Case Laws discussed in the dispute :-

1. United India Insurance Co. Ltd. –Vrs- Sachin Bhim Rao Kamble – 2015(2)CPR -817 (NC)
2.  Gurnam Singh-Vrs- Dr.G.S.Gill – 2014(4) CPR 588 (NC)
3.  Rajkumar-Vrs- M/s. M.G.Miturs – 2012(3) CPR 352(NC)
4.  Sonic Surgical-Vrs- National Insurance Co.Ltd. 2010(1) CPR 28(SC)
5. Oriental Ship Agency Pvt.Ltd.-Vrs- the Oriental Insurance Co.Ltd.-2014(4) CPR 490 (NC)
6. Shankar Chaaakrawarti-Vrs-New India Assurance Co.Ltd.-2012(4) CPR 218(NC
7.  National Insurance Co.Ltd.-Vrs-Nitin Khendelwal-2008 CTJ 680(SC)(CP)

SRI BIJAYA KUMAR DAS,PRESIDENT:-                        

           Deficiency in service in respect of illegal repudiation of the claim in connection to ‘theft of vehicle’ are the allegations arrayed against the Opp.Parties.

2.        Complaint, in brief reveals that complainant to maintain his livelihood purchased one Tata Truck bearing No.OR-29-8131 with Chasis No.MAT466385B2H19300,Engine No.B591803111H63172682 of Model 3118 TC being financed by Cholomandalam Investment and Finance Co.Ltd.(OP No.5 & 6). The said truck was insured with IFFKO Tokio General Insurance Co.Ltd.(OP No.1 to 4) under commercial vehicle package which includes loss of damage of vehicle by burgulary,theft etc. and the insurance of the vehicle was valid from dt.29.09.12 to 28.09.13 midnight. It is stated in the complaint petition that on dt.26.09.12 the ‘transfer of management’ of vehicle was handed over to one Janapriya Mohanty by executing an agreement before R.S.Chand,Notary Public,Kendrapara. It is alleged that when the vehicle was in possession of said Janapriya Mohanty he failed to maintain the sanctity of the agreement and did not pay the hire charges as per the agreement and the cheques were bounced for insufficient funds. When the complainant searched his vehicle and also said Janapriya Mohanty,  complainant neither traced his vehicle nor Janapriya Mohanty. In the circumstances, complainant filed a complaint case before SDJM,Kendrapara bearing ICC No.383/2012 on dtd.17.12.12 and Ld.SDJM directed IIC,Kendrapara Town Police Station to register the complaint as FIR and to investigate. As per the direction police registered a case bearing P.S.Case No.156/2012 U/S 379,406,417,418,12o(B) of IPC and after investigation police chargesheeted the accused persons U/S 417,418,420,403,406,379,120(B) of IPC. It is further revealed from the complaint petition that as the FIR was lodged on dt.17.12.12 the complainant intimated in writing to OP No.4 regarding loss of his vehicle. OP No.4 advised the complainant to submit copy of FIR for formal registration of the claim and the settlement of the claim which includes in the copy of the FIR and charge sheet copy etc. The matter of theft of vehicle was also communicated to OP-Financer and OP-financer on dt.25.06.14 sent an advocate’s notice to OP-Insurance Company showing their dissatisfaction as to non-settlement of claim. On dt.29.09.14 complainant received a letter from OP-Insurance company that his claim is not admissible on the grounds of delay of 91 days in lodging FIR, delayed information to Insurance Company with the report of the Investigator, who opines that the transfer of vehicle has not been communicated to insurance company   as   per   Sec.157(1) of M.V/Act. Complainant   in   his   complaint countered the grounds of repudiation of claim by stating that he has taken prompt action by lodging FIR and intimation to the insurance company, when said Janapriya Mohanty did not make payment of hire charges and with an intention of foul play, complainant further stated that Sec.157(1) of M.V.Act is not applicable to the instant case as the dealing between complainant and accused Janapriya Mohanty was specifically meant for ‘transfer of management of vehicle’. Complaint reveals that the cause of action of the proceeding arose within the territorial jurisdiction of this Forum on dt.29.09.14 when the complainant received the repudiation letter of OP-Insurance Company and prays this Forum to issue direction for the repudiation of investigation claim as illegal and void, and the OP No.1 to 4 be directed to pay the insured value of the vehicle to the tune of Rs.19 lakhs alongwith all charges of the OP-financer in respect of the loan amount alongwith Rs.1 lakh as compensation to the complainant for deficiency in service committed by the OP-Insurance Company.

3. Upon notice OP-Insurance Company i.e. Iffko-Tokio General Insurance Co.Ltd.(OP No.1 to 4) appeared into the case through their Ld.Counsel Mr. Md. Nayeem and filed written version challenging the maintainability of the dispute U/S-11(2) of the C.P.Act,1986.Written version of the OP-Insurance Company reveals that OP-Insurance Company insured the vehicle on commercial vehicle package policy with an IDV of Rs.19 lakhs and risk period commence from dt.29.09.12 to 28.09.2013(Annexure B-1 & B-2), the claim of the complainant regarding theft of the vehicle has been rightly repudiated, as per the FIR alleged loss occurred on dt.26.09.12 and FIR was lodged before the Court/Police on dt.26.12.12 which is almost after 91 days of the alleged loss(Annexure-B). It is also revealed that as per the FIR the possession of the said vehicle was handed over to the accused persons on   dt.26.09.12   where   as the insurance coverage of the vehicle begins from dt.29.09.12, accordingly in the alleged date of loss the vehicle was not in the possession of the complainant, and complainant has suppressed material fact of ‘transfer of vehicle’ before the insurance company prior to acceptance and coverage of the policy. It is further revealed from the written version that complainant has availed a finance from OP No.5 & 6 Finance company to the tune of Rs.21,79,834/- and same is to be paid within 48 monthly installments. After receipt of claim application form alongwith police papers the claim was sent to the OP No.1 for consideration after due consideration. OP No.1 rejected the claim of the complainant on dt.29.09.14 by intimating through letter and the said repudiation letter is marked as Annexure-C. In the para wise reply OP –Insurance Company submits that the risk of vehicle only covers U/S 379 of IPC and not covers the risk of the offence alleged are U/S 406,417. Since the vehicle was given to the accused person on ‘express consent’, hence no offence is made out U/S 379 of IPC. It is also submitted that the complaint is filed with a oblique motive after receipt of the repudiation letter of the OP-Insurance Company on dt.29.09.14 to patch up the loan dues. As the complainant-loanee has not cleared up the dues of the OP-Finance Company except a single monthly installments. It is placed before this Forum by the OP-Insurance Company that as the complainant has not approached this Forum with a clean hand the complaint is liable to be dismissed with cost.

4.           Being ‘Notice’ Cholomandalam Investment Finance & Company Ltd.(OP No.5 & 6) appeared into dispute and submitted written statement. In the written statement these Ops admit that complainant after execution of an agreement availed a finance to the tune of Rs.21,79,834/- and purchased one Tata LPT 3118/TC and the loan dues to be repaid within 45 nos. of installments. It is also submitted that complainant entered with an agreement with one 3^rd party to manage the vehicle on his behalf and subsequently the said 3^rd party   absconded alongwith the vehicle and on application has been lodged before OP No.1 to 4 to settle the claim and the present OP-Finance Company is no way related to the agreement transacted between the parties. It is also submitted that huge arrear outstandings are pending on the complainant as per the statement of accounts filed in this case(Annexure-B). As the OP-Finance company has no role to play in the dispute as per the hypothecation agreement and the case is to be dismissed against the answering Ops with cost.

5.           Heard the arguments advanced by the Ld. Counsels for the parties, and gone through the Annexures, Notes on argument and citations filed by the parties. The admitted facts of the case are that complainant purchased one Tata LPT 3118/TC Model truck bearing Regd. No.OR-29-8131 being financed by OP-Finance Company i.e. Cholomandalam Investment Finance & Companay Ltd.(OP No.5 & 6) by executing an agreement. The said vehicle was insured with OP-Insurance Company i.e. Iffko-Tokio general Insaurance Co.Ltd.(OP No. to 4) the vehicle was insured under commercial vehicle package policy with IDV value of Rs.19 lakhs which includes, theft,loss damage etc.. The insurance of the vehicle  was valid from dt.29.09.12 to midnight of 28.09.13. It is further admitted fact that the said vehicle was stolen/theft for which claim was lodged before OP-Insurance Company and the said claim is rejected by the OP-Insurance Company on different grounds, which is discussed in the later part of this judgment.

                  Before discussing the factual aspect of this case, as OP-Insurance Company raised the question of maintainability by citing different decision it will be lawful to discuss the maintainability of the dispute. It is argued by the Ld.Colunsel for OP-Insurance Company that as per Sec.11(2) of C.P.Act,1986 no cause of action has arose within the territorial jurisdiction of this  Forum and OP No.4 has just arrayed as a party to institute the proceeding before the Forum. Countering the same Ld. Counsel for complainant  attracted  our  attention to Annexure-7 and Annexure-8 which discloses that the intimation of theft of vehicle was communicated to OP No.4 on dt.17.12.12 which is located well within the local jurisdiction of this Forum. Further, OP No.4 has responded the intimation and informed the complainant on dt.18.12.12 that his application will be registered only after registration of FIR by Police. On perusal of Annexure – 7 & 8 which are attested true copies clearly show that OP No.4 is a genuine branch office of Op-Insurance Company who received the intimation of theft on writing, thus a part of cause of action definitely arose within the limit of this Forum. It is further revealed from the complaint petition and written statement of OP-Insurance Company that the complaint case is filed and FIR is lodged within the local limits of this Forum. The decision cited by OP-Insurance Company reported in 2014(4)CPR 588(NC) in case of Gurnam Singh-Vrs-D.S.Gill is not applicable to the instant case as the facts and circumstances of the case is different. It is safely concluded that a part of the cause of action arose within the local jurisdiction of the Hon’ble Forum alongwith the branch office of Op-Insurance Company. Hence, the complaint is maintainable as per Sec.11(2) of C.P.Act,1986.

                          Now it is to be decided here that whether the repudiation of the claim of the complainant’s theft vehicle in question is legally sustainable or not ? The theft of the vehicle of complainant was repudiated by the OP-Insurance Company on the grounds of delayed lodging of FIR by 91 days alongwith other reasons.

                           We examined the Annexures very carefully as these are the vital documents like information to the police, to the insurance company to decide the fate of the case. It is seen from Annexure-2 series, page-3 which is the attested Xerox copy of certified copy of order of Ld..S.D.J.M.,Kendrapara in I.CC No.383/2012 dtd.17.12.12 where direction has been given to IIC,Kendrapara Town Police Station vide Memo No.1934 dtd.17.12.12   to   register   the   complaint of   the complainant as FIR. The concerned police station has received the said order on dtd.26.12.12 by mentioning the DR-163 dtd.17.12.12 and registered the complaint as FIR U/S-379,406,417,418,120(B) of I.P.C.

                      It is the case of the OP-Insurance Company that as per the FIR the date of occurance is dtd.26.09.12 and the FIR was lodged on dtd.26.12.12. We gone through the FIR which discloses that complainant transfer the management of the vehicle to the accused persons namely Janapriya Mohanty on dtd.26.09.12. On non-payment of monthly EMI’s Financer by the accused Janapriya Mohanty, complainant suspected foul play and searched his vehicle, when he failed in tracing the vehicle filed a complaint before Ld.SDJM,Kendrapara on dtd.17.12.12 which was subsequently registered by the IIC Town Police Station,Kendrapara on dtd.26.12.12 on the direction of Ld.SDJM,Kendrapara  by executing an agreement ‘transfer of management’ before R.C.Chand,Notary Public,Kendrapara on dtd.26.09.12 and categorically states that the ‘transfer of manageement’ is no way concerned with the ‘ownership’ of the vehicle. It is agreed between the complainant and Janapriya Mohanty that after handing over the vehicle said Janapriya Mohanty will pay the monthly EMIs to the OP-Finance Company. When said Janapirya failed to pay the EMI, of OP-Finance Company complainant suspecting the foul play of said Janapriya Mohanty searched his vehicle, when complainant failed in his attempt to search the vehicle filed a complaint case before Ld. SDJM,Kendrapara on dtd.17.12.12 bearing ICC No.388/2012 and Ld.SDJM,Kendrapara directed IIC,Kendrapara Town Police Station to registered the complaint as FIR. Accordingly a FIR was registered on dt.26.12.12 bearing Kendrapara P.S.Case No.156/2012 U/S 379,406,417,418,120(B) of IPC and started investigation and charge sheeted the accused persons in GR case No.1478/12. It is the further case of the complainant   that on the date of order of Ld.SDJM on dtd.17.12.12 on the very same date the matter was intimated to OP No.4 in writing about theft of the vehicle and application of claim was submitted for settlement, but OP-Insurance Company repudiated the claim as per their Letter dtd. 29.09.14.

               On the otherhand, OP-Insurance Company’s resisted the allegations by submitting that due to delay of 91 days for filing of FIR, suppression of material informations and complainant had no insurable interest during alleged date of occurance. Ld.Counsel for OP-Insurance Company drew our attention to Annexure C-2(page-2) which is the Xerox copy of FIR(U/S 154 Cr.P.C) wherein it reveals that date of occurance is dtd.26.,09.12 at 7 PM.

                          According to our opinion the date of registration of the FIR can not be treated as dtd.26.12.12, rather the police has received the direction of the Ld.SDJM,Kendrapara on dtd.17.12.12 with DR-163(Annexure C-2,Pg.3),though the same has been registered as FIR on dtd.26.12.2012 which is reflected in the (Annexure-C-2 Pg.2) of Police report showing the date of occurance as dtd.26.09.12. But to our considered view, the alleged date of occurance can not be fixed to dt.26.09.12, as no where in the complaint filed before Ld.SDJM,Kendrapara in ICC No.383/12 the complainant discloses that the vehicle was stolen/theft from his custody on dt.26.09.12 rather on the same date the transfer of management of the vehicle was passed to accused Janapriya Mohanty the transferee of the vehicle. Now, it is clear that, complainant has informed the concerned police station on dtd.17.12.12 also informed the OP No.4 in writing on dtd.17.12.12, the date where complainant after searching his vehicle could not trace out the same after handing over the management of the vehicle on dtd.26.09.12. Hence, the plea of OP-Insurance Company regarding 91 days delay of lodging FIR does not create any legal impression on this Forum. In the above circumstances of missing of vehicle and transferee Janapriya Mohanty forced this complainant to lodge complaint before SDJM,Kendrapara on dtd.17.12.12 and subsequent registration   of FIR   on dt.26.12.12.   So, we   cannot   arrive into a definite conclusion of date of occurrence  in absence of any particular date of occurrence. In addition to that when OP No.4 a branch office of the OP-Insurance Company on dtd.18.12.12(Annexure C-8) replied to the application of the complainant dtd.17.12.12, it can be safely concluded that OP-Insurance Company was well intimated prior to dt.26.12.12.

                            The next point raised by the OP-Insurance Company in their repudiation letter dtd.29.09.14(Annexure-C) that as per GR-17 India Motor Tariff and Sec.157(1) Motor Vehicles Act. Complainant had no ‘insurable interest’ during time of ‘material loss’ for which complainant’s claim can not be settled. Ld. Counsel for complainant resisted the plea and submitted that these provisions are not applicable to the present case as there was no ‘transfer of ownership’. On opinion of this Forum these provisions are applicable in case of ‘transfer of ownerhsip’ and claim related to any loss before the insurance authority. In the present case after going through Annexure C-4 series which is an agreement executed between complainant and one Janapriya Mohanty, before R.S.Chand, Notary Public,Kendrapara and the said agreement reveals that, it is not a case of ‘transfer of vehicle’ rather it is the agreement for ‘transfer of management’ of the said vehicle bearing No.OR-29-8131 and the transferee has to pay the monthly EMI’s to the OP-financer out of the income of the said vehicle. In support OP-Insurance Company cited a decision reported in 2014(4) CPR 490(NC). As per our above observations as the said transfer was no way connected to the ‘ownership’ of the vehicle, so decision cited by the OP-Insurance Company is not applicable to the instant case.

                 We have discussed at a length in respect of factual aspect of this case and considering the investigation of the police it is crystal clear that the vehicle was stolen by Janapriya Mohanty and his other associated accused persons, who were arrested and released under bail, now what are the position   of   law  involved in the dispute. In catena of decisions the Hon’ble National Commission has opined that in case of theft of vehicle immediate action should be initiated by lodging FIR before police and to report the matter to the insurance authorities without any delay, by which an opportunity should be given to the authorities to trace the theft vehicle. In support of the same OP-Insurance company filed a decision reported in 2015(2)CPR 817(NC) in case of United India Insurance Co.Ltd.-Vrs- Sachin Bim rao Kumble, where Hon’ble National Commission opined that “ Immediate intimation of theft to police station is not a mere formality”. The Hon’ble National Commission in case of Shankar Chakrawartity –Vrs- New India Assurance Co.Ltd. reported in 2012(4) CPR 218(NC) takes a different  view by ordering that “Insured value can be reduced in case of theft of vehicle. In this case the Driver and cleaner who are the own employees committed theft of the vehicle and there was some delay in lodging FIR in this case also National Commission opined that in case of theft of vehicle claim can be awarded by reducing the insured value that apart the decision of Hon’ble Apex Court of the  in case of National Insurance Co.Ltrd.-Vrs- Nitin Khandelwala reported in 2008(CTJ 680(SC)(CP).

                          The Hon’ble Supreme Court opined that “xxxxxxxxxxxxxx in case of theft of vehicle the breach of condition is not genuine. Insurance Company is  liable to identify the respondent. It is important to mention paragraph 13 of the judgement “ the vehicle has been snatched or stolen. Ina the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The Insurance Company can not repudiate the claim in to in case of loss of vehicle due to theft.”

                 As per our discussion/observation on factual aspect and position of law, we are of the unanimous view that the OP-Insurance Company has illegally repudiated the claim of the complainant. The grounds of repudiation taken by OP-Insurance Company is not appreciated, more over when the complainant has filed a dispute under C.P.Act, which is a beneficial legislation, the complainant deserves sympathy of the Forum within the four wall of the law of the land.  As we have observed that the grounds for repudiation of claim of the complainant have no legal basis, we think it proper to award the claim on non-standard basis as there is some discrepancy in lodging FIR before Police. It appears from the RC Book that the theft vehicle was purchased in the year September 2011 and just after passing of one year the incident of theft of vehicle has occurred. The IDV value as per the policy amounts to Rs.19 lakhs. By deducting 10 per cent from the total, IDV, This amount shall be  justifiable amount towards claim amount of the complainant. Thus, 10 per deduction of IDV comes Rs. One lakh ninty thousand(Rs.1,90,000/- only) in deduction deserving claim amount  comes to Rs.19,00,000/-  - Rs. Rs.1,90,000/- = Rs.17 lakhs ten thousand)only. Further, no relief has been claim against OP No. 5 & 6, we freed OP No. 5 & 6 the financier from allegation of deficiency in service.

                             Having our observation reflected as the repudiation of claim of the complainant’s vehicle bearing No.OR-29-8131 is illegal, hence it is directed that OP-Insurance Company will pay aRs.17,10,000/-(Rupees Seventeen lakh ten thousand)only to the complainant and the amount released will be adjusted in the loan account of the complainant as per prayer of the complainant.

                           The order is to be carried out within 30(thirty) days of receipt of this order.

                                       No order as to cost.

                          Complaint is allowed in part on contest.

                Pronounced in the open Court, this the 14^th day of December,2015.