National Consumer Disputes Redressal
Bajaj Allianz General Insurance ... vs Abdul Sattar & Anr. on 27 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2618 OF 2013 (Against the Order dated 11/04/2013 in Appeal No. 352/2011 of the State Commission West Bengal) 1. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. ALSO AT: PODDAR COURT, GATE NO-3, 7TH FLOOR, 18 RABINDRA SARANI KOLKATA - 700001 W.B ...........Petitioner(s) Versus 1. ABDUL SATTAR & ANR. S/O LATE SHEIK KHALIL, N.S ROAD,POST & P.S JAIGAON, JALPIGURI W.B 2. BRANCH MANAGER, MAHINDRA & MAHINDRA FINANCE SERVICES LTD. COOCHBEHAR , N.S ROAD, BADUR BAGAN, POST & P.S COCCHNEHAR COCCHNEHAR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Ms. Archana Pathak Dave, Advocate For the Respondent : For the Respondent No.1 : NEMO For the Respondent No.2 : Mr. Rajan Singh, Advocate Dated : 27 Jan 2016 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission West Bengal dated 11.04.2013 in First Appeal no. 352 of 2011 whereby the State Commission concurred with the order of the District Forum and dismissed the appeal.
2. Briefly put, the facts relevant for the disposal of the revision petition are that respondent no.1 complainant insured his vehicle no. WB-74-L-6574 with the petitioner insurance company for sum assured Rs.4,25,000/-. The insurance policy was effective w.e.f. 13.10.2009 to 12.10.2010. It is the case of the complainant that on 22.12.2009 he requested his driver Subhan Mia @ Suvan Ali to drop his relatives at Siliguri. However, while returning, the said driver was murdered and vehicle was taken away by the assailants. The dead body of the driver was found by Sourav Kumar Kisku who intimated concerned P.S. on 23.12.2009. FIR in this regard was registered at P.S. Jaigaon for murder as well as theft of the vehicle. The complainant submitted his claim with the petitioner insurance company which was repudiated vide letter dated 16.03.2010 on the ground that the vehicle at the relevant time was being used for hire and reward.
3. Being aggrieved of the repudiation of the insurance claim, respondent no.1 complainant raised a consumer dispute.
4. OP No.1 Insurance Company on being served with the notice of the complaint filed a written statement generally denying all the allegations in the complaint. The insurance company even went to deny existence of the insurance policy and pleaded that as per the allegations made in the complaint, the policy was of 'Private Car Parking Policy' which debars user of the alleged vehicle for hire or reward. It was pleaded that since the vehicle at the relevant time was hired by the miscreants, the opposite party no.1 has no liability under the policy in question. It was also pleaded that as per the terms and conditions of the policy, information of the theft was required to be given to the insurer i.e. within 24 hours which could be extended upto 72 hours. The alleged incident took place on 22.12.2009 and intimation thereof was given to the opposite party on 06.02.2010, which amounts to violation of condition no.01 of the insurance policy and as such the insurance company is not liable to indemnify the complainant.
5. OP No.2 in its written statement took the plea that complainant had taken loan to purchase the vehicle for a sum of Rs.1,00,491/-.
6. The District Forum on consideration of the pleadings of the parties and evidence allowed the complaint against respondent no.1 and directed thus:
"That the case being CC No. 02/2011 be and the same is decreed in part of contest against the respondent no.1 with cost of Rs.2000/- in favour of the complainant.
The complainant is entitled to get Rs.4,25,000/- with interest p.a. from the date of filing of the case till realization from the respondent no.1 out of which the respondent no.1 shall pay the sum of Rs.3,24,500/- with 9% p.a on the amount of Rs.4,25,000/- by issuing cheque in favour of the complainant and the balance amount of Rs.1,00,491/- would be paid by issuing cheque in favour of respondent no.2. The respondent no.1 shall also pay cost of Rs.3000/- to the complainant. All the amount should be paid within one month from this date failing which the complainant will be liable to put the decree/order into execution.
The case is disposed of against the respondent no.2........"
7. Being aggrieved of the order of the District Forum, the petitioner opposite party no.1 filed an appeal. The State Commission on consideration of record and the submissions made on behalf of the parties concurred with the order of the District Forum and dismissed the appeal preferred by the petitioner opposite party.
8. Learned Ms. Archana Pathak Dave, Advocate for the petitioner has assailed the impugned order on two counts. Firstly ,it is contended that order of the State Commission is not sustainable for the reason that State Commission has failed to appreciate that at the time of alleged theft, the subject vehicle which was insured as private vehicle was being used for hire i.e. commercial purpose in violation of the terms and conditions of the policy. In support of this contention, learned counsel has drawn our attention to the copy of the report under section 173 Cr.P.C.filed by the police in the Court of ACJM Alipurduar, District Jalpaigudi in respect of murder of driver of the subject car and the theft. Expanding on the argument, learned counsel has contended that perusal of the report under section 173 Cr.P.C. would show that as per the investigation done by the police, the subject vehicle was hired by accused Babul Mitra and others and on the way, they overpowered the driver, killed him and escaped with the vehicle. It is argued that from this it is clear that vehicle was being used against the condition of the insurance contract for hire and reward.
9. We do not find merit in the contention for the reason that filing report under section 173 Cr.P.C. filed by the police in the Court of ACJM is the nature of allegation made against the accused persons in the chargesheet and it cannot be a substitute for proof of the allegations made in the report. The petitioner insurance company has not examined any witness nor it has produced any cogent evidence to establish that the subject vehicle at the time of theft was being used for hire and reward. Thus, we do not find any infirmity in the finding of the State Commission
10. Second contention raised on behalf of the petitioner is that the State Commission has ignored the fact that as per the terms and conditions of the insurance policy, the complainant was supposed to intimate the petitioner insurance company about the theft within 24 hours which could be extended to 72 hours and since the information of theft was given much later on 06.02.2010, the insurance company is justified in repudiating the claim in view of violation no.1 of the insurance policy.
11. In order to appreciate the contention of the petitioner, it would be useful to have a look on relevant condition no.1 of the insurance policy, which is reproduced as under:
"1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."
12. On reading of the above, it is clear that in the event of the theft of the vehicle, only requirement on the part of the insured was to intimate the police immediately and cooperate in securing the conviction of the offender. Admittedly, the case of the complainant is that he had requested the driver to take his relatives from Jalpaigudi to Siliguri. It is clear from the record that driver did not return after his trip to Siliguri and actually on his way back, he was murdered and assailants escaped with the subject car. From this, it is evident that complainant could not have even known about the murder of his driver and theft of his car till the dead body was recovered and he was intimated about the incident by the police. Therefore, there was no occasion for the complainant to intimate the insurance company about the theft of his car within 24-72 hours of the incident. Thus, in our view, this is not a case of intentional delay of intimation which may be treated as violation of condition no.1 of the insurance policy which may justify the repudiation of claim.
13. It is pertinent to mention that conduct of the petitioner opposite party in this case is strange. Despite of the fact that the subject vehicle was insured with the insurance company, the insurance company had audacity to deny the insurance policy itself. This indicate the intention of the insurance company to avoid the liability of indemnifying the insured.
14. In view of the discussion above, we are of the view that foras below have rightly allowed the consumer complaint filed by the respondent. There is no reason to interfere in the concurrent finding returned by the foras below in exercise of the revisional jurisdiction. Revision Petition is, therefore, dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER