In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/253/2022.
Date of filing: 29/12/2022. Date of Final Order: 06/08/2024.
BULU SENGUPTA,
S/o. Late Dipak Sengupta, of 229,
2No. Subhash Nagar, Narkel Bagan,
P.O. Sahaganj, P.S. Chinsurah,
Dist. Hooghly-712 104, West Bengal. ……….Complainant/Petitioner
Versus -
- The Manager,
Kolkata Main Branch,
Bharti AXA General Insurance Co. Ltd.,
Emami Market, 4th Floor, 3 Lord Sinha Road,
P.S. Kolkata - 70 071, West Bengal.
- The Chief Executive Officer,
Bharti AXA General Insurance Co. Ltd.,
1st Floor, The Ferns Icon Building,
Survey No.28, Doddanekundi,
Outer Ring Road, Marathahalli,
Bangaluru - 560 037, Karnataka.…………… Opposite Parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Babita Chaudhuri, Member.
Brief fact of this case:- This case has been filed U/s. 34/ 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant/ petitioner is permanent resident under PS. Chinsurah, Dist. Hooghly which is within the jurisdiction of Your Honour's District Commission.
That Your Complainant/Petitioner purchased a Policy of the Opp. Parties Insurance Company for his saloon car Mahindra Scorpio S3 MH 2WD (Diesel) bearing Regn. No. WB 16AV 9258 on 02/5/2018, on hypothecation loan with Bank of Baroda, Bandel Branch, vide Loan A/c. ID: 56520600000072 INR 5652/
That at the time of purchasing the said saloon car Complainant/Petitioner simultaneously purchased an Insurance Policy from the Opp. Parties' Company for all types of damages coverage inclusive of theft claim bearing Policy No. SM615538, Claim No. ZA253592, Covernote No.108952125M615538, issued on 09/4/2020, Period of Insurance: 10/4/2020 to 09/4/2021.
That Your Petitioner has been paying the EMIs to Bank of Baroda since the purchase of the car/vehicle on hypothecation loan till date Petitioner's car/vehicle has been missing since 30/10/2020 at 6 AM alongwith all the original documents of the vehicle which he has come to know from the driver of the vehicle, namely Ibrahim Gazi alias Bumba and his accomplice, namely Sekh Nizam. It is to be noted that said Ibrahim Gazi alias Bumba used to keep the car/vehicle in front of his own house every night. Since 30/10/2020 Your Petitioner tried to find his vehicle here and there, lodged complaint and that's why the police authority of Chinsurah Police Station started an FIR against abovenamed Ibrahim Gazi alias Bumba and Sekh Nizam registered as Chisurah P.S. Case No.343/2020 dated 30/10/2020 u/s1208/406, IPC (G.R. No. 1649/2020) which is still pending in the Court of L.d. Chief Judicial Magistate, Sadar, Hooghly.
That thereafter 01/11/2020 Your Petitioner applied for the Claim of the Insured Declared Value (IDV) on the ground of theft of the said car/vehicle before the Opp. Parties' Insurance Company of Rs.7,40,000/- (Rupees Seven lakh forty thousand) only, but it is very much unfortunate that till today the Opp. Parties' Insurance Company not cleared the claim amount of Your Petitioner.
On 11/6/2022 the Opp. Parties' Insurance Company. especially the Opp. Party No.1 flatly denied and refused to give the said claim amount to Your Petitioner by their Repudiation Letter mentioning the Condition No.4 and Condition No.8 of the Policy, and also the offense of theft under IPC is dealt with u/s 379 and therefore this occurrence is outside the scope of the Policy, and also the non-submission of one original key of the vehicle (Your Petitioner actually submitted one original key out of two keys, already mentioned in his Complaint) though from the Complaint of Your Petitioner it is crystal clear that his vehicle had been theft and it is also found from the NextGen mParivahan App that the Hooghly RTO, West Bengal blacklisted the said vehicle due to reason of Theft, in connection with the FIR No.343/20 dated 30-Oct-2020 lodged with Chinsurah Police Station.
After a long waiting Your Petitioner send the legal notice dated 30/11/2022 to the office of the Opp. Party No.1 on 01/12/2022 and the same was duly served and in this way the Opp. Parties tried to shrugged out their liability to pay the Insured Declared Value (IDV) Claim amount of Rs.7,40,000/- (Rupees Seven lakh forty thousand) to Your Petitioner and in this context it is crystal clear that there's happened a deficiency of services to the consumer which is completely barred by law and illegal practice of the Opp. Parties.
Your Complainant/Petitioner had been bound to institute the instant case before Your Honour's District Commission and thus Your Complainant/Petitioner has suffered a financial loss of Rs.6,27,000/- and thereby he is also put to suffer worries and anxieties calculated at Rs.5,73,000/- (Rupees Five lakh seventy three thousand) only which the Opp. Parties are liable to pay for the cost of services and compensation.
Complainant filed the complaint petition praying direction upon the opposite parties who have intentionally not refunded the claim amount taking the Policy premium from your complainant to pay a sum of Rs. 7,40,000/- only alongwith up-to-date accrued interest thereon and to pay a sum of Rs. 7,60,000/- only as the compensation and to pay the cost of the case.
Defense Case:- The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the claimant petitioner filed the case against Bharti EXA General Insurance Company Limited. Be it mentioned here that Bharti AXA General Insurance Company merged with ICICI Lombard General Insurance Company Limited for which the Opposite Party above named appeared Before Your Honour on behalf of above mentioned Company.
The Opposite Party specifically submits that the Opposite Party has no knowledge whether the Claimant has been Paying EMI to Bank of Baroda since the purchase of the Car/ Vehicle on Hypothecation loan till date in spite of missing of the vehicle, if so then in that case Bank Of Baroda is necessary party of the case.
It is totally denied by the answering Opposite Party to that effect that on 01.11.2020 the petitioner applied for the claim of the Insured declared value (IDV) on the ground of theft of the car/ vehicle before the O.P Insurance Company of Rs 7,40,000/- or it very much unfortunate that till today the Opposite Party Insurance Company not cleared the claim amount of the petitioner or it is denied that the petitioner went to the Office of the Opposite Parties Office repeatedly or the Opposite Party ignore to accept the petition of IDV Claim.
It is denied by the Opposite Party in toto to that effect that on 11.06.22 the Opposite Party Insurance Company flatly denied and refused to give the said claim amount to your Petitioner by their repudiation letter mentioning the condition no 4 & 5 of the Policy and also the offence of theft U/S 379 IPC or also non submission of one original key of the vehicle though from the Complaint of your petitioner The Opposite party unaware that the vehicle has been theft and also unaware any Criminal Case is still pending or not or the Opposite Party also not aware that the Hooghly RTO black listed the said vehicle due to reason of theft, in connection with the FIR No 343/20 dated 30.10.20 lodged with Chinsurah P.S.
The Opposite Party most respectfully submit that there has been absolutely no scope of obtaining any Compensation on the heads as stated in prayer of the petition of complaint and therefore no direction may kindly be passed to pay any compensation whatsoever. Therefore it is most respectfully submitted that besides being not entitled to any claim and relief on basis of prayer to the petition of complaint is also not entitled to any for cost and compensation as prayed for.
That in the above premises the Complaint/ Petition is liable to be dismissed with costs.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
After filed evidence on affidavit ops have not been appear so the case be proceed ex parte hearing against them.
Argument highlighted by the ld. Lawyer of the complainant
Complainant filed written notes of argument. As per the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocate of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by complainant.
DECISIONS WITH REASONS The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first. Regarding these three points of consideration, this District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. On close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the complainant of this case. For the purpose of arriving at just and proper decision in respect of points of consideration Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have filed W/V and evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. On the other hand, the ops have denied and challenging the fact of the complainant’s case. In the facts of the present case, the main question that falls for consideration is: whether on facts there was breach of condition No. 4 of the insurance policy to justify the rejection of the claim in toto? It was held relying on the judgments of National Insurance Company Limited vs. Nitin Khandelwal, [(2008) 11 SCC 259] and Amalendu Sahoo vs. Oriental Insurance Company Limited, [(2010) 4 SCC 536] that even if there was a breach of the clause, the claim could not have been repudiated in toto and, applying the yardstick in Amalendu Sahoo (supra), 75% of the claim as the admissible amount, on non-standard basis. Considering the documents filed by the complainant and relying upon the above mentioned judgement the order of this case is allowed in favour of the complainant. Therefore, the complainant is entitled to the insured amount on non-standard basis, i.e., Rs. 5,55,000/- as 75% of the IDV i.e., Rs. 7,40,000- with interest. @ 9% p.a. from the date of filing of the complaint till realization from the Insurance Company. In the result it is accordingly Ordered that the complaint case being no. 253 of 2022 be and the same is allowed on ex parte with cost. The Opposite parties shall pay to the Complainant 75% of the IDV i.e. of Rs. 5,55,000/- which comes to Rs. 7,40,000/- along with interest @ 9% p.a. as from the date of filling of the complaint till realization total amount from ICICI Lombard General Insurance Company Limited. This amount shall be paid to the complainant within a period of 45 days from the date of this order. The Ops shall pay to the complainant compensation of Rs.30,000/- for causing mental harassment and litigation expenses of Rs.10,000/-. This amount shall be paid to the complainant within a period of 45 days from the date of this order. Complainant is at liberty to put the final order into execution after expiry of the appeal period. Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action. The Final Order will be available in the following website www.confonet.nic.in. | | | | | | | |
Dictated and corrected by me. |
