National Consumer Disputes Redressal
M/S. Patesaria Brothers vs Branch Manager, National Insurance Co. ... on 15 March, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1070 OF 2018 (Against the Order dated 17/11/2017 in Appeal No. 432/2015 of the State Commission West Bengal) 1. M/S. PATESARIA BROTHERS P.N. MALIA ROAD, P.O. AND P.S. RANIGANJ, DISTRICT-BURDWAN WEST BENGAL-713347 ...........Petitioner(s) Versus 1. BRANCH MANAGER, NATIONAL INSURANCE CO. LTD. & ANR. 29A, N.S.B. ROAD, RANIGANJ, BURDWAN WEST BENGAL-713383 2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. PO ASANOL, DISTRICT-BURDWAN WEST BENGAL-713383 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. Amit Kumar, Advocate For the Respondent : Mr. Kapil Chawla, Advocate Dated : 15 Mar 2019 ORDER MRS. M. SHREESHA, MEMBER Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 17.11.2017 passed by the West Bengal State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 432/2015. By the impugned order, the State Commission has dismissed the Appeal concurring with the finding of the District Consumer Disputes Redressal Forum, Muchipara, Burdwan (in short "the District Forum").
2. The facts, in a nutshell are that the Complainants got their Truck insured with the Insurance Company for an amount of ₹7,20,000/-, covering the period from 10.12.2010 to 09.12.2011. While so, while returning from Agra, Gheror, the Driver parked the Truck on the roadside Dhaba near Tundla Faizabad, Uttar Pradesh for refreshment and when he went to attend the natures call and the Khalasi was trying to sleep in the said Dhaba, the Truck was stolen. A Complaint was lodged with the Tundla Police Station, and the Insurance Company was also informed on 29.12.2010. The Regional Transport Authority, Asansol was informed on 11.01.2011. The Insurance Company appointed a Surveyor and the Complainant had submitted all the required documents except the ignition key in original as it was in possession of the Driver whose whereabouts after he left for his new job at a different place was unknown to the Complainant. However, the Complainant managed to collect the duplicate key from the financer and handed over the same to the Insurance Company but the claim was repudiated on the ground that the ignition key in original, was left by the Driver in the cabin of the stolen Truck. Two Writ Petitions No. 10212 (W) of 2013 and 20876 (W) of 2013 were preferred against the said repudiation by the Complainant before the Hon'ble High Court of Calcutta. The first Writ Petition was disposed of with the direction to the Insurance Company to dispose of their grievance after giving the Complainant a personal hearing as the directions was carried out in a slipshod manner. The Complainant preferred the second Writ Petition, which was disposed of by direction to approach the appropriate Forum. Hence the Complaint seeking the following reliefs:
"(a) directions upon the Opposite Parties to pay a sum of Rs.7,20,000/- (Rupees Seven lacs Twenty thousand) being the insured value of the stolen Truck with lawful interest thereon and as per Schedule given hereunder to your petitioner.
(b) Any other relief or reliefs which your honour may deem fit and proper.
SCHEDULE Insured Value of the Truck ........ Rs. 7,20,000-00 P. Legal expenses ......... Rs. 15,000-00P.
Total ......... Rs. 7,35,000-.00P."
3. The Insurance Company filed its Written Version stating that immediately on receipt of intimation of the alleged theft, on 29.12.2010, they requested the Complainant to provide the necessary documents in original viz., Original RC book, Original tax receipt, Driving License, Driver's Statement and local statements, purchasing cash memo in original, insurance policy in original, original key of the vehicle, form no. 29, 30 from RTA, original FIR and final police report within a period of three days. Thereafter, on 04.01.2011 the Petitioner submitted the xerox copy of Insurance, R.C. Book, Permit, Tax and Driving License and copy of F.I.R. In the meantime Insurance Company appointed Investigator Mr. Avinash Kant Tripathi to look into the matter of alleged theft. It was averred that the Investigator in his report stated that the subject truck left Gheror at about 4 am and reached Usmanipur crossing and parked bit ahead of the crossing. It was stated that the Driver Mr. Gulab Singh and the Khalasi went to the Dhaba for having tea and thereafter the driver went to attend the natures call, while the Khalasi slept for a while on a cot adjacent to the Dhaba. After sometime when they returned to the parking area, the truck was not available. The mobile sets of the Driver and the Khalasi, which was inside the truck was also stolen.
4. It was averred in the Written Version that in the FIR nowhere it was mentioned that all the documents, ignition key, mobile phone etc. were kept in the cabin under unlocked condition. It was pleaded that despite repeated enquiries, the driver Mr. Gulab Singh did not respond and did not provide any information to the Investigator. After repeated requests to the Complainant the to provide RC book in original, the permit in original, the tax token and the original set of key in the duplicate. The Complainant vide letter dated 08.06.2012 stated that all the aforementioned documents demanded by the Insurance Company were inside the vehicle, which was stolen along with original set of keys. Since one key was in the vehicle and the other was with the financer, the Complainant submitted that the original key was inside the vehicle and on 25.10.2012, the Complainant furnished the duplicate key by collecting the same from the financer. The Insurance Company repudiated the claim vide letter dated 09.01.2013 on the ground that they are not liable to pay the claim when the Driver left the ignition key in the vehicle, which was subsequently stolen and the repudiation was based on the judgement of the dated 02.04.2012 in the case of Devinder Kumar Vs. National Insurance Co. Ltd. in RP No. 3840 of 2011. It was stated that the claim file was closed. It was further averred that the Writ Petition No. 10212 (w) of 2013 was filed bythe Complainant and disposed of by the Hon'ble High Court of Calcutta on 16.04.2013, with a direction to the Branch Manager National Insurance Company to consider and dispose of the grievance in accordance with law after giving a personal hearing to the authorised representative of the Petitioner. Accordingly the Complainant was given opportunity to provide the original documents and submit the original key. But the same was not produced and the claim was repudiated. Against the said repudiation, another Writ Petition No. 20876 of 2013 was preferred by the Complainant and the Hon'ble High Court of Calcutta passed an order on 05.06.2013 giving the Petitioners an opportunity to approach the appropriate Forum and seek redressal. It was averred in the Written Version that the Complainant have approached all legal authorities to establish their claim without proving its genuinity and also supressing the fact that there was negligence on behalf of the Driver and therefore there is no deficiency of service on their part.
5. Based on the evidence adduced and the pleading put forward the District Forum dismissed the Complaint on the ground that the Driver and the Khalasi were very careless about the safety of the Truck and that they violated the terms and conditions of the Insurance Policy.
6. On an Appeal preferred by the Complainant before the State Commission in First Appeal No. 432 of 2015, the State Commission has dismissed the Appeal concurring with the finding of the District Forum and observed as follows:
"The Appellants /Complainants , although claimed that they supplied all the relevant documents excepting the original ignition key, actually did not supply the documents in original also. They actually supplied the Respondents/OPs the Xerox copy of the documents as it appeared on perusal of the record.
As regards ignition key, the Appellants/Complainants could not deliver the original key as per demand to the Respondents /OPs. The recovery of the ignition key from the Driver of the theft vehicle appeared to have been intimated to the Respondents/OPs on expiry of more than 3 years from the date of occurrence .
The suspicion of the involvement of the Driver of the theft vehicle in the incident , as submitted by the Ld. Advocate of the Respondents/OPs could not be overruled in the given circumstances. More so, when the original ignition key was ultimately recovered from the said Driver.
Further, it appeared that the Driver and khalashi of the subject car left the car uncared for for a long time . It appeared from clause 4 of the conditions laid down in the guide lines of the Respondent /OP company that the insured was supposed to take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition . In the instant case , the Driver and khalashi of the Truck engaged by the insured had shown the height of carelessness through their aforementioned irresponsible activities "
7. Learned counsel appearing for the Revision Petitioner submitted that the only ground for repudiation was that the original key was not found. It was submitted that the Revision Petitioner informed the Insurance Company on 25.02.2014 that the original key of the stolen Truck was found after constant efforts and therefore their claim should be considered in the light of the new facts. One more reminder was also issued on 19.04.2014 stating that the claim may be considered afresh.
8. Learned counsel appearing for the Insurance Company vehemently contended that despite repeated efforts and correspondence, the statement of the Driver was not given, the keys in original nor any of the original documents requested for, were produced. The Driver has left the key in the ignition and 'reasonable care' was not taken and hence the repudiation is justified.
9. For better understanding of the case, the repudiation letter dated 09.01.2013 is being reproduced as hereunder:
Date: 09.01.2013 To: M/S. PATESARIA BROTERHS SATGRAM, G.T. ROAD, RANIGANJ Dist. : Bardhawan, West Bengal, Pin : 713201 Dear Sir (s)/ Madam, RE: Claim No. 15051/31/10/63/9000072 Srl. No. : 1 Policy No. : 150501/31/10/630006360 Insured : M/S. PATESARIA BROTHERS Vehicle No. : WB-37-B-3289 Date of Loss : 29/12/2010 We thank you for your letter Nos. NIL dated 18.06.2012 and 25.10.2013.
On perusal of the documents contained in the file the following shortcoming/non-compliance is observed.
We are not liable to pay the claim when Driver left ignition key in the vehicle which was subsequently stolen based on the judgment dated 02/04/2012 of the Hon'ble NCDRC in case of Devinder Kumar Vs. ourselves in the R.P. No. 3040 of 2011.
Due to the above shortcoming/ non-compliance the claim does not seek to fall within the purview of consideration for settlement.
We would, therefore, like to have your comments within a fortnight of receipt of this letter to enable us to take further action in respect of your claim, falling the case we will peruse that you have no comments to offer.
Thanking You, Yours faithfully, For National Insurance Co. Ltd.
Sr./Div. Manager Branch Manager Raniganj Branch CC: The Divisional Manager, Asansol Divisional Manager, Asansol..... for information please."
10. From the aforenoted repudiation letter it is clearly seen that the main ground for repudiation is that the Driver left the ignition key in the vehicle, which was subsequently stolen and the judgement of this Commission in Devinder Kumar Vs. National Insurance Co. Ltd. in the R.P. No. 3040 of 2011, was relied upon by the Insurance Company in their repudiation letter and also in their Written Version. In that case, this Commission had observed that the Insurance Company was not liable to pay the claim when the Driver had left the ignition key in the vehicle which was subsequently stolen. But in the instant case, perusal of the FIR lodged immediately after the theft nowhere states that the key was left in the ignition. It is significant to state that the original key of the Truck was found prior to the filing of the Complaint before the District Forum and hence the assumption of both the fora below that the original ignition key of the Truck was left in the Truck which subsequently led to the theft is not based on any documentary evidence either by way of statement in the FIR or by way of any admission made by the Driver. Even the Surveyor does not anywhere report that the original key was left in the ignition. In fact in his report wherein, he addressed to the 'enquiry from Driver Gulab Singh' he has stated that 'I also contacted Driver Gulab Singh over mobile phone to prove his statement regarding incident but Driver Gulab Singh did not provide his statement so far'. Hence it is evident that the Driver was indeed not traceable. Therefore, in the absence of any material on record to evidence that the key was indeed left in the ignition, we are of the considered view, that both the fora below have based all their finding on assumptions.
11. On 24.04.2011, when the Police submitted their Final Report before the First Class Judicial Magistrate confirming the fact of theft, it is relevant to mention here that Driver Mr. Gulab Singh was also present when the untraced report was accepted by the Magistrate.
12. The letter dated 18.06.2012, shows that the Complainant informed the Insurance Company that the original documents of the Truck were inside the Truck and therefore the copies were submitted. It is an admitted fact that the original ignition key was recovered and first communicated to the Insurance Company on 25.02.2014 as it is the case of the Complainant that the Driver who had joined another job was untraceable. There is no documentary evidence on record to prove that in the FIR or in the Report given to the First Class Judicial Magistrate that the original keys were left in the ignition by the Driver, which is the main ground for repudiation. The Hon'ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr., (2016) 14 SCC 161, has laid down the principle that the Insurance Company cannot travel beyond their grounds of repudiation. Even thereafter, despite a direction given by the Hon'ble High Court of Calcutta to give the Complainant a personal hearing the Insurance Company insisted on the Complainant producing the original key, which was finally traced on 25.02.2014, which was consequent to the personal hearing which was completed on 05.06.2013. It is the case of the Insurance Company that the Complainant had furnished the key after 3½ years of the date of incident and therefore their repudiation is justified. Keeping in view the fact that the Complainant had approached the Hon'ble High Court of Calcutta by way of Writ Petition No. 10212 (W) of 2013, which was disposed of with the direction to give a personal hearing to the Complainant and the same was done on 05.06.2013, the contention of the Insurance Company that there was 3½ years delay is unsustainable, specifically in the light of the admitted fact that the recovery of the original key was informed to the Insurance Company on 25.02.2014, which is a few months after the date of personal hearing. Even otherwise, the Complainant once again approached the Hon'ble High Court by way of Writ Petition No. 20876 (W) of 2013 on the ground that the Insurance Company did not conduct hearing in a proper procedure, for which the Hon'ble High Court had disposed of the Petition giving opportunity to the Complainant to approach the appropriate Forum. Keeping in view the documents of this case and the efforts made by the Complainant, the contention of the Insurance Company that the discovery of the original key is extremely belated, is untenable. It is also significant to mention that the Complainant also sent a reminder on 19.04.2014 requesting the Insurance Company to consider the claim afresh. Since the main repudiation ground is that the Driver has left the ignition key in the vehicle, which was subsequently stolen and the Complainant after approaching the Hon'ble High Court of Calcutta, was able to recover the original key, we are of the considered view, that the Insurance Company shall accept the key and settle the claim and pay the insured amount within four weeks from the date of receipt of a copy of this order, failing which, the insured amount shall carry interest @ 9% p.a. from the date of repudiation till the date of realisation. We also find it a fit case to award costs of ₹20,000/-
13. In the result, this Revision Petition is allowed and the orders of both the fora below are set aside and the Complaint is allowed to the extent indicated above.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER