Hon'ble Mr. Haradhan Mukhopadhyay, President.
The theft of a vehicle which dragged the Complainant to take recourse of Law through this Commission is summarised to the extent that the Complainant is the registered owner of Motor Cycle bearing registration No. WB 64K/6818( Hero Super Splender) being registered with RTA, Cooch Behar on 03.02.15 subject to hypothecation with Canara Bank, Tufanganj Branch. On 20.07.17 at about 1.15 P.M. to 2 P.M. the Motor Cycle of the Complainant was theft by unknown miscreants from the gate of Natabari Hospital under Tufanganj P.S. where the complaint was taking tea in a stall. At the relevant time all the original paper of the vehicle was inside the basket of the Motor Cycle. Despite searching the Complainant could not trace out the said Motor Cycle. The Complainant thereafter lodged a written complaint to the Tufanganj P.S. but failed to mention the date of lodging complaint in the FIR. The Tufanganj P.S. assured the Complainant to trace out the same. Thereafter on 21.07.18 the Complainant also informed the matter to the O.P. No.2 the Branch Manager, Tufanganj Branch being agent of insurance Company O.P. No.1 on 21.07.18. The policy of the insurance is 0351013116P114949592 valid from 08.02.17 to 7.02.18. The O.P. No.2 gave a receipt against the said complaint on 21.07.18. Subsequently the Complainant received a letter dated 14.08.17 from O.P. No.1 stating inter alia that “Occurrence on 20.07.17 but the same was intimated to the Police on 01.08.17 and to the Office of O.P. No.1 on 03.08.17”. By the said letter the Complainant was requested to show the documents relating to vehicle to the O.P. No.1 within 7 days from the receipt of that letter. Having received the letter Complainant went to the P.S. and came to know that despite filing the complaint on 20.07.18 the Police of Tufanganj registered the case of 01.08.17. The Complainant was not liable for the said delay. Subsequently the Complainant received a letter from the O.P. No.1 dated 09.10.17 stating that “Closer/ Repudiation of claim”. On 29.11.17 the Complainant replied to the O.P. No.1 stating the explanation/ inconsistency into the matter. Despite repeated correspondence the O.P. No.1 did not settle the genuine claim of the Complainant for which he has suffered loss and mental pain and agony which is nothing but deficiency in service. The total loss due to the such default of the OP is that valuation of vehicle Rs.42,340/-, suffering for mental pain and agony Rs.20,000/-, deficiency in service and unfair trade practice Rs.30,000/- and cost of litigation Rs.10,000/-. The Complainant therefore prayed for an award as per the prayer of the complaint for a sum of Rs.1,02,340/-.
The O.P. No.1 contested the case by filing written version denying each and every allegation in black and white. The positive defence case of the O.P. No.1 in brief is that the complaint is not legally maintainable, barred by the C.P. Act. The positive defence case of the O.P. No.1 is that the Complainant followed the terms and condition of the insurance policy wherein it has been stated that notice shall be given in writing to the Company immediately on the occurrence of any accidental loss of damage in the event of any claim. Although it is alleged that the theft was occurred on 20.07.17 yet the Complainant did not inform it within time. Instead the O.P. No.2 Branch Manager of Canara Bank, Tufanganj Branch informed the matter on 04.08.18 and 29.08.17 about the alleged theft of the vehicle after 14 & 39 days respectively without showing any cause for the said delay. In terms of the policy issued by O.P. No.1 the Complainant was duty bound to inform it about the theft of the vehicle immediately after alleged incident. On account of the delayed intimation, the OP was deprived of his right to get an enquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same. So the O.P. No.1 is not liable to pay any compensation as claimed by the Complainant and it does not amount to deficiency in service. As per the insurance policy it is evident that the said vehicle was not hypothecation of Canara bank, Tufanganj Branch, Dist- Cooch Behar. So the Complainant is not the absolute owner of the said vehicle. It is admitted that the vehicle in dispute was insured with the O.P. No.1 subject to terms and condition of the said policy. The OP therefore prayed that the case is liable to be dismissed with cost.
The O.P. No.2 Branch Manager, Canara Bank, Tufanganj Branch preferred not to contest the case and as such it was heard ex-parte vide order No.03 of this Commission dated 29.10.18. Accordingly the O.P. No.2 could not file any W/V or evidence on their behalf.
This specific allegation and the denial thereof vis-à-vis the respective case of the parties let this Commission to said forth.
POINTS FOR DETERMINATION
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the Complainant deliberately caused the delay in lodging the FIR?
- Whether the Complainant is entitled to get this relief as prayed for?
- To what other relief if any the Complainant is entitled?
DECISION WITH REASONS
Point No.1.
So far as the complaint and the written version of the O.Ps concerned it is found from the record that the specific averment as to the status of the Complainant as a consumer under the O.P. No.1 & 2. The O.P. No.2 did not come forwarded to challenge his status in as much as the case is heard ex-parte against O.P. No.2 Branch Manager, Canara Bank, Tufanganj Branch, P.S. Cooch Behar. The specific statement of the OP in para-15 of the W/V is reproduced to the effect vehicle No. WB 64K/6818 “Motor Cycle was insured with this answering OP subject to terms and condition”. Thus the relation between the Complainant and the O.Ps appeared to be nothing but a customer and service provider in the form of giving insurance against any untoward incident. The transaction took place between the Complainant and the O.Ps are sufficient to bring the Complainant within the purview of consumer under section-2 sub-section7 of the C.P. Act 2019.
The aforesaid observation leads this Commission to hold that the Complainant is a consumer under the C.P. Act. Accordingly issue No.1 is decided infavour of the Complainant.
Points No. 2,3,4.
All the issues have a very close nexus with each other and as such these issues are taken up together for discussion for convenience and brevity of discussion.
The main contention of the OP in defending the case is that due to delay in lodging the FIR or in other words delay to intimate about the theft to the O.P. No.1 the Complainant is debarred from getting the privilege of insurance as per the terms and conditions of the insurance policy.
The Complainant filed the insurance policy and adduced evidence to that effect where from it is depicted that the O.P. No.1 Company registered the said vehicle with policy 0351013116P114949592 in respect of vehicle No. WB 64K/6818. The insurance period starts from 08.02.17 and insured up to midnight of 07.02.18. Both the documents are proved in evidence by the Complainant, where from it is revealed that the theft on the Motor Cycle as stated in the complaint as well as in evidence on affidavit is 20.07.17 which is well within the validity of the insurance period.
The Ld. Defence Counsel also questioned that the complaint was registered on 01.08.17 but the incident took place on 20.08.17.
The Ld. Advocate for the Complainant argued that initially he went to the P.S. to lodge the FIR but the Police asked him to give them some hints to trace out the vehicle and recovery. When the Police failed to recover, then Complainant was compelled to lodge the FIR. As the FIR was already written in the date of incident so it was written as “ means the date of the incident being 20.07.17”. The written complaint to the Police Annexure- B/1 supports the contention of the Complainant and the said specific fact. The evidence of the Complainant in this respect could not be discarded by either of the O.Ps. The OP could not cross-examine the Complainant to discard the said evidence.
The close scrutiny of the formal FIR being Annexure- B further discloses that occurrence of offence is 20.07.17 in respect of the vehicle WB 64K/6818.
The Ld. Defence Counsel questioned as to why the Complainant remained silent against the theft of his Motor Cycle in front of him hold in tea stall and was hobnobbing with his friends.
The argument does not have much force in as much as the professional thieves are so expert that even within the few seconds any object can be stolen from an individual.
The Ld. Defence Counsel also criticized during argument that the Complainant could not file the original document before the Commission.
The Ld. Counsel for the Complainant argued in reply that it is specific plea of the Complainant that the original document were inside the box of the Motor Cycle which was stolen.
It is also the argument of the Ld. Defence Counsel that it was the duty of the Complainant to inform the insurer without any delay about the alleged theft.
It is found from the pleading of the Complainant that he informed the incident to the O.P. NO.2 the Branch Manager Canara Bank, Tufanganj Branch on 21.07.18. The O.P. No.2 is the Agent of the O.P. No.1 insurance Company. So intimation to the Agent is supposed to be the intimation of the principles. The said fact about the intimation was not controverted by the O.P. No.2 since the O.P. No.2 preferred not contest the case which is heard ex-parte against him.
The correspondences between the Complainant and the O.Ps are also reflected through the answers like Annexure- E letter issued by O.P. No.1 to the Complainant dated 14.08.17.
The documents in the case record as well as the evidence on affidavit further discloses that the O.P. No.1 repudiated the claim of the Complainant solely on the ground of delay in giving intimation to them.
In this regard Ld. Advocate for the Complainant took recourse of a case Law being reported in 2018(4) CPR 204(SC) wherein it was held by the Hon’ble Apex Court that in respect of the claim of appellant citing breach of condition regarding immediate information about theft of vehicle Act this condition should not bar settlement of genuine claims particularly when delay in intimation or submission of documents is due to unavoidable circumstances. Decision of the insurer to reject claim has to be based on valid grounds. Rejection of claims on purely technical grounds in a mechanical manner will result in loss confidence of policy holders in insurance industry. Condition regarding delay shall not be a shelter to repudiate insurance claims which have been otherwise proved to be genuine. Claim was allowed.
Relying upon the said opinion of the Hon’ble Apex Court this Commission is of the view that the Complainant left no stone unturned to establish his claim and ran from pillar to post for recovery of his stolen Motor Cycle or in the alternative insurance claim. Therefore for sake of argument if it is presumed that there was a minor delay in intimating the fact of the theft to the O.P. No.1 the same should not be brushed aside in a mechanical manner by the O.P. No.1 Company where the O.P. No.1 did not come forward to the Court to discharge their onus in respect of claim.
The Complainant to strengthen his claim further resorted to another decision of the Hon’ble National Commission reported in 2018(3) CPR 41(NC) it was ruled inter alia that the OP insurance Company has taken a false stand regarding failure of the Complainant to give immediate intimation in writing of theft JCB- only because the Complainant has not been able to provide documentary proof of giving intimation in writing to OP his version given in affidavit cannot be rejected particularly when the OP has been clearly shifting his stands. Repudiated of insurance claim is not justified.
The said case Law is duly relied on and principles set forth thereon are applied in the instant case.
It is also evident from the case record that the O.P. No.1 did not prefer to cross-examine the Complainant by filing any enquiry. So also the O.P. No.1 did not file any evidence on its behalf. Thus apart from denying allegation of the Complainant the OP could lead sufficient evidence on their behalf.
In the back drop of the discussion made here in above and the observation made therein the Commission comes to the findings that the minor delay in giving intimation to the O.P. No.1 should not be considered as fatal to the Complainant.
Ld. Defence Counsel also argued that the case was ended in the FRT form. The criminal investigation may be charge sheeted or ended with final report depending upon the investigating agency over which the Complainant/ Defecto Complainant does not have any control. There is nothing to show that investigating agency informed the Defecto Complainant about submission of FRT. Had it been within the knowledge of the Complainant/ Defecto Complainant he could have filed Naraji/ protest petition against the FRT.
So, the said argument does not reduce the merit of the case of the Complainant.
Accordingly issue No.2 is answered in favour of the Complainant. The aforesaid misdeeds of the O.P.s tantamount to deficiency in service for which the Complainant should be compensated.
Since the Complainant duly proved all the requirements of the C.P. Act 2019 to get the relief in the instance case so there is nothing in the case record to deprive the Complainant from the relief.
Accordingly the Complainant is entitled to get the relief as prayed for. However the amount of compensation be reduced to some extent because of the given facts and circumstances.
Consequently issue No. 3 & 4 are also answered in positive on behalf of the Complainant. The complaint case, thus succeeds on contest with cost.
Hence, it is
Ordered
That the Complainant Case No. CC/60/2018 is allowed on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost of Rs.5,000/- each. The Complainant do get an award of Rs.42,340/- towards insurance claim, Rs.10,000/- for mental pain and agony and Rs.20,000/- for deficiency in service from the O.Ps. The O.P. No.1 is directed to pay to the Complainant a sum of Rs.42,340/- to the Complainant as above within 30 days from the date of passing Final Order failing which the entire awarded sum will carry an interest of 6% per annum from the date of Final Order till the date of realization thereof. The O.P. No.1 & 2 are jointly and severally liable for the aforesaid awarded money and the O.P. No.1 can recover it from the O.P. No.2.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
