State Consumer Disputes Redressal Commission
Pushpendra Pillewar vs Bajaj Allianz Insurance Co. Ltd & Anr. on 27 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/459
Instituted on : 01.07.2014
Pushpendra Pillewar, S/o D.R. Pillewar, Age 37 years,
R/o : Ware House Road,
Bilaspur, Tehsil & District Bilaspur (C.G.) ... Appellant
Vs.
1. Bajaj Allianz General Insurance Company Ltd.,
Through : Manager / Authorized Officer,
Bajaj Allianz General Insurance Company Limited,
Second Floor, Shivmohan Bhawan,
Vidhan Sabha Marg, Pandri,
Raipur (C.G.)
2. Shriram Transport Finance Company Limited,
Through Branch Manager, Shriram Finance Co. Ltd.,
Rajiv Plaza, Opp. Axis Bank, Old Bus Stand,
Bilaspur (C.G.). .... Respondents
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 Manoj Agrawal, for appellant.
Shri Manoj Prasad, for respondent No.1.
Shr K.Z. Ansari, for respondent No.2.
ORDER
DATED : 27/03/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 23.06.2014, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in CC/16/2010. By the impugned order, the complaint has been dismissed.
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2. Briefly stated the facts of the case are that the appellant (complainant) purchased a vehicle Highwa Tipper bearing No.C.G.10- C-1107 with the help of respondent No.2 (O.P.No.2) for earning his livelihood and the said vehicle was insured with the respondent No.1 (O.P. No.1) for the period from 18.12.2007 to 17.12.2008. The said vehicle was stolen by some unknown person from K.G.N. Garage, Bhanpuri, Raipur, intimation regarding which was given by the appellant (complainant) to the Police Station, Khamtarai as well as to the office of the respondents (OPs). The respondent No.1 (O.P.No.1) assured the appellant (complainant) that his claim will be settled at the earliest and it sent a Surveyor. The appellant (complainant) submitted relevant documents, key of the vehicle and copy of Police Report, and contacted the respondent No.1 (O.P.No.1) several times, but even then the respondent No.1 (O.P.No.1) did not settle his claim. Thereafter the appellant (complainant) sent notice through Advocate to the respondents (OPs), but they did not give reply of the notice. Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondent No.1 (O.P.No.1) filed written statement and averred that the appellant (complainant) purchased the vehicle in question for the commercial purpose, therefore, he does not come within // 3 // the definition of "consumer" under Consumer Protection Act, 1986. The District Forum, has no jurisdiction to hear the complaint. The appellant (complainant) has not given intimation regarding the incident to the respondent (O.P.No.1) immediately whereas the intimation regarding the incident is required to be given immediately after the incident. Thus, the appellant (complainant) has violated the Condition No.1 of the insurance policy. According to the appellant (complainant) the date of incident is 27.05.2008 whereas the appellant (complainant) has given intimation regarding the incident on 31.05.2008 which is belated by four days and in this circumstance the incident is doubtful. The respondent No.1 (O.P.) was deprived from conducting investigation. The appellant (complainant) has not given intimation regarding the incident to the Police as well as R.T.O. The appellant (complainant) has not submitted First Information Report and Khatma Report to the respondent No.1 (O.P.No.1). The respondent No.1 (O.P.No.1) got conducted investigation regarding the incident from M/s Interprede Claims Pvt. Ltd. Raipur who opined that the incident is doubtful and suspicious. The appellant (complainant) told that the lock of the vehicle was having problem and the appellant (complainant) has not made any effort to safeguard the vehicle. During the investigation, the Investigator also found that the vehicle was kept at a place without adopting any security measure. The appellant (complainant) himself is responsible for theft of the vehicle in question.
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4. The respondent No.2 (O.P.No.2) has filed written statement separately and averred that the appellant (complainant) himself insured the vehicle with the respondent No.1 (O.P.No.1). The respondent No.2 (O.P.No.2) further averred that it has been made party unnecessarily, therefore, the complaint is liable to be dismissed against it.
5. After having considered the material placed before it by both the parties, learned District Forum has dismissed the complaint.
6. The appellant (complainant) filed documents. Documents are intimation given by the appellant (complainant) to Police Station, Khamtarai, Raipur regarding the incident,, copy of First Information Report, Final Report, Certificate Cum Policy Schedule, Certificate of Registration of vehicle bearing registration No.C.G.10/C-1107, Form No.38 i.e. Fitness Certificate, Goods Vehicle Licence, Second Reminder dated 02.07.2008 sent by the respondent No.1 (O.P.No.1) to the appellant (complainant), registered notice dated sent by Shri Manoj Agrawal, Advocate to respondent No.1 (O.P.No.1).
7. Shri Manoj Agrawal, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the learned District Forum, is contrary to law and is liable to be set aside. He further argued that the appellant (complainant) has not violated terms and conditions of the insurance policy. The appellant (complainant) informed the respondent No.1 (O.P.No.1) regarding the // 5 // incident within prescribed period, therefore, the appellant (complainant) is entitled for getting compensation. The respondent No.1 (O.P.No.1) has wrongly repudiated the claim of the appellant (complainant). He placed reliance on judgment of this Commission in Oriental Insurance Co. Ltd. vs. Smt. Reeta Devi vs. Smt. Reeta Devi, 2014 (2) C.G.L.J. 10 (CCC).
8. Shri Manoj Prasad, learned counsel appearing for the respondent No.1 (O.P.No.1) has argued that the appellant (complainant) has left the vehicle in question unattended without taking any precaution to safeguard the vehicle. The appellant (complainant) has violated terms and conditions of the insurance policy. The appellant (complainant) did not inform the respondent No.1 (O.P.No.1) regarding the incident within prescribe period, therefore, the appellant (complainant) is not entitled for getting compensation. The respondent No.1 (O.P.No.1) has rightly repudiated the claim of the appellant (complainant) and the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal of the appellant (complainant) be dismissed.
9. Shri K.Z. Ansari, learned counsel appearing for the respondent No.2 (O.P.No.2) has argued that appellant (complainant) himself insured the vehicle with the respondent No.1 (O.P.No.1). He further argued that the respondent No.2 (O.P.No.2) has been made party unnecessarily.
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10. We have heard learned counsel for both the parties and have perused the record of the District Forum.
11. The incident took place on 27.05.2008. The appellant (complainant) made written report at Police Station, Khamtarai, Raipur (C.G.) on 30.05.2008 and First Information Report was lodged on 21.10.2008. Written intimation was sent to respondent No.2 (O.P.No.2) on 08.06.2008 i.e. after 12 days.
12. The respondent No.1 (O.P.No.1) admitted in para 2 of additional plea of the written statement that the appellant (complainant) sent intimation regarding the incident to the respondent No.1 (O.P.No.1) on 31.05.2008. It appears that the intimation regarding the incident was given by the appellant (complainant) to the respondent No.1 (O.P.No.1) on 31.05.2008 i.e. after four days of the incident.
13. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has 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.
// 7 // 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"
14. 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 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.
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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. In the instant case the respondent No.1 (O.P.No.1) repudiated the claim of the appellant (complainant) on the ground that vehicle in question, was left unattended by the appellant (complainant). In Baljeet v. United India Insurance Company Limited. (Supra), it is observed by Hon'ble National Commission that claim repudiated on grounds that vehicle was parked in street without any safety, intimation of theft was given to insurance company after a gap of three months and vehicle was being used for hire whereas it was insured with opposite party as private use vehicle. In case of violation of condition of policy as to nature of use of vehicle claim ought to be settled on non-standard basis".
18. In the instant case, the incident took place on 27.05.2008 and the respondent No.1 (O.P.) admitted in para 2 of additional plea of its written statement that intimation regarding the intimation was give to it on 31.05.2008 i.e. after 4 days from the date of incident, therefore, it is proper to settle the claim of the appellant (complainant) on non- standard basis.
19. We cannot appreciate the action of the respondent No.1 (O.P. No.1) of repudiating the claim of the appellant (complainant) in toto // 11 // only on the ground that the appellant (complainant) left the vehicle unattended.
20. Looking to the law laid down by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Nitin Khandelwal (Supra) and Hon'ble National Commission in the cases of National Insurance Company Limited. Vs. Kamal Singhal (Supra) Baljeet v. United India Insurance Company Limited (Supra), it is proper to adjudicate the claim of the appellant (complainant) on non-standard basis.
21. In view of aforesaid, it is fit case to settle the claim of the appellant (complainant) on non-standard basis.
22. In the instant case, the appellant (complainant) has filed copy of the insurance policy. In the insurance policy, the Total Sum Insured of the vehicle in question is mentioned as Rs.15,60,000/-. The vehicle in question was insured with the respondent No.1 (O.P.No.1) 18.12.2007 to 17.12.2008. The respondent (complainant) is entitled to get compensation from the appellants (OPs) on non-standard basis i.e. 75% of Rs.15,60,000/- which comes out to Rs.11,70,000/-.
23. Therefore, the appeal of the appellant (complainant), is allowed and impugned order dated 23.06.2014, passed by the District Forum, is set aside and it is directed that respondent No.1 (O.P. No.1) will pay a // 12 // sum of Rs.11,70,000/- (Rs.Eleven Lakhs and Seventy Thousand Only) to the appellant (complainant) within a period of one month from the date of this order. If the aforesaid amount is not paid by the respondent (O.P.No.1) to the appellant (complainant) within the stipulated period, then the respondent No.1 (O.P.No.1) will also liable to pay interest @ 9% p.a. on the aforesaid amount from the date of this order till realisation. 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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