State Consumer Disputes Redressal Commission
Neelam P. Shet vs The Divisional Manager, National ... on 31 October, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 49/2017
Mrs. Neelam P. Shet,
w/o Mr. Pratap Shet,
major of age, residing at H. No. 384,
Near Santoshi Mata Temple,
New Vaddem,
Vasco da Gama, Goa 403 802. ... Appellant
v/s
The Divisional Manager,
National Insurance Company Limited,
Campal, Panaji, Goa 403 001. ... Respondent
Ms. Shraddha Borkar Adv. for the Appellants
Mr B. V. Sukhthanker Adv. for the Respondent
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 31/10/2017
JUDGMENT
[Per Justice Shri U. V. Bakre, President] This appeal is directed against the order dated 30/05/2017 passed by the Consumer Disputes Redressal Forum, South-Goa (the "Forum" for short) in Complaint No. 47/2017. The Appellant was the Complainant and Respondent was the Opposite Party ('OP', for short) in the said Complaint.
2. The Complainant had filed the said Complaint thereby seeking direction to the OP to pay to her an amount of Rs. 7,71,552/- and for other reliefs. The Complainant alleged that her vehicle bearing registration No. GA-06-D-9086, which was insured with the OP vide policy no. 271700/31/12/6100005440, met with an accident near Meta Strip Company, on NH-17/B at Sancoale on 30/07/2013 at about 17.45 hours. According to the Complainant, the police arrived 2 at the spot and carried out investigation of the case without following due procedure of law and wrongly charge-sheeted the nephew of the Complainant on the allegations that the said vehicle was driven in a rash and negligent manner and that he was under
the influence of alcohol. The Complainant gave intimation of the accident to the OP vide her claim dated 08/08/2013 and the OP vide its letter dated 26/09/2013 informed the Complainant to comply with certain requirements and further intimated that as per the assessment of the surveyor, the loss on net of salvage basis would be Rs. 6,29,552/-. The Complainant alleged that vide letter dated 23/12/2013, she complied with the requirements but vide letter dated 08/07/2014, the OP repudiated the claim of the Complainant on the ground of violation of the terms, conditions and exceptions u/s 1(2) c of the policy. By her letter dated 12/07/2014, the Complainant clarified her stand but the OP by letter dated 10/10/2014 confirmed the said violation of policy terms as stated in the letter dated 08/07/2014. The Complainant further alleged that charge-sheet was filed by the police before the Judicial Magistrate First Class at Vasco da Gama and the nephew of the Complainant was tried for the said offences and after conducting trial, the said nephew of the Complainant was acquitted by Judgment and Order dated 21/04/2015. The Complainant, then through her lawyer, addressed a legal notice dated 25/07/2016 requesting the O.P. to finalise and settle the claim towards the accident loss of the said vehicle. However the O.P. sent a reply through its lawyer refusing to settle the matter and informing that it has repudiated the claim and closed the file.
3. The Forum heard the Ld. Counsel for the Complainant on the point of admission of the said Complaint and vide the impugned order, dismissed the Complaint. The Forum held that though the accident had taken place on 30/07/2013, the same was intimated to the OP on 22/08/2013 and the delay in intimation to the OP has not 3 been explained. The Forum observed that vide letter dated 08/07/2014, the OP informed the Complainant that FIR No. 110/13 dated 02/08/2013 under Sections 279, 337 and 338 of IPC and Section 185 of M. V. Act was registered against the driver Shri Aniket Shet for driving the vehicle in a rash and negligent manner and under the influence of alcohol which is clear violation of policy terms, conditions and exceptions u/s 1(2) c. The Forum further observed that vide letter dated 10/10/2014 the claim of the Complainant was repudiated and therefore the cause of action arose on 10/10/2014 but the Complaint is filed on 27/04/2017 which is beyond 2 years-time prescribed under Consumer Protection Act, 1986 (the 'Act', for short). Holding that the Complaint is time barred and hit by Sec 24(A) of the Act, the Forum dismissed the Complaint at the admission stage. The Complainant is aggrieved by the said order.
4. Records and Proceedings of Complaint No. 47/2017 were called for. Ms. Shradha Borkar, Lr. Counsel argued on behalf of Complainant. Mr. B. V. Sukhtankar, Lr. Counsel argued on behalf of the OP. We have gone through the entire material on record.
5. Condition No. 1 of the policy under which the vehicle of the Complainant was insured states as under:-
"Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy.4
In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender."
6. Vide letter dated 26/09/2013 the Divisional Manager of the OP had asked the Complainant to clarify the reasons for delay in intimation since the accident had taken place on 30/07/2013 but intimation was given on 22/08/2013; to send driving license abstract of Mr Aniket A. Shet through R.T.O., to send detailed description of accident; and to send true copy of F.I.R. and Complaint. The OP had further intimated the Complainant to surrender the original policy, certificate of insurance and consent letter for settlement of claim on net of salvage basis for Rs. 6,29,552/-, as the surveyor had assessed the loss on net of salvage basis,. By reply dated 23/12/2013, the Complainant complied with the said requirements of the OP fully which is clear from the reply 23/12/2013 sent by the Complainants to the OP. Vide repudiation letters dated 08/07/2014 and 10/10/2014, the claim of the Complainant has not been repudiated on the ground of delay in intimation of the accident. Even otherwise, mere delay in intimation of accident should not be a ground for rejecting a genuine claim. The claim has been repudiated only on one ground which is alleged violation of policy terms, conditions and exceptions u/s (2)c which states as under:-
"The Company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs"
7. Vide the said letters dated 08/07/2014 and 10/10/2014, the OP informed the Complainant that an FIR No. 110/13 dated 02/08/2013 5 under Sections 279, 337 and 338 of IPC and Section 185 of M.V. Act was registered against the driver of the above insured vehicle namely Mr. Aniket Shet for driving in a rash and negligent manner and under the influence of alcohol. Thus, the claim was repudiated only because of registration of FIR No. 110/2013. The above condition of policy does not say that mere registration of F.I.R. is sufficient for repudiating the claim. Vide judgment and order dated 21/04/2015 in Criminal Case No. 24/S/2014/A arising out of the said FIR No. 110/2013, the Ld. JMFC , Vasco da Gama has acquitted the said Shri. Aniket Shet of all the offences punishable under Sections 279, 337 and 338 of IPC and Section 185 of the M. V. Act. Therefore, it is not proved that the said FIR No. 110/13 was true and it is not proved that Shri Aniket Shet was driving the said vehicle under the influence of alcohol. By legal notice dated 25/07/2016, the Complainant, through her Advocate, intimated the OP about the acquittal of her nephew and to finalise and settle the claim towards accidental loss. However by letter dated 19/08/2016, the OP refused to settle the claim.
9. Considering the above facts of the matter, we fail to understand as to how the Complaint could have been dismissed at the stage of admission on the ground of violation of the policy terms. Since the claim was repudiated because of FIR on which final decision was not given and since because of the judgment of acquittal it only means that the driver was not only under the influence of alcohol, the question is whether really there was any violation of the policy condition. This point requires determination on merits. We therefore hold that the Complaint is wrongly dismissed at the stage of admission. The Complaint deserves to be admitted and decided on merits.
10. In the result, the appeal is allowed. The Impugned Order is quashed and set aside. The Complaint No. 47/2017 is admitted. The 6 parties shall appear before the Forum on 13/11/2017 at 10.30 a.m. The O.P. shall file Written Version before the Forum within 30 days from the said date of appearance before the Forum. The Forum shall dispose of the matter on merits in accordance with law.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
QV/-