Complainant files an application u/s-35 of the Consumer protection act 2019The Humble Petition on behalf of the Complaint above named as follows
- That the Complainant is a peace loving citizen of India & residing at the above mentioned place & address.
2. The Opposite party No 1 is a renowned Insurance Company of India and engages in the business of providing insurance in various sectors viz Motor Vehicle Insurance both two wheeler and two wheelers, Life Insurance etc. For running their business throughout the country the opposite Party No 1 established its branches in various places of the Country.
3 That the Opposite Parties are engaged for the business of the Motor Vehicle insurance and they claim to insure the vehicle in case of damages, theft etc.
4. The opposite Party no 2 is one of the branches of Opposite Party 1 and runs its business throughout the State of West Bengal.
5. The opposite Party no 3 is one of the branches of Opposite Party 1 and runs its business throughout the North Bengal area within the State of West Bengal.
6. That in the year 2018 the Complainant decided to purchase a four wheeler car in brand name and Style Bolero Pick Up but due to the financial crunch he could not pay the total amount of the vehicle. So the Complainant visited the M/s CholaMandalam Investment & Finance Company, Siliguri Branch to obtain a loan for purchasing the vehicle.
7. That the Proforma Opposite Party is working as a surveyor of the claim cases of various insurance companies. The Proforma Opposite Party is attached with the Opposite Parties to survey the claim cases and collect the documents from the claimants on behalf of the Opposite Parties.
8. That the loan was sanctioned from the M/s CholaMandalam Investment & Finance Company, Siliguri Branch against the Loan Agreement no. XVFPSR10002276717.
9. After obtaining the loan the Complainant purchased a four wheeler car in brand name and style Maruti Dezire VDI manufactured by Maruti Suzuki India Pvt Ltd vide Engine No. D131A-3232545 & Chassis No. MA3CZF03SJA266163.
10. On 23.3.2018 the office of the Regional Transport Officer, Jalpaiguri issued a Registration Certificate in favour of the Complainant in respect of his vehicle being model brand name and style Maruti Dezire VDI manufactured by Maruti Suzuki India Pvt Ltd vide Engine No. D131A- 3232545 & Chassis No. MA3CZF03SJA266163 and allotted a registration no. WB 74AT5050. Xerox copy of the Registration certificate annexed in the case record and marked as Annexure A.
11. That after purchasing the aforesaid vehicle the Complainant obtained a insurance policy being policy no. 3001/MI-05560365/00/0000 for his vehicle from the Opposite Party No. 3. The policy period mentioned on & from 8.2.2018 to 7.2.2019.Xerox copy of the Policy annexed in the case record and marked as. Annexure B.
12. That thereafter the Complainant used to drive his car without any obstruction, problems whatsoever from any corner.
13. On 4.10.2018 the complainant went to Hasimara by his vehicle. At about 12 pm when he reached near Jalpaiguri Engineering College, Jalpaiguri two persons namely Bapi Ghosh and Shankar Ghosh requested to give them lift to Hasimara. During travel the Complainant got intimate with them and as per their request he was going to visit Phuentsholing. Country, Bhutan. The Complainant and other two persons were staying at the hotel Phuentsholing, Country. Bhutan.
14. At about 3:00 to 3: 30 pm on 5.10.201 the Hotel authority of Mid Point found the Complainant unconscious position at the Hotel room. After getting conscious with the help of the Hotel authority the Complainant noticed that the other two persons were missing from the Hotel and his vehicle was also missing from the hotel. The Hotel authority informed him that on about 5:30 am of 5.10.2018 the other two persons left the hotel by his car. When the night guard asks them about their destination they inform him that they will go to the bus stand. The Complainant thereafter searched his vehicle in possible places but he could not get his vehicle. Xerox copy of the letter dated 11.10.2018 issued by the Mid Point Hotel annexed in the case record and marked as Annexure C.
15. That the Hotel authority of Mid Point admitted the Complainant in the General hospital, Phuentsholing, Bhutan being registration no. 9939/18 dated 5.10.2018. Xerox copy of the OPD Card issued by the General hospital, Phuentsholing, Bhutan annexed in the case record and marked as Annexure D.
16. He returned home on 6.10.2018 and after returning home he visited the doctor at the North Bengal Medical College & Hospital., Siliguri and took admission. The Complainant was admitted at the Hospital on & from 6.10.2018 to 7.10.2018.Xerox copy of the Discharge certificate issued by the North Bengal Medical College & Hospital., Siliguri annexed in the case record and marked as Annexure E.
17. As per the verbal advice by the doctor he took rest at his home from the date 7.10.2018 to 9.10.2018. On 10.10.2018 he went to Phuentsholing, Bhutan and made a written complaint against the two persons namely Bapi Ghosh and Shankar Ghosh for theft of his vehicle. The Police authority of Phuentsholing, Bhutan accepted his complaint and forwarded it to the Jaigaon Police Station.Xerox copy of the Complaint annexed in the case record and marked as Annexure F.
18. On 12.10.2018 he went to the Jaigaon Police Station and made a written complaint for theft of his vehicle. The Police authority of Jaigaon Police Station refused to accept his complaint and advised the complainant to lodge an FIR at the Kotwali Police Station, Jalpaiguri.Xerox copy of the Written Complaint annexed in the case record and marked as Annexure G.
19. That thereafter on 13.10.2018 the Complainant lodged a written complaint before the Kotowali Police Station, Jalpaiguri and the Kotowali Police Station, Jalpaiguri started a case u/s 406/420/379/34 of IPC Tbeing no. Kotowali Ps Case No. 727/2018 dated 13.10.2018 Certified copy of the Complaint annexed in the case record and marked as Annexure H.
20. After theft the Complainant immediately informed the Opposite Parties about the matter and raised his claim by dialing their Toll Free number as per their guideline.
21. On 16.10.2018 the Opposite Party No. 1 issued a letter to the Complainant being reference no. 1610185911833 dated 16.10.2018 and wherein the Opposite Party No. 1 informed the Complainant that his claim was registered being no. MOTO8044666. It was also informed in the said letter that one surveyor namely Proforma Opposite Party was appointed to survey the claim of the Complainant and he assisted the Complainant for assessment of the claim. It was also mentioned in the said letter that if any queries the Complainant can talk with Smt ArpitaMoitra one of the Customer service Managers of the Opposite Party No. 1. Xerox copy of the letter dated 16.10.2018 annexed in the case record and marked as Annexure I
22. After getting the letter the Complainant handed over the all documents to the surveyor of the Opposite Parties as per the letter on 10.12.2018. But the surveyor did not give any acknowledgement of receipt of the documents.
23. On 21.11.2018 the Opposite Party No. 1 issued another letter and directed the complainant to hand over documents regarding the claim of the Complainant. On the said letter due to some typographical mistake (may be) the registration number of the vehicle of the Complainant was written as WB 74 AP 5050 instead of WB 74 AT 5050. But interestingly on the said letter the Opposite Party No. 1 did not mention any address for submitting the documents. Xerox copy of the letter dated 21.11.2018 annexed in the case record and marked as Annexure J.
24. That the insurance certificate of the Complainant was issued by the Opposite Party No. 3 and till the theft of the vehicle the Complainant HOT always dealt with the Opposite Party No. 3 on any issues / problems etc. So naturally after getting the letter dated 21.11.2018 the Complainant peppered the documents and visited the Opposite Party No. 3 for submitting the documents as per the direction / request issued by the Opposite Party No. 1. But the Opposite Party No. 3 did not receive the documents. The Opposite Party No. 3 also did not inform the Complainant where he is submitting the documents.
25. That the Complainant on several occasions till the date 12.3.2019 visited the Opposite Party No. 3 for submitting documents for getting his claim but on all occasions the Opposite Party No. 3 refused to receive any documents from the Complainant.
26. That being failure to submitting the documents to the Opposite Party No. 3 the Complainant on 12.3.2019 send a legal notice through his Advocate namely Mr. Nilay Chakraborty (Papai) to the Opposite Party No.1 to 3 and the Beekay Auto Pvt Ltd, Siliguri (the showroom from where the Complainant purchase his vehicle) and requested them to release the legitimate claim of the Complainant within the period of 15 days from the date of the receipt of the Notice. Xerox copy of the notice dated 12.3.2019 annexed in the case record and marked as Annexure K. Xerox copy of postal receipt dated 12.3.2019 collectively annexed in the case record and marked as Annexure L.
27. That the Opposite Party No. 1 & 2 maintains deceptive silence against the notice of the Complainant dated 12.3.2019 in spite of receiving the same on 18.3.2019 & 15.3.2019. Xerox copy of the acknowledgement due card dated 15.3.2019 annexed in the case record and marked as Annexure M. Xerox copy of the acknowledgement due card dated 18.3.2019 annexed in the case record and marked as Annexure N. Xerox copy of the acknowledgement due card dated 19.3.2019 annexed in the case record and marked as Annexure O
28. That during the month of August 2019 the Complainant came to know that the Investigation Officer of his case being no 727/2018 submitted Final Report in short FRT of his case being no FRT No. 107/2019 dated 25.2.2019.The Complainant obtained certified copy of the Final Report on 25.2.2019. Xerox copy of Final Report is annexed in the case record and marked as Annexure P.
29. That thereafter after waiting for the response the Complainant on 16.9.2019 sent the document to the Opposite Party No. 1 through the courier service being no. K20922895 dated 16.9.2019.Xerox copy of receipt dated 16.9.2019 is annexed in the case record and marked as Annexure Q. Xerox copy of documents collectively annexed in the case record and marked as Annexure R.
30. That being aggrieved by the conducts of the Complainant on 22.11.2019 filed a Consumer Complaint case being no. CC/61/2019 before the Ld District Consumer Dispute Redressal Forum Siliguri against the Opposite Parties and others and prayed for disbursement of the claim amount. Xerox copy of Complaint annexed in the case record and marked as Annexure S
31. The matter was fixed for admission hearing on 20.1.2020 and on the said occasion Ld Court pleaded to pass an order and rejected the application of the Complainant on the ground of jurisdiction. Xerox server copy of order marked as Annexure T
32. That thereafter the Complainant did not get any response from the Opposite Parties. The Complainant on several occasions till March 2020 visited the Opposite Party No. 3 but on all occasions the Complainant returned with the empty hand.
33. That due to the pandemic of the Covid 19 the Complainant was not able to follow-up for disbursement of his claim to the Opposite Parties. The Opposite Parties also not inform anytime about the status of the claim.
34. Due to the pandemic of the Covid 19 the Complainant could not follow-up his Advocate for initiating any legal proceeding against the Opposite parties or took some steps for getting the status of his claim.
35. During the month of April 2021 when the situation became normalized the Complainant visited the Opposite Party No. 3 and asked them the status of his claim. But the Opposite Party No. 3 did not inform him about the status of his claim.
36. That thereafter the Complainant visited his Advocate for taking legal action against the Opposite Party No. 3. The Learned Advocate of the Complainant handed over the documents of the Complainant and released the matter from his end.
37. That thereafter the Complainant engaged the present Advocate on Record Smt. Rumili Basu, Advocate to look after his case.
38. That the Complainant by the help of the Learned Advocate on Record sent an Email to the official mail id Opposite No. 1 being no. customersupport@icicilombard.com from his newly created Email id being Email Id sureshdebnathslg@gmail.com Xerox copy of Email dated 7.5.2021 is annexed in the case record and marked as Annexure U
39. The Opposite Party No. 1 sent a reply to the Complainant on 7.5.2021 and informed that the claim of the Complainant was 'rejected' due to the delay in FIR and delay in intimation to ICICI Lombard. Xerox copy of Email dated 7.5.2021 is annexed in the case record and marked as Annexure V
40. The Complainant states that the insurance companies did not reject the claim on the reason of delay in FIR and delay in intimation to insurance company.
41. On 20.9.2011 the Insurance Regulatory and Development Authority in short IRDA issued a circular / office order being no. IRDA/HLTH/ MISC/CIR/216/09/2011 dated 20.9.2011 and stated therein that the surer must not repudiate the claim unless & until the reason of delay are specifically ascertained, recorded and the insurer should satisfy that the claim should be otherwise be rejected if reported in time. Xerox copy of Circular dated 20.9.2011 is annexed in the case record and marked as Annexure W
42. On 28.10.2016 the Insurance Regulatory and Development Authority in short IRDA issued a circular office order being no. IRDA/NL/CIR/MISC/214/10/2016 and stated that the insurer is bound to comply with the memo IRDA/HLTH/ MISC/CIR/216/09/2011 dated 20.9.2011. Xerox copy of Circular dated 28.10.2016 is annexed in the case record and marked as Annexure X.
43. In the year 2017 the Insurance Regulatory and Development Authority in short IRDA issued a circular / office order being no. IRDA/NL/ CIR / MISC/249/06/2017 dated 28.6.2017 in connection to their earlier circular being no, IRDA/HLTH/ MISC/CIR/216/09/2011 dated 20.9.2011 (Annexure V of the Complaint) and Memo/order no, IRDA/NL/CIR/MISC/214/10/2016 dated 28.10.2016 (Annexure W of this Complaint) and advised the insurance company to comply the circulars issued in connection with the disbursement of claim. Xerox copy of Circular dated 28.6.2017 is annexed in the case record and marked as Annexure Y.
44. That Opposite Parties did not ascertain, recorded the reason for 9 days delay for lodging FIR at the time of rejecting his valid claim. The Complainant states that after the incident on 5.10.2018 the Complainant was found unconscious in the hotel room. He was suffering from a serious illness. The Complaint was initially admitted in Phuentsholing Hospital and later on and from 6/10/2018 to 7/102018 he was admitted in the North Bengal Medical College. After discharge from the Hospital the Complainant took bed rest for some days (3/4) days. After recovering from illness, the Complainant visited the Phuentsholing for lodge FIR. But Phuentsholing police refused to receive an FIR. Thereafter the Complainant filed his written complaint to the Kotowali Police Station, Jalpaiguri on 13.10.2018. It is clear that the Complainant did not intentionally delay in lodging FIR.
45. The Opposite Parties also did not ascertain, recorded the reason for 9 days delay for intimation the matter to the Opposite Parties at the time of rejecting his valid claim. The Complainant was seriously ill from 5.10.2018 to 7.10.2018 and he was admitted to the Hospital. After discharge he took rest as per the advice of the Doctor. Moreover the Complainant is a Driver by profession and did not know the procedure for claim. So he could not intimate the Opposite Parties through the toll free number since his visit to the Opposite Party No. 3 on 13.10.2018.
46. That it is clear from the fact that the delay for lodging the FIR and intimation to the Opposite Parties is/was totally unintentional.
47. That the Complainant states that the rejection of the claim on purely technical grounds and in a mechanical manner will result in the loss industry. of confidence of policy holders in the insurance industry.
48. That the Complainant was suffering huge loss for the aforesaid accident.
49. Opposite Parties whimsically reject the Complainant's claim mechanically without applying the logical mind and also without considering the circular of the IRDA being no. IRDA/HLTH/ MISC/CIR/216/09/2011 dated 20.9.2011 and IRDA/NL/ CIR / MISC/249/06/2017 dated 28.6.2017 herein the IRDA specifically instructed the Insurance Company must not repudiate the claim unless & until the reason of delay are specifically ascertained, recorded and the insurer should satisfy that the claim should be otherwise be rejected if reported in time.
50. It is pertinent to mention here that the incident i.e theft of the vehicle of the claimant is genuine and the Final Report of the case being no 107/2019 supported the same.
51. The Complainant states that the condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine.
52. It is pertinent to mention here that the Complainant obtained policy on M/524 8:2.2018 and the policy is remaining valid till 7.2.2019 and the Complainant lost his vehicle on 4.10.2018. So it is clear that the Complainant lost his vehicle within the policy period and raised his claim within the policy period.
53.The acts of the Opposite Parties acts i.e settled the claim of the Complainant as no claim without mentioning any reason and without inform to the Complainant wherein the Complainant was raise his claim within the policy period, is tantamount deficiency of service from Opposite Party No. 1 part to the Complainant.
54. The Complainant states that the due to Opposite Parties act i.e whimsically closes the valid claim, the Complainant suffering mentally agony and depression.
55. The act of the Opposite Parties rejecting the claim of the Complainant on the reason that delay FIR and delay in intimation to the Opposite Parties is tantamount to the deficiency of service from the part of the Opposite Parties.
56. The complainant is entitled for compensation, interest and damages from Opposite Parties for the loss suffered by the complainant.
57. All the transaction are done and conducted from the Jalpaiguri within the jurisdiction of the Ld. Commission.
58. The cause of action of the case firstly arose on 5.10.2018 when the complainant found that his vehicle has been theft and lost and he lodged fir on 13.10.2018 and immediately intimated to the Opposite Parties and secondly on 15.3.2018 when the Opposite Parties did not disburse his claim in spite of receiver of the legal notice send by the Complainant through his Advocate namely Nilay Chakraborty and lastly on 7.5.2021 when the Complainant came to know that the Opposite Parties rejected his claim on the ground of delay through their Email and the cause of action is still continuing. The cause of action arose under the jurisdiction of the Learned Redressal Forum.
59. The complainant states that there is no other remedy available in any other law for him except file this complaint before this Learned commission under the provision of the consumer Protection Act, 2019.
That the claim amounts to Rs 756751/- (Rupees Seven Lakh Fifty Six thousands Seven Hundred Fifty one only). The Complainant is pay Rs 200/4 (Rupees Two Hundred Only) through Indian Postal Order being Tnes 38H401232 & 38H401233 dated 18.6.2021 as fees for filing the Complaint as per the Rule 7 Sub Rule (2) of The Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020.
The complainants pray as follows:-
i) Directing the Opposite Parties to pay Rs 706751/- (Rupees Seven Lakh Six thousands Seven Hundred Fifty one only).
ii) Directing the Opposite Parties to pay damages of Rs.50, 000/-(Rupees fifty thousand only) for agony, shock and sufferance sustained by the complainant.
iii) Interest
iv) Cost of the case.
Total value of claim is amount to Rs 756751/- (Rupees Seven Lakh Fifty Six Thousands Seven Hundred Fifty One Only)
Notice was issued from this Commission for the O.Ps. On receipt of notice the O.Ps appeared before this Commission through Vokalatnama, filed Written Version, evidence on affidavit, notes of argument and also participates in hearing of argument. O.Ps denied all the material allegation of the complainant and has stated that the complainant has filed this case on some false allegation to harass the O.Ps. The complainant is not entitled to get the relief as prayed for. Several alternative initiatives were taken by the commission to serve notice upon POP-1 .Notice was not served upon the POP-1. On dated 22/07/2022 the case was dropped against the proforma opposite party (POP-1) on the basis of the prayer of the complainant.
Written Version of the Opposite party ICICI Lombard General Insurance Company Ltd has been filed with affidavit by Sri Dipankar Roy S/O Dilip Kumar Roy (authorized signatory of the ICICI Lombard General insurance Company Ltd) aged about 34 years, by faith: Hindu, by occupation: Service, of Apeejay House, park treet, Kolkata – 700016.
The General argument of the Opposite party is as follows.
A.1) The present case is not maintainable either in its present form or under law or on facts;
A.2) There is no cause of action for filing the present case against the opposite parties;
A.3) The case is barred by the principles of waiver, estoppel and acquiescence. The Learned Forum has no jurisdiction to try the present case. That cause, if arose at all, was outside the territorial limits of this Learned Forum. Moreover the Policy-in-question relates to covering the risks, if any, as per Policy wordings, occurred/sustained by the insured vehicle within the territorial limits of INDIA as will be evident from the Annexure-B to the complaint petition. That the alleged incident of theft, if took place at all, was at Bhutan and hence the case is liable to be rejected on this score alone.
A.4) The case has been filed by suppression of material facts only to put law into motion and to gain illegally under the shade of the present case. The petition is wholly barred by Law of limitation. The cause of action for filing the present case if arose at all was in the year of 2018 and the present case has been filed at a much belated stage and hence the case is liable to be rejected on this score alone.
A.5) Moreover the Complainant had purchased the vehicle in question exclusively for its commercial use and hence the Complainant cannot be accredited as a "Consumer" under C.P. Act and has thus has no locus-standi to file the present case which is liable to be dismissed on this ground alone.
A.6) There is no deficiency of service on the part of the Opponent. As per the Consumer Protection Act deficiency of service is one of the key elements to be present before the jurisdiction of the Consumer Forum can be invoked. Since there is no "negligence of service" on the part of the Opposite party the present case is liable to be dismissed on this score alone.
A.7) The case has been purposely filed with the sole object of putting the Opposite party into turmoil of harassment.
A.8) The case is speculative, vexatious and malafide.
A.9) The present dispute in question involves serious and complicated questions of law and facts which has arisen out of alleged contract between the Insurer and the alleged Insured andthe same cannot be decided by a summary proceedings but are to be decided in a regular drawn trial in a competent Court by voluminous evidence and hence this Learned Forum has no jurisdiction to entertain the present petition
A.10) The case is bad for non-joinder and mis-joinder of parties. The case is also bad for "non-joinder of necessary parties' '. That the Financier of the vehicle- in-question, 'M/s Cholamandalam Investment & Finance Company, is required to be added as a party before proceeding further with the case but the complainant best known to them has not incorporated the financier as a party in the case. As per General Regulation (GR) - 21 read with Indian Motor Tariff (IMT) No. 7 of Motor Tariff Rules of Tariff Advisory Committee the said Finance company has lion over the amount. And in the absence of this necessary party the said complaint is bad for mis-joinder and nonjoinder of parties and as such the same is liable to be dismissed with costs.
A.11) As per verdict of Honourable Supreme court the Insurance policy is contract between the parties and both parties are bound by the term of contract. (2004 (4) PLJR S.C. 185 United India VRS Harchand Rai Chandan ). Further in case titled "Export Credit Guarantee Corporation of India vs M/s Garg Sons International" 2013 (1) CPC 192, wherein it is held that courts are expected to give paramount importance to the terms of insurance contract into between the parties - terms of insurance policy must be strictly construed in order to determine the extent of liability of the insurer and further in case titled as "Vikram Green Tech (1) Ltd. And another Vs New India Assurance Co. Ltd. 2009(4) CLT 313" and further in case titled "Deokar Exports Private Limited Vs New India Assurance Co. Ltd. 2009 (2) CLT 15" held that in a contract of insurance, rights and obligations are strictly governed by the policies of Insurance - No exception or relaxation can be made on the ground of equity. The Honble National Commission in case titled "LIC of India and others vs Mahendra Singh" reported as 2011(4) CLT 39, also held that "The terms of policy are in the nature of a contract and their interpretation has to be made in accordance with the strict construction of the contract- Thus the words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion and substitute".
A.12) The opposite party does not admit the allegations contained in the different paragraphs of the petition and the onus lies upon the Complainant to strict proof thereof;
PART - B
(Specific argument of the Opposite party)
B.1) The address of the opposite party for the purpose of service of all notices, processes etc, is Apeejay House, Park Street, Kolkata -700016.
B.2) The Complaint had purchased the vehicle in question exclusively for commercial purpose and but had most surreptitiously taken a Private Car Policy No:- 3001/MI-05560365/00/0000 valid from 08/02/2018 to midnight on 07/02/2019. That the opposite party had issued the said Policy subject to specific terms & conditions as stipulated therein, which governs the instant claim.
B.3)That without prejudice to above said (Supra) it is submitted that admittedly the alleged vehicle was used as a commercial vehicle for carrying passengers for "hire and reward" and therefore the same proves that the vehicle was intended for making profits. Thus the present case is not maintainable as the complainant doesn't come under the purview of the definition of Consumer as defined under section -2(1)(d) of the C. P. Act, 1986.
B.4) The Opposite party states that the alleged accident, the Complainant made a belated claim and as per terms & conditions of the Policy information of any incident must be given to the Insurer immediately. In the case in hand the intimation of the alleged incident was given to the opposite party long thereafter as stated herein above, violating the terms and "condition No:-01" of the Insurance Policy, if any.
B.5) The Opposite party states that without prejudice and without admitting any liability it is submitted that as soon as the claim was intimated the insurance company appointed an approved independent IRDA empanelled Surveyor for the assessment of the alleged claim and the Complainant was
requested, by several letters of the opposite party to supply certain documents which were indispensable for the settlement of the claim.
B.6)As per claim of the Complainant admittedly the alleged vehicle on the relevant time was carrying 02 - passengers who hired the vehicle for dropping them to Phuentshiling, BHUTAN and that on way he was doused with some intoxicating substances and had filed with the said vehicle. This Opposite party further adds that as per admission of the Complainant the Policy was a "Private Car-Package Policy" which debars the use of the alleged vehicle for any hire or reward and since at the material time the vehicle was admittedly hired by the miscreants this Opposite party has no liability under the Policy-in-question and the case is liable to be dismissed on this score alone.
B.7) This Opposite party states that the Opposite party as insurer is responsible to indemnify any loss of any insured vehicle subject to certain terms & conditions. That since the Complainant did not comply with the terms & condition for settlement of his alleged claim and also since the complainant used the vehicle for commercial purpose, for hire and reward and for earning profits, there is gross violation of the Policy terms & conditions and the complainant had lodged a false, fabricated claim & this Opposite party had no other alternative but to close the said file and repudiated the alleged claim of the Complainant vide letter dated 03/12/2018.
B.8) A contract of Insurance is a contract of 'uberrima fides' and there must be complete good-faith on the part of the insured. The assured this is under a solemn obligation to make full disclosure of material fact which may be relevant for insurer to take into an account and that suppression of material facts while incepting the policy is fatal to the claim, as the Insurance being contract of uberrima fides, there must be complete good-faith on part of the insured. In the case in hand the insured purchased the vehicle for 'hire & reward' but had obtained a Private Card Policy suppressing the said broad fact and the same is fatal to his alleged claim.
B.9) The Complainant had by its conduct accepted and admitted its own Negligence, latches, carelessness in willful violation of the Policy conditions and is thus stopped from proceeding further with the present case.The Opposite party-Insurance Company is a Public body, run by Public Fund so every claim is handled with much care & caution to safeguard the interests of bonafide customers. Since in the case in hand the claim was not found to be not payable for violation of the terms & conditions of Policy the Opposite party had rightly repudiated the claim of the Complainant.
PART-C (Reply to Complaint's Averment)
C.1) That what has been stated in Para-01 to 07 of the complaint are matters of record and are to be proved strictly by the Complainant.
C.2) That what has been stated in Para-08 to 10 of the complaint are to be proved by the Complainant.
C.3) That what has been stated in Para-11 of the complaint petition are not all correct and hence the onus lies upon the Complainant to strict proof thereof. This Opposite party states that the Complaint had purchased the vehicle in question exclusively for commercial purpose and but had most surreptitiously taken a Private Car Policy No:- 3001/MI-05560365/00/0000 valid from 08/02/2018 to midnight on 07/02/2019 only to play foul and swindle Public money.
C.4) That the allegations contained in Para-13 to 19 of the Petition have totally been projected in a twisted form and manner and are not the truthful affairs involving the entire episode and are thus denied by this Opposite party are to be proved by the Complainant.
However from the averments made in the said paragraph it is crystal clear that the Complainant had virtually admitted in black & white that he had used the said vehicle for purpose of carrying passengers i.e. also for "hire & reward" in utter violation and dis-regards for the terms of the Contract. The complainant had thus suppressed the fact of Commercial use of the alleged vehicle to the opposite party at the time and even after the Policy. Thus the Complainant cannot be termed as a Consumer under the provisions of the C.P. Act and has no locus-standi to pursue with the present case. It is specifically denied that on 04/10/2018 the two miscreants requested the Complainant to give them a lift to Phuentsholing, Bhutan and that the complainant night stayed in Hotel Mid Point, Bhutan on the said day and/that on the following day the complainant regained his consciousness and found that his vehicle along with the said persons missing from the campus and/that after returning Home the Complainant was admitted at N.B.M.C & Hospital and/that the Complainant again reached Phuentsholing Police station to lodge Complaint about the alleged theft and that on 12/10/2018 the Complainant went to Jaigaon P.S. to lodge FIR and that the said Police authority advised the complain to be made with the Kotwali P.S., Jalpaiguri. That the facts stated in the said paragraphs are nothing to create a plot to hide the own mis-deed of the Complainant and to play foul and to grab the public. Exchequer by misleading this Learned Forum.
C.5) The Complainant virtually admitted that on the 04th day of October, 2018 the vehicle was used for rent and the passengers/miscreants who hired the said vehicle for reaching Bhutan, somehow intoxicated him and that the said miscreants had fled away with the vehicle. That the said story had been cooked up only to conceal the true state of affairs. That the said story is highly suspicious and throws every light of suspicion solely upon the Complainant.
C.6) This Opposite party adds that the Complainant from the very inception of the Policy used the vehicle for hire and reward and after the alleged incident the complainant is now trying to sing a melancholy strain only to gain illegally and to hide his own mis-deeds.
C.7) The allegations contained in Para-20 of the Complaint are absolutely false and are not the truthful affairs involving the entire episode and are thus denied by this Opposite party. That the alleged incident took place on 05/10/2018 and the
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Complainant made a belated claim long thereafter and as per terms & conditions of the Policy information of any incident must be given to the Insurer immediately. As already stated that in the case in hand the intimation of the alleged incident was given to the opposite party long thereafter as stated herein above, violating the terms and "condition No:-01" of the Insurance Policy. if any.
C.8) The allegations contained in Para -21 to 27 of the petition are cleverly engineered for putting law into motion and to hide his own mis-deed. The allegations made therein are denied by these opposite parties. The burden lies upon the Complainant to strict proof thereof. That the Complainant regardless of lodging a belated claim did not bother to cooperate with the Opposite parties in-order to decide his alleged claim. It is also absolutely false that the opposite party No.03 refused to receive the documents required for settlement of the claim and that long thereafter on 12/03/2019 the complainant issued on e Lawyer's Notice to the Opposite parties for his alleged redressal.
It is reiterated that the Opposite party as insurer is Responsible to indemnify any loss of any insured vehicle subject to certain terms & conditions. That the Complainant did not comply with the terms & condition for settlement of his alleged claim and rather violated the Policy conditions as stated herein above. The complainant had also lodged a false, fabricated claim suppressing the broad fact & thus this Opposite party had no other alternative but to close the said file due to non-co operation of the Complainant.
C.9) The allegations contained in Para-28 & 29 of the petition are all false. lock, stock and barrel and are thus denied by these Opposite parties and the onus lies upon the Complainant to strict proof thereof. That the plots engineered in the said paragraphs are nothing to hide his own mis-conduct and to gain illegally under the shade of the present case.
This Opposite party states that after receipt of the alleged claim of the Complainant the Opposite party had duly investigated the same and found that the complainant at the relevant time and even before used the vehicle for 'hire and reward' and after through enquiry, having regards to the Policy terms and conditions had rightly repudiated the claim vide letter dated 19/03/2014. Thus there cannot be any cogent cause or locus-standi to invoke the jurisdiction of this Ld. Forum.
C.10) The allegations contained in Para -30 to 36 of the Complaint are nothing but melancholy strain and are engineered for giving birth to the present false and vexatious case.
It is specifically denied that the Complainant is running much for the claim. That the claim was repudiated long back on 03/12/2018 and the complainant admitting his guilt had accepted the said repudiation and kept mum. That the present complaint-case had been filed at a much belated stage obviously with some ill-advised only to earn some booty.
C.11) The allegations contained in para-38 to 46 of the petition are absolutely false and cooked up for the purpose of the present false and to gain sympathy to get enriched out of a stale claim. That the allegations made therein are in twisted form and only to mislead this Learned Forum.
That from the conduct of the Complainant it appears the Complainant played foul by using his car on hire very frequently by violating the Policy conditions and after trying to deploy weak tactics by his emotional assertions is trying to gain illegally without playing his part of Contract. That the claim of the complainant had been repudiated long back after thorough investigation and paying heed to the facts of the present claim of the complaint and thus there is nothing which can speak about any negligence or Unfair practice played by the Opposite party. Moreover the cause for the alleged claim arose at Bhutan which is beyond the scope of the Policy-in- question and thus the case is liable to be dismissed in limine.
C.12) The allegations contained in Para - 47 to 56 of the complaint are absolutely false and cleverly engineered to put law into motion and to swindle Public funds. It is pertinent to mention that the Opposite party is holding the Funds of the bonafide Policy holders and as such any payment out of the said Fund is required to be made with much care, caution and after fulfillment all official formalities. That the Opposite party, however, immediately after receipt of the claim of the Complainant duly processed the same and since there was gross violation of terms & conditions of Policy as stated herein above this Opposite party had to close the file as non-payable and thus there is and cannot be any "negligence of service" on the part of the Opposite party and the present petition is liable to be rejected on this score alone.
C.13) No cause for the present case arose on 05/10/2018 or on any date whatsoever as falsely claimed in the petition.
C.14) The reliefs claimed in the complaint petition are without any foundation and have no legs to stand. The complainant had claimed everything beyond the Policy and this Id. Forum even has no jurisdiction to deal with certain vexatious prayers and the question of suffering any loss by the complainant are far-off things.
Nothing herein admitted shall be deemed to have been specifically denied by the opposite party. The present case in the premises is liable to be dismissed with appropriate cost against the complaiannt.
Points for consideration
- Whether the complainant is a consumer?
- Whether the case is maintainable under the C.P. Act 2019?
- Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
- Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?
Point no 1&2 -
Complainant is a consumer of the O.Ps. The Ops Business is situated within the jurisdiction of this commission and this commission has both territorial and pecuniary jurisdiction to try the Present Complaint.
Point no 3&4 –
The theft (dated 05/10/2018) of the vehicle in question has been duly proved on record. From perusal of the record it is found that on 13/10/2018 the complainant lodged a written complaint stating the above noted incident of Theft, before the Officer in Charge, Kotwali police station Jalpaiguri, Dist-Jalpaiguri, the Police personal received the complaint and which is registered as case u/s 406/420/379/34of IPC. Kotwali PS case No-727/2018 dated 13/10/2018. The vehicle has not been traced and the Untraced Report has also been accepted by the Chef Judicial Magistrate, Jalpaiguri on 28/02/19.
(All Annexure attached in the case record). Complainant issued a Legal Notice through her Ld. Advocate to the O.P. on under Speed Post with A/D stating all the above mentioned facts and the Notice was duly served and received by the O.P
From the beginning the opposite party was well known about the fact that the theft crop up in BHUTAN not in INDIA. But, On dated 21/07/2023 the opposite party files an insurance claim repudiation letter (Page 6 Annexure –F) which reflect that the alleged insurance claim of the complainant was repudiated by the insurance company on the ground “delay in FIR and delay in intimation to ICICI Lombard” but in the case record the opposite party in their W.V, Evidence and written argument mentioned that they repudiate the claim of the complainant as the theft crop up in BHUTAN and the complainant taken “Privet car package policy” which restrained them to pay the alleged insurance claim. No specific evidence was filed by the opposite party in support of this plea. The opposite party never mention the clause in their insurance claim repudiation letter. The grounds of repudiation of the claim and the written version are contradictory. It is to be mentioned that anybody from India can go to BHUTAN for visiting purpose without any interruption. Especially from North Bengal so many people are regularly going to Bhutan for business purpose. Regular bus services are also available from INDIA to Bhutan. On 07/05/2021 Mr. M.Krishna Swamy, Customer Service Desk, ICICI Lombard GIC Ltd send a mail stated that “your claim has already rejected in the basis of delay in FIR and delay in intimation to ICICI Lombard”. That time also the representative not mentions that the claim of the complainant was repudiated because the theft crop up in BHUTAN but not in INDIA.
Opposite party never mention the fact that by a letter to the complainant on dated 16/10/2018 they engaged “SHAKTI SERVICES” as external surveyor. Complainant also submits that he handed over all relevant documents to the external surveyor. But, in the case record there is no whispering about the appointment of external surveyor by the opposite party. No survey report was submitted by the opposite party. From this act of the opposite party it can be said that somehow the opposite party wanted to suppress the material facts of the case.
FRT was filed before the CJM, Jalpiguri by the police authority on 28/02/19 and this case was filed on 03/09/2021. In this period various correspondences was made by the complainant with the O.P for payment of insurance claim. In 2020-2021 due to the corona pandemic relaxation was given by the honarable Supreme Court for filing cesses after limitation period up to a specific period. So, no error was made by this commission by admitting the case after limitation period elapsed. The guideline from the upper court was strictly followed. From the case record it is transparent that the complainant uses his vehicle for his own use or uses it commercially for earning his own livelihood by self employment. So the prayer of the opposite party that the alleged vehicle of the complainant was used for commercial purpose is not arise.
Both the parties filed some case laws/ judgements of upper courts. Documents are kept in the record. All are taken seriously for consideration and reflection was made in the judgement.
The Supreme Court recently reiterated that an insurance company cannot repudiate a claim merely on the ground of delay in intimation of theft of an insured vehicle [Jaina Construction Company v. Oriental Insurance Company Limited and Another].The bench set aside the NCDRC judgement and held that the mere delay in intimating the insurer was not fatal to the claim when an FIR had been registered promptly. “The precise question that falls for consideration before this Court is - whether the insurance company can repudiate the claim in toto, made by the owner of the vehicle which was duly insured with the insurance company, in case of loss of the vehicle due to theft, merely on the ground that there was a delay in informing the company regarding the theft of vehicle,” the bench said referred to an apex court verdict in which it was held that “when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
In the case of Gurmel Singh vs Branch Manager National Insurance Co. Ltd. 2022
The honourable Supreme Court observed that while settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. Generally, where a
breach of insurance policy condition or warranty are not the cause of loss or do not contribute to the extent of loss incurred by the insured, such claim is treated as a ‘standard claim’. However, there are certain claims that cannot be settled in a standard form i.e. where all terms, conditions and warranties of the policy are not fully complied by the insured, such claims may be treated as ‘non standard claims’.
Looking to the judgment of Hon'ble National Commission passed in Mohd. Unis vs. United India Insurance Company Limited (Supra) & Baljeet v. United India Insurance Company Limited (Supra), it appears that the breach was not a fundamental breach and hence the respondent (O.P.) (Insurance Company) was required to pay compensation at least on non-standard basis to the appellant (complainant).
A Two Bench of the Supreme Court comprising of Justice J.K. Maheshwari, and K.V. Viswanathan passed a Judgment dated 31.07.2023 in a recent case of Ashok Kumar Vs New India Assurance Co. Ltd., Civil Appeal No. 4578 of 2023 and observed that in respect of repudiation of insurance claim, in certain cases, even though the insured is proved to be careless to some extent, 75% of the claim amount is admissible on a non-standard basis.
We have perused the material available on record and heard the counsel for the complainant. It is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. The claim has been repudiated only on the ground of delay and when the complainant had lodged the FIR immediately and law was set in motion, the insurance firm could not have repudiated the claim merely on the ground that there was a delay in intimating about the theft. The Court held that immediate reporting to the police however, late reporting to the insurer cannot be said to be prejudicial to the insurance company. A mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of ‘duty to cooperate’ of the insured. Ultimately the Court held that if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view.
Considering the contentions made in the complaint and also the evidence in support of such contentions as sworn by the parties and also the copy of documents filed we find that the Complainant has proved her case in part. We find that the Complainant has successfully proved her case in part.
In the instant case, the copy of the insurance policy was filed by the complainant. In the insurance policy, the Insured Declared Value (I.D.V.) of the vehicle is mentioned as Rs.706751 /-. We are in view that the complainant should get award of compensation on non-standard basis i.e. 75% of the I.D.V. of the vehicle. The I.D.V. of the vehicle is Rs.706751/- and its 75% comes out to Rs. 530063/-.
Hence, It is
O R D E R E D
That the case C.C./34/2021 be and the same is allowed on contest against the O.P with cost of Rs. 1,000/-. Payable to the complainant.
O.P. No. 1, 2 & 3 has to pay Rs. 5,30,063/- (Five lack thirty thousand sixty three only) or 75% of the I.D.V. of the vehicle to the Complainant within 30 days from this date.
O.P’s have to pay Rs. 10,000/- (Rupees Ten Thousand) Only to the consumer legal aid account of this commission.
Failing which the Complainant is at liberty to execute the decree according to law.
Let plain copy of this order be given to the parties free of cost
