State Consumer Disputes Redressal Commission
B.M , National Insurance Co.Ltd vs Manish Jain on 23 April, 2024
Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of
FA/24/61 & &. Pronouncement:
FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
APPEAL No.- FA/24/61
Date of Institution: 31/01/2024
Date of Final Hearing: 15/04/2024
Date of Pronouncement: 23/04/2024
IN THE MATTER OF :
Manish Jain S/o. Shri Shantilal Jain,
R/o. Kailash Nagar,
Dist. RAJNANDGAON (CG.) ... Appellant.
Through: In person
Vs.
Branch Manager, National Insurance Co. Ltd.,
Divisional Office: 2nd Floor, Hall 1B,
Commercial Complex, New Bus Stand, Rajnandgaon,
Dist. RAJNANDGAON (C.G.) ... Respondent
Through: Shri Deepesh Kumar Thawait, Advocate
APPEAL No.- FA/24/139
Date of Institution: 07/03/2024
Date of Final Hearing: 15/04/2024
Date of Pronouncement: 23/04/2024
IN THE MATTER OF :
Branch Manager, National Insurance Co. Ltd.,
Divisional Office: 2nd Floor, Hall 1B,
Commercial Complex, New Bus Stand, Rajnandgaon,
Dist. RAJNANDGAON (C.G.)
Through: National Insurance Co. Ltd.,
Regional Office: 2nd Floor, Mobin Mahal, G.E. Road, Raipur,
Dist. RAIPUR (C.G.) 492 001 ... Appellant.
Through: Shri Deepesh Kumar Thawait, Advocate
Vs.
Manish Jain S/o. Shri Shantilal Jain,
R/o. Kailash Nagar, Rajnandgaon,
Tah. & Dist. RAJNANDGAON (CG.) ... Respondent.
Through: In person
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT IN BOTH APPEALS: -
Shri Manish Jain - in person.
Shri Deepesh Kumar Thawait, Advocate for National Insurance Co. Ltd.
O R DE R PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This order will govern disposal of Appeal Nos.FA/24/61 & FA/24/139 as both these appeals, under section 41 of the Consumer Protection Act, 2019 (hereinafter called "the Act" for short) filed by the Both appeals dismissed. Page 1 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement:
FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024 complainant and the opposite party respectively of Complaint Case No.CC/2020/132, have arisen out of the same impugned order dated 01.12.2023 passed by District Consumer Disputes Redressal Commission, Rajnandgaon (C.G.) (hereinafter called the "District Commission" for short) whereby the complaint was partly allowed and the opposite party was directed to pay compensation of Rs.17,39,000/- (Seventeen Lacs Thirty Nine Thousand) as net payable on salvage loss basis assessed by the surveyor. Compensation for mental agony Rs.50,000/- (Fifty Thousand) along with cost of litigation Rs.3,000/- (Three Thousand) were also directed to be paid by the opposite party to the complainant. Interest on the above amount was directed to be paid @ 6% p.a. from the date of complaint 07.09.2020. The above entire amount was directed to be paid within 60 days failing which the interest was directed to be paid @ 9% p.a. from the date of complaint. Hereinafter, in this order, for the purpose of convenience, the parties will be referred as per their original nomenclature before the District Commission.
2. In nutshell the facts of the case are that the complainant is the registered owner of Ajax Fiori vehicle bearing registration No.CG-08-P-
8149, which was got insured from the opposite party for the period between 22.12.2019 to 21.12.2020. During subsistence of that policy on 17.04.2020 at 04:00 pm the vehicle was set on fire by naxalites. Intimation was given to the opposite party. They appointed a surveyor who visited the site and surveyed the vehicle. Crime against 07 naxalites was registered by the police. At the time of incident Yogesh Kumar was driving the vehicle and Ishwar Prasad was in the vehicle as a helper but in the FIR Kaushal Nishad, who was working under the contractor of that site told that Ishwar Prasad was driving the vehicle at the time of incident.
Both appeals dismissed. Page 2 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement: FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024
The opposite party told the complainant that name of the driver was different, then the complainant clarified that there was no dispute regarding the driver of the vehicle as the vehicle was set on fire while it was stationary but even then claim was kept pending for want of khatma report of the police. The complainant requested for payment of claim amount but evasive replies were given on different terms but the claim was not settled which amounted to deficiency in service. Advocate notice was sent for payment of insured sum and compensation for mental agony but neither any amount was paid nor the notice was replied, hence complaint was filed before the District Commission seeking direction for payment of IDV of the vehicle Rs.22,00,000/- (Twenty Two Lacs) and compensation for mental agony Rs.1,00,000/- (One Lac) along with interest and cost of litigation.
3. The opposite party in its written version except the specifically admitted facts denied all the adverse allegations leveled against them and averred that the person who reported to the police clearly stated that Ishwar Prasad was the driver of the vehicle. The investigating officer recorded statement of Ishwar Vishwakarma S/o. Darkheram Vishwakarma R/o. Vill. Kotera, P.S. Daundilohara, Dist. Balod, from which it clearly appears that Ishwar Vishwakarma and Yogendra Kumar are two different persons, but the complainant to get benefit of insurance claim tried to show Yogendra Kumar Dewangan as driver of the vehicle, whereas as per the record Ishwar Vishwakarma S/o. Darkheram Vishwakarma was driving the vehicle on the date of incident, but he was not having a valid and effective driving license. It was further averred that claim of the complainant has not been decided yet, but realizing that terms and conditions of the policy have been breached the present Both appeals dismissed. Page 3 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement:
FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024 complaint has been filed which is premature and is not maintainable. It was specifically denied that the vehicle was set on fire when it was stationary in fact the vehicle was being driven by Ishwar Vishwakarma, the naxalites stopped the vehicle and set the same on fire. On the above defence it was prayed that the complaint being imaginary and baseless dismissed with cost of Rs.10,000/- payable by the complainant to the opposite party.
4. Learned District Commission in the impugned order arrived at the conclusion that the vehicle was set on fire while it was stationary hence the fact that driver was not possessing valid and effective licence has no nexus with the incident of loss and held the opposite party liable for payment of compensation of net payable amount assessed by the surveyor on salvage loss basis. Learned District Commission partly allowed the complaint with the directions as aforesaid in paragraph No.1.
5. We have heard arguments advanced by the complainant as well as learned counsel for the opposite party and perused the record. We have also gone through the written arguments submitted by both parties.
6. The complainant reiterating his pleadings before the District Commission has argued that as the vehicle was set on fire causing total loss and as per report of the surveyor also it was a case of total loss who assessed the loss on total loss basis at Rs.21,89,000/-. The wreck value was assessed at Rs.4,50,000/- and net payable amount on salvage loss basis at Rs.17,39,000/- but the learned District Commission ought to have seen that wreck value was offered to the insurance company between Rs.50,000/- to Rs.90,000/-. Hence he is entitled to full IDV of the insured vehicle Rs.22,00,000/- and learned District Commission has erred in not allowing payment of IDV of the insured vehicle.
Both appeals dismissed. Page 4 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement: FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024
7. Learned counsel for the opposite party has also reiterating its defence taken before the District Commission argued that even if it is proved that the vehicle was stationary at the time of incident, yet as per terms and conditions of the policy it was mandatory that driver of the vehicle possesses a valid and effective driving licence but such condition was overlooked by the learned District Commission while passing the impugned order. The insurance claim was submitted belatedly and intimation of incident was also not given within time. It is further argued that at the time of the incident, Yogendra, a different person, was said to be driving the vehicle instead of the actual driver of the vehicle. District Commission also in paragraph No.11 of the impugned order has mentioned that Ishwar and Yogendra are not names of same person thus the complainant did not approach the District Commission with clean hands hence the impugned order be set aside allowing this appeal and complaint of the complainant be dismissed.
8. We have considered the above arguments advanced by both parties. The opposite party insurance company has mainly taken objection of breach of policy condition on the ground that actual driver of the insured vehicle was not having valid and effective driving licence. It is also contended that in fact the name of driver was changed by the complainant. In the FIR it was mentioned that Ishwar was driving the vehicle whereas later on Yogendra was named as driver of the vehicle just because Ishwar did not possess a valid and effective driving license. Learned District Commission while arriving to its conclusion in the impugned order has relied upon copy of FIR, Exhibit C-5 in which a third person Kaushal Kumar reported that while the insured vehicle was being driven by Ishwar, 06-07 naxalites came and stopped the vehicle, asked Both appeals dismissed. Page 5 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement:
FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024 whereabouts of the contractor and thereafter set the vehicle on fire. That was the first story narrated by an uninterested person to the police about the incident of loss in which he clearly stated that the vehicle was stopped by the naxalites and thereafter set on fire which means the vehicle was stationary while it was set on fire. Obviously in such incident of setting the insured vehicle on fire when it was stationary the driving license of the driver was not having any nexus, which has rightly been held by the learned District Commission and calls for no interference.
9. So far as the question of delayed intimation is concerned as per the FIR the incident occurred at 4:30 pm on 17.04.2020 and at 9:30 am on the next date 18.04.2020 the incident was reported to the police. In this regard Hon'ble Apex Court in Trilok Singh Vs. Manager, Cholamandalam MS General Insurance Co. Ltd. & Ors., Civil Appeal No.4530 of 2023 , order dated 18.07.2023 in paragraph No.16 held that : -
"16) In view of the judgment of "Gurshinder Singh v. Shriram General Insurance Co. Ltd. 7" (supra), our analysis to condition no.
1 fortifies the necessity of immediate action to the police in case of the theft of the vehicle. If immediately, action is taken informing the police and some delay is caused to submit the insurance claim, it cannot be repudiated on the ground of belated information to insurance company indicating violation of condition no. 1 of the policy. In our view, the District Forum has rightly appreciated the issue and held that repudiation of claim was not justified. The NCDRC and the State Commission committed an error to set-aside the order of the District Forum. The NCDRC was also not justified in confirming the order of the State Commission and wrongly applied the ratio of the judgment of the "Om Prakash8" (supra), that too without due appreciation of the second part of the condition no. 1 which applies in the case of theft".
In Ashok Kumar Vs. New India Assurance Co. Ltd., Civil Appeal No.4758 of 2023, order dated 31.07.2023 also the Hon'ble Apex Court was of the same view. The Insurance Regulatory and Development Authority (IRDA) vide its Circular No. IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 issued guidelines to the insurance companies and vide Circular No.IRDA/NL/CIR/MISC/149/06/2017, Dt. 28.06.2017 again Both appeals dismissed. Page 6 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement:
FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024 advised to ensure compliance with the said circular scrupulously. In the said circular it was also mentioned that circular dated 20.09.2011 was made binding upon the insurers by the Authority by further issuance of directions under section 34(1) of the Insurance Act, 1938, dated 28.10.2016, vide circular No.IRDA/ NL/MISC/CIR/214/10/2016. The circular dated 20.09.2011 has guidelines to the insurers as under : -
"The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good sprit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation."
In the facts of the present case the insurance company has taken this defence that intimation to the insurance company was not given immediately but it is not in dispute that intimation to the police was given immediately. Hence this ground of the insurance company also has no substance.
10. So far as quantum of award is concerned a duly IRDA licensed surveyor has assessed the net payable amount on salvage loss basis at Rs.17,39,000/- after considering all possible enquiries from local buyers and quotations received, which was enclosed with his report also, appears to be just and proper. Learned District Commission on the basis of said report has awarded compensation of Rs.17,39,000/- (Seventeen Lacs Thirty Nine Thousand) on salvage loss basis along with compensation for mental agony and cost of litigation which appears to be justified in the facts and circumstances of the case and does not call for any interference. We do not find any error in the impugned order passed by the District Commission and there appears no reason to interfere with the impugned order.
Both appeals dismissed. Page 7 of 8 Appeal Nos.: Manish Jain Vs. Branch Manager, National Insurance Co. Ltd. Date of FA/24/61 & &. Pronouncement: FA/24/139 Branch Manager, National Insurance Co. Ltd. Vs. Manish Jain 23/04/2024
12. Accordingly, with the foregoing discussion, we do not find any substance in both these appeals hence the same are dismissed. The impugned order is affirmed. Parties are left to bear their own cost. Original of this order be kept in the record of Appeal No.FA/24/61 and a certified copy thereof be placed in the record of Appeal No.FA/24/139.
(Justice Gautam Chourdiya) (Pramod Kumar Varma)
President Member
/04/2024 /04/2024
Pronounced On: 23rd April 2024
Both appeals dismissed. Page 8 of 8