State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Ranjit Singh on 13 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/951/2014 (Arisen out of Order Dated 28/07/2014 in Case No. CC/372/2013 of District North 24 Parganas) 1. Bajaj Allianz General Insurance Co. Ltd. Eco Space, Block-B, II/F/II, Bengal Ambuja Building, 3rd Floor, New Town, Rajarhat, near Tata Medical Center, Kolkata-700 156. ...........Appellant(s) Versus 1. Ranjit Singh S/o Lt. Mohinder Singh, 37 PWD Road, P.S. - Baranagar, Dist.- North 24 Pgs., Kolkata - 700 035. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Debajit Dutta , Advocate For the Respondent: Mr. Asis Chattopadhyay, Advocate Dated : 13 Jan 2017 Final Order / Judgement Sri Debasis Bhattacharya, Member
Being aggrieved by and dissatisfied with the Order dated 28-07-2014, passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas (in short, District Forum) in C. C. No. 372/2013, OP Insurance Company has preferred this appeal.
In short, case of the Complainant, is that, he insured his truck bearing registration no. NL/01G-2391 with the OP and the said truck got stolen on 09-02-2011. Necessary FIR in this regard was lodged with the local Police Station on 10-02-2011. The OP was also duly informed about such matter. However, vide its letter dated 12-07-2011, the OP Insurance Company repudiated his claim. Hence, a complaint case was preferred by him before the Ld. District Forum.
Case of the OP, on the other hand, is that, the complaint case is barred by limitation. Further, it revealed during investigation that the said truck got stolen due to sheer carelessness of the driver concerned and for such negligent act of the driver, the Complainant cannot avoid vicarious liability. The claim was, thus, rightly repudiated by it.
We are to consider in this appeal, whether the impugned order is justified one or not.
Decision with reasons It is not in dispute that the incident of theft took place on 09-02-2011 and necessary complaint in this regard was lodged with the local Police Station on 10-02-2011. It appears that the Appellant repudiated the claim vide its letter dated 12-07-2011. It further appears from the impugned order that the instant complaint case was filed before the Ld. District Forum on 17-07-2013. In case we calculate the period of limitation from the date of issuance of repudiation letter by the Appellant, it would appear that the Respondent missed the threshold limit of two years by a whisker (05 days). However, it is to be kept in mind that the Appellant has not placed any documentary proof to show that its repudiation letter reached the end of the Respondent on the date of issuance of said repudiation letter itself. It appears that the Appellant sent the repudiation letter by Registered Post. So, it is only natural that the same took some time to reach the addressee. There being nothing to show that the repudiation letter reached the Respondent before 18-07-2011, in our considered opinion, benefit of doubt should be accorded to the Respondent. Therefore, we find no infirmity with the complaint case being filed before the Ld. District Forum on 17-07-2013.
Now, let us discuss the merit of the present appeal.
It is the specific case of the Appellant that the driver of the Respondent failed to take due care of the insured vehicle. Allegedly, the driver not only left the ignition key inside the truck, he did not lock the door either. To support its cause, Appellant has filed photocopies of Survey Report, one CD containing purported video recording of the conversation held between the Surveyor/ Investigator and Ranjit Singh (although it is mentioned in the survey report that he made a video recording of the conversation held with Insured's son), statements of the Respondent and driver of the Insured vehicle.
It is noteworthy that apart from the letter of the driver of the insured vehicle, Appellant has not placed on record any eyewitness account to support its case although it transpires from the survey report that the concerned Investigator spoke to several persons in course of his investigation. Further, on going through the translated copy of driver's letter to the Appellant, we do not come across any confessionary statement of the driver to suggest that he not only left the ignition key inside the truck, but also negligently did not close the door of the truck.
There is nothing to show that the Investigator deployed by the Appellant ever asked the concerned driver to depose before him, but he refused to oblige him. It is indeed strange that the concerned Investigator showed remarkable promptitude to secretly videography the purported conversation of the Appellant, but for some obscure reasons, did not feel the necessity of showing such alacrity in respect of the driver or any of the eyewitnesses. Any person of reasonable prudence would appreciate that the version of eyewitness in respect of an incident of theft, if available, is all that matters before a Court of Law. Given that the Appellant was not present at the spot on the material point of incident, his statement cannot be accepted as a gospel truth; more so, while the authenticity of the video has not been proved as per due process of law.
The Surveyor, in his report admitted that the incident of theft to be a true one. Similar view has been made in the FRT submitted by the concerned Investigating Officer of Sankrail Police Station, Howrah. So, it can safely be inferred that the insured vehicle had indeed got stolen. In our considered opinion, therefore, the Appellant cannot evade its liability towards the Respondent.
In the case of Baljeet v. United India Insurance Company Limited., reported in 2014 (1) CPR 61 (NC), Hon'ble National Commission has been pleased to observe as under :
"12. The above issue is no more resintegra. Similar question came up for consideration before the National Commission in the matter of United India Insurance Company Limited Vs. Gian Singh (2006) 2 CPJ 83 (NC) wherein it has been held that in case violation of conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a non- standard basis.
13. The question whether the insurance company is justified in repudiating the claim of the insured for violation of the terms and conditions of the insurance policy in the case of theft of vehicle came up before the Hon'ble Supreme Court in the matter of National Insurance Company Limited Vs. Nitin Khandelwal (2008) 11 SCC 259, wherein the Hon'ble Supreme Court observed thus :
// 12 // "In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant 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 a breach of condition of the insurance policy, the appellant 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. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission".
Taking a cue from the aforesaid decision of the Hon'ble National Commission, we hold that the Appellant should settle the instant claim of the Respondent on non-standard basis. In the facts and circumstances, however, it does not seem that the Respondent deserves any other relief. The impugned order is, accordingly modified.
The appeal, thus, succeeds in part.
Hence, O R D E R E D That FA/951/2014 be and the same is allowed in part on contest against the Respondent. The impugned order is modified as under: [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER