BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.63/2014
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA -Member
Miss Parbin Begum, -Complainant
D/O –Late Hussain Ali,
Milanjyoti Path, House No. 25,
Anupam Nagar, Sijubari,
P.O.& P.S. Hatigaon,Guwahati-38
District: Kamrup(M), Assam
-vs-
I) The Branch Manager,
Bharti AXA General Insurance Company Ltd - Opposite parties
510 Amazze Shopping Mall,
5th Floor, Near Panbazar Flyover
A.T.Road, Guwahati-781001
District: Kamrup(M), Assam
2) The Head-operations & Claims,
Bharti AXA General Insurance Company Ltd,
1st Floor, Fems Icom, Survey No. -28
Doddanakundi Village, K.R.Purm
Holdi, District –Banglore, Karnataka,
Pin-560037
3) SMC Insurance Brokers Pvt.Ltd. -Exparte -20.7.15
Devine Plaza, Super Market,
G.S.Road, Dispur, Guwahati-781006,
District: Kamrup (M), Assam
4) State Bank of India, -Proforma opp.party
SMECC Branch,
Bamunimaidam, Guwahati-781021
Appearance
Learned advocate Sri M.R.Islam, Sri Anjali Kalita, Sri S.Choudhuty for the complainant .
Learned advocate Sri Anjan Jyoti Saikia, Sri Bhubaneswar Kakita, S.Haque,Sri B.R.Dey, Sri M.K.Roy, Sri M.Rahman,Sri M.Barman, Sri S.Dutta for the opp.party
Date of filing written argument:- 4.12.18
Date of oral argument: 28.1.21
Date of judgment: - 25.2.21
JUDGMENT
1) This is an application u/s 11 & 12 of Consumer protection act 1986 by one Miss Parbin Begum against opp.party Branch Manager ,(1) Bharti AXA general Insurance Company Ltd. 2) Head Quarter Operation and claim , Bharti AXA general Ltd..(3) SMC Insurance Brokers Pvt.Ltd.Devine Plaza, Super Market, G.S.Road, Dispur (4) State Bank of India, SMECC branch , Bamuni Maidam.
2) The fact of the case briefly narrating is that complainant purchased a commercial vehicle (207 DI Goods Carrier ) on 16.9.2009 on hypothecation from the State Bank of India for the purpose of earning livelihood of her family. The said vehicle was duly registered at the office of the District Transport Office, Kamrup Metro. Guwahati vide Registration No. AS-01/BC-8968 and the chassis No. MAT3744 6399H19 534, Engine No. 497SP28HQZ623478. The vehicle was insured since 2009 with opp.party and the vehicle was lastly insured with Bharti AXA General Insurance Company Ltd. vide policy No. FCV/10104984/N1/10 /K1 N 113 with effect from 6.10.2011 to 5.10.2012 by paying premium amount of Rs.15,328/- The insured declared value of the vehicle was Rs.3,34,442/- and policy name was Package policy “commercial vehicle –goods” . According to the complainant vehicle was running by professional driver during the period of 2011-12 and complainant appointed one Rafikul Islam to drive her vehicle.
3) According to the complainant on 7.7.2012 the driver had parked the vehicle at Hatigaon stand and in the evening the driver over phone inform the complainant that he was going to a trip to Silchar , but till 11.7.2012 the driver did not return and complainant tried to contact over his mobile phone but found switch off and then complainant tried to know where about the driver and the vehicle. But no information was received and on 11.7.2012 a F.I.R. was filed and Hatigaon P.S. 140/2012 u/s 381 I.P.C. and police investigated the matter. On the next day complainant inform the insurance company i.e. on 12.7.2012 and the insurance broker Pvt.Ltd. assured the complainant that they will inform the matter to Bharti AXA general Insurance ltd. Accordingly the complainant inform the D.T.0. Kamrup and also the State Bank of India on 12.7.12 and 23.7.12 about the loss of the vehicle . The complainant was waiting with an expectation that police may recovered the vehicle but ultimately the complainant went to the S.M.C. Insurance Broker Pvt.Ltd. on 15.3.2013. and gave them the copy of F.I.R., copy of R.C., Fitness certificate , tax receipt and copy of written intimation of the financer etc.
4) Thereafter the opp.party insurance company registered the claim and after few day make a quarry about the intimation of theft of the vehicle . Then complainant had replied on 12.7.12 informing that he had already report that matter on 12.7.2012 to S.M.C. Insurance Broker Pvt. Ltd. who was the broker of the concerned insurance policy. The said broker company on 29.10.13 wrote a letter stating the cause of their delay in giving intimation to the insurance company which was received on 30.10.2013 by the insurance company . Thereafter complainant obtained the final report , certified copy of F.I.R. and court order on 2.8.2013 and submitted the papers at the branch office of the insurance company on 27.9.2013. After issuance of letter by the agent of the insurance broker again on 10.12.13 insurance company issued a show cause notice for 251 day delay in intimation and 4 days delay in lodging F.I.R. without giving any stipulated time for the reply.
5) Thereafter on 27.1.2014 the complainant again submitted her reply against her show cause reply on 10.12.13 before the opp.party insurance company. But without considering the show cause reply opp.party insurance company had repudiated the claim of the complainant by letter dtd. 30.12.13 which was actually send to the complainant by registered post on 10.3.2014 . Under that circumstances the complainant served a legal notice on 21.5.2014 upon the opp.party, and without getting ay response , present complaint petition has been filed alleging negligence and deficiency in service and for illegal repudiation of the claim of the complainant .
6) The opp.party 1 & 2 appeared and contested the proceeding by filing written statement. but opp.party No.3 did not appear and case proceeded exparte against opp.party No.3. The plea taken by the opp.party in the written statement is that there is 4 day delay in reporting the act of theft to police and inordinate delay of 251 days to intimate the opp.party insurance company for which the insurance complainant claim that they are not liable o to pay any compensation to the owner of the vehicle no. AS-01 BC 8968 . On the other had opp.party No. 4 state bank of India where the vehicle was under hypothecation and outstanding term loan account as on 27.1.15 was at Rs. 1,01248/- . The SBI further stated that complainant had informed that on 12.7.2012 about the theft of the vehicle. The opp.party No. 4 further stated that insurance claim should not be deprived merely on technical ground and submits that if any award is made entire amount should be transferred to the loan account for necessary adjustment.
7) From the pleading of the party this commission is of the view that the following issues are to be decided on the basis of the material on record to arrive at a decision in the dispute.
I) Whether vehicle in question was lost due to theft and complainant have duly informed the parties concerned ?
II) Whether the repudiation of the claim by the opp.party No.3 is illegal and therefore complainant is entitled for compensation.
8) Reasons for decision:
The issue no. 1 is taken for discussion . So far theft is concerned the fact remains as undisputed and complainant have submitted the certified copy of F.I.R. and final report of the police about the theft of insured vehicle. We have considered evidence on record very carefully where the complainant as C.W. 1 categorically narrated the fact about loss of her vehicle for which she lodged F.I.R. The circumstances is that the vehicle was a commercial vehicle and it was on a trip to Silchar a distance of more than 300 K.M. then in that case awaiting for 3-4 days by the owner for return of the vehicle is reasonable and cannot be said that there is delay in lodging F.I.R. by the complainant before the police about the theft.
9) The next question about the delay of informing the insurance company by the complainant. The complainant have clearly stated that she informed the broker of insurance company and financer , State Bank of India on 12.7.2012. This fact has not been contradicted by the opp.party. In our view , the opp.party No.3 being an agent of the insurance company if received the intimation , then it is their duty to inform the insurance company irrespective of the fact that complainant have not informed the insurance company directly. Here, we have look at Ext. 6 dtd. 29.10.13 issued by opp.party No.3 S.M.C.insurance broker pvt. Ltd. to the insurance company who admitted the fact of intimation of theft of the vehicle on 12.7.12 and explained the delay caused by opp.party No.3. If the explanation given by the opp.party No. 3 is not satisfactory then it ought to have make responsible the opp.party No.3 for not informing the report of theft immediately after receiving the same from the complainant. But instead of doing so the insurance company issued a show cause notice to the complainant . The reminder letter as Annexure 12 is for the reason of 4 days delay in the F.I.R. which is the ground taken for decision by the insurance company. Annex.13 is the letter of clarification issued to the branch manager of the insurance company and to its head quarter in respect of the claim by the complainant in which complainant have narrated the entire circumstance under which she lodged F.I.R. on 11.12.2016 and thereafter informed the incident . According to her S.M.C.Insurance Broker Pvt. Ltd. was the broker of the insurance company through whom the policy was purchased . As such for a laymen the broker is the mediator and a communicator for the said company and informing him about loss of the vehicle is sufficient for her regarding the required intimation to the insurance company . We found that opp.party no. 3 the broker have not turned up to contest the proceeding further and his letter issued to the insurance company explaining the reason of delay in giving intimation through Ex.9 as proved by the complainant may be found sufficient for accepting or rejecting by the company as complainant ought not suffer .
10) While arguing the case the counsel of the opp.party No. 1 & 2 insisted on policy condition No. 1 and according to them policy condition no. 1 read as under-
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damages 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 of copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal injury 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 the policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.”
11) The fact discussed here-in-above, it is not found that complainant was not cooperating with the police for investigation or with the insurance company, because of the fact that she had informed the matter to be known agent of the insurance company. It is now the responsibility of the opp.party No.3 to inform opp.party No.1 . Here complainant have taken reliance on a circular issued by insurance regulatory and development authority where there was a direction to the insurer which read as below.
“ The insurer are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured .”
12) The complainant took reliance of Supreme Court Case law,
“(2017) 9 Supreme Court Cases 724
(Before R.K.Agarwal and S. Abdul Nazeer JJ.)
Om Prakash Appellant
-Vs-
Reliance General Insurance and Another Respondents
The proposition of law – “Reason for delay in making claim, satisfactory explained – Orders of Consumer Forums set aside and claim petition to direct insurer to pay claim amount with interest along with compensation to insured, allowed. “
13) Another case cited by the opp.party in respect of a matter decided by Nation Consumer Disputes Redressal Commission oriental insurance company ltd. –vs- jaina construction company in which case intimation of theft was given to the insurance company after a delay of about 5 months . But in our case in hand there is no such specific delay directly caused by the complainant informing the matter to the opp.party no. 1 as she has informed the incident to the agent of the opp.party No. 1 and hence the case law cited is not found similar with our case in hand to follow.
14) With the above discussion made on the evidence available with record we are of the view that issued No. 1 is found in favour of the complainant and against the contesting opp.party .
15) Now issue No. 2 is taken for decision and from the evidence of the complainant it appears that repudiation letter dtd. 30.12.2013 was sent through registered post only on 10.3.2014 from Kolkata without considering the explanation given by the complainant because the complainant had sent her explanation dtd. 27.1.2014 to opp.party No.1 , but without receiving any information about the explanation given by her on 15.3.2014 the complainant received the repudiation letter dtd. 30.12.2013 and here the question comes how a claim of repudiation of 3 months back was sent to the complainant without giving any reply to her explanation on her reply letter.
16) Here we have gone through Ext. 1 and Ext 2 insurance policy and Ext. 3 the insurance letter and all the documents including delay explanation letter Ext. 9 dtd. 27./1.2014 . If there was a letter on 27.1.2014 then how in the month of march repudiation order was issued which reached the complainant on 15.3.14. Ext. 10 the repudiation letter 30.12.2013 is with a postal invoice and receipt dtd. 10.3.2014 is something fishy and there is no explanation from the opp.party why a repudiation order in the month of December is kept pending in their office without intimating the same to the complainant till 15.3.2014.
17) The repudiation order issued by the opp.party No.1 have not explained about anything in respect of opp.party No. 3 insurance broker and his letter addressed to the insurance company vide Ext. 6 dtd. 29.10.2013. The aforesaid Ext. 6 was duly received by the branch manager Bharti AXA General insurance company ltd. where it has been explained that claim of the petitioner was not lodged due to some mistake. If such agent or broker as S.M.C. insurance broker pvt. ltd. is not entitled for entertaining any complaint etc. then there ought to have specific declaration in the policy that information of claim must be reached the opp.party No. 1 directly not through any broker or agent. For a layman the agent of the insurance company who assisted in procuring the policy etc. have a leg to stand on behalf of the insurance company under the name and style S.M. C. Insurance brokers pvt.ltd. and under that idea the complainant must have believed that she had done her part of the duty in informing the incident of theft to the insurance company. There is no reason on the part of the complainant not to inform the insurance company as admittedly she had informed the financer S.B.I., D.T.O. as well as to the police including opp.party No.3 immediately after the incident of theft . So , it is difficult to hold any adverse view for the fact of not informing the incident directly to opp.party No.1 as complainant have forwarded the information through opp.party No.3 the broker / agent of opp.party No.1. Hence repudiation order is found not tenable and we are of the view that complainant is entitled for rewarded compensation . This issue is also decided in favour of the complainant.
18) From the discussion made here-in-above we are of the opinion that there is no dispute about the insured value of the vehicle amounting to Rs. 3,34,442/- and it was a package policy. The loss of the vehicle by way of theft has not been denied by the contesting opp.party and there is a conclusive prove of the fact that the vehicle was taken on loan and there is an outstanding amount of loan yet to be paid by proforma opp.party No.4. As the repudiation order is found not tenable, the insurance company is liable for payment of the insured value of the vehicle concerned bearing registration No. AS-01/ BC-8968 to the extent of the insured value, that is to the tune of Rs. 3,34,442/- along with an interest @8% p.a. from the date of filing the petition till realisation. The op.party No.1 & 2 are also responsible for causing harassment to the complainant by not making the payment immediately within short period of time to the owner thereby causing loss of earning etc. As such a compensation amount of Rs. 50,000/- is to be paid to the complainant by the opp.party No. 1 & 2 along with a cost of proceeding amount of Rs.10,000/-
ORDER
The opp.party No. 1 & 2 are found jointly and severally liable to pay the award. The op.party is directed to make the payment of Rs. 3,34,422/-(Rupees three lakhs thirty four thousand four hundred twenty two)only along with interest @8% per annum as the cost of the vehicle and also to pay an amount of Rs.50,000/-(Rupees fifty thousand)only as compensation and another amount of Rs. Rs.10,000/- /-(Rupees ten thousand)only for cost of proceeding . The awarded amount to be paid within 45 days from the date of judgment failing which an interest @12% per annum to be paid to the complainant on the entire decretal amount till realisation .
Given our hand and seal of the District Commission , Kamrup, this the 25th day of Feb.2021.
(Md.J.Islam) ( Smt A.D.Lahkar) (Sri A.F.A Bora)
Member Member President
(Sri A.F.A Bora)
Dictated and corrected by me
( Smt Juna Borah)
Typed by me
Stenographer
