Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.12.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party no. 1 to pay sum of Rs. 6,14,005/- ( Rs. Six Lakh Fourteen Thousand Five only ) along with 14% interest.
- To direct the opposite parties to pay Rs. 1,50,000/- ( Rs. One Lakh Fifty Thousand only ) as compensation.
- To direct the opposite parties to pay Rs. 15,000/- ( Rs. Fifteen Thousand only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
It has been asserted by the complainant that he is a consumer of opposite party no. 1 (vide annexure – 2). He had purchased a vehicle with the help of opposite party no. 2 for purpose of his livelihood. The aforesaid vehicle was insured with opposite party no. 1 ( vide annexure – 2). The aforesaid vehicle was hypothecated with opposite party no. 2. On 05.09.2012the insured vehicle was stolen by some unknown persons regarding which the complainant has lodged a F.I.R. being Patliputra P.S. case no. 200/12 dated 05.09.2012 U/s 379 IPC against unknown. After investigation the police submitted final report being no. 17/13 dated 28.02.2013 stating therein that occurrence is true but clueless as will appear from annexure – 4. The aforesaid report was accepted by learned C.J.M. as will appear from annexure – 5. The complainant has asserted that after the aforesaid occurrence, he immediately informed the opposite party no. 1 ( vide annexure – 1) by toll free number on the same day i.e. 05.09.2012 and he was allotted claim no. 20900311205200009031.
The grievance of the complainant is that after one year of lodging the claim, the claim of the complainant has been rejected by opposite party no. 1 ( vide annexure – 1) on the ground mentioned in the same.
On behalf of opposite party no. 1 a written statement has been filed stating therein that the aforesaid vehicle was stolen on 05.09.2012 and intimation was given to opposite party no. 1 on 12.09.2012 i.e. after delay of one week. It has been further asserted in Para – 7 of written statement by opposite party no. 1 as follows:- “that the vehicle was parked at some distance from the house of the complainant and the same will appear from perusal of the investigation report. The vehicle was parked in open space/barren land at some distance of the house of the complainant. The vehicle usually used to be parked there at night. There was no boundary wall, no gate etc.”
On behalf of opposite party no. 2 a written statement has been filed stating therein that opposite party no. 2 is creditor of the complainant in whose favour a hypothecation has been created and further the insurance policy has been assigned in favour of this opposite party and as such this opposite party will have a first charge over any amount i.e. receivable from opposite party no. 1 insurance company under the insurance policy. Opposite party no. 2 has further stated that no specific relief has been sought against opposite party no. 2.
Heard the learned counsel for the parties at length.
The learned counsel for the complainant has submitted that there is no question of delay because the complainant has registered has claim on the same day of occurrence i.e. on 05.09.2012 on toll free number of opposite party no. 1 and thereafter claim registration number was allotted to the complainant. It has been further submitted that even the surveyor of the opposite party no. 1 has not stated in his report ( annexure – A) that the aforesaid vehicle was parked in open space. It has been further submitted that under section 66 of Motor Vehicle Act the permit is not required in rest position of any vehicle.
On behalf of opposite party no. 1 it has been submitted that instead of informing opposite party no. 1 within 48 hours of occurrence the complainant has informed the opposite party no. 1 after delay of one week which is clear against the condition of insurance policy and on this ground only the complainant is fit to be dismissed. It has been also submitted that as per condition of the insurance policy the complainant was required to produce permit.
The learned counsel for opposite party no. 2 has submitted that as the vehicle in question was hypothecated hence if any amount is paid by the insurance company the same must go to opposite party no. 2 because the complainant has failed to pay due installment as per agreement.
We have examined the record in the light of aforementioned submission of the learned counsel for the parties.
It has been asserted by the complainant that on the same day of occurrence he has informed opposite party no. 1 through toll free number and as such the claim was registered as 20900311205200009031. This fact has not been denied by opposite party no. 1 in whole written statement. It is also a fact that no paper or documents submitted by the complainant in support of his claim has been found not genuine. Thus the insurance policy (vide annexure – 2) is admitted, theft of the aforesaid vehicle stands admitted. It is true that there may be some delay in informing the opposite party no. 1 in writing but it is also a fact that after the theft the complainant had registered his claim on the toll free provided by opposite party no. 1. The second ground of rejecting the claim of the complainant as will appear from annexure – 1 is that the complainant has not taken reasonable care in protection of the vehicle in question.
In this regard we have perused annexure – A which is surveyor report. Even the surveyor report does not specifically states that the vehicle was parked in open space. It appears from annexure – A that at the time of occurrence the vehicle in question was parked in front of house of Sri Shrawan Kumar who is uncle of the insured.
In our opinion as the aforesaid vehicle was found parked in front of house of the complainant who was residing in the same house, hence it cannot be said that he has not taken due care.
So far that availability of permit is concerned the Hon’ble Apex Court in Nitin Khandelwal case reported in 2008 (3) P.L.J.R. (SC) page 417 National Insurance Company Ltd. Vrs. Nitin Khandelwal have been pleased to hold that in theft case no permit is required.
It is admitted that the opposite party no. 1 has rejected the claim of the complainant vide annexure – 2 after delay of one year which is clear violation of the guideline and circular issued by IRDA in this regard.
For the reason stated above we find and hold that by not allowing the claim of the complainant and by repudiating the claim after one year the opposite party no. 1 has committed gross deficiency.
It goes without saying that in case of theft where the permit was not produced the Hon’ble Apex Court have been pleased to allow the claim on non standard basis i.e. 75% of the claim amount.
For the reason stated above we direct the opposite party no. 1 to pay 75% of the insured amount mentioned in annexure – 2 to the complainant through opposite party no. 2 because the vehicle in question is hypothecated with opposite party no. 2 within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party no. 1 will have to pay an interest @ 12% on the 75% of the insured amount till its final payment.
Opposite party no. 1 is further directed to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.
It goes without saying that complainant will receive the rest amount from opposite party no. 2 after adjusting the loan amount by opposite party no. 2.
Accordingly this complaint petition stands allowed to extent indicated above.
Member President
