State Consumer Disputes Redressal Commission
Royal Sundaram Allianz Insurance ... vs Umesh Kumar Verma on 15 December, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/689
Instituted on : 28.11.2016
Royal Sundaram Allianz Insurance Co. Ltd.,
Through : Branch Manager,
2nd Floor, Raj Chamber, Besides Over Bridge,
Kampa, Mowa, Pandri,
Raipur (C.G.) ..... Appellant (O.P.)
Vs.
Umesh Kumar Verma, Aged 28 years,
S/o Asharam Verma,
R/o : Ward No.12, Kota Colony,
Raipur (C.G.). .... Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri Manoj Prasad, Advocate for the appellant (O.P.).
Shri S. Pandya, Advocate for the respondent (complainant.).
ORDER
DATED : 15/December/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 30.08.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No. 59/2014. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
(a) The O.P. will pay a sum of Rs.1,67,057/- (Rupees One Lakh Sixty Seven Thousand and Fifty Seven) within a period of one month from the date of order to the complainant along with 6% simple interest from the date of filing of the complaint 09.01.2014 till date of realization.
(b) The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards compensation for mental agony to the complainant.
// 2 //
(c) The O.P. will also pay a sum of Rs.3,000/- (Rupees Three Thousand) towards advocate fees and cost of litigation to the complainant.
2. Briefly stated the facts of the case of the complainant are that the complainant is registered owner of vehicle Auto bearing registration No.C.G.04- T-8454, which was insured with the O.P. On 21.07.2011 at about 8.00 P.M. the vehicle was parked in the house of the complainant and it was duly locked. On 22.07.2011, when the complainant woke up, then he found that the vehicle was not present where he parked it. The complainant searched the vehicle here and there, but he could not search the vehicle, then he lodged First Information Report on 27.07.2011 in Police Station, Saraswati Nagar, Raipur (C.G.), where offence No.194/2011 under Section 379 IPC was registered. The intimation regarding the incident was given to the O.P. on 24.07.2011. The O.P. appointed Debajeet Chaktavorty as Investigator, who obtained all relevant documents from the complainant, but till November, 2013, the O.P. did not settle the claim of the complainant, where the complainant is entitled to get 75% of the I.D.V. according to the claim manual within 30 days of the report. The O.P. repudiated the claim of the complainant on the ground that intimation regarding the incident was given belatedly. The O.P. committed deficiency in service. Hence the complainant filed instant complaint and prayed for granting compensation, as prayed by him in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that the complainant has not come to the District Forum with clean hands. The instant complaint is an abuse of the process of law. The complainant has suppressed the material facts, therefore, the complaint is liable to be dismissed. The vehicle in question was // 3 // being used by the complainant for business purpose and the complainant was earning profit. The complainant is doing transport business, therefore, the complainant is not a consumer. The complainant had taken a Commercial Vehicles Package Policy in respect of his vehicle Piaggio Auto bearing registration No.C.G.04-T-8454 from the O.P. for the period from 16.06.2011 to 15.06.2012. The policy was issued subject to terms and conditions, which governs the present claim of the complainant. The complainant very casually intimated about the theft of the said vehicle on 18.08.2011 i.e. after a lapse of 27 days to the O.P. and First Information Report was lodged belatedly on 27.07.2011 i.e. after a lapse of 5 days of the incident. The complainant violated the terms and condition of the insurance policy, therefore, the complainant is not entitled to get any compensation from the O.P. The O.P. has rightly repudiated the claim of the complainant. The complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure P-1 is letter dated 25.08.2011 sent by the O.P. to the complainant, Annexure P.-2 is letter dated 05.03.2012 sent by the O.P. to the complainant, Annexure P-3 is letter dated 26.10.2012 sent by the Debajit Chakraborty, Investigator to the complainant, Annexure P-4 is Certificate of Registration of vehicle bearing registration No.C.G.04-T-8454, Annexure P-5 is Policy Schedule, Annexure P-6 is receipt, Annexure P-7 is First Information Report, Annexure P-8 is Police Investigation Report, Annexure P-9 is Final Report, Annexure P-10 is Receipt, Annexure P-11 is letter sent by the complainant to the Regional Transport Officer, Raipur (C.G.),, Annexure P-11 is receipt, Annexure P-12 is Payment Schedule, Annexure P-13 is // 4 // registered notice dated 23.12.2013 sent by Shri S. Pandya, Advocate on behalf of the complainant to the O.P.
5. The O.P. has filed documents. Annexure OP-1 is policy terms and conditions, Annexure OP-2 is Motor Claim Form, Annexure OP-3 is First Information Report, Annexure OP-4 is letter dated 25.06.2012 sent by the complainant to the O.P., Annexure OP-5 is Certificate of Registration of vehicle bearing registration NO.C.G.04-T-8454 and Annexure OP-6 is letter dated 17.12.2012 sent by the O.P. to the complainant.
6. After having considered the material placed before it by the parties, learned District Forum, has partly allowed the complaint of the complainant and directed the O.P. to pay the amounts to the complainant, as mentioned in para one of this order.
7. Shri Manoj Prasad, learned counsel appearing for the appellant (O.P.) has argued that the vehicle in question was left unattended by the respondent (complainant). The incident took place in the intervening night of 21-22/07/2011 whereas the First Information Report was lodged before the concerned Police Station on 27.07.2011 i.e. after near about 5 days of the incident and intimation regarding the incident of theft of the vehicle was given to the appellant (O.P.) on 18.08.2011 i.e. after near about 27 days of the incident. No proper explanation was given by the complainant for delayed intimation. Due to delayed intimation, the appellant (O.P.) was deprived from its legitimate right to conduct investigation in the matter. Therefore, the respondent (complainant) violated terms and conditions of the insurance policy. The appellant (O.P.) has rightly // 5 // repudiated the claim of the respondent (complainant). The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellant (O.P.) be allowed. He placed reliance on Revision Petition No.1893 of 2016 - Cholamandalam MS General Insurance Company Ltd. Vs. Ashish Kumar Walecha, decided by Hon''ble National Commission vide order dated 20th April, 2017.
8. Shri S. Pandya, learned counsel appearing for the respondent (complainant) has argued that the respondent (complainant)is registered owner of vehicle Auto bearing registration No.C.G.04-T-8454, which was insured with the O.P. for the period from 16.06.2011 to 15.06.2012. The vehicle in question was parked by the respondent (complainant) in his house on 21.07.2011 and it was duly locked. On 22.07.2011, when the respondent (complainant) woke up, then he found that the vehicle was not present where he parked it. The respondent (complainant) searched the vehicle here and there, but he could not search the vehicle, then he lodged First Information Report on 27.07.2011 in Police Station, Saraswati Nagar, Raipur (C.G.). The intimation regarding the incident of theft of the vehicle was also given by the respondent (complainant) to the appellant (O.P.) on 24.07.2011 and thereafter written report was also given to the appellant (O.P.), but the appellant (O.P.) repudiated the claim of the respondent (complainant) on erroneous ground. The appellant (O.P.) committed deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P.) may be dismissed. He placed reliance on Civil Appeal No.15611 of 2017 - Om Prakash Vs. Reliance General Insurance and Anr. decided by Hon'ble Supreme Court vide order // 6 // dated 04.10.2017, Shri Sukhwinder Singh Vs. Cholmandalam - MS General Insurance Company Ltd. Through Its Regional Manager & Anr. 2013 (3) CPR 729 (NC), National Insurance Company Limited Vs. Nitin Khandelwal, 2013 (4) CPR 803 (SC) and General Insurance Co. Ltd. Vs. Abhijit Saini & Anr., II (2008) CPJ 483 (Del.).
9. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
10. According to the appellant (O.P.) the respondent (complainant) was using the vehicle for commercial purpose, therefore, he is not consumer. The above contention of the appellant (O.P.) is not acceptable.
11. In Ashish Vishwakarma Vs. National Insurance Company Limited & Others, II (2012) CPJ 169 (NC), Hon'ble National Commission has observed that "Contract of insurance is a contract of indemnity and therefore, there is no question of commercial purpose in obtaining insurance coverage. It has also been held that the insured could not trade or carry out any commercial activity with regard to the insurance policy, being barred to do so under Section 3 of the Insurance Act, 1938."
12. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, // 7 // proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
13. The insurance policy has been taken by the respondent (complainant) for protection of the property and not for making any profit, therefore, the complainant is a "consumer" and dispute between the parties comes within purview of "consumer dispute".
14 It is admitted fact that the respondent (complainant) is registered owner of vehicle Auto bearing registration No.C.G.04-T-8454, which was insured with the O.P. for the period from 16.06.2011 to 15.06.2012.
// 8 //
15. So far as merits of the case is concerned, according to the respondent (complainant) he parked the vehicle on 21.07.2011 at about 8.00 P.M. in his house and it was duly locked. On 22.07.2011, when the respondent (complainant) woke up, then he found that the vehicle was not present where he parked it. The respondent (complainant) had gone to Police Station, Saraswati Nagar, Raipur for lodging First Information Report, but the Police told the respondent (complainant) to first of all search the vehicle here and there. On being instruction given by the Police, the respondent (complainant) searched the vehicle here and there but could not search the vehicle. The respondent (complainant) searched the vehicle here and there, but he could not search the vehicle, then he lodged First Information Report on 27.07.2011 in Police Station, Saraswati Nagar, Raipur (C.G.) where Offence No.194/2011 under Section 379 IPC was registered.
16. The respondent (complainant) has filed document Annexure P-7 which is copy of First Information Report. The First Information Report was registered by Police Station, Saraswati Nagar, Raipur on 27.07.2011 at about 8.00 P.M. The respondent (complainant) has also filed Police Investigation Report, in which it is mentioned that the vehicle was search by the complainant here and there and when he could not search the vehicle, then FIR was lodged. In the Police Investigation Report, it is also mentioned that there is no possibility to find the offender and vehicle, therefore, Khatma No.34/2011 was issued.
17. In the First Information Report, it is mention that in the night of 21.07.2011, the auto bearing registration No.C.G.04-T-8454 was parked by the respondent (complainant) in his house and it was duly locked. It appears that // 9 // the vehicle in question was in proper way in locked condition and it was parked in the house of the respondent (complainant), therefore, the contention of the appellant (O.P.) that vehicle was left unattended by the respondent (complainant) is not acceptable.
18. Looking to the First Information Report and Police Investigation Report, it appears that the respondent (complainant) immediately went to the Police Station, Saraswati Nagar, Raipur , where Police instructed him to firstly search the vehicle here and there and thereafter the First Information Report would be lodged. Then the respondent (complainant) search the vehicle here and there, when the respondent (complainant) was unable to search the vehicle, then offence was registered in the Police Station, Saraswati Nagar, on 27.07.2011.
19. This Commission in Appeal No.FA/2014/459 - Pushpendra Pillewar Vs. Bajaj Allianz General Insurance Co. Ltd. and Another, vide order dated 27.03.2015, on the basis of judgment of Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), judgments of Hon'ble National Commission in Baljeet Vs. United India Insurance Company Limited (2014) 1 CPR 61 (NC), National Insurance Company Ltd. Vs. Kamal Singha, IV (2010) CPJ 297 (NC), has awarded compensation to the complainant on non-standard basis. The O.P. No.1 Bajaj Allianz General Insurance Company Ltd., filed Revision Petition No.1616 of 2015 before Hon'ble National Commission against the order dated 27.03.2015 of this Commission. Vide order dated 04.10.2017, Hon'ble National Commission allowed the Revision Petition and set aside the order passed by this Commission, observing thus :-
// 10 // "12. On the face of it, if there was a theft, there ought to be compensation by way of an insurance claim. It is this perspective that has apparently informed the decision of the State Commission, who have relied upon some judgments of the Apex Court as also this Commission to hold that in case of theft, breach of conditions of the insurance policy is not germane and denial of claim in toto is not sustainable."
20. In para 14 of the Order dated 04.10.2017, Hon'ble National Commission on the basis of the judgment of Hon'ble Supreme Court in Civil Appeal No.6739 / 2010 - Oriental Insurance Company Limited Vs. Parvesh Chander Chadha, decided on 17.08.2010, allowed the Revision Petition filed by Bajaj Allianz General Insurance Co. Ltd. and dismissed the complaint of the complainant.
21. But in 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 // 11 // insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis."
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below :-
Sr. Description Percentage of settlement
No.
(i) Under declaration of Deduct 3 years' difference in premium
licenced capacity. from the amount of claim or deduct 25%
of claim amount, whatever is higher.
Pay claims not exceeding 75% of
(ii) Overloading of vehicles admissible claim.
beyond licensed carrying
capacity.
Pay upto 75% of admissible claim.
(iii) Any other breach of
warranty/ condition of
policy including
limitation as to use.
22. In Om Prakash Vs. Reliance General Insurance & Anr. IV (2017) CPJ 10 (SC), Hon'ble Supreme Court has observed thus :-
"11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or // 12 // submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act, aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the act.
12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs.7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs.50,000/- towards compensation."
23. In the instant case, the appellant (O.P.) has pleaded that the First Information Report (F.I.R.) was lodged by the respondent (complainant) on 27.07.2011 i.e. after lapse of 5 days and intimation regarding the incident of theft of the vehicle was given to the appellant (O.P.) on 18.08.2011 i.e. after 27 days. In the instant case the appellant (complainant) had given proper explanation for lodging First Information Report belatedly. Looking to the documents filed by the respondent (complainant), it appears that the respondent (complainant) had gone to Police Station, Saraswati Nagar, Raipur on 22.07.2011 and gave information regarding the incident of theft of the vehicle. It appears that the // 13 // incident of theft of the vehicle was reported to the police immediately and the vehicle in question was searched by the Police and respondent (complainant). When the vehicle could not be traced, then regular First Information Report was registered on 27.07.2011 by Police Station, Saraswati Nagar, Raipur, but intimation regarding the incident of theft of the vehicle was given to the appellant (O.P.) after 27 days. Merely on the basis of delay intimation, total claim of the respondent (complainant) cannot be disallowed. Looking to the facts and circumstances of the case, the respondent (complainant) has properly explained the delay caused in lodging First Information Report. On the basis of judgments of Hon'ble Supreme Court in Om Prakash Vs. Reliance General Insurance & Anr. (Supra), Amalendu Sahoo v. Oriental Insurance Co. Ltd. (Supra) and National Insurance Company Ltd. and National Insurance Company v. Nitin Khandelwal (Supra), the appellant (complainant) is entitled to get compensation on non-standard basis i.e. 75% of the Insured Declared Value of the vehicle Rs.1,67,057/-.
24. In the instant case, the appellant (complainant) has filed copy of the insurance policy. In the insurance policy, the Total Insured Declared Value of the vehicle in question is mentioned as Rs.1,67,057/-. The vehicle in question was insured with the appellant (O.P.) for the period from 16.06.2011 to 15.06.2012. The appellant (complainant) is entitled to get compensation from the appellant (O.P.) on non-standard basis i.e. 75% of Rs.1,67,057/- which comes out to Rs.1,25,293/- (Rupees One Lakh Twenty Five Thousand Two Hundred Ninety Three) instead of Rs.1,67,057/-.
// 14 //
25. The learned District Forum has awarded a sum of Rs.5,000/- (Rupee Five Thousand) towards compensation for mental agony and Rs.3,000/- (Rs. Three Thousand) towards advocate fees and cost of litigation to the respondent (complainant). Looking to the facts and circumstances of the case, the District Forum has rightly awarded the compensation for mental agony and cost of litigation.
26. Therefore, the appeal filed by the appellant (O.P.) is partly allowed and it is ordered :-
(i) So far as sub para (a) of para 10 of the impugned order is concerned, it is modified and it is directed that the appellant (O.P.) will pay a sum of Rs.1,25,293/- (Rupee One Lakh Twenty Five Thousand Two Hundred Ninety Three) instead of Rs.1,67,057/-, to the respondent (complainant).
(ii) So far as Sub para (b) and (c) of para 10 of the impugned order are concerned, the same are confirmed and maintained.
(iii) Parties shall bear their own cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar)
President Member
15/12/2017 15 /12/2017