Consumer Complaint No.32 of 2016
Date of filing: 02.3.2016 Date of disposal: 21.4.2017
Complainant: Mr. Jagadish Prasad Agarwal, S/o. Late Ram Sarup Agarwal, resident of Fatehpur, near Durga Cold Store, PO: Sitarampur, PS: Asansol (S), District: Burdwan.
-V E R S U S-
Opposite Party: 1. United India Insurance Co. Ltd., having its Divisional Office at 37 G. T. Road (East), Asansol, PS: Asansol (South), District: Burdwan, PIN – 713 301, represented by its Senior Divisional Manager.
2. United India Insurance Co. Ltd., having its Registered Office at 24, Whites Road, Chennai, PIN – 600 014, represented by its Regional Manager.
3. United India Insurance Co. Ltd., having its Regional Office at Customer Care Department, 38B, Jawaharlal Nehru Road, Chowringhee, Kolkata, PIN – 700 071, represented by its Regional Manager.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra & Moumita Bhattacharjee (Haldar).
Appeared for the Opposite Party (s): Ld. Advocate, Ahi Bhushan De.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not settle his legitimate insurance claim till filing of this complaint.
The brief fact of the case of the Complainant is that being the owner of an i-20 Magna car, purchased from Rudra Hyundai, Asansol, obtained an insurance policy for the said car from United India Insurance Private Limited under Private Car Package policy, which was valid for the period from 07.07.2014 to 06.07.2015. As per the policy certificate the IDV was declared for Rs.2, 61,493=00. On 20.12.2014 the said vehicle was kept in the garage of the Complainant. All of a sudden at around 2.00 a.m. during that night the son of the Complainant heard some sound and came out and found that some smoke was coming from the garage. After opening the garage he found that fire was coming out from the bonnet of the vehicle. Then the son of the Complainant immediately informed the Police Station, as well as, the Fire Brigade. Then the Fire Brigade came and started fire fighting operation and ultimately fire was extinguished after some time. Due to such fire the vehicle of the Complainant was totally burnt. Thereafter the Complainant intimated the fact to the Officer-in-Charge of Asansol Police Station (South) vide letter dated 20.12.2014 requesting to take necessary action. Moreover the Complainant also requested to the Officer-in-Charge of Asansol Fire Station vide letter dated 20.12.2014 requesting to let him know the actual time and date of occurrence of fire. The Officer-in-Charge of Asansol Fire Station received the letter on 21.12.2014 and in reply it was stated by him with official seal and signature that the fire of the vehicle i-20 Magna occurred at the residential garage of the Complainant on 20.12.2014 at about 1.50 a.m. The Complainant intimated the incident to the OP-1 by issuing letter dated 20.12.2014 stating therein that the said vehicle was burnt in the mid-night on 20.12.2014 due to short circuit and the vehicle along with all the documents were completely burnt and as such, the Complainant requested the OP-1 to depute their Surveyor for necessary action. The OP-1 received the said letter on 22.12.2014 after putting their seal and signature. Moreover the Complainant also intimated the fact to the Officer-in-Charge of Motor Vehicle Department, Asansol vide letter dated 20.12.2014 and requested to take necessary action. The Complainant lodged the insurance claim before the OP-1 along with relevant papers and after observing all the formalities on 22.12.2014 documents and requested the OP-1 to settle the claim. Upon receipt of the claim form the OP-1 appointed Kothari Insurance Surveyors & Loss Assessors Investigators Private Limited and after being appointed the said Surveyor and Investigator visited the spot on 27.12.2014 for necessary enquiries/investigations regarding the claim. The Complainant submitted all the documents before the Surveyor and Loss Assessor as per their requirement i.e. photocopy of the GD, fire report dated 10.02.1015 etc. He also submitted the fire report to the OP-1 as per requirement along with a letter dated 11.03.2015. The Complainant sent a letter to the OP-1 on 21.04.2015 stating therein that one Surveyor Mr. Robin came on 27.12.2014 and took some photographs, asked some questions regarding the vehicle and the Complainant has provided all information/documents as required. The Complainant sent all the documents/information to the OP-2 and OP-3. The Surveyor sent an e-mail dated 04.05.2015 stating that the report is under preparation and requested the Complainant whether he was interested to retain the damaged vehicle or not. The Complainant by sending an e-mail to the Surveyor has stated that he sent his man for collecting the GD report, but the Officer-in-Charge has refused to give any report since they have not received any letter from their end and so the Complainant requested the Surveyor to send them the copy. The Complainant also sent a reply through an e-mail dated 02.06.2015 to the Surveyor stating that he is not interested to keep the vehicle. Upon receipt all the documents the OP-1 sent a letter dated 05.06.2015 to the Complainant requesting to submit the Fire Brigade report in prescribed format, as well as, final investigation of the Police authority. After receipt of the said letter the Complainant sent a reply by issuing a letter dated 19.06.2015 stating therein that the Complainant has already observed all the formalities/process required to be observed on his part since inception of the occurrence of burning of the insured vehicle which would be evident from the copies of the enclosed letters from his end. He has also stated that he submitted the fire brigade report in the prescribed format in their office and as regards to the final investigation of the Police authority he has already communicated the matter to their office and to the Surveyor directly as per instruction of the Police authority. As regards to retention of the damaged vehicle the Complainant stated that he has already replied through e-mail denying keeping the vehicle. So the Complainant requested the OP-1 to settle the claim within 20 days from the date of receipt of this letter failing which the Complainant shall refer the matter to the Insurance Ombudsman without further reference. But the OP-1 did not settle the claim of the Complainant within the said period inspite of submission of all the required documents, which clearly indicates deficiency in service and unfair trade practice on the part of the OP-1. Being aggrieved and dissatisfied with the service of the OP-1 the Complainant lodged a complaint before the office of the Insurance Ombudsman against the OP-1 and the said complaint was registered. Upon receipt of the said complaint the Assistant Secretary of the Insurance Ombudsman sent a letter dated 26.11.2015 to the Complainant to attend the hearing on 08.12.2015 at Hotel City Residency, City Centre, Durgapur along with all the documents. The Complainant attended the said hearing, but no fruitful result came out. Thereafter the Insurance Ombudsman by issuing a letter dated 14.01.2016 requested the Complainant to lodge a fresh complaint before any other Forum/Court to get relief. So the Complainant having no other alternative has filed this complaint before this Ld. Forum praying for direction upon the OPs to pay a sum of Rs.2, 61,493=00 to him towards the IDV against the concerned policy, compensation to the tune of Rs.2, 50,000=00 due to mental pain, agony and harassment and litigation cost of Rs.25, 000=00 to him.
The petition of complaint have been contested by the OPs by filing conjoint written version contending that the Complainant-insured intimated to the OPs about the alleged incident of fire by issuing letter date 20.12.2014, which was received by the OPs on 22.12.2014 and immediately the OPs appointed the Surveyor and Loss Assessors cum Investigators on 22.12.2014. After appointment of the Surveyor they asked for several documents from the Complainant and the Surveyor submitted his report on 09.05.2015 to the OPs wherein it was mentioned that the Insurance Company may settle the claim after collecting the relevant documents from the Complainant i.e. Fire Brigade report in prescribed format and final investigation report of the Police authority. Upon receipt of the survey report the OPs requested the Complainant by issuing letters dated 05.06.2015 & 24.06.2015 to submit the Fire Brigade Report in prescribed format, Final Investigation Report of the Police Authority along with RC Book, Tax token and two numbers of ignition keys of the vehicle to proceed with the matter. But till date the OPs have not received the said documents and papers from the Complainant and for this reason the claim is lying pending for settlement. The claim is pending due to non-submission of the aforesaid relevant documents by the Complainant inspite of several requests and demands. The OPs have mentioned that prior to settlement of the claim detection of cause of loss/cause of fire is to be ascertained & this is an important criterion for settlement of the claim as such the Complainant is under obligation to submit the same. From the report of the Fire Brigade as submitted by the Complainant cause of fire cannot be ascertained, but to ascertain the total loss towards claim, final police investigation report are valid and vital documents because the Police can speak if there was any mal-intention on the part of the owner of the vehicle or not. The OPs being a public sector organization and as per claim guidelines the final police report is an important document for settlement of the claim. Inspite of several reminders the insured never applied in writing for FIR, on the contrary, the GD was made and the reason for making GD instead of FIR is not clear to the OPs. Be it mentioned that in case of theft or criminal act, which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the Insurance Company in securing the conviction of the offender as per the policy condition. The OPs requested the Insurance Ombudsman through the letter dated 03.09.2015 to act as a mediator between the Insurance Company and the Complainant and give his recommendation for resolution of the complaint i.e. to settle the Motor Claim. From the order of the Insurance Ombudsman dated 04.01.2016 it is evident that the present fire loss incident in the locked garage and the time of loss is 2.00 a.m. has created doubt about the cause of fire resulting damage to the insured vehicle. In such a situation to ascertain cause of loss the FRT of the Police authority is must and as such the OPs are waiting for the said report to proceed further in the matter. It was stated/argued by the OPs before the Ombudsman that they have examined the documents and it was found that the Fire Brigade report was not in a proper format and they require the FRT and FIR to ascertain the exact cause of loss leading to fire. It is found from the decision of the Ombudsman that the exact cause of fire is yet to be verified and hence the insurers are not in a position to decide the admissibility of the claim as per the policy condition. Since the bonafide of the claim could not be established it is not within the jurisdiction of this Ld. Forum to intervene in any manner and as such it is awarded that taking into account the facts and circumstances of the case and submissions made by the insurer during the course of hearing no claim amount was awarded to be paid by the insurer to the insured and hence the claim is treated as closed on the part of the Insurance Ombudsman. Thus the OPs are waiting for the said reports and other relevant documents as mentioned earlier to proceed further in the matter. According to the OPs the claim of the Complainant is not tenable in law and as there is no deficiency in service and unfair trade practice on behalf of these OPs, the Complainant is not entitle to get any relief as sought for. As the complaint petition being vexatious and frivolous one, the complaint is liable to be dismissed with cost.
The complainant has adduced evidence on affidavit along with several papers and documents in support of his contention. The Ops have filed written notes of argument along with several documents in support of their contention and the Ops have also placed reliance on some rulings.
We have carefully perused the record, papers and documents filed by the contesting parties, rulings as relied on by the Ops and heard argument at length advanced by the ld. Counsels for the contesting parties. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant obtained private car package policy from the Insurance Company for his vehicle No. WB-38-Y-9669, the total value of the said vehicle is of Rs. 4,89,801=00, the vehicle was purchased by taking financial assistance from HDFC Bank, Durgapur to the tune of Rs. 4,00,000=00, the vehicle was under the coverage of the insurance policy for the period from 07.7.2014 to 06.7.2015, as per policy certificate the IDV was declared for Rs. 2,61,493=00, during validity of the said policy on 20.12.2014 at around 2.00 a.m. during night the said vehicle got damage due to fire, the vehicle was kept in the garage of the complainant, after the incident Police Station, Fire Brigade was intimated, fire was extinguished after some time, the OP-1 got information from the complainant through a letter dated 20.12.2014, request was made by the complainant to the Insurance Company to depute their Surveyor for necessary action, the OP-1 upon receipt of the said letter on 22.12.2014 appointed Surveyor cum Investigator, namely, Kothari Insurance Surveyors’ & Loss Assessors’ Investigators Pvt. Ltd., the Surveyor visited the spot of the incident on 27.12.2014, complainant was directed to submit several papers and documents to the Surveyor, out of which the complainant submitted most of the documents except the fire brigade report in prescribed format and final investigation report of the Police authority, the Surveyor had submitted their report to the Insurance Company on 09.5.2015, in the said report it was mentioned by the Surveyor and the Loss Assessor the Insurance Company may settle the claim after collecting the relevant documents from the insured-complainant i.e. fire brigade report in prescribed format and final investigation report of the police authority, thereafter several written correspondences were made along with email by and between the complainant and the Insurance Company, as the dispute could not be resolved in this manner the Insurance Company placed the matter before the office of the Ombudsman requesting him to act as a mediator by and between the insured and the insurer, hearing was made before the Insurance Ombudsman, argument placed by both parties, Ombudsman has given an order on 04.01.2016 mentioning the claim amount to be paid by the insurer to the insured towards full and final settlement as ‘NIL,’ the ld. Ombudsman was pleased to treat the complaint as closed, in the said order/award several provisions for redressal of the complainant was mentioned which the insured is at liberty to adopt, since then the claim is pending before the Insurance Company, no step has been taken by the complainant either to comply with the direction of the Insurance Company by submitting the afore-mentioned two documents or taking recourse the provisions as mentioned in the award of the ld. Ombudsman. The allegation of the complainant is that the Insurance Company has arbitrarily, illegally and whimsically did not settle his legitimate insurance claim till filing of this complaint and kept pending having any basis. It is further stated by the complainant such pending of a legitimate claim and action of the Ops reveal their deficient service. For getting redressal he has filed this complaint praying for certain reliefs.
The rebuttal case of the Ops is that as the complainant did not provide the required document as sought for processing the claim, the claim is pending with them and until and unless the same is filed by the complainant claim cannot be settled. It is further submitted by the Ops that for settlement of a claim on the ground of fire/theft/accident whatever it may be, lodgment of FIR, final police report and cause of fire/accident/theft is necessary for processing of the claim. According to the Ops as there is no deficiency in service the complainant is not entitled to get any relief as sought for. It is seen by us after the incident the OP-1, concerned Police Station, Fire Brigade office, M.V. Department was intimated by the complainant regarding burnt of the vehicle fully on 20.12.2014. It is evident from the letter dated 20.12.2014 issued by the complainant to the OP-1 wherein it is stated that due to short circuit everything including all the documents and the car were burnt in fire. In this respect we are to say as to how the complainant came to know that fire broke out due to short circuit. But in the other letters issued by the complainant to the Fire Brigade, M. V. Department and the concerned Police Station nowhere it is stated that fire broke out due to short circuit. Upon getting intimation from the complainant about the loss and damage of the insured vehicle due to fire Surveyor and Loss Assessor was appointed by the Insurance Company who visited the spot and asked the complainant to hand over some papers and information. But the complainant out of those submitted documents and papers except the documents showing lodgment of any FIR, Final Police Report and report of Fire Brigade in the prescribed form. Several requests were made by the Surveyor and the Loss Assessor to submit those required documents to the complainant, but till filing of the report by the Surveyor i.e. 09.5.2014 the required documents were not filed by the complainant to the Surveyor. For this reason the Surveyor had to submit his report to the Insurance Company mentioning that inspite of several requests and reminders as the complainant has failed to provide the documents to him, hence the claim may be settled by the Insurance Company after collecting the following papers and documents from the insured i.e.
a. Fire Brigade Report in prescribed format,
b. Final Investigation Report of the Police authorities.
It is mentioned in the Surveyor’s report under the heading cause of fire that ‘we have made extensive enquiries about the cause of fire but we could not ascertain the same. However, from the circumstantial evidence it appears the fire was accidental in nature’. As the dispute by and between the complainant and the Insurance Company could not be resolved due to non-submission of required documents by the complainant for processing of the claim, the Insurance Company approached before the Insurance Ombudsman by making a prayer to him to act as a mediator by the insured and the insurer. Accordingly both parties have filed their respective complaints before the ld. Ombudsman. Hearing was made by the parties at length and the ld. Ombudsman has been pleased to pass an award on 04.01.2016 mentioning that ‘taking into account the facts and circumstances of the case and the submissions made by the insurer the claim amount is hereby awarded to be paid by the insurer to the insured towards full an final settlement of the claim as “NIL” and the complaint was treated as closed. In the said award the ld. Ombudsman was pleased to mention that the complainant and the insurer are at liberty to invite the following provision of redressal of public grievances rules 1998;
- According to Rule 16(5) of Redressal of Public Grievance Rules, 1998, the complainant shall furnish to the insurer within a period of one month from the date of receipt of this award, a letter of acceptance that the award is in full and final settlement of his claim.
- As per Rule 16 (6) of the said Rules the insurer shall comply with the award within 15 days from the receipt of the acceptance letter of the complainant and shall intimate the compliance to the ombudsman, and
- According to Rule 17 of the said Rules if the complainant does not intimate his acceptance of the award under Rule 16 (5), the award may not be implemented by the Insurance Company.’
After passing the said award by the ld. Insurance Ombudsman the complainant did not adopt any such provisions as mentioned therein, rather approached before this ld. Forum by filing this complaint against the Ops alleging deficiency in service on the ground that the Ops did not settle his legitimate insurance claim till date. In this respect we are of the view that it is true that the complainant is under obligation to comply with all the legal formalities for settlement of his claim and he is not at all entitled to bypass any legal provisions for such settlement. It is earlier mentioned that the complainant was requested and directed by the Ops and the Surveyor on several occasions to submit the aforementioned two documents for processing of the claim, but without submitting the same the complainant has approached before this ld. Forum bypassing the settled legal proposition. In this respect the ld. Counsel for the Ops have placed their reliance on the Rulings i.e. Vol. 3 (2014) CPJ 13 (NC) passed in the case of Bachan Singh Vs. Oriental Insurance Co. Ltd. on 20.5.2014 decided by the Hon’ble NCDRC wherein it is mentioned in the para 5 that ‘we have examined the material on record and given a thoughtful consideration to the arguments advanced before us. It is clear from the material on record that there has been delay in lodging the FIR and in giving intimation to the Insurance Company about the alleged incident. The FIR has been registered on 26.6.2005, whereas the incident is stated to have occurred on 04.6.2005. On this score we are in agreement with the observations of the State Commission made in the impugned order that if the FIR was not registered by the Police, even then the complainant should have moved some application to set the law in motion regarding the theft…..’ In another judgment as relied on by the Ops passed by the Hon’ble SCDRC, Punjab, Chandigarh on 03.02.2014, reported in Vol. 2 (2014) CPJ 28 (Punjab) in the case of Oriental Insurance Co. Ltd. & Anr Vs. Kulwinder Pal. After perusing of the said judgment it is noticed by us that ‘in case of theft/accident lodgment of FIR is mandatory.’ In our view the abovementioned two rulings as placed by the ld. Counsel for the Ops can be implemented in the case in hand because in this case though fire broke out and due to the said fire the insured vehicle got completely burnt, hence it was the primary duty of the complainant to register an FIR within the concerned Police authority. In case of any refusal for lodgment of FIR by the Police authority, the complainant was also under obligation to take appropriate legal course i.e. by filing an application before the ld. CJM praying for treat the GD as an FIR. As the complainant has failed to comply with the said formalities, in our considered view the complainant is not entitled to get any relief as sought for.
As we are constrained to hold that there is any deficiency in service, as well as, unfair trade practice on behalf of the Ops, the Ops cannot be saddled with cost.
Going by the foregoing discussion, hence it is
O r d e r e d
that the complaint is dismissed on contest against the Ops. However considering the facts and circumstances of the case there is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
