OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.75/2012
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Raja Mukharjee, - Complainant
S/O Late Sibeswar Mukharjee.
Kalapahar,Ganesh Pathar ,
Guwahati-781018
Districit :-Kamrup (Metro),Assam.
-vs-
The Divisional Manager, -Opp. party
National Insurance Co.Ltd.
Guwahati Divisional Office-1,
G.A.Road,Bhangagorh,
Guwahati-781005 Assam
Appearance-
Learned advocates for the complainant- Mr.Promod Kr.Bajaj.
Learned advocates for the opp.party- Rita Das Mazumdar
Date of argument- 14.3.17
Date of judgment- 29.3.17
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Raja Mukharjee against Divisional Manager,National Insurance Company Ltd,was admitted on 31.12.12 and notice was served upon them and they also filed their written statement. Thereafter,the complainant filed his affidavit and of one Sri Uttam Das as their evidence and they are also cross-examined by the ld counsels’ of the opp.party side. Thereafter, the oopp.partry side filed affidavit of Smti Jamuna Bhuyan, an Assistant Manager of opp.party (Division No.1, Guwahati and she was cross-examined by the ld counsel of the complainant side. Thereafter, both sides’ ld counsels filed their respective written argument and finally on 14.3.17 we heard the oral argument of ld advocate Mr.Promod Kr.Bajaj for the complainant and of ld advocate Ms Rita Das Mazumder for the opp.party; and today we deliver our judgment which is as below.
2) The brief case of the complainant is that the complainants’ motor cycle (Bajaj Pulsar) bearing Registration No.AS 01-V-9160, which was insured with National Insurance Co.Limited vide Policy No. 200100/31/05/620000387 with effective from 9.06.2005 to 8.5.2006 which covers own damage loss also, was stolen away by some unknown miscreants from his residence on 27.10.05 at night and he, on the next date filed an ajahar at Fatasil Ambari P.S. and the latter investigated the case and also filed final report. He also reported the opp.party about the said incident on 24.10.2005 over phone and in writing which was acknowledged by Division No.1 of the opp.party and than the opp.party side sent the claim form to him and then he filed up the claim form and submitted the same to them alongwith the document. The opp.party appointed Mr.I.S.Mallick, an insurance investigator to investigate the alleged theft and the said investigator collected information from him and he also handed over the keys of the stolen vehicle to the investigator as the investigator had told him that he would submit the keys alongwith his report to the opp.party for settlement of his claim. The complainant did not settle the claim, but he received a letter dtd. 28.4.2011 from the opp.party where the opp.party expresses their inability to settle the claim in the absence of keys of the stolen vehicle , but further requested him to furnish evidence of submitting keys to the concerned investigator. The complainant again on 8.9.2012 submitted his reply against the letter of the opp.party dated 28.4.2011 and thereby he reiterated that the boys were delivered to the investigator and that he has no documentary evidence as to that transaction. Thereafter, the opp.party vide letter dated 15.9.2011 repudiated claim stating that submission of keys is a mandatory requirement in a theft case claim , without it is not possible on their part to entertain any theft claim and that their investigator Mr.I.S.Mallick had expired and it is impossible for them to corroborate the authenticity of the complainant . The opp.party has no authority to repudiate the claim, only because it is beyond the control of the complainant to prove that he had given the keys to the investigator, who is no more and thus the complainant is handicapped in proving his truth .It is bounded duty of the investigator to submit the report and also to deposit the keys handed over to him to the opp.party .The repudiation of the claim is illegal and such repudiation amounts to deficiency of service towards him and is an act of harassment to him and therefore, he prays for directing the opp.parties to pay him the IDV Rs.53,533/- with interest of Rs.67,515/- calculated at the rate of 18% and also to pay Rs.75,000/- as compensation for causing harassment to him , totaling Rs.1,96,048/- alongwith further interest at the rate of 18% p.a., and the cost of the proceeding.
3) The pleading of the opp.party, National Insurance Co.Limited is that there is no cause of action for filing the complaint; the complaint is not maintainable in fact as well as in law; the incident of theft had taken place on 22.10.2005 at night/early morning and the repudiation of claim was done by them on 1.4.2008 while this complaint was filed in 2012 i.e. after seven years of actual incident. Hence the complaint is time barred. The complainant did not reply back the repudiation letter (letter dtd. 1.4.2008) when the claim was closed as the complaint could not furnish the keys of the vehicle , but he came after the death of the investigator with a letter dated 8.9.2011 with a new story that the boy had been given to the investigator Mr.I.S.Mallick , but from 2008 to 2011, he never wrote any letter to them informing them that the keys had been handed over to the investigator , Mr.I.S.Mallick. Handing over the keys is the mandatory in any theft claim, without which, it is not possible for insurance company to entertain any theft claim . The repudiation is done due to the fact that the complainant failed to hand-over the keys of the vehicle although he was asked through their letter dated 14.3.2008 to submit the key within seven days, and therefore, they are not in any deficiency of service towards him and accordingly the complaint is not maintainable and is liable to be dismissed.
4) We have perused the complaint petition and evidence of both sides and it is found that both sides admit that the vehicle of the complainant Bajaj Pulsar motor cycle vide Registration No.AS 01-V-9160, which was insured with National Insurance Co.Limited, Guwahati Divisional Branch, G.S.Road (Opp.Party No.1) vide Policy No. 200100/31/05/620000387 with effective from 9.06.2005 to 8.5.2006 with IBV of Rs.53,533/-, had been stolen away from the residence of the complainant on 22.10.2005 and the complainant on the next day lodged an F.I.R. at Fatasil Ambari P.S. by registering a case vide Fatasil Ambari P.S.Case No.213/05 U.S. 379 I.P.C. investigated the case, but failed to trace out said motor cycle; and the opp.party also appointed Mr.I.S.Mallick, as investigator of the said theft case and said investigator investigated the case, but he died before submitting the investigating report. Both sides also admit that the said motorcycle is yet out of trace.
5) Both side also admit that the complainant filed a claim for compensation for theft of his motorcycle to the opp.party and the opp.party repudiated his claim on the ground that he failed to hand-over the keys of the stolen vehicle to them which is mandatory for disposing a claim of theft.
6) After perusing the Ex.3 we have found that the opp.party vide letter memo No. 200100/HH/claims/40 dtd. 20.8.2004 asked the complainant to furnish them in evidence to show that he had handed over the keys to their investigator Mr.I.S.Mallick within 15 days. In reply to said letter the complainant, sent a letter vide dated 7.9.2011 whereby he informed the opp.parties that he requested the investigator Mr.I.S.Mallick to furnish the keys, which he had deposited to him, to the opp.parties, but he failed . By that letter the complainant also requested the opp.party to dispose of his claim considering the fact with the investigator did not furnish the keys to the opp.party inspite of his request . It is also found from Ex.5 , which is a letter written by the opp.party to the complainant on 15.9.2011, that the opp.party vide that letter inform the complainant that as the complainant failed to file in documentary evidence as to the fact of handing over the keys to their investigator, it is impossible for them to entertain his claim. Thus, it is seen that the opp.party side vide letter dated 15.9.2011 (Ex.5) inform the complainant that his claim was repudiated. Thus, we hold that the cause of action of this case is continued from the date of commission of theft and the last date of cause of action is 28.4.2011 i.e. the date on which the complainant was informed by the opp.party vide iEx.3 letter that his claim was repudiated. Hence , the limitation will started from 28.4.20111. This complaint was filed on 31.12.12. Thus, iit is found that the instant complaint was filed within limitation.
7) The next question is , whether the complainant had handed over keys to the investigator of the opp.party Mr.I.S.Mallick ? The complainant’s version is that he had handed over to the relevant documents and both the keys of his motor bike to the investigator of the opp.party Mr.I.S.Mallick and when the opp.party side vide letter dated 28.4.2011 (Ex-3) asked him to furnish the evidence of handing over the keys to the said investigator within 15 days. He then vide his letter dated 7.9.2011 (Ex.4) inform the opp.party that he had handed over entire documents and the keys to the investigator Mr.I.S.Mallick on good faith and after receiving the letter dtd 28.4.2011 from the opp.party he requested the said investigator to furnish the keys to the opp.party and he also make telephonic version with the said investigator about the matter, but the letter was lingering the matter with in vailing his intention. This letter of the complainant was received by the opp.party side and it is both sides’ admitted fact that the investigator Mr.I.S.Mallick, died before submitting the investigation report and after his death the opp.party side did not appointed another person as investigator. So, in such situation, particularly on the death of an investigator, Mr.I.S.Mallick, it becomes impossible on the part of the complainant to prove the fact that he had actually deposited the keys alongwith their documents to the said investigator. It is common parlance that an investigator of accident or theft of vehicle generally receives on the relevant documents and materials from the owner of the vehicle and thenafter he submits the investigation report. But the investigator, Mr.I.S.Mallick is no more to come forward and to said at that material documents and evidences he received from the complainant. It is both sides’ admitted fact that the said investigator collecting the documents etc. from the complainant. So, no filing investigation report by the investigator Mr.I.S.Mallick makes the version of complainant that he had deposited the relevant documents and the keys of the vehicle to the investigator Mr.I.S.Mallick during the investigation shall be presumed to be a true version. In this case the opp.party side by adducing evidence has not succeeded to prove their version that the complainant had not actually deposited the keys to their investigator Mr.I.S.Mallick.Therefore, it is held to have been established that the complainant had actually deposited the keys of his stolen vehicle to the investigator and the opp.party Mr.I.S.Mallick during investigation of the theft of his vehicle. It is admitted fact that Mr.I.S.Mallick before filing the investigation report died and hence, it shall presumed that the keys handed over by the complainant was in the possession of said investigator till his death or thereafter, and the opp.party side did not attempted to collect the investigation report or materials/evidence collected by the said investigator from his residence after his death. This one kind of neglect on the part of opp.party and for that negligence they failed to prosecute the deposited keys from the house of the said investigator after his death. So, such failure on the part of the opp.party cannot be burdened to the complainant. Therefore, we, hold that the complainant had actually deposited the keys to the agent of the opp.party ( their investigator) and that amounts to deposited the keys to the agent of the opp.party (their investigator) and that amounts to depositing the keys to the opp.party and therefore, now the opp.party is no right to say that the keys keys had not been delivered to them by the complainant, but it must be they admitted that the keys had been delivered to the opp.party by the complainant as per law. Therefore, we hold that the opp.party has failed to establish the ground of repudiation of the claim and hence , the act of repudiation of the claim of the complainant is illegal act and it must be deficiency of service to the complainant and on that count the complainant is entitled to relief from this forum as prayed.
8) Admittedly, the IDV the loss vehicle was Rs.53,533/-. Therefore, we hold that the opp.party is to pay Rs. 53,533/- with interest @6% p.a. from the date of filing of his complaint petition (10.12.12) to the complainant as compensation for loss of his vehicle and they are also liable to pay another amount of Rs.10,000/- for putting him in mental agony by illegally repudiated his claim and also to pay Rs.10,000/-as cost of the proceeding.
9) Because of what has been discussed as above, the complaint against the opp.party against Divisional Manager,National Insurance Company Ltd, Guwahati Divisional Office No.1,G.S.Road, Bhangagorh,Ghty-781005 is allowed on contest and opp.party is directed to pay compensation to the tune of Rs.53,533/-. Therefore, we hold that the opp.party is to pay Rs. 53,533/- with interest @6% p.a. from the date of filing of his complaint petition (10.12.12) to the complainant as compensation for theft his vehicle motor bike (Bajaj Pulsar ) for compensation) bearing Registration No.AS 01-V-9160 and also to pay Rs.10,000/- for putting him in mental agony by illegally repudiated his claim and also to pay Rs.10,000/-as cost of the proceeding and they are directed to pay the awarded amount to the complainant within two months m in default , other two amounts shall also carry interest in the same rate.
Given under our hands and seals in this day of the 29thMarch, 2017.
( Smti Archana Deka Lahka)r (Md.S.Hussain)
Member President
