State Consumer Disputes Redressal Commission
The Divisional Manager vs Manas Kumar Mukherjee on 13 November, 2014
State Consumer Disputes Redressal Commission
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza
Ghalib Street, Kolkata - 700087
First Appeal
No. FA/734/2013
(Arisen out
of Order Dated 13/05/2013 in Case No. CC/01/2012 of District Burdwan)
The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office at City Centre
Durgapur, 3rd Administrative Building,
Durgapur- 713216, District Burdwan.
...........Appellant(s)
Versus
Manas Kumar Mukherjee,
S/o, Chittaranjan Mukherjee,
3/31, Sepco Township, Durgapur-5,
P.S. Durgapur. District- Burdwan.
...........Respondent(s)
BEFORE:
HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER
HON'BLE MR. JAGANNATH BAG MEMBER
For the Appellant:
Ms. Sumita Roy Chowdhury, Ld. Advocate
For the Respondent:
Mr. Abu Sayem, Ld. Advocate
ORDER
Dt. 13.11.2014 Sri J. Bag, Ld. Member, The present appeal is directed against the Order dated 13.05.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan , in DF Case No. 01/2012, whereby the complaint was allowed in part on contest against the OPs.
The complaint case , in brief, was as follows:
The Complainant owned a vehicle bearing No.WB 40-R 1931 for his private use . The vehicle was insured by United India Insurance Company Ltd. under Motor Package Policy for Rs.3,24,411/-. The policy was valid from 05.04.2010 to 04.04.2011 . On 23.02.2011 some miscreants had stolen the vehicle which was kept in front of the rented house of the Complainant . The Complainant lodged FIR with Durgapur Police Station . On 24.02.2011 a case bearing No. 71/2011 under Section 379 of IPC had been registered . The Complainant informed the OP on 24.02.2011 about the theft of the vehicle and requested them to take necessary action to settle the claim as early as possible. FRT was submitted by the Investigating Officer of Durgapur Police Station before the Ld. Court of ACJM at Durgapur on 30.04.2011. The Complainant submitted his claim before the OP along with necessary documents including the certified copy of FRT. But, the OPs avoided to settle the claim . On 14.07.2011 the Complainant received one mail from Sri Tanmoy Chakrobarty , Branch Manager of United India Insurance Company Ltd. Gangtok Branch stating that Rambangola P.S. at Gangtok has recovered one Santro Zing Car bearing No. JH10W-6290 . The Complainant immediately informed the OP that the Registration No, Chasis No. and the Insurance Certificate did not match with his vehicle particulars . He requested the OP to settle the claim as theft of the vehicle occurred during the validity period of the Insurance Policy. No action being taken by the OPs , the Complainant preferred to file a Consumer Complaint case vide No. 01/2012 praying for direction upon the OPs to pay Rs.3,24,441/- as sum insured under the policy, Rs.1,50,000/-
as compensation towards mental pain , agony and harassment and Rs. 25,000/- towards litigation cost.
The complaint was contested by the OPs by filing W.V wherein material allegations were denied . It was also emphasized that the Insurance Company appointed one Surveyor for survey and thereafter one Loss Assessor for assessment of loss . They received telephonic input from Sikkim Hyundai that the stolen vehicle was recovered by the Ravangla P.S. and accordingly, an investigator was appointed who after investigation and physical verification of the seized vehicle informed that the Engine No. of the seized Santro Car and the Engine No. of the stolen Santro Car were the same and identical, only the chassis No. differed by one digit. The Complainant was informed about the recovery of his stolen Santro Car. The Complainant was requested to take steps for reopening the Durgapur P.S. Case No. 71/11 dated 24.02.2011 under Section 349 IPC . The Complainant did not cooperate with the OP . On the contrary, he was pressing for settlement of the claim which is not justified .
Ld. Forum below after having considered all material facts and evidence decided that the OP can not escape their liability of settling the claim and can not keep the theft claim pending for unlimited period . Accordingly, the complaint was allowed in part with direction upon OP to pay Rs.2,43,331/- which is 75% of the insured amount together with Rs. 25,000/- towards compensation for mental pain and agony and Rs. 2,000/- towards the litigation cost , apart from payment of Rs. 5,000/- towards the Consumer Welfare Fund , Burdwan for unfair trade practice.
Being aggrieved by and dissatisfied with the Order of the Ld. Forum below , the Insurance Company has come up before this Commission with the prayer for direction to set aside the impugned order.
Ld. Advocate appearing for the Appellant submitted that though the Complainants vehicle, as allegedly stolen, was recovered and though due intimation was given to the Complainant , he did not cooperate with the OP Insurance Company . The colour of the vehicle and Engine No. were the same, only the chassis No. differed in one digit only. The Insurance Company wanted the Complainant to reopen the Durgapur P.S. Case No. 71 /11 but the Complainant neglected to take any step. As a result, the claim of the Complainant was pending. The Insurance Company is not at all responsible for any deficiency in service. Further, the question of unfair trade does not arise in so far as they tried in every possible way to recover the vehicle in question , but the Complainant himself was non-cooperative .
Ld. Advocate appearing for the Respondent submitted that the vehicle was stolen and the incident of theft was duly reported to the Insurance Company and FIR was lodged. The recovery of the vehicle as pointed out by the Ld. Advocate of the Appellant has not been established with every relevant information about the vehicle , particularly there being discrepancy in respect of chassis No. of the stolen vehicle and that of the recovered vehicle . There were several points of difference between the stolen vehicle of the Complainant and the vehicle said to have been recovered by Ravangla P.S., Sikkim . It was not at all convincing that the Complainants vehicle was in every respect the same as the one lying recovered under the Ravangla P.S. Since the theft of the vehicle is beyond question and the alleged recovery of the vehicle is simply doubtful and unconvincing , the Insurance Company can not avoid their liability to pay the insurance claim by insisting upon acceptance of the allegedly recovered vehicle .
Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint , the policy papers and other documents including the W.V. submitted by the OP Insurance Company before the Ld. Forum below. We have heard Ld. Advocates appearing for both parties.
The fact is admitted that the vehicle of the Complainant /Respondent lying insured with the OP Insurance Company i.e., the Appellant herein was stolen . The insurance policy was valid while the vehicle was stolen.
It is true that the Insurance Company gave intimation to the Complainant / Respondent about a vehicle which was identical in colour and some other particulars but neither the Insurance Company nor the Ravangla P.S. confirmed beyond doubt that the vehicle lying under their custody was exactly the same vehicle as the Complainant / Respondent owned . It can not be prudent for a vehicle owner to accept a vehicle which differs in any respect from the vehicle of his own that has gone missing. If such vehicle is accepted, he may be facing difficulties in a different situation where he has to prove that his vehicle that went missing is the same as recovered and handed over to him by the Insurance Company, though the chassis number of the vehicle will remain altogether different from the recorded particular of the registration certificate of the vehicle.
The status of the vehicle in question remains that the same has been stolen and it is the settled principle of law that in case of theft of vehicle the policy condition is not germane and the Insurance Company may be asked to settle claim @ 75% of the sum insured.
Ld. Forum below appears to have adjudicated the matter in a reasoned manner and we find no reason to interfere with the order except for the fact that the award of Rs. 5,000/- for unfair trade practice is not substantiated with any reason whatsoever. The impugned order needs to be modified on that point. Accordingly, the appeal succeeds in part . Hence, Ordered that the appeal be and the same is allowed on contest in part with modification of the order to the effect that the award of Rs. 5,000/- on ground of unfair trade practice shall be expunged from the impugned order , while other parts shall remain unchanged . There shall be no order as to costs.
JAGANNATH BAG DEBASIS BHATTACHARYA MEMBER MEMBER