State Consumer Disputes Redressal Commission
M/S Bhagwati Trading Company vs The Oriental Insurance Company Limited on 12 February, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.FA/13/293
Instituted on : 22.04.2013
M/s Bhagwati Trading Company,
Through : Proprietor - Dinesh Agrawal,
S/o Shri N.M . Agrawal,
R/o : E-4, Samta Colony,
Raipur, District Raipur (C.G.) ... Appellant
Vs.
The Oriental Insurance Company Limited,
Through : Divisional Manager, Divisional Office No.3,
R.K. Plaza, Ring Road No.1, In Front of Prakash
Swimming Pool, Pachpedi Naka,
Raipur (C.G.) ... Respondent
Appeal No.FA/13/350
Instituted on : 22.05.2013
The Oriental Insurance Company Limited,
Through : Divisional Manager, Division Office No.3,
R.K. Plaza, Ring Road No.1, In Front of Prakash
Swimming Pool, Pachpedi Naka,
Raipur (C.G.) ... Appellant.
Vs.
M/s Bhagwati Trading Company,
Through : Proprietor - Dinesh Agrawal,
S/o Shri N.M . Agrawal,
R/o : E-4, Samta Colony,
Raipur, District Raipur (C.G.) ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES IN BOTH THE APPEALS: -
Shri R.K. Bhawnani, for M/s Bhagwati Trading Company, the complainant.
Shri D.L. Rathore, for The Oriental Insurance Company Ltd., the O.P. // 2 // O R A L O RDER Dated : 12/02/2014 This order will govern disposal of Appeal No .FA/13/293 as well as Appeal No. FA/13/350, which have been preferred respectively by the complainant and O.P. of Complaint Case No.103/2012 against the order dated 23.03.2013 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum" for short), whereby the complaint filed by the complainant, has been allowed in part, and the District Forum has directed the O.P. to pay a sum of Rs.40,500/-
along with interest @ 6% p.a. from the date of filing of the complaint i.e. 20.03.2012 till date of payment and also pay Rs.5,000/- as compensation for mental agony and Rs.2,000/- as cost of litigation to the complainant.
For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original nomenclature in the complaint case. The original of this order be retained in the file of Appeal No.FA/13/293 and its copy be placed in the file of Appeal No. FA/13/350.
2. Briefly stated, facts of the case are : that the Bajaj Pulser vehicle bearing registration No.C.G.04-DR-3170 of the complainant was insured with the O.P. under insurance policy No.191300/31/2012/2419 covering risk for the period from 17.06.2011 to 16.06.2012. During the subsistence of the insurance policy, it was stolen by someone on 02.12.2011 while it was parked by the complainant near Axis Bank, Ravi Nagar, Raipur // 3 // (C.G.) when he gone to attend a marriage function. He searched the vehicle here and there. On 03.12.2011, the complainant went to Police Station and gave intimation regarding the incident. The Police instructed the complainant to search the vehicle and only thereafter to lodge report. The complainant again searched the vehicle but could not trace the vehicle. On 05.12.2011 he lodged report in Police Station, Civil Lines. Incident was also reported to the O.P. / Insurance company. The O.P. / Insurance Company provide claim form to the complainant, which was duly submitted by the complainant to the O.P./Insurance Company along with relevant documents on 07.12.2011. The complainant also provided khatma report dated 04.02.2012 to the O.P. / Insurance Company and requested for payment of claim. Vide letter dated 02.03.2012 the O.P./Insurance Company informed the complainant that his claim was repudiated by it on the ground that the incident was reported within 48 hours of occurrence of the incident. The complainant filed consumer complaint before the District Forum against the O.P. seeking compensation
3. In its reply the O.P./Insurance Company resisted the complaint and denied the allegations leveled by the complainant in the complaint.
4. After having considered the material placed before it by both the parties, learned District Forum, partly allowed the complaint and // 4 // awarded compensation to the complainant, as mentioned hereinabove in paragraph no.1 of this order.
5. Shri D.L. Rathore, learned counsel for the O.P./Insurance Company argued that order passed by the learned District Forum is not sustainable and is liable to set aside and the appeal may be allowed. He further argued that the insurance policy was issued by the Insurance Company and the copy of insurance policy filed by the complainant before the District Forum was containing a term. According to terms and conditions, if vehicle was stolen by someone, it was required to be reported to the Insurance Company within 48 hours of its occurrence, otherwise the claim was not payable. He further argued that if no intimation was given within stipulated period to the Insurance Company, the Insurance Company had a right to repudiate the claim and it would not liable to pay any amount.
6. Shri D.L. Rathroe, learned counsel for the O.P./Insurance Company further argued that in the instant case, the intimation of the incident was given by the complainant to the O.P./Insurance Company on 07.12.2011, whereas the incident took place on 02.12.2011. Thus, the intimation regarding incident was given by the complainant to the O.P. after five days of occurrence of the incident, therefore, the O.P. has rightly repudiated the claim of the complainant and learned District Forum has erred in holding that appellant/O.P. was liable to // 5 // compensate the appellant/complainant on non-standard basis. Therefore, the impugned order of the District Forum, suffers from illegality and irregularity and is liable to be set aside.
7. Shri R.K. Bhawnani, learned counsel for the complainant argued that learned District Forum has erred in awarding 75% of the Insured Declared Value on non-standard basis.
8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
9. In the instant case, the complainant filed document A/1 i.e. Motor Insurance Certificate Cum Policy Schedule Motorised - Two Wheelers Package Policy - Zone B, document A-2 is copy of First Information Report (FIR), document A-3 is Police Investigation Report, document A-4 is Pre-repudiation Letter dated 02.03.2012 sent by the O.P./Insurance Company to the complainant.
10. The O.P./Insurance Company has also filed documents i.e. Preliminary Claim Intimation, Motor Claim Form, copy of FIR, copy of Certificate of Registration, Motor Insurance Certificate Cum Policy Schedule Motorised - Two Wheelers Package Policy - Zone B, Investigation Report dated 23.03.2012 of Investigator Shri Deepak Wadhwa,, Pre-repudiation Letter dated 02.03.2012 sent by the O.P./Insurance Company to the complainant.
// 6 //
11. Looking to these documents it appears that vehicle bearing No.C.G.04-D.R.-3170 was insured with the O.P./Insurance Company for the period from 17.06.2011 to 16.06.2012. According to the complainant and first information report (document A-2), it appears that incident took place on 02.12.2011 at 8 A.M. and the matter was reported to the Police on 05.12.2011 at 11.40 AM. As per the complainant on 02.12.2011, he parked the vehicle near Axis Bank, Ravi Nagar, Raipur (C.G.) when he had gone to attend a marriage function. When he came at the place where he parked the vehicle, he found that the vehicle was stolen by someone In the first information report and complaint, sufficient ground and explanation was given regarding not- lodging prompt first information report with Police. The Insurance Company was informed by the complainant on 07.12.2011.
12. 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. National // 7 // 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 case of M/s New India Assurance Co. Ltd. & anr. Vs. Sh. Ajit Kumar, 2013 (4) CPR 4 (NC), Hon'ble National Commission has observed thus :-
"6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would // 8 // have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at 'C' Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim "sic utere tuo at alienum loedas" - A person is held liable at law for the consequence of his negligence."
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 // 9 // 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."
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 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.
// 10 //
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 by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission".
// 11 //
17. The Insurance Company repudiated the claim of the respondent/complainant on the ground of delay in intimation. The Insurance Regulatory & Development Authority vide CIRCULAR NO.IRDA /HLTH /MISC /CIR /216 /09 /2011, DATED 20/09/2011 has directed all the Insurance Company not to disallow the entire claim of the claimants only on the ground of delay in intimation if the claim is otherwise payable. So, we cannot appreciate the action of the O.P./Insurance Company of repudiating the claim only on the ground of delay in intimation. In the instant case, regarding delay in giving intimation regarding the incident, sufficient explanation was given by the complainant. Looking to the law laid down in Nitin Khandelwal's case (supra), it is not proper on the part of the Insurance Company to repudiate whole claim of the complainant only on the ground of delay in intimation. The O.P./Insurance Company was required to pay at least compensation on non-standard basis to the complainant.
18. Learned District Forum awarded a sum of Rs.40,500/- to the complainant on non-standard basis of the Insured Declared Value of the vehicle.
19. Document A/1 is the copy of insurance policy. In the insurance policy, the Insured Declared Value of the vehicle is not mentioned, but in the complaint, the Insured Declared Value of the vehicle was // 12 // mentioned as Rs.54,000/- and the learned District Forum also held that the Insured Declared Value of the vehicle was Rs.54,000/-. The O.P./Insurance Company filed Certificate of Registration of the vehicle in which the value of the vehicle was mentioned as Rs.63,520/-. The date of registration is mentioned as 23.06.2010 and the year of manufacturing is 2010. The vehicle was stolen on 02.12.2011 i.e. near about one and half years, therefore, value of the vehicle mentioned as Rs.54,000/- was just and proper and the complainant himself admitted that IDV of the vehicle was Rs.54,000/-. The O.P./Insurance Company did not dispute the above facts, therefore, we hold that the Insured Declared Value of the vehicle was Rs.54,000/- at the time of the insurance. Learned District Forum accepted the Insured Declared Value of the vehicle as Rs.54,000/- and 75% of the said insured declared value was awarded i.e. Rs.40,500/- to the complainant on non-standard basis.
20. Therefore, the order passed by learned District Forum, does not suffer from any infirmity or illegality and does not call for any interference by this Commission. The appeals filed by the complainant as well as O.P./Insurance Company being devoid of any merit deserve to be and are hereby dismissed. No order as to the cost of these appeals.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/02/2014 /02/2014