State Consumer Disputes Redressal Commission
M/S. Reliance General Insurance Co. ... vs Md. Shamsur Alam on 27 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/354/2014 (Arisen out of Order Dated 21/01/2014 in Case No. Complaint Case No. CC/40/2011 of District Burdwan) 1. M/s. Reliance General Insurance Co. Ltd. 5th Floor, N.K.M International House, 178, Dackbay Reclamation, Babubhai Chinai Rd., Mumbai -400 020. ...........Appellant(s) Versus 1. Md. Shamsur Alam G.T. Road, Panagar Bazar, P.O. Panagar Bazar, P.S. Kanksa, Dist. Burdwan. 2. M/s Magma Fincrop Ltd. 24, Park Street, Kolkata - 700 016. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Debajit Dutta, Advocate For the Respondent: Mr. Abu Sayem, Mr. Partha Sarathi Das., Advocate Prasanta Banerjee., Advocate ORDER Dt. 27.03.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 21.01.2014 , passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan, in Case No. CC/40/2011, whereby the complaint was allowed on contest with direction upon the OP No.1, inter alia, to settle the claim of the Complainant upon receipt of documents and duplicate key of the stolen vehicle .
The Complainant's case, in brief, was as follows:
The Complainant owned a heavy goods vehicle bearing No. WB 41C -3528, which was hypothecated with M/s Magma Fincorp Ltd. and insured with M/s Reliance General Insurance Co. Ltd., being OP No.1. While the vehicle policy was valid, on 12.03.2010, at about 3 a.m. the vehicle was stolen from the side of the G.T. Road, Panagarh Bazar near Dharamsala, under P.S. Kanksa with all its documents. The driver and Khalasi of the vehicle were sleeping just by the site of the Tyre Shop owned by the Complainant. The matter was reported to O.C., Kansa P.S. on 12.03.2010 and FIR was lodged under No. 44/10 dated 12.03.2010 under Section 379 IPC. The police authority investigated the matter and submitted the Final Report under No.29/10 dated 17.06.2010. Immediately after occurrence of theft of the vehicle, the insurer, M/s Reliance General Insurance Company Ltd. was informed . Thereafter, the Complainant made a claim for compensation of the lost vehicle. RTO , Burdwan was requested to provide particulars of R.C. Book, C.F., Road Tax, etc. OP No.2 requested the Complainant vide their letter dated 16.12.2010 to submit the original vehicle documents , FIR , FRT , Purchase invoice of the stolen vehicle , subrogation indemnity etc. and the Complainant supplied the same to the OP No. 2. But the OP No.2 had not given any receipt for the same. The Complainant requested OP No.1 to make payment of the loss for the theft of the vehicle several times as OP No.2 had been demanding payment of instalments along with interest . Finding no other alternative, the Complainant filed the complaint case before the Ld. Forum below.
The complaint was contested by OPs. OP No.1 by filing W.V., denied all material allegations. It was submitted that the vehicle was used for commercial purpose and as such, the Complainant was not a consumer . It was also contended that there was violation of condition of the policy in so far as the key of the vehicle was left inside and the insured failed to take reasonable steps to safeguard the vehicle from loss. The Complainant did not furnish the documents or keys of the vehicle, though asked for vide their letter dated 10.06.2011. The complaint was not maintainable on such grounds.
Ld. Forum below, upon considering the question, as to - Whether there is any deficiency in service on the part of the OP by non-settling the claim of the Complainant?- observed that OP No.1 had neither repudiated nor settled the claim although the vehicle which was purchased through financier, that is, OP No.2, was stolen from the side of the G.T. Road, Panagarh Bazar. It was also observed that the duplicate key was not given to the OP No.1 and though the first key should have been kept with the custody of the driver , the driver did not collect the key from the ignition hole of the disputed vehicle. In the said circumstances, Ld. Forum below directed the OP No. 1 to settle the claim upon submission of necessary documents and duplicate key of the vehicle to the OP No.1 and the claim of OP No.2 was to be considered after settlement of the dues by the OP No.1.
Being aggrieved by and dissatisfied with the impugned order, the Appellant has come up before this Commission with a prayer for direction, inter alia, to set aside the impugned order.
Ld. Advocate appearing for the Appellant submitted that the Respondent/Complainant could not submit relevant documents to the OP/Appellant which are very much required for processing the claim of the Respondent. The original key of the vehicle is said to have been kept inside the vehicle cabin which leads to the inference that the vehicle was left unattended. This was a clear violation of condition No.5 of the policy which states that reasonable steps should be taken by the insured to safeguard the vehicle from loss or damage . Further, it was argued that direction of the Ld. Forum that on submission of the duplicate key along with documents, the claim shall be settled by OP No.1 is also erroneous in so far as by such submission of duplicate key , it could not be ensured that the vehicle was not otherwise disposed of by its owner under the plea of theft of the vehicle. Referring to the order of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 1896 of 2008, it was argued that failure to take care of the vehicle on the part of the Driver and Khalasi did not attract compensation from the Insurance Company. Ld. Advocate also referred to orders of the Hon'ble National Commission in Revision Petition No. 3045 and Revision Petition No. 650 of 2014 and submitted that it was the duty of the driver to produce the key before the Police to prove that the vehicle was locked and reasonable steps were taken by the Driver to safeguard the loss or damage of the vehicle. Such evidence could not be produced by the Complainant/Respondent. Ld. Advocate also stated that in case of total loss the due amount along with accrued interest thereon should be paid to the financier and the balance amount would be paid to the insured. The impugned order is bad in law and liable to be set aside.
Ld. Advocate appearing for the Complainant/Respondent submitted that the documents were inside the vehicle and after obtaining duplicate copies of the document from the office of the RTO they approached the Branch Office of the Insurance Company who refused to receive the said documents and the duplicate key of the vehicle. The Complainant / Respondent was directed to approach the Mumbai Office of the Insurance Company who also refused to receive the duplicate key and the documents with an ulterior motive to refuse to settle the claim of the Complainant/Respondent. In such circumstances, Ld. Forum was approached for consideration of the fact of refusal by the Insurance Company to receive the duplicate copies of documents and the duplicate key. Upon hearing the matter, Ld. Forum below passed an order dated 04.08.2014 extending the period of one month for submission of documents but nothing happened towards settlement of the insurance claim. The OP Insurance Company has been intentionally withholding the claim of the insured for which they should be directed further to settle the claim immediately as the Complainant has complied with all directions of the Ld. Forum below.
Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint , the written statement submitted by the OP Insurance Company before the Ld. Forum below , the policy papers , the FIR vide No. 44/10 dated 12.03.2010 filed under Section 379 of IPC, the FRT filed on 17.06.2010 and the investigation report submitted by the Investigator among other documents.
While there is no dispute that the vehicle of the Complainant/Respondent was insured with the Appellant being the Insurance Company, the fact goes that the Insurance Company did not settle the claim of the Respondent / Complainant arising out of alleged theft of the vehicle on the night of 11.03.2010 / 12.03.2010 at about 3 a.m. The reason for non-settlement of the claim has been attributed to the negligence on the part of the Respondent /Complainant to file necessary documents before the Insurance Company . The claim being filed, the Respondent Complainant was asked to submit some documents and 'both keys' of the vehicle. The Complainant stated vide Paragraph -7 of the complaint petition that he had supplied such documents to OP No.2 though the said OP No.2 had not given any receipt for the same.
The main contention of the Insurance Company as noted in their written version filed before the Ld. Forum below is that key of the vehicle was left inside the vehicle and the same was in gross violation of policy condition which reads as follows:
"The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition...." Such contention of the Appellant is supported by the report of the Investigator appointed by the Insurance Company which goes as follows:
"As per information received from the insured vehicle owner one key of the insured vehicle lost somewhere.
And 2nd key of the insured vehicle was inside the insured vehicle at the time of insured vehicle stolen by the unknown thief."
Ld. Forum below in their impugned order expressly stated that they failed to understand why the duplicate key has not yet been given to OP No.1. Moreover, at the time of parking the vehicle the first key should have been kept in the custody of the driver. But driver and khalasi of the vehicle were sleeping (according to the Complainant) by the side of the tyre shop of the Complainant. If that be so, why the driver did not collect the key from the ignition hole of the disputed vehicle. It is on this point that Ld. Advocate appearing for the Appellant Insurance Company referred to the decision of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 1896 of 2008 that failure to take reasonable care to safeguard the vehicle from loss or damage amounted to violation of terms and conditions of the policy and the claimant was not to be paid compensation. Further, in case the Truck was locked, its key was not produced either before the police or before the Investigator. The driver should have been more careful about the safe custody of the ignition key as well as the key of the cabin lock, in case, the cabin door was locked from outside. There is breach of condition which can hardly be ignored for the purpose of settlement of a claim arising out of alleged theft. The Complainant / Respondent does not appear to have come to the Consumer Forum in clean hands.
It is difficult to appreciate how the duplicate key could be claimed to have been offered to OP Insurance Company in compliance with the order of the Ld. Forum below, since as per investigation report, one key was lost somewhere and the other key was kept in the ignition hole of the vehicle which allegedly was stolen.
In the context of the above noted discussion, we are inclined to hold that the Appellant has established his case with such arguments and case laws as can not be wished away. In the result, the appeal succeeds. Hence, Ordered that the appeal be and the same is allowed on contest . The impugned order is set aside and the complaint stands dismissed. There shall be no order as to costs. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER