IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/81/2015.
Date of Filing: 23/06/2015. Date of Final Order: 30/05/2017
Complainant: Md. Rafik Seikh, S/O- Abdul Kader, Vill.&P.O. – Sahajadpur,
P.S.- Berhampore. Dist.- Murshidabad. Pin.-742187.
-Vs-
Opposite Party: The Manager, ICICI Lombard General Insurance CO. Ltd
Manjuri, 1st Floor, Plot No.168, R.N. Tagore Road, Laldighi,
P.O.- Berhampore, Dist.- Murshidabad.
Before: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Sri Samaresh Kumar Mitra, Presiding Member.
The case of the complainant is that he had a Splendor Motor Cycle of Hero Honda, being Regn. No. W.B. 58-X-3446 and the said Motor Cycle was insured before the I.C.I.C.I Lombard being policy No. 3005/88435588/00/000. On 02.03.2015 he went to Berhampore Matri Sadan hospital for some personal purpose and he parked his Motor Cycle in the Hospital Compound. After returning for a while he found that his Motor Cycle is missing. He immediately informed the matter to Berhampore P.S. and lodged a GDE. being No.98 dated 02.03.2015. Thereafter an FIR lodged in that regard and Berhampore P.S. started a specific case being Case No. 138/2015 dated 10.03.2015 U/S. 379 IPC . The complainant informed the matter to the OP to take necessary action to pay the insured money amounting to Rs.41354/- but the OP denied by sending a letter dated 11.05.2015. This is the course for which he compelled to file the instant complaint before this Forum for praying relief as prayed in the form of direction upon the OP to pay a sum of Rs.41134/- for insured amount of the said bicycle and Rs.20000 for mental and physical harassment.
The sole OP filed written version and denied the allegations as leveled against him and averred that the OP ICICI LOMBARD GIC LTD. at present unable to admit whether the vehicle was insured with this OP at the relevant point of time unless further and better particulars are disclosed by the claimant/complainant. The claimant may be directed to produce and prove the original policy and other documents relating to the claim before this Forum if any. In relation to the complaint petition the vehicle of the complainant was stolen from Matri Sadan hospital compound on 02.03.2015 and it was informed to this OP is not admitted by this OP. Actually this claimant has concealed the material facts and has not come up with clean hands. As the coverage of insurance is a contract under certain terms and conditions agreed and entered in between the insured and the insurer and therefore in the event of breach of terms and conditions of the “ contract of insurance” this OP is not liable to indemnify the loss of the complainant. The complainant parked his vehicle at the hospital compound carelessly on an unsecured public place and unattended which led to the incidence of the insured asset being stolen. Sufficient care was not taken which a prudent man ought to have been taken. This is violation of terms and conditions of insurance policy. The insured shall take all reasonable steps to safeguard of the vehicle from loss or damage and notice shall be given in writing to company immediately upon the occurrence of any accidental loss or damage. Moreover the complainant lodged FIR on 10.03.2015 i.e. after 8 days from the date of incident and that matter had also not been communicated nor intimated to the office of the OP this is gross violation of the policy norms and/or conditions. As the complainant failed to lodge the FIR in due time so his claim was repudiated by the OP company. When the complainant lodge formal claim with this OP then the OP took steps towards settlement of the matter and investigator was appointed in the matter to investigate the theft. Thereafter as the complainant violates the policy terms and condition the OP constrained to repudiate the claim of the complainant. At the date of incidence the vehicle was hypothecated with IndusInd Bank which is necessary party to add in this case. The case is bad for nonjoinder of necessary party and misjoinder of unnecessary party so this case is fit to dismiss.
The complainant filed affidavit -in -chief by way of affidavit on 01.08.2016 where he admitted his case in line of his complaint.
Argument as advanced by the agent of the complainant and opposite parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Md. Rafik Seikh is a 'Consumer' of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainants proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Md. Rafik Seikh is a 'Consumer' of the opposite party?
From the materials on record it is transparent that the Complainant insured his Motor Cycle before the OP, so he is a "Consumer" as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As such the complainant herein being the consumer of the OP is entitled to get service from the OPs.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and Opposite Party are residents/carrying on business within the district of Murshidabad. The complainant prayed Rs.41134/- as per insurance of the vehicle before the OP and Rs.20,000/- for mental and physical harassment ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It appears from the case record and the documents as produced by the parties in dispute that the complainant insured his motor cycle before the OP and the said motor cycle was stolen in the Berhampore Matri Sadan Hospital compound on 02.03.2015 and immediately after that he lodged a general diary before Berhampore P.S. on the date of incidence being entry no.98 dt.02.03.2015 thereafter he lodged an FIR and Berhampore P.S. started a P.S. case being No.138/2015 dt.10.03.2015, U/S.-379 I.P.C. The complainant also informed the matter to the OP to take necessary action to pay a sum of Rs.41354/- but the OP by sending a letter dt.11.05.2015 denied to pay the insured amount. Getting no alternative the complainant took the re course of this Forum praying for getting the insured amount of Rs.41134/- alongwith a sum of Rs.20,000/- for mental and physical harassment from the OP. The OP in his written version assailed that complainant lodged FIR on 10.03.2015 i.e. after 8 days from the date of incidence and that matter had also not been communicated nor intimated to the office of the OP which is gross violation of the policy norms and/or conditions. The claim of the complainant was repudiated due to delay in lodging FIR. The complainant in his complaint petition stated and argued that he informed the missing of the said motor cycle from the hospital to the Berhampore P.S. vide GDE No.98 dated 02.03.2015 and also produced the xerox copy of General Diary Book certified by the Inspector –in-charge of Berhampore Police Station which clearly depicts that the motor cycle of Md. Rafik Sk. S/O. Abdul Kadir of Sahajadpur bearing No.WB 58X 3446 is missing on 02.03.2015 from Sadar Hospital. So the complainant informed the occurrence of theft before the Berhampore P.S. on the date of incidence but the police of Berhampore P.S. lodged the complaint in the General Diary Book on 02.03.2015 but specific case stared on 10.03.2015 vide P.S. Case No. 138/2015 dt.10.03.2015 U/S.379 I.P.C. It is pertinent to mention that the F.R.T No.492/15 dt.29.07.2015 U/S-379 IPC in C/W Berhampore P.S. Case No.138/2015 dt.10.3.2015 being GR.No.974/15 submitted by the investigation officer Shyamal Kumar Patra A.S.I of Berhampore P.S. was accepted by the Ld. CJM Murshidabad on 09.03.2016. After perusing the policy schedule of the impugned motor cycle it appears that the policy valid from 17.03.2014 to midnight 16.03.2014 and the vehicle Regn. No.WB 58 X 3446 and the declared value of vehicle Rs.41354/- &othrs. So there is no dispute regarding the validity of the insurance policy.
The agent on behalf of the complainant filed a few case decisions of State Commissions and Hon’ble Apex court we may refer one case decision of Apex court in National Insurance C. Ltd. Vs. Nitin Khandelwal Civil Appeal No.3409 of 2008 in which the Hon’ble Apex court observed that In the case of theft of vehicle breach of condition is not germane. The 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 breach of condition of the insurance policy; the insurance company ought to have settled the claim on non- standard basis. The Insurance Company cannot repudiate the claim in Toto in case of loss of vehicle due to theft.
The letter dated 11th May, 2015 of OP depicts that the complainant intimated claim to insurer after 10 days of date of loss. After the incidence took place, the claim should have been immediately lodged with the insurer. As per policy conditions- Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Due to delay information the claim of this complainant stands as no claim by the OP. The agent on behalf of the OP filed a few decisions of different Forums regarding the repudiation of claim for delay information.
The OP herein tried to escape his responsibility by repudiating the claim of the complainant on flimsy ground of delay information to the OP and filing FIR after 8 days from the date of incidence. Insurance Company (OP herein) should extend their co-operation regarding the claim of the insured motor cycle. It is not desirable to repudiate the claim of the insured merely on technical ground by the OP. We have perused the decisions as well as hearing the arguments of the agents are in a opinion to allow the claim of the complainant.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party could not avoid his responsibility of paying the claim of the complainant including interest thereon as ascertained by this Forum.
ORDER
Hence, it is ordered that the complaint case being No.81/2015 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.4000 payable to this complainant.
The Opposite Party is directed to pay a sum of Rs.41354/- to this complainant including interest @8% since the date of filing this complaint petition within 45 days from the date of final order.
No other reliefs are awarded to the complainant for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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 & necessary action.
Dictated and corrected by me.
Member, President,
