Date of Filing: 10-03-2017 Date of Final Order: 08-01-2018
Sri Debangshu Bhattacharjee, Member
This is a case u/s 12 of CP Act filed by Sri Arup Kr. Chakraborty against United India Insurance Company Ltd. claiming for insurance of claimed amount of Rs.9,00,000/-, Rs.1,00,000/- for mental pain and agony, Rs.1,00,000/- for compensation and Rs.10,000/- for litigation cost.
Briefly stated the facts of the case are that the Complainant Sri .Arup Kr. Chakraborty purchased a Mahindra Scorpio LX 2.2 Hawk from Khokon Motors Siliguri. The vehicle was financed by/Hypothecated to HDFC Bank, Cooch Behar branch. It was insured for a value of Rs.9,00,000/- and the insurance policy was valid from 21.05.2014 to 20.05.2015. On 08-01-2015, when the vehicle was being driven by one Md. Soleman Miha on the way to Alipurduar some three persons gave a signal to the driver to stop the vehicle about 8 p.m. at Birpara, Alipurduar. After he stopped, they requested the driver to give them a lift up to Bholardabri, Alipurduar because one of their relatives was very much ill and might expire at any time. He was lying in deathbed at Bholardabri. Since no other mode of transport was available, the driver gave a lift to these persons. On their way the said three passengers offered some food to the driver. On their request the driver took some food from them and became unconscious. On 10-01-2015 the driver of the said vehicle found him at Islampur SD Hospital. After knowing the incident from the driver the Complainant went to Alipurduar police station to lodge an FIR but the authority refused to take the GD/FIR. After that the complainant filed a complaint petition before the Ld. A.C.J.M, Alipurduar to treat the petition as FIR u/s 156(3) Cr. P.C. There after one G.R case was started (Case No.530/2015).The insurance company was intimated about the theft through their agent. The complainant also wrote a letter to the insurance company on 21-01-2015. However, no settlement was arrived at their end and ultimately repudiated the Claim vide letter dated 04-03-2016 on the ground that the claim was initiated to the insurance company after a lapse of 18 (eighteen) days.
The Opposite Party-Insurance Company in its written version has taken plea that the complaint is not maintainable in the present form; that the complaint is bad for non-joinder of necessary parties. It is admitted fact that the opposite party-Insurance Company provided insurance policy to the complainant. This fact came to the notice of the opposite party after scrutinizing of the claim filed. Moreover, the complainant has caused un-necessary delay in submitting information regarding the alleged occurrence of theft to the opposite party as the opposite party received information on 27th January 2015. Moreover, F.I.R. was also lodged regarding commitment of theft of the vehicle more than a period of 12 days from the date of occurrence. In this way, the complainant has violated condition Nos.1 and 9 of the terms and conditions of the insurance policy.
The opposite party is not liable to pay any amount to the complainant as claimed in the complaint. The opposite party has prayed that the complaint filed by the complainant should be dismissed with cost.
Considering the complaint petition and its written version, the following points are necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1) (d) (ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P. any deficiency in service as alleged by the Complainant?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Heard the argument at a length as advanced by the Ld. Agents for the Complainant and the O.P. perused the documents submitted by the both parties.
Point No.1.
The Complainant Arup Kumar chakraborty purchased an Insurance Policy for his vehicle being Regd. No. WB -64-J/7250 from the OP Insurer on payment of Rs.22,497/-. Therefore, there is a transaction of seller and buyer, it relates to any goods on consideration and the Complainant paid premium against such insurance policy.
Hence, we hold that the Complainant is a consumer as per provision u/s 2 (1) (d)(ii) of CP Act, 1986.
Point No.2.
The Complainant is a resident of Kotwali P.S in the district of Cooch Behar. The Office of the OP is situated within Cooch Behar town. Hence, this Forum has territorial jurisdiction to try this case.
The claim of the Complainant is much less than the statutory limit. Hence, this Forum has pecuniary jurisdiction to try this case. This point is also decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for convenience of discussions as well as the points are related with each other.
We have carefully examined the entire text of the complaint and all copies and papers placed on record. It is material to note that consumer complaint filed by the complainant is not clear. All the necessary particulars are not at all disclosed in the complaint, because the complainant wanted to commit dishonesty and in order to have unlawful enrichment, suppressed material facts.
Md. Suleman Mia who was the driver of the stolen vehicle and only witness of the incident has not adduced any evidence on behalf of the Complainant. In paragraph 9 (nine) of the complaint petition the complainant pleaded that on 10-01-2015 the driver of the vehicle (Md. Suleman Mia ) found himself admitted in Islampur S.D. Hospital. But no medical document has been produced by the complainant in support of his statement.
In a letter dated 22/02/2016 (Annexure-5 page-15) to the Senior Branch Manager of the OP insurance company the complainant informed that one G.D (No-538/15dated 11-01-2015) was filed by the complainant at Islampur P.S but no such document has been produced by the complainant.
According to the Xerox copy of the order sheet dated 28-03-2016 in the court of Addl. C.J.M, Alipurduar (Annexure –D page-6) the complainant raised no objections at the time of final report submitted by the police about the G.R case 530/15. Which is in question?
The vehicle was hypothecated to the HDFC Bank Cooch Behar but the complainant never informed them or made them a party. According to the (Annexure E page 14) letter dated 28-12-2015 to the Senior Branch Manager of the OP insurance company the complainant wrote that he is paying the EMI of HDFC bank and he requested him to pay 75% of the claimed amount to him.
A party seeking flexible relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to any relief. A person seeking relief is required to make honest disclosure of all relevant statement of facts otherwise it would amount to an abuse of the process of the Forum
In the present case, the Complainant who claimed to be the owner was not at fault. As per version of the Complainant, his driver (Md. Suleman Mia) gave a lift to some passengers. Carrying such passengers may be a breach of the policy, As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamental breach and, in this behalf, we may rely on the judgments of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259, Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 and B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647.
It is common that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace out his vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. In the present case (Annexure –E, Page-9-10) the complainant submitted the document where he described the causes of delay for submission of claim to the insurance company which is not satisfactory at all.
Even otherwise, the Insurance Regulatory Development Authority (IRDA), which control and regulates the Insurance Companies, issued direction not to reject the genuine claims simply because of delay in registration of FIR and intimation to the Insurance Company. In the instructions of the IRDA it was also mentioned that claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for affecting various post claim activities like investigation, loss assessment provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The complainant put foremost emphasis on the judgment In Om Prakash vs. Reliance General Insurance on 4 October, 2017 wherein the Hon’ble Supreme Court set aside orders of the National Commission, State Commission and the District Forum and allowed the claim petition filed by the appellant. On going through the record it is clear that the circumstances of this present case are not similar to the above noted decision. In the referred case the police was informed immediately after the incident and the complainant helped the police to investigate. In the aforesaid case, there was a delay of 12 days in lodging the FIR and 18 days in reporting the loss to the Insurer which is not clearly described or justified. As per the Condition No. 1 of the Insurance Policy, the information of theft ought to have been given to the respondent-company immediately upon the occurrence of theft. In the said circumstance, the Insurance Company was justified in rejecting the claim. Even, in those circumstances, the National Commission, in clear-cut terms, held that since there was violation of Condition No.1 of the Policy, as the insurer was deprived of the valuable right to investigate, as to the commission of theft, and to trace/help in tracing the vehicle, the repudiation of claim, is legal and valid.
The complainant refers the following decisions for consideration. In 2015 CJ 114 (N.C) it was held that “Insurance claim must be settled or rejected within reasonable time of two months”. In 2012 CJ 797 (N.C) it is held that “delay in settlement of claim amounts to deficiency of service”. In 2014 CJ 260 (N.C) it is held that Insurance Company cannot repudiate claim in Toto in case of loss of vehicle due to theft.
Therefore, we are of the considered opinion that the complainant has not come to the Court with clean hands. It is very difficult to believe that the Complainant sent his driver Soleman to Alipurduar to bring his ailing wife but he was so anxious for his wife’s illness that he could not get any information of his vehicle or driver till 10.01.15. A man of ordinary prudence should try to trace out his vehicle on the date of missing and inform the police immediately so that his vehicle may be traced out. The Complainant has not acted as a man of ordinary prudence. He waited till 27.01.15 to inform the incident to the OP. In a letter dated 27.01.15 (Annex E series at page 15) the Complainant stated that he informed the fact to the Agent Rajib Paul on 09.01.15 but it is not possible as he got information on 11.01.15 as per Annex E series at page 7. In the Circumstance, we hold that the O.P. has no deficiency in service for repudiation of insurance claim of the complainant.
We hold that the Complainant has failed to establish deficiency in service against the OP and the Complainant is not entitled to get any relief in this case.
In the result, the Complaint case fails.
Hence,
It is Ordered,
That the complain case be and the same is hereby dismissed on contest against OP Insurance Company without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
