The Humble Petition filed by the above named Complainant Stated as under:-
- That the complainant purchased a M-Cycle/Scooter in the year 2021. being registration No. WB74BG9832, date of registration 04/10/2021. Engine No. JF49EW4177798, Chassis No. ME4JF49NJMW028974.
2. That after purchasing the above noted vehicle the complainant insured her vehicle with O.P. Company i.e ICICI Lombard, Nibhaye Vaade, for its good reputation, being Policy No. 3005/227031464/00/000, Cover note .No. 227031464, Invoice No. 100921614481.
3. That the complainant paid a premium to O.P. Company from time to time.
4. On 26/1/2022 at about 9pm - 9:30 pm the dream vehicle of the complainant was stolen from her rented house where she lives with her husband.
5. That thereafter on 27/01/2022 the complainant lodged a written complaint stating the above noted incident of Theft, before the Officer in Charge, Ashighar Out Post, Under Bhaktinagar Police Station, Dist-Jalpaiguri, the Police personal received the complaint and which is registered as G.R. Case No. 659/2022, arising out of Bhaktinagar P.S.Case No. 146/2022, dated 27/01/2022, u/s 379 I.P.C.
6. After lodging the above complaint, the complainant claimed an insurance amount from O.P. Company for her vehicle which was stolen and voluntarily declared that at the time of shifting from the rented house one key of the said Vehicle was misplaced. After hearing the same O.P. The company did not cooperate with the complainant and did not pay insurance amount and directly rejected her policy. After tolerating this abusive behaviour of O.P. Company, the complainant went to the state of mental trauma.
7. That thereafter the complainant issued a Legal Notice through her Ld. Advocate to the O.P. on 11/1/2023 under Speed Post with A/D stating all the above mentioned facts and the Notice was duly served and received by the O.P. Company but after receiving the Notice the O.P. did not cooperate with the complainant.
8. That the complainant is a consumer within the meaning of Consumer
Protection Act and the Rules framed there under.
9. That this Forum has jurisdiction to try and adjudicate the present Complaint. 10. That the complaint is bonafide in the interest of Justice.
11. That the cause of action for filing the present complaint arose on 26/1/2022 and thereafter on all subsequent dates which is still continuing.
12. That the complainant has a good prima facie case.
13. That the complainant prays before this forum for proper adjudication of the compensation and claims relief as under:-
Relief claimed by the complainant
- Direction to the O.P. to pay to the complainant the amount of Rs. 2,50,000/- (Rupees Two Lakh fifty thousand) only towards mental agony and pain suffered by the complainant;
- Direction to the O.P. to pay to the complainant the amount of Rs.50000/- (Rupees Fifty Thousand) only towards the litigation cost;
- Direction to the O.P. to pay to the complainant the interest accrued on the awarded amount @12% calculated P.A. from the date of cause of action till actual realization.
- Direction to the O.P. to pay the Complainant the total amount of Rs. 2,50,000/- (Rupees Two Lakh fifty thousand) Rs. 50000/- (Rupees Fifty Thousand) along with interest accrued on the awarded amount @12% calculated P.A. from the date of cause of action till actual realization
- Any other relief or reliefs which the Hon'ble Forum pleased to award.
- Total claim Amount Rs. 3,00,000+ (Rupees Three lakh) only
Notice upon the opposite party was duly served on dated 01/08/2023. Item delivery report /AD card is kept in the record. After proper service of notice upon the opposite party none appears in this commission from the side of them. On 09/08/2023 the case run ex-parte against the opposite party.
Decisions with reasons -
The theft of the M-Cycle/Scooter in question has been duly proved on record. From perusal of the record it is found that on 27/01/2022 the complainant lodged a written complaint stating the above noted incident of Theft, before the Officer in Charge, Ashighar Out Post, Under Bhaktinagar Police Station, Dist-Jalpaiguri, the Police personal received the complaint and which is registered as G.R. Case No. 659/2022, arising out of Bhaktinagar P.S.Case No. 146/2022, dated 27/01/2022, u/s 379 I.P.C. The vehicle has not been traced and the Untraced Report has also been accepted by the Chef Judicial Magistrate, Jalpaiguri on 17/12/2022. (Annexure attached in the case record).
Complainant issued a Legal Notice through her Ld. Advocate to the O.P. on 11/1/2023 under Speed Post with A/D stating all the above mentioned facts and the Notice was duly served and received by the O.P. According to the complainant the O.P. insurance company did not cooperate with the complainant.
Complainant voluntarily declared that at the time of shifting from the rented house one key of the said Vehicle was misplaced. On the basis of this point the company repudiate her claim. The same version was submitted by the complainant through affidavit.
On dated 22/06/2023 complainant submit a petition stating that the alleged vehicle is hypothecated to the financer bank (State bank of India). She also submits that if the commission pleased to award any amount then she has no problem if the amount credited to the financer bank, SBI, Account Number- 34884178177. Branch-Station Feeder Road, Siliguri.
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.
The only question for consideration before us is whether the Insurance Company was deficient in service by repudiating the claim of the complainant on violation of condition no. 5 of the said policy. For proper appreciation of the matter, the relevant condition no. 5 of the Insurance Policy is reproduced below:
"The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured."
A bare perusal of the aforesaid condition shows that the complainant take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition. It is not the case of the opposite parties in the present case that the complainant had not taken reasonable steps to safeguard the vehicle in question. After properly received the
notice from this commission the opposite party (Insurance Company) did not appear before this commission. Considering the contentions made in the complaint and also the evidence in support of such contentions as sworn by the complainant and also the copy of documents filed we find that the Complainant has proved her case. There is no evidence to the contrary by the Opposite Party and since there is no evidence contradicting the evidence of the Complainant we find that the Complainant’s case is to be believed.
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 M-Cycle/Scooter is mentioned as Rs.75, 015 /-. 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.75, 015/- and its 75% comes out to Rs.56, 261/-.
Hence,It is
O R D E R E D
That the case C.C./24/2023 be and the same is allowed ex-parte against the O.P with cost of Rs. 2,000/-.
O.P. is to refund Rs. 56,261/- (Fifty six thousand two hundred sixty one) to the Complainant along with interest thereon @ 6% p.a. from 01/01/2023 till the date of payment within 30 days from this date through account payee cheque/draft in the name of Rumi Paul, SBI, S.B.Account Number- 34884178177. Branch-Station Feeder Road, Siliguri. Darjeeling.
O.P has to pay Rs. 30.000/- to the consumer legal aid account of this commission for consciously avoided the commissions notice for appearance.
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.
