State Consumer Disputes Redressal Commission
Iffco-Tokio General Insurance Company ... vs Shri Dulichand Sahu on 30 January, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/17
Instituted on : 09.01.2014
Iffco Tokio General Insurance Company Limited,
Through : Branch Manager, Head Office - Lal Ganga
Shopping Mall,
Present Address : M.M. Plaza, Ring Road No.1,
Post and District Raipur (C.G.) ... Appellant
Vs.
Shri Dulichand Sahu, S/o Shri Panchuram Sahu,
R/o : Village - Pahanda, Post - Bhurka,
Police Station & Tahsil - Arang, Dist. Raipur (C.) .... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER.
COUNSEL FOR THE PARTIES :
Shri P.K. Paul, for appellant.
None for respondent.
ORDER
DATED : 30/01/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 12.12.2013, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.216/2012. By the impugned order, the complaint has been partly allowed and the appellant (O.P.) has been directed to pay a sum of Rs.24,724/- to the respondent (complainant) along with interest @ 6% p.a. from date of filing of the complaint i.e. 27.04.2011 till realisation. The District Forum has further directed the appellant (O.P.) to pay a sum of Rs.5,000/-
// 2 // toward compensation for mental agony and a sum of Rs.2,000/- as advocate fees and cost of litigation.
2. Briefly stated, facts of the case are : that the respondent (complainant) purchased motorcycle Hero Honda Delux bearing registration No. C.G.04-D.C.5774 on 19.01.2008, which was insured with the appellant (O.P.) for the period from 09.05.2008 to 098.05.2009 under insurance policy No.38945174. On 27.10.2008 at about 9.30 A.M. the respondent (complainant) had parked his vehicle bearing registration No.C.G.04-D.C.5774 in front of his house and was doing cleaning of his house. At about 10.00 A.M. when the respondent (complainant) came out from his house, he found that the vehicle in question was not parked there. He searched the vehicle in nearby places. The respondent (complainant) lodged First Information Report against unknown person at Police Station, Fingeshwar, where Crime No.26/2008 was registered. The Police has also searched the vehicle in question but could not succeed and thereafter on 06.04.2009 the respondent (complainant) submitted claim before the appellant (O.P.). On 11.05.2010, the appellant (O.P.) informed the respondent (complainant) that he had not informed the appellant (O.P.) regarding the incident within prescribed time, therefore, his claim is being repudiated. Police was search the vehicle, therefore, some delay was occurred on the part of the respondent (complainant) in submitting claim form. For avoiding to make payment of the amount, the appellant (O.P.) unnecessarily repudiated the claim of // 3 // the respondent (complainant) and committed deficiency in service. Therefore, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The appellant (O.P.) filed written statement before the District Forum and averred that the respondent (complainant) has obtained insurance policy in original from the appellant (O.P.) out of which he suppressed some documents deliberately and submitted incomplete documents before the appellant (O.P.) The respondent (complainant) has not filed complaint with clean hand. The respondent (complainant) has left the vehicle in public place without taking any precaution and he also left the ignition key in vehicle which caused theft of the vehicle in question. The act of the respondent (complainant) is violation of condition no.4 of the insurance policy. The respondent (complainant) is not entitled to get any amount from the appellant (O.P.) because he himself was negligent. The respondent (complainant) gave intimation regarding the incident on 06.04.2009 i.e. after 5 months and 10 days of the incident, which occurred on 27.10.2008. This act of the respondent (complainant) is violation of condition no.1 of the insurance policy. The appellant (O.P.) repudiated the claim of the respondent (complainant) on 11.05.2010 and by doing so it has not committed any deficiency in service, therefore, the complaint be dismissed.
// 4 //
4. Learned District Forum, after having considered the material placed before it by both the parties, partly allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in the complaint.
5. The respondent (complainant) has filed documents. Documents are letter dated 11.05.2010 sent by the appellant (O.P.) to the respondent (complainant), Motor Vehicle Insurance Cover Note, First Information Report, Certificate of Registration of vehicle bearing registration No.C.G.04-DC-5774, Insurance Policy, Khatma Report dated 22.01.2009 and Final Report dated 27.10.2008.
6. The appellant (O.P.) has also filed documents. Documents are Two Wheeler Policy Certificate of Insurance Cum Schedule issued by the appellant (O.P.), in favour of the respondent (complainant), terms and conditions of the policy, Motor Claim Form, letter dated 11.05.2010 sent by the appellant (O.P.) to the respondent (complainant).
7. Shri P.K. Paul, learned counsel appearing for the appellant (O.P.) argued that the impugned order passed by the District Forum, is contrary to law and is liable to be set aside. He further argued that the insurance policy was issued by the appellant (O.P.) in favour of the respondent (complainant) and terms and conditions were also provided to the respondent (complainant), but the respondent (complainant) did not inform the appellant (O.P.) regarding the incident within // 5 // prescribed period i.e. 48 hours, therefore, the appellant (O.P.) had a right to repudiate the claim and the appellant (O.P.) not liable to pay any compensation to the complainant.
8. None appeared on behalf of the respondent (complainant) on 13.01.2015 when the case is fixed for final arguments.
9. We have heard learned counsel for the appellant (O.P.) and have also perused the record of the District Forum.
10. In the instant case, the incident took place on 27.10.2007 at about 9.30 A.M. and First Information Report was lodged at Police Station, Fingeshwar on the same day at about 8.15 P.M. It appears that the First Information Report was lodged by the respondent (complainant) at Police Station, Fingeshwar on the same day without any delay, therefore, repudiation of the claim of respondent (complainant) by the appellant (O.P.) in toto on the ground that intimation regarding incident was given belated.
11. Looking to the First Information Report, it appears that the intimation regarding the incident was given by the respondent (complainant) to the appellant (O.P.) in the date of incident itself i.e. 27.10.2013.
12. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has // 6 // held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
13. In the case of National Insurance Company v. Lajwanti, II (2007) CPJ 48 (NC), the vehicle was stolen on 19.01.2002 at about 4.00 a.m. and report was lodged on the same day under Section 379, IPC and despite best efforts made by Police, the car could not be traced. The claim of the complainant was repudiated by the Insurance // 7 // Company on the ground that stolen was doubtful. The State Commission allowed the appeal and awarded compensation to the complainant and National Commission upheld the finding recorded by the State Commission.
14. In the case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Hon'ble Supreme Court has observed thus :
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC) = 2006 CTJ 221 (CP) ((NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis.
The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held :
"...... 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."
// 8 //
15. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble Supreme Court has 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.
14. 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 the 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"
16. In the case of Baljeet v. United India Insurance Company Limited., 2014 (1) CPR 61 (NC), Hon'ble National Commission has observed thus :
"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 // 9 // 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 :
"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 // 10 // by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission".
17 The appellant (O.P.) sent letter dated 11.05.2010 in which the ground for repudiating the claim of the respondent (complainant) is mentioned is that "you have intimated the loss to the insurance company on 06.04.2009 i.e. approximately after 6 calendar months from the date of loss which is a breach of policy condition no.1."
18. Looking to the above letter, it appears that the appellant (O.P.) repudiated the claim of the respondent (complainant) on the ground that the respondent (complainant) has given intimation regarding the incident very belatedly.
19. In the instant case, the matter was reported to the Police Station, Fingeshwar on the date of incident itself, therefore, merely delayed intimation regarding the incident was given to the appellant (O.P.) is not sufficient to repudiate the claim the respondent (complainant) by the appellant (O.P.) in toto and the appellant (O.P.) was required to pay compensation at least on non-standard basis.
20. In the instant case, the copy of the insurance policy was filed by both the parties. In the insurance policy, the Insured Declared Value (I.D.V.) of the vehicle is mentioned as Rs.32,965/- and the learned // 11 // District Forum, has accepted the I.D.V. of the vehicle i.e. 32,965/- and awarded compensation to the respondent (complainant) on non- standard basis i.e. 75% of the I.D.V. of the vehicle. The I.D.V. of the vehicle is Rs.32,965/- and its 75% comes out to Rs.24,724/- and learned District Forum also awarded compensation to the respondent (complainant) to the tune of Rs.24,724/- on non-standard basis, which is just and proper.
21. Therefore, the impugned order dated 12.12.2013, passed by the District Forum, does not suffer from inherent jurisdictional error, hence does not call for any interference by this Commission.
22. Hence, the appeal filed by the appellant (O.P.) being devoid of any merits deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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