State Consumer Disputes Redressal Commission
Bajaj Allianz Genral Insurance Company ... vs Pratap Gad on 23 August, 2024
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 44 of 2023 in Consumer Complaint
58 of 2021.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Bajaj Allianz General Insurance Company
Through authorised signatory
Mr. Digvijay Parab,
Having regional office at 3C and D,
Sesa Ghor, 20 Patto Plaza,
EDC Complex, North Goa,
Panaji, Goa-403001. ....Appellant
V.
Mr. Pratap Gad,
Major of age,
Resident of H.No.170,
Divan Bhat, Near V.P of Arpora,
Bardez, Goa-403516. ....Respondent
Adv. Ms. Amenda Godinho present for Appellant.
Adv. Shri. Sahil Sardessai present for Respondent.
DATE: 23/08/2024
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order shall finally dispose off Appeal filed by the Appellant challenging the Judgment and Order dated 26/06/2023 passed by the District Commission, North at Porvorim Goa in CC/58/2021.
12. The Appellants herein before this Commission was the Opposite Party before District Commission, North and the Respondent herein was the original Complainant.
3. The brief facts are A. The Contention of the Appellant is:
i. That the Complainant/Respondent had insured his vehicle Maruti Swift VXI bearing No. GA03AH1167 with the Opposite Party/Appellant and was issued a policy bearing no. OG-21-9910-1803-00013472 for a period valid from 08/03/2021 to 07/03/2022 and the Complainant/Respondent had obtained a "Commercial Vehicle Package Policy" and paid a premium of Rs.27,116/-.
ii. Thereafter the Complainant received a call from one Mr. Sahad C.P. asking for a vehicle on hire for 3 days and as per his request the said vehicle was delivered at Resort Alchemy Creek, Baga-Goa to be given on hire by the cousin of the Complainant i.e. Mr. Siddesh Gad after verifying his Aadhar Card and Driving License and payment of the amount. Also at the time of delivery of the vehicle form-v, as per the requirement was filed and the original was handed over to the said hirer and the copy was retained by the Complainant and the vehicle was to be returned on 06/10/2021 at 9.00 am.
iii. Thereafter the Complainant received a text message on his mobile phone on 04/10/2021 at 3.50 pm, as he had the GPS tracker installed to the said vehicle, informing that the said vehicle had crossed the Goa border and is in Akhetti Karnataka.
iv. It is further the case of Appellant that the Complainant's cousin spoke to Mr. Sahad C.P. and he shared his whatsapp live location and thereafter his phone was 2 switched off and the GPS tracker was not working after which the Complainant filed a written Police complaint on 06/10/2021 and on 09/10/2021 the FIR was registered. The Complainant informed the Appellant about the theft of the vehicle only on 11/10/2021 by lodging a complaint online and thereafter the Appellant on several occasions sought information from the Complainant as to why the claim should not be repudiated but instead the Complainant failed to respond to the Appellant and so the Appellant's repudiated the claim by way of letter dated 30/03/2022 the Complainants did not respond to the letters.
v. Thus being aggrieved the Complainant filed a consumer complaint before District Commission, North Goa wherein the complaint was allowed and the District Commission, North in its Judgment and Order dated 26/06/2023 allowed the complaint and with reliefs as prayed for in the complaint in terms of the Opposite Party being directed to pay an amount of Rs.5,88,001/- towards the insurance claim with interest of 2% and a further amount of Rs.50,000/- towards mental stress hardship and hence being aggrieved the present Appeal.
vi. In pursuant to their contention, the Appellant stated that the District Commission had not considered the following points:-
a) That there was a delay on part of the Complainant in intimating the Police and the Insurance Company.
b) That the Complainant filed a criminal case for breach of trust against the said Mr. Sahad C.P. and not the theft.3
c) That the premium is not paid for rent a cab and no endorsement of IMT 35 and IMT 43 and therefore breach of Policy Condition no. 9
d) The Appellant prayed that the Appeal be allowed and the Judgment and Order passed by District Commission, North be quashed and set aside with costs.
B. The Contention of the Respondent is:
i. That the Complainant had availed the services from the Opposite Party for the purpose of insuring his vehicle GA 03 AH 1167 Maruti Swift VXI and in doing so obtained a policy having no. OG-21-9910-1803-00013472 and in order to maintain his parents and himself, he obtained license having no. GA-03-20090025709 batch no PT-15182 valid till 07/12/2025. He further also obtained a permit for rent a cab license no.
STA/RACL/201800003 from State Transport Authority Panjim Goa and then got registered with North Goa Rent a cab association in his own name.
ii. The Respondent pursuant to his contention stated that on 03/10/2021 he received a call from one Mr. Sahad C.P. who required rent a vehicle/cab for 3 days for his person use alongwith his friends to use within limits of State of Goa. Thereafter, the cousin brother of the Complainant Siddesh Gad delivered the vehicle to the said person at Resort Alchemy Creek, Baga Goa and verified his Aadhar Card and Driving license and took an advance of Rs.2,000/- and Rs.3,000/- as rent and also the Aadhar Card was taken at the time of delivery of the vehicle the requisite Form V was filed and the original was handed over to the said Mr. Sahad C.P. a copy was retained by the Complainant and the vehicle was to be returned on 06/10/2021 at 9.00 am. On the next day on 04/10/2021 i.e. the next day the Complainant received 4 a message at 3.50 pm on his mobile that notified him that vehicle had crossed the Goa Border and Mr. Sahad C.P. informed the Complainants cousin brother, when he was contacted that they were in Goa and sent a live location on whatsapp number. After sometimes the Complainant found the mobile switched off and GPS tracker too was not working. Hence, the Complainant took the help of his cousin brother, a post graduate with fluency in English and Hindi and stated that from 05/10/2021 onwards his mobile was continuously found switched off, whenever the Complainant had tried to contact Mr. Sahad C.P. on his mobile and so, the Complainant alongwith his cousin brother visited Anjuna Police Station in order to lodge a complaint but, was however not lodged as the incharge of Police station did not register the complaint against Mr. Sahad as the return date of vehicle was 06/10/2022 and on 06/10/2022 the Complainant immediately lodged written complaint/intimation letter to Anjuna Police Station an inquiry was conducted and registered dated 09/10/2021 bearing number FIT/133/2021. Thereafter, the Complainant lodged online complaint/intimation on 11/10/2021 with the Opposite Party in terms theft/stolen vehicle by Mr. Sahad C.P. iii. In pursuant to his contention, the Complainant stated that on 29/10/2022 the authorized person of the Opposite Party visited the Complainant at his residence in order to conduct inquiry and recorded the station of the Complainant and that of his cousin brother Siddesh Gad, also the authorized person of the Opposite Party took original FIR, RC Book, permit of the vehicle, Insurance policy, Road tax book and the original key of the vehicle. That the Opposite Party replied to the complaint made by the Complainant vide reply dated 5 25/03/2022 wherein the Opposite Party stated that incase 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 company in securing the conviction of the offender.
iv. That the Complainant stated that acts of Mr. Sahad C.P. during the period from 03/10/2021 to 06/10/2021 are nothing but criminal acts amounting to theft of the vehicle and from the beginning the said Mr. Sahad C.P. who intended to take the vehicle dishonestly from the possession of the Complainant and without his consent, taking the vehicle beyond the boundaries of the State of Goa destroying the GPS tracker and switching off the cell phones and that taking away brand new vehicle is nothing but 'theft' as defined u/s 378 of IPC.
v. That the Opposite Parties have referred to certain letters dated 27/11/2021, 01/12/2021 and 15/12/2021 in their letter dated 25/03/2022 but the Complainant has not received any of the aforementioned letters, and that the Complainant furnished a detailed reply dated 09/04/2022 but till date the Opposite Party has not replied nor have they asked for further documents.
vi. As stated by the Respondent that Condition 8 of the policy to refuse the claim would not be applicable as the contents are clear in his reply and that the Complainant has co-operated with both the investigating agencies i.e. the Insurance Company of the Policy and therefore the claim cannot be repudiated as the claim would be valid u/s I (vii) by Malicious Act.
vii. Further the Complainant stated that he has lost his income and has to pay the hypothecation EMI to SBI and suffers financially and mentally and that the acts of 6 the Opposite Party amounts to deficiency in service and therefore the Opposite Party is liable to compensate the Complainant. Hence the complaint the Complainant prayed :
a) That the Opposite Party release the Insurance claim of Rs.5,88,001/- alongwith interest @ 2% above the bank rate as per condition of the policy of Insurance Company from the intimation of the claim.
b) That the Opposite Party to compensate the Complainant to the time of Rs.2,00,000/- as costs for deficiency in services and compensation for not releasing the claim in a time bound manner and towards mental agony and torture and hardship.
c) That the Opposite Party compensate the Complainant Rs.50,000/- towards cost incurred for litigation and / cost incurred for rendering separate services Rs.1,50,000/- for mental stress and tension caused due to delay in passing his claim.
4. The Documents relied upon by the Appellant and Respondent before this Commission were the same as placed before the District Commission, North. Written Arguments were filed by Appellant and the Advocate for Respondent submitted that the Written Arguments before District Commission, North be considered as Written Arguments in this Appeal.
5. Arguments were heard on behalf of Adv. Ms. Amanda Godinho for the Appellant and Adv. Shri. Sahil Sardessai on behalf of the Respondent.
Adv. Ms. Godinho gave an account of the brief facts of the case submitting that there was a theft of the vehicle i.e. Rent A Cab given on rent on 03/10/2021 which was 7 to be returned on 06/10/2021 at 9.00 pm and on 4th October the Complainant got a message that the said vehicle had crossed the Border of Goa travelling into the state of Karnataka and the phone was switched off. Thereafter on 6th October complaint was filed before the Police and the FIR was registered on 9th October for criminal breach of trust and not for theft and on 11th October the Appellant/Insurance Company was informed. The Advocate further pointed out that the Insurance policy does not cover Criminal Breach and further submitted that IMT 43 covers theft in terms of these vehicles. Also that IMT 35 is for hired vehicles also that the claim was repudiated in terms of Condition no. 9 which was breached and IMT 43 and on this point the claim was repudiated.
The Advocate further submitted that the District Commission had not considered that the FIR was registered for Criminal Breach of Trust and that IMT 43 was not taken nor did the Complainant pay the premium of 1.5%.
The Adv. Shri Sahil Sardessai submitted that the Insurance Company cannot simply deny and repudiate the claim on the issue of intimation to the Insurance Company he provided the details and further submitted that on 9th Oct the FIR was registered and within 2 days the Insurance Company was intimated.
He further pointed out to the Rent A Cab certificate issue by Directorate of Transport thereafter he pointed to page 19 of the Judgment wherein the District Commission has observed that there is no dispute nor any denial from the Opposite Party at the time of obtaining Insurance Policy when the Complainant had produced the permit for Rent a Cab and thereafter to the 8 Communication addressed to the Insurance Company dated 29/10/2021.
6. Heard Arguments and on going through pleadings and entire material placed on record. We observed that:
i. There is a delay on part of the Respondent in intimating the Police and the Insurance Company. The Respondent ought to have filed Complaint immediately and ought to have waited until 06/10/2021 to file the Police Complaint. Also on the point of informing the Insurance Company about the missing car, the Respondent had failed to do so immediately and only on 11/10/2021 informed the Insurance Company. Thus violating the terms of Insurance Policy. Also another observation made by this Bench was that the Premium was not paid for Rent-a-Cab and the claim was rightly repudiated as the Complainant had not paid the premium for Rent-a- Cab and therefore a Breach of Policy condition No.-9.
ii. It is also pertinent to note that no endorsements of the IMT 35 and IMT 43 are borne in the "Commercial Vehicle Package Policy" as per the mandate given by the Indian Motor Tariff 2002 and is applicable to hired Vehicle driven by the hirer which amounts to breach of the Insurance Act, 1938 and in the absence of IMT 35 and IMT 43 endorsements which further amounts to condition No. 9 of the Insurance Policy being breached and hence the Insurer is not liable to compensate for the loss and endorsements of the Policy which is a condition precedent to any liability of the Company to make any payment under this Policy.
iii. Additionally the liability of the insurer would arise only if an additional premium was paid as per IMT 35 and IMT
43. We further observed that the Investigator appointed by the Appellant had filed the loss is not covered under 9 this Policy as per the requisite IMT was not applied on the Policy.
iv. Also, there is no question of liability arising of the Insurance Company as the Respondent failed to pay extra premium, under the Indian Motor Tariff 2002, IMT 35 and IMT 43 which has resulted in breach of Insurance Act,1938 and the District Commission, North has failed to appreciate that duty to pay the extra premium for hired vehicle driven by the hired is upon the Respondent/Complainant.
v. In its Order, the District Commission, North has failed to appreciate that the commercial vehicle package policy issued by the Insurance Company to the Respondent was without IMT 35 and IMT 43 as per the mandate of the Indian Motor Tariff 2002 which is applicable for hired vehicles and that the liability of the Insurance Company only arises if the additional premium was paid as per IMT 35 and IMT 43.
vi. We are not in agreement with the observation made by the District Commission that the OP is deficient in service for not making endorsements in terms of IMT 43, as the documents produced were Rent a cab and not taxi.
vii. We are also not in agreement with the findings of the District Commission in terms that the OP maliciously ignored the permit for Rent-A-Cab issued by the government and did not apply IMT and the OP was negligent in issuing policy without applying IMT and further, the District Commission, North failed to consider the fact that the Respondent has not led any evidence to demonstrate that the permit for Rent-A-Cab was handed over to the Insurance Company at the time of issuing the Insurance Policy and find that the 10 Respondents have been negligent in their conduct by not paying the extra premium as per the requirement of the Indian Motor Tariff 2002 and there cannot be deficiency in service on part of the Appellant and the District Commission, North has failed to take into consideration the factual aspects vis-a-visa the clauses of Insurance Policy and hence the Insurance Company cannot be saddled with a liability which is not payable by them as per the contract and on this count alone we in our considered opinion observed that the Appeal is to be allowed.
Hence we pass the following:
ORDER
1. The Appeal is allowed.
2. The Order passed by District Commission, North dated 26/06/2023 is hereby quashed and set aside.
3. Records and Proceedings to be sent back.
4. Proceedings closed.
[Adv. Mrs. Varsha R. Bale] Officiating President [Adv. Ms. Rachna A. M. Gonsalves] Member KK 11