Hon'ble Mr. Haradhan Mukhopadhyay, President.
The theft of one motorcycle and failure to recover the insurance claim dragged the Complainant to file this case. The basic fact in a few words is that the Complainant Sri Pranoy Nath had a motorbike Discover 125 M (DRUM) of Bajaj Auto Pvt. Ltd. having Registration No. WB64Q-0189, Engine No. MD2A15BZ4GRF53313 and Chasis No. JZZRGF20785. The said vehicle was duly insured with the OP United India Insurance Company Ltd. having Policy No. 0351853116P118276755 and the policy was valid from 30.03.2017 to midnight of 29.03 2018. The cost of the vehicle was Rs. 45,686/-. During the validity of the insurance policy, the said vehicle of the Complainant was theft from the verandah of the Ration Shop of the Complainant's house on 12.10.2017 in between 6 p.m. to 6.30 p.m. from Bhagni Part-2, P.O.-Nigamnagar, P.S.- Dinhata. The Complainant being inhabitant of a remote area informed immediately it to the Dinhata P.S. and lodged G.D. complaint with the Dinhata P.S. which was registered as Dinhata P.S. Case No. 950/17 dated 13.10.2017 U/S 379 of IPC against which case started vide G.R. Case No. 1160/17 before the Ld. ACJM, Dinhata. Meanwhile the father of the Complainant being patient of various ailments, suddenly fell sick and the Complainant became busy with his father's treatment due to which delay caused and the Complainant finally informed to the OP verbally and thereafter in writing on 03.11.2017 which the OP received on the same day. The said Criminal Case G.R. Case No. 1160/17 was disposed of as Final Report being FRT No. 343/18 dated 06.08.2018. On 03.11.2017 the Complainant went to the office of the OP, but they did not give any plausible explanation or did not start any claim case over the said incident. The OP-1 Company informed the Complainant that the authority had rejected the claim of the Complainant for delayed intimation. Such repudiation of the claim of the Complainant is illegal and arbitrary. Due to such unfair trade practice by the OP Company, the Complainant suffered mental pain and agony. The cause of action for the present case arose on 30.03.2017 and on other dates and lastly on 25.04 2018 being the date of repudiation. The Complainant therefore prayed for Rs. 45,686/- towards the cost of the stolen vehicle, Rs. 1,00,000/- for mental pain and agony and Rs. 50,000/- for unfair trade practices and Rs. 15,000/- towards cost of proceedings.
The opposite parties contested the case by denying each and every allegation in the form of written version. The positive defence case of the opposite parties in brief is that the Complainant violated the terms and conditions of the insurance policy wherein it is stated inter-alia that notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage. The alleged theft was occurred on 12.10.2017 but the Complainant informed the matter to the OP-1 on 03.11.2017 i.e. after 21 days without showing any cause for the delay. The Complainant was not serious about the procedure and did not cooperate with the OP. As per the terms of the policy, the Complainant was duty bound to inform it immediately after the alleged theft. Due to delayed intimation, the OP was deprived of his right to conduct an enquiry into the alleged theft and make an endeavour to recover it. So the OPs are not liable to pay any compensation.
The pleadings regarding controversial facts of the parties led this Commission to ascertain the following points for determination:
POINTS FOR DETERMINATION
- Whether the Complainant is a Consumer under the C.P. Act?
- Whether the repudiation of the claim of the Complainant is justified or not?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No. 1:-
The present point relates to determination as to the status of the Complainant.
It is the admitted position that the Complainant purchased a motorbike and is the owner of the said motorbike bearing Registration No. WB 64Q-0189, Engine No. MD2A15BZ4GRF53313 and Chasis No. JZZRGF20785. It is also admitted position as per Para-19 of the written version and in view of the pleadings of the parties it stands well established that the Complainant is a consumer under the OP.
Although the OP did not deny the status of the Complainant. However after perusing the pleadings of the parties and the evidence on record, I am of the view that the Complainant is a consumer under the C.P. Act.
Point No. 1 is accordingly decided in favour of the Complainant.
Point No. 2:-
Whether the repudiation of the insurance claim against the theft of the motorcycle of the Complainant is justified or not is the subject matter of the point. While deciding one of the major points of this case, the pleadings and the evidence on record are required to have a thread bearing analysis.
The Complainant alleged that his motorbike bearing Registration No WB 64Q-0189, Engine No. MD2A15BZ4GRF53313 and Chasis No. JZZRGF20785 was stolen from his house which was kept near their ration shop on 12.10.2017 from Bhagni Part-II, Nigamnagar, P.S.- Dinhata. Consequently the Complainant lodged a G.D. at Dinhata P.S. vide G.D. Entry No. 950/17 which was ultimately converted into G.R. Case No. 1160/17. The Complainant in order to strengthen the allegation proved the certified copy of the documents being the G.D. Entry No. 950/17 dated 13.10.2017 and G.R. Case No. 1160/17.
The Complainant also filed the copy of the FRT No. 43/18. After perusing the said certified copy of the FRT prepared by ASI Uttam Roy of Dinhata P.S., Cooch Behar, it is crystal clear that the theft took place in as much as the conducting I.O. of this case stated unambiguously that the fact of this case is true but completely clueless one and pending since long without any chance of further development in near future. So he submitted Final Report vide Dinhata P.S. FRT No. 343/18 dated 06.08.2018.
A plain reading of the said FRT makes it crystal clear that the allegation of theft of the motorcycle of the Complainant is true and genuine.
Now the question involved in this case is whether the Complainant properly lodged his complaint or ventilated his grievance for getting compensation from the OP Insurance Company against the said theft of the motorcycle.
It is the admitted position that the said motorcycle of the Complainant was stolen on 12.10.2017 and the fact of the said theft was intimated to the OP Company on 03.11.2017 i.e. after lapse of 21 days. Now whether the said delay of 21 days by the Complainant is discretionary or on some reasonable ground is required to be ascertained.
So far as the plea taken by the Complainant and the evidence on record is concerned, it transpires that due to illness of the father of the Complainant the said delay is claimed to have taken place. The Complainant categorically stated both in pleadings and evidence that his father suddenly fell ill due to his different ailments including renal insufficiency, during the relevant period. In order to substantiate the said plea, the Complainant filed and proved some medical documents regarding the treatment of his father Pranab Kr. Nath. The medical Blood Test report dated 22.09.2016 of Pranab Kr. Nath shows that he is a patient and was examined for his creatinine, sodium and potassium. He was also admitted on 01.09.2016 and discharged on 03.09.2016 from the Dishari Health Point, Malda. He was also medically examined and treated at New Medi Point on 01.08.2016 and on other dates. It is further found from the medical documents that the father of the Complainant was examined and medically treated on 27.10.2017 under Dr. P. K. Saha Hospital Pvt. Ltd. Wherein he was medically tested with different investigations. These medical documents clearly established the plea of the Complainant that due to his pre-occupation with the treatment of his father, the Complainant could not inform immediately the OP Company regarding the theft of the motorcycle.
The pleadings of the OP also disclosed that there is no specific denial that there was no theft of the motorcycle of the Complainant.
It is also found from the case record that the Complainant led specific evidence, both oral and documentary explaining the reason for delay to intimate the OP Company about the theft of the motorcycle. After perusing the entire case record, it transpires that the OPs could not discard the said specific evidence of the Complainant by cross-examining the Complainant by means of any interrogatories. So also the OP Company could not lead any counter evidence that the said delay was intentional or caused deliberately for illegal or unfair gain of the Complainant.
Therefore after assessing the entire oral and documentary evidence of both the parties, the said delay by the Complainant in intimating the incident of theft to the OP Company was beyond the control of the Complainant and for unavoidable reasons.
The Complainant in order to establish that the act of repudiation by the opposite parties was illegal and arbitrary, took recourse of legal precedence and thereby referred to a decision being reported in 2018 (1) CPR 772(NC) wherein it was held that delay of 16 days in intimation of theft of the vehicle to the insurance company and thus violation of condition of the policy- Genuine claims are not to be repudiated on the basis of delay. Revision petition dismissed.
By relying upon the said decision, this Commission comes to the findings that a repudiation shall be based on sound logic and valid grounds. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holder’s losing confidence in the Insurance Industry giving rise to excessive litigations.
The said case law is relied on.
The Complainant also resorted to another case law reported in 2018 (1) CPR 907(SC) in which the Hon’ble Apex Court reviewed that if reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.
The said case law also supports the present case of the Complainant and as such the said case law is relied on.
The opposite party in support of their defence plea referred to a decision. Although there is nothing to show as to the reference of the said case law as a reported decision. However, the Revision Petition No. 2591 of 2016 is the reference number of this case of Hon’ble NCDRC. In the said decision, it was held that only explanation for delay by a call on his mobile phone is not sufficient. The delay of 8 days in reporting theft of the matter to the insurance company is not acceptable.
The said case law does not apply on two grounds: first, in the reported case there was no explanation for the delay, but in the present case in hand the Complainant explained that due to his father’s illness he was pre-occupied with the treatment of his father. So the delay has caused.
Therefore, the case law referred by the OP is not helpful to the opposite party. Secondly, the decision relates to the case of 2016, whereas the Complainant referred to more current case reported in 2018 (1) CPR 907(SC) and 2018 (1) CPR 772 (NC).
The Complainant also resorted to a more current case reported in II(2019) CPJ 300 (NC) in which it was mandated that insurance is taken on the belief that claim will be honoured in case of theft. It is the duty of insurance company or agent to properly explain the exclusion clause. Repudiation is not justified. In the said case law, it is also held that the exclusion clause of the policy must be read down so as to serve the main purpose of the policy and the main purpose of the policy is to indemnify the damage caused to the insured.
By perusing the said silver line of the case law it is crystal clear that the OP Company could not establish that they read out all the clauses of the Insurance Policy to the Complainant thoroughly. Therefore the OP-2 did not act in good faith and in compliance with the principles set forth by the Hon’ble Apex Court.
Thus after assessing the entire evidence in the case record on the basis of the standard principles for settling the claim of the insurance in case of theft of a goods like motorcycle in the instant case vis-à-vis the views expressed by the Hon’ble National Commission, it is reasonably held that the repudiation of the insurance claim by the opposite parties is not reasonable, fair and proper and it is illegal and not justified.
Accordingly, Point No. 2 is answered in positive and is decided in favour of the Complainant.
Point No. 3 & 4:-
These points relate to the ascertainment of the entitlement of the relief by the Complainant. In fact, Points No. 3 & 4 are corollary to the Points No. 1 & 2. The misdemeanor of the opposite parties has caused mental pain and agony due to the harassment and it tantamounts to deficiency in service on the part of the opposite parties which demands for adequate compensation.
Previously, I have held that the Complainant is a Consumer and the repudiation of his claim for compensation against the insurance policy for theft of the motorcycle is not justified. So both these points suggest that there is no impediment in granting the relief to the Complainant.
Accordingly, both the Points No. 3 & 4 are answered in affirmative and decided on behalf of the Complainant.
Consequently, the case succeeds on contest with cost.
Hence, it is
Ordered
That the Complaint Case No. CC/108/2018 be and the same is allowed on contest with cost Rs.5,000/-. The Complainant do get an award of Rs.45,686/- towards the cost of the stolen motorcycle bearing Registration No. WB 64Q-0189, Engine No. MD2A15BZ4GRF53313 and Chasis No. JZZRGF20785, Rs.25,000/-towards mental pain and agony and Rs.25,000/- for unfair trade practice.
The opposite parties are directed to pay a sum of Rs.1,00,686/- within 30 (thirty) days from the date of passing Final Order to the Complainant failing which the OP shall pay an interest @ 6% p.a. on the awarded money from the date of passing the Final Order till the date of realization thereof.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
