to the Company and take a policy for one year or more as the case may be. 

The complainant has informed the Insurance Company regarding theft along with all the papers of Ld Court (certified copy).  This certified copy issued by the Ld. Criminal Court and more correctly court established in the law of land.  The copy of the FIR and along with other documents cannot be brushed aside merely because it has been submitted after something.  The police after taking the complaint investigated the case and filed FRT.  The complainant after taking the certified copy of all those papers sent to the OP/Insurance Company claiming compensation and showing the veracity truthfulness of their claim. 

The ld advocate of the OP cited a ruling in I (2015) CPJ 74 (NC), National Consumer Disputes Redressal Commission, New Delhi, which is taken all the brevity of the discussion. 

“Conditions” : This policy and schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this policy or the schedule shall bear the same meaning wherever it may appear. 

Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.  Every letter claim writ summons and or process or copy thereof 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, inquest or total inquiry in respect of any occurrence which may give rise to a claim under this policy.  In case of theft or criminal act which may be the subject of a claim under this

 

Contd…..P/8

 

-:8:-

 

 

policy the insured shall give immediate notice to the police and            co-operate with the company in securing the conviction of the offender.”  In the instant case in our hand, the matter was at once informed to the police.  There was not only theft of vehicle but also other domestic articles from the house of the complainant’s sister and for which a case has been registered and investigation has been done and filed FRT.  So, the police got ample time for investigation.  The OP/Insurance Company shall make any investigation, the investigation shall be made by the police and the matter was known to the OP/Insurance Company before hand and later all the paper and claim form have been filed by the complainant. 

It is pertinent to note that complainant filed the claim form after getting certified copy from the criminal court.  So, it cannot be said that complainant was sleeping and was not informing the insurance company.  The OP was well informed regarding theft of the motorcycle.     

In this case also, the OP/Insurance Company got ample opportunity when the matter was informed within two days and claim form was given to the complainant. 

The ld advocate of the complainant submitted that a contract of insurance is a contract of indemnity and the Insurance Company is bound to honour the claim.  Once the policy had been issued after discharging the premium, it is stated that the said contract has been made subject to certain conditions in case there is violation of such condition, but such violation has to be taken into account while out siding the issue of indemnity.           

In this instant case, there is no dispute that the complainant was not the owner.  There is no dispute that the vehicle has been used by anyone, there is no dispute that the police authority did not investigate the case, the police authority fully investigated the case and the complainant after relying the police report has approached before this OP for compensation for motorcycle had been lost and the time taken by the police for investigation from the date of FIR to the date of filing FRT

 

Contd…..P/9

-:9:-

 

 

obviously it is come within the mischief period and after that complaint has been filed to get compensation and i.e., reasonable. 

Moreover, the complainant is a blaze people who is quite ignorant about the English language.  So, a man having some knowledge of Bengali language cannot be equated with a man of English language.

The conduct, behavior, knowledge, speaking power, family background, pecuniary condition shall not be considered with a man of higher society, who are conversant with rules, regulations, English language and other privileges.  This complainant when went to the office of the OP/Insurance Company after two days, they were not explained what they have to do.  But in spite of that complainant has discharged his duty by filing FIR before the competent law enforcing authority.  So, the conduct, behavior of the complainant is praiseworthy and in good faith and their conduct is very innocent.

The basis of the Insurance Act is also to protect the consumer not to find the ignorancy of the consumer.  Moreover, the Consumer Protection Act, came into being for better protection of the consumer. 

Most of the consumers in India live in the village, who are devoid of knowledge of English as well as knowledge of Insurance Act. 

So, after considering all the materials, evidence of both sides, facts of the case and spirit of the Consumer Protection Act, and principles of law pronounced by their Lordship in different cases, this Forum holds that acts of the OP/Insurance Company is full of negligence and deficiency in service to the consumer complainant. 

So, the case succeeds and the complainant is entitled to get relief as prayed for. 

Firstly, the complainant is entitled to get insured amount of Rs.93,234/- towards refund the value of the theft motorcycle.

The complainant is also entitle to get Rs.50,000/- as compensation for mental pain, agony and harassment.

The complainant is also entitled to get Rs.15,000/- for cost of proceeding.

 

Contd…..P/10

-:10:-

 

 

In the result, the case succeeds.

Hence, it is

                    O R D E R E D

that the Consumer Case No.153/S/2013 be, and the same is hereby allowed on contest against the OP.    

The complainant is entitled to get Rs.93,234/- towards refund the value of the theft motorcycle from the OP.

The complainant is also entitled to get Rs.50,000/- for compensation towards mental pain, agony and harassment from the OP.

The complainant is also entitled to get Rs.15,000/- for cost of the proceedings. 

The complainant is also entitled to get interest @ 9% per annum from the date of appearance of OP i.e., 15.01.2014 till date of full realization.

The OP is directed to pay Rs.93,234/- towards refund the value of the theft motorcycle by issuing an account payee cheque in the name of the complainant, within 45 days of this order.

The OP is further directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant for compensation towards mental pain, agony and harassment, within 45 days of this order.    

The OP is further directed to pay Rs.15,000/- by issuing an account payee cheque in the name of the complainant for cost of proceeding, within 45 days of this order.

The OP is further directed to pay interest @ 9% per annum from the date of appearance of OP i.e., 15.01.2014 till date of full realization within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                     -Member-                         -President-