State Consumer Disputes Redressal Commission
The Oriental Ins. Co Ltd vs Paresh A Gandhi on 12 September, 2023
Details DD MM YY
Date of disposal 12 09 2023
Date of filing 09 05 2016
Duration 03 04 07
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
APPEAL NO. 529 of 2016
The Oriental Insurance Company Ltd.
1st Floor, Dvyajyoti Complex,
Ramkaka Road, Chani,
Vadodara ...Appellant
V.s
Paresh Ambalal Gandhi
Res: Nani Kachiyavad,
Chani, Vadodara. ...Respondent
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BEFORE: Mr. I. D. Patel, Judicial Member
Ms. A. C. Raval, Member
APPERANCE: Mr. R. P. Raval, Ld. Adv. for the appellant,
Mr. A. N. Patel, Ld. Adv. for the respondent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The appellant/original complainant has preferred this fist appeal as per the provision of Section 15 of the Consumer Protection Act, 1986 against the impugned order passed by the Ld. District Consumer Disputes Redressal Commission, Vadodara (Additional) (for short Ld. District Commission) in complaint no.236/2010 dated 12/01/2016 on the grounds stated in the appeal memo. The appellant is the original opponent whereas the respondents are original complainant. Therefore, for the sake of convenience parties are referred to by their original nomenclature/status.
2. That it is the case of the complainant that the complainant was the owner of the tanker bearing registration no. GJ-6-X-8383 and complainant had taken the insurance policy of the said vehicle from the opponent insurance company of sum assured of Rs.8,00,000/-.
Akshay A/529/2016 Page 1 of 11It is further the case of the complainant that as on 19.02.2003, a vehicle in question was parked in the office of the complainant situated at Parimal Complex Ranoli, Baroda and in the next morning i.e. on 20.02.2003, driver and cleaner of the truck in question did not find the vehicle in the parking area therefore, they had inquire about the vehicle but they did not find. Therefore, they have informed the complainant about the incident. It is further the case of the complainant that thereafter complainant also search about the vehicle but he did not find the vehicle in question therefore, he approached the Jawahar Nagar police station for lodging the complaint but police refused to register his complaint therefore, the complainant filed the private complaint before the Ld. JMFC and thereafter, the complainant lodged the claim with the insurance company by filing claim form as on 26.02.2003 and ultimately insurance company while letter dated 23.02.2010 repudiated the claim of the complainant. Therefore, the complainant filed the complaint against the appellant insurance company in the court of Consumer Dispute Redressal Forum, Vadodara (Additional).
3. That the opponent insurance company has appeared before the Ld. District Forum and filed the written statement against the complaint wherein they have denied all the facts stated in the complaint more particularly, the incident of the theft of the vehicle in question. Furthermore, insurance company has also specifically raised defence that complainant/insured has informed the insurance company about the incident after 1 month and for that the complainant had not offered the reasonable explanation. Furthermore, the insurance company has also contended that the police has also submitted the report before the Ld. JMFC Court and on the basis of the said report, Ld. JMFC dismissed the complaint filed by the complainant therefore, the complainant had miserably to prove about the factum of theft of his vehicle therefore, the insurance company has rightly repudiated the claim of the Akshay A/529/2016 Page 2 of 11 complainant. Furthermore, the insurance company has also contended that the complaint is filed after the period of 7 years from the date of incident in question and complainant has not filed any separate delay condonation application and therefore, the complaint filed by the complainant is time barred and therefore, the same is not maintainable.
4. After hearing the Ld. Adv. for the parties and after the perusing the material, Ld. Consumer Dispute Redressal Forum, Vadodara (Additional) is pleased to allow the complaint and directed the insurance company to pay Rs.6,50,000/- with 9% interest to the complainant from the date of 25.02.2003. Being aggrieved with the said order of the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional), appellant/original opponent insurance company has filed the appeal on the grounds stated in the appeal.
5. I have heard the Ld. Adv. Mr. R. P. Raval on behalf of the appellant insurance company and Ld. Adv. Mr. A. N. Patel on behalf of the respondent/original complainant.
6. That the Ld. Adv. Shree R. P. Raval has submitted the impugned order passed by the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional) in consumer complaint no.236/2010 dated 12.01.2016 is not just and proper and the grounds assigned by the Ld. Forum for allowing the complaint of the complainant against the insurance company are also not based on the material on record. That the Ld. Adv. of the insurance company has also submitted that though the complaint is time barred and filed after the 7 years from the date of alleged incident by the complainant, the same is not rightly considered by the Ld. Forum. Furthermore, the Ld. Forum has also submitted that in fact the insurance company has closed the file of the complainant as on 27.01.2006 therefore the cause of action arise for filing of the complaint before the Ld. Forum under the Consumer Protection Act is within the period 2 years from the date of 27.01.2006 but the complainant filed the complaint in the year 2010 and waited for the decision of Akshay A/529/2016 Page 3 of 11 reopening of the case by the insurance company up to 2010 which is not just and proper. So as per the submission of Ld. Adv. of the insurance company, the complaint itself is time barred and therefore the complainant is not entitled to get any amount of compensation from the insurance company as awarded by the Ld. Forum. He has also placed reliance upon the decision of the Hon'ble National Commission in National Flask Industries Ltd. V/s Dakshin Gujarat Vij Co. Ltd. reported in IV (2015) CPJ 566.
7. Furthermore, Ld. Adv. Shree R. P. Raval has also submitted that the complainant has also miserably failed to prove the theft of the vehicle in question by leading any convincing evidence before the Ld. Forum and therefore, also the insurance company has rightly repudiated the claim of the complainant. Furthermore, Ld. Adv. of the insurance company has also submitted that the Ld. Forum placed reliance upon the opinion of the Panel advocate of the insurance company for the happening of the incident of the theft but as per the submission of the Ld. Adv. Shree R. P. Raval, the opinion of the Ld. Adv. of the insurance company is not the material for the proof of the incident of the theft. Therefore, the impugned order passed by the Ld. Forum against the insurance company is not just and proper and it requires to be quashed and set aside in this appeal. He has also submitted that the incident in question took place in 2003 but the complaint is filed in the year of 2010. However, the Ld. Forum has awarded the interest from the 25/02/2003 instead of from the date of filing of the complaint and therefore, order of the Ld. Forum is not just and proper, which requires to be quashed and modified in this appeal and accordingly he has urged to allow the appeal filed by the insurance company.
8. Per contra Ld. Adv. Shree A. N. Patel on behalf of the respondent/original complainant submitted that the impugned order passed by the Ld. Forum is just and proper. He has also submitted that the Ld. Forum has rightly allowed the complaint filed by the complainant and rightly considered that there was no Akshay A/529/2016 Page 4 of 11 any delay in filing of the complaint as alleged by the insurance company. He has also submitted that in fact as on 27/01/2006 insurance company had issued final notice and asked certain documents from the insurance company and thereafter there were numerous correspondence between the complainant and insurance company for settlement of the claim and demand of various document and ultimately vide letter dated 23.02.2010 page 89 insurance company has closed the file of the complainant's claim. So the actual cause of action for filing complaint had arisen on 23.02.2010 and thereafter in the month April, 2010, the complainant filed the complaint before the Ld. District Forum. So there is no any delay in filing of the complaint and therefore, the Ld. District Forum has rightly rejected the contention of the insurance company that the complaint is time barred. Furthermore, Ld. Adv. A. N. Patel has also submitted that as per the evidence produced by the complainant before the Ld. Forum, the complainant had immediately approached the Jawahar Nagar Police Station for lodgement of the complaint of theft but since the police refused to register the complaint, the complainant has immediately within a few days lodged the private complaint before the Ld. JMFC Court and Ld. JMFC Court sent the said complaint for investigation of police as per the Section 202 of the CrPC and in turn police submitted the report before the Magistrate that the driver and the cleaner against whom complainant lodged the complaint are not involved in the incident and therefore, the Ld. JMFC dismissed the complaint of the complainant but looking to the facts of the complaint as well as investigator report of the insurance company, the vehicle was stolen from the parking area of the office of the complainant therefore, because Ld. JMFC dismissed the complaint filed against the driver and cleaner of the complainant cannot be said that the complainant had miserably failed to prove the factum of the incident of the theft of the vehicle and complainant had immediately thereafter informed the insurance company also on Akshay A/529/2016 Page 5 of 11 26.03.2003 by filing the claim form. So there was no any delay on the part of the complainant to inform the insurance company as well as police about the factum of the theft. So as per the submission of Ld. Adv. Shree A. N. Patel, the insurance company has wrongly repudiated the claim of the complainant and he has also placed reliance upon the decision of the Hon'ble Apex Court in Om Prakash V/s Reliance General Insurance Company Ltd. Reported in 2017 lawsuit (Supreme Court) 1017 and submitted the appeal filed the insurance company is devoid of merits and therefore, the same may be dismissed with cost.
9. We have considered the argument advanced by the Ld. Adv. of the parties and We have gone through the impugned order passed by the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional) as well as documentary evidence produced by the Ld. Adv. of the parties before the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional). It is an admitted fact that the vehicle in question was stolen on 19.02.2013 and 20.02.2003 from the office of the complainant situated at Parimal Complex Ranoli. That it is also an admitted fact that thereafter complainant approached the Jawahar Nagar Police Station for lodging the complaint of the theft of the vehicle but police refused to register the complaint and therefore, the complainant filed the private complaint before the Ld. JMFC Court on 27.02.2003 and the Ld. JMFC sent the said complaint to the Jawahar Nagar Police Station for investigation under Section 202 of CrPC and thereafter on 26.03.2003, complainant filed the claim form before the insurance company and thereby informed the insurance company about the occurrence of theft of vehicle. That vide letter dated 27.01.2006 the insurance company had given final notice to the complainant/insured and asked certain documents including final report of the police within a period of 15 days. So the vide letter dated 27.01.2006 the insurance company has not finally rejected the claim of the complainant. It is also further transpired from the record that Akshay A/529/2016 Page 6 of 11 thereafter there were numerous correspondence between the complainant, Advocate of the complainant and insurance company regarding the settlement of the complainant's claim as well as asking certain documents from the complainant more particularly final report of the police submitted before the Ld. JMFC. Even on the perusal of the letter dated 01.05.2007 of the insurance company between the Branch Manager and Divisional Manager of the insurance company. The Branch Manager informed the Divisional Manager to settle the case of the complainant and return the file to the Divisional Office. Even vide letter dated 08.02.2008, the panel Advocate of the insurance company V. D. Patel has also submitted legal opinion to the Branch Manager, Oriental Insurance Company Ltd. So on perusal of the said various communication between the complainant and insurance company and internal communication between the various office of the insurance company, it appears that the insurance company had not finally repudiated the claim of the complainant on 27.01.2006 but the insurance company has finally repudiated the claim or closed the file of the claim of the complainant as on 23.02.2010 and thereafter the complainant had filed the complaint in the month of April, 2010. So according to our view, there was no delay in filing the complaint by the complainant and the complainant had filed the complaint within the period of 2 years before the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional). That the Ld. Adv. of the insurance company has placed reliance upon the decision of the Hon'ble national Commission in National Flask Industry V/s Dakshin Gujarat Vij Company Ltd. Reported in IV (2018) CPJ 566 but looking to the special facts of this case that after 27.01.2006, there were various communication between insurance company and complainant regarding the reopening of the case of the complainant and asking certain documents from the complainant and ultimately vide letter dated 23.02.2010 insurance company closed the file of the complainant then it cannot be said that the Akshay A/529/2016 Page 7 of 11 complaint filed by the complainant is time barred and therefore in this case, looking to the facts of the case, judgment cited by the Ld. Adv. of the insurance company is not applicable to decide that the complaint filed by the complainant is time barred. So according to our view, the complaint filed by the complainant is within the period of limitation and therefore, the Ld. Forum rightly rejected the contention raised by the insurance company that the complaint is time barred.
10. So far as the merits of the case is concerned, vide letter dated 23.02.2010 insurance company has closed the file of the complainant on three grounds. The first ground mentioned by the insurance company is that the complainant has not immediately informed the incident of theft to the police as well as insurance company and not lodged the FIR but the said ground of the insurance company is not legal and valid because as per the material on record and more particularly report of the insurance company's investigator Mr. Ramesh K. Raval dated 04.03.2004 after happening of the incident in question, the complainant immediately approached to the Jawahar Nagar Police for lodging of the complaint of the theft but the police did not registered his complaint and therefore, the complainant filed the complaint before the Ld. JMFC against the driver and cleaner of the vehicle in question and that complaint was forwarded to the police for investigation under Section 202 of CrPC. That the second ground cited by the insurance company for no claim of the complainant is that in the claim form, complainant mentioned the date of theft as on 19.03.2003 but in the court proceeding and other document, the complainant mentioned the date of theft 19-20/02/2003 and thereby, the complainant suppressed the material facts of theft but we do not find the said grounds is also valid and legal because as per the material on record and more particularly report of the investigator of the insurance company, the vehicle was parked during the night time of 19.02.2023 near the office of the Akshay A/529/2016 Page 8 of 11 complainant and thereafter in the morning of 20.02.2023 the driver and cleaner of the vehicle in question did not find vehicle in the parking place. So the incident in question took place between the night of 19th February, 2003 and morning of 20th February, 2003. So there cannot be any suppression of material fact by the complainant as stated by the insurance company. That the third ground cited by the insurance company for closing the file of the complainant is that the complainant unnecessarily lodged the private complaint against the driver and cleaner and the court has dismissed the private complaint against the driver and cleaner which do not proves that the insured vehicle was stolen but the said ground assigned by the insurance company is also not valid and legal and against the material evidence of record because the complainant has filed the complaint against the driver and cleaner of the theft of the vehicle in question because the driver and cleaner flew away next day and therefore, the complainant had suspicion against the driver and cleaner and hence, he had filed the complaint against the driver and cleaner before the Ld. JMFC but on the report of the police regarding the non-involvement of the driver and cleaner in the theft in question, the Ld. JMFC dismissed the complaint under Section 203 of CrPC but that does not mean that the incident had not taken placed regarding theft of the vehicle. On the contrary insurance company's surveyor's report page 184-186 categorically indicates that the vehicle of the complainant was stolen from the place in question and therefore, according to my opinion the complainant has categorically established the factum of the theft of the vehicle in question before the Ld. Forum and he has not fabricated any incident in question. Not only that even looking to the report of the insurance company's investigator Mr. Ramesh K. Raval, the case of the complainant is very genuine and therefore, as the case of the complainant is very genuine and insurance company had not repudiated the claim on the ground that case of the complainant was not genuine then as Akshay A/529/2016 Page 9 of 11 per the decision of the Hon'ble Apex Court in Jaina Construction Company V/s Oriental Insurance Company Ltd. Reported in I (2020) CPJ 119, when the insurance company has not repudiated the claim on the ground that it was not genuine and the complainant had lodged the complaint about the incident immediately then it cannot be said that the vehicle was not stolen as stated by the insurance company. Therefore, according to our opinion all the three grounds assigned by insurance company in the letter dated 23.02.2010 for closing the claim or file of the complainant are not genuine and therefore, according to our view, the reason assigned by the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional) for allowing the complaint of the complainant are just and proper and the same are not erroneous and perverse.
11. That when the complainant is entitled to get the compensation from the opponent insurance company for the stolen of the vehicle in question from the opponent insurance company then how much amount the complainant is entitled from the opponent insurance company is to be decided by the Appellate Court also. That the Ld. Consumer Dispute Redressal Forum, Vadodara (Additional) has placed reliance upon the report of the surveyor namely M Sharma and Company dated 08.03.2004 for awarding Rs.6,50,000/- for compensation to the complainant from the insurance company. So according to our view, the Ld. Forum has rightly awarded Rs.6,50,000/- on the basis of the report of the surveyor M Sharma and Company to the complainant for the loss of his vehicle in question but it appears that Ld. Forum has awarded interest at the rate of 9% from 25.02.2003 to the complainant but according to our view the same is not just and proper and in fact complainant is entitled to get the interest on Rs.6,50,000/- from the date of the complaint filed by the complainant and therefore, the said order of the date of awarding the interest is required to be modified in the final order of this appeal and accordingly, the appeal filed by the Akshay A/529/2016 Page 10 of 11 insurance company is deserves to be partly allowed in the terms of the following final order.
ORDER
1. Appeal no.529/2016 filed by the appellant insurance company is hereby partly allowed qua date of interest i.e. 25.02.2003.
2. Impugned order passed by the Ld. District Forum, Vadodara (Additional) dated 12.01.2016 in Consumer Complaint no.236/2010 qua date of award of interest i.e. 25.02.2003 is hereby modified and appellant insurance company is hereby directed to pay Rs.6,50,000/- with interest at the rate of 9% from the date of the complaint to the complainant and the rest of the order passed by the Ld. District Forum, Vadodara (Additional) is hereby confirmed.
3. No order as to costs.
4. Registry is directed to verify the amount deposited by the applicant in appeal no.529/2016 and in MA no. 209/16 and if found deposited, refund the same with interest, if any, accrued there on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to Ld. District Forum, Vadodara (Additional) for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 12th September, 2023.
[A. C. Raval] [I. D. Patel]
Member Judicial Member.
Akshay A/529/2016 Page 11 of 11