State Consumer Disputes Redressal Commission
Sri Narayan Sutradhar vs Bajaj Allianz General Insurance Co. Ltd on 19 July, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/484/2010 (Arising out of Case No. 64/S/2009 of District Consumer Disputes Redressal Forum, Siliguri. ) DATE OF FILING : 26.08.2010 DATE OF ORDER: 19.07.2012 APPELLANT : 1. Sri Narayan Sutradhar C/O Avinah Sutradhar, R/o Rabindra Nagar, P.O. Rabindra Nagar, P.S. Siliguri, District- Jalpaiguri. RESPONDENTS : 1. Bajaj Allianz General Insurance Co. Ltd A company registered under the Companied Act 1956 having registered office at GE Plaza, Air Port Road, Yerwada, Pune-411006. 2. The Branch Manager, Bajaj Allianz General Insurance Co. Ltd. Having its office at 4th Floor, City Plaza, Sevoke Road, (opp. Payal Cinema Hall) P.O. Sevoke Road, P.S.Siliguri , District- Darjeeling. 3. TML Financial Services Ltd. And also known as Tata Motors Finance Ltd. A company registered under the Companied Act, 1956. having its registered office at Bombay House, 24, Homi Mody Street, Mumbai-400 001, also having its branch office at 3, Hill Cart Road, Ground floor, Life Style Hotel, P.O. & P.S. Siliguri, District- Darjeeling. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANT : Mr. Barun Prasad. Advocate. FOR THE RESPONDENTS : Mr. N.R. Mukherjee. Advocate. Mr. Suman Mukherjee. Advocate. Debasis Bhattacharya ,Member.
Being aggrieved by and dissatisfied with the judgment dated 21.06.2010 in C.C. No. 64/S/2009 passed by Ld. District Forum, Siliguri, the Complainant thereof has preferred this appeal.
The case of the Appellant, i.e, Complainant in his complaint is that he had purchased one TATA Indica car bearing Registration No. WB-74J/0096 from one subsequent purchaser, Gouranga Das, with the financial assistance of the OP no. 3, and it was duly insured with the OP No. 1 being Policy No. OG08-2404-1818-0000239 valid from 7.3.2008 to 6.3.2009. It was a one page policy and no other papers/documents were supplied by the OPs at the time of issuing the policy. The I.D.V. was declared at Rs.1,80,000/- and insured for a total sum of Rs.1,80,000/- . After purchase, the Complainant plied it for his personal use by engaging one driver and was making payment of the monthly instalments to the OP no. 3. On 17.07.2008 at around 7.30 a.m, the driver of the Complainant, Viz. Bappa Saha of Surya Sen Colony, Siliguri took the said vehicle from his house for the purpose of repairing in a garage popularly known as World Fort Motor having its repairing centre at Sevoke Road, Siliguri, and since then, the said vehicle and the said driver were missing / not found. At the time of the said incident, the Complainant was in Kolkata and on 19.07.2008, after coming from Kolkata, he started searching the vehicle and the driver in all probable places, but could not trace out the driver and the said vehicle anywhere. Immediately, he lodged one compliant with the I.C, Siliguri P.S stating the facts and that mobile no. 99334100025 which was used by the driver was found switched off after the said incident, being Siliguri P.S. G.D.E.No. 1613 dated 19.07.2008. All the original papers of the vehicle except the R.C. Book were kept in the dashboard of the vehicle and also missing / loss. Thereafter, the Complainant went to the office of the OP No. 2 , but OP No. 2 refused to accept any complaint as he could not produce the policy certificate, and after getting the duplicate copy of policy certificate on 7.08.2008, the Complainant has lodged the complaint with the OP Nos. 1 & 2 on 8.8.2008. On 14.08.2008 and on 25.08.2008, one Debajit Chakraborty, claiming to be the Investigator, issued letters to the Complainant asking him to produce documents. OP No. 2 on 28.8.2008 and 10.09.2008 wrote to the Complainant regarding some queries, etc. As I.C., Siliguri P.S. did not start any specific case on the basis of the complaint dated 19.07.2008, he has filed a Misc. Petition no.85/08, u/s 156(3), CRPC before Ld. A.C.J.M, Siliguri being which has been admitted for registration of the said petition as FIR. On 14.08.2008, the Complainant has intimated to the A.R.T.O, Siliguri, R.T.O, Darjeeling and OP No. 3 that the said vehicle was lost and requested not to transfer / change the ownership of the vehicle, if any body applies for the same. Ultimately, on 16.09.2008, the Complainant through his lawyer, Niloy Chakrobarty has given a satisfactory rely of the letter dated 28.08.2008 and 10.09.2008 of the OP No. 2 and the letter dated 25.8.2008 of the said Debajit Chakraborty, and OP no. 2 replied on 24.09.2008 . On enquiry, the Complainant has come to learn that Siliguri P.S. Case no. 322/2008 dated 04.10.2008 u/s 406; I.P.C was started on the basis of the Misc. Petition of the Complainant. Lastly, on 25.10.2008, the OP no. 2 by issuing a letter to the Complainant has most illegally and arbitrarily repudiated the valid and legal claim of the Complainant on some false, bogus , unfounded, malafide and concocted grounds and the same is not sustainable in the eye of law. The OP no. 3, on several occasions, has sent his men and agents to the house of the Complainant for creating undue pressure upon the Complainant to repay the entire loan amount at a time which is illegal and unfair trade practice. Hence, this Complaint case.
On the other hand, the case of the Respondent nos. 1 & 2, i.e, OP nos 1 & 2 in their W.V. is that after the missing of the vehicle, the Complainant did not immediately inform the said fact to the OP No. 2. and there was a considerable delay of 22 days in the matter which is absolute laches and negligence on the part of the Complainant. Further, the parties essentially are governed by the terms of the contract of the insurance policy entered into by the insured with the insurer and neither of them can go beyond, bypass and ignore the terms and conditions of the said policy. The missing intimation was received by the OP no. 2 from the Complainant only on 8.8.2008. In response, OP No. 2 issued a letter dated 19.08.2008 to the Complainant with a request to submit the original documents and appointed an independent IRDA licensed investigator/surveyor , Debajit Chakraborty to investigate/survey the said matter who served letters dated 14.08.2008 and 25.08.2008 to the Complainant with a request to hand over the required documents but the Complainant did not pay any heed to it and after investigation he submitted his report dated 26.08.2008 to the OP No. 2 . The Complainant has not complied the policy condition no. 1 regarding notice to the insurer for the purpose of investigation. Accordingly, it has been prayed to dismiss the Complaint.
The case of the Respondent no. 3, i.e., OP No.-3 in its W.V that the Complainant failed to comply the terms and conditions of the loan agreement and that the Complainant is bound to pay the EMI to the OP no. 3 as per the terms and conditions, and also filed an additional W.V. in the matter, and has prayed for dismissal of the Complaint.
By the impugned judgment, the Ld. Forum below has dismissed the case on contest but without cost.
It is to be considered if the impugned judgment suffers from any material irregularity or illegality and if the Ld. Forum below has erred in exercising jurisdiction, so as to reverse the finding, or not.
Decision with reasons Admittedly, the Complainant has intimated the missing of the vehicle concerned to the OP no. 2 by a letter dated 08.08.2008, which according to the version of the OP nos. 1 & 2 was made after 22 days. Rightly, there is found to be no prior intimation given by the Complainant to the said OP no. 2. But, the reasoning behind the delay has been amply made out in such a letter that at the relevant time he was in Kolkata and after coming back he lodged a diary with Siliguri P.S. being G.D.E. No. 1613 dated 19.07.2008 and that as the original Insurance Policy was with the vehicle , his agent applied for duplicate copy and received the same on 07.08.2008. Without asserting in any way that as the loss or damage not intimated in time, i.e., maximum within 72 hours of loss and thereby initially repudiating the claim of the Complainant, OP no. 2 proceeded with the case by issuing a letter dated 19.08.2008 demanding some documents, to which the Complainant wrote back on 27.08.2008 enclosing therewith the photocopies of some documents available with him and also mentioning the documents which could not be presented with reason. But, as against the letter dated 27.08.2008 of the Complainant, the OP no. 2 by letter dated 28.08.2008 intimated that they are not in a position to proceed further as per Policy Condition No. 1 regarding time of notice within a maximum of 72 hours from loss. Further the Investigator , Debajit Chakraborty wrote two letters addressed to the Complainant one dated 14.08.2008 demanding some documents wherein also another letter dated 12.08.2008 was mentioned in which such documents was called for and by another letter dated 25.08.2008, he again demanded such documents for the purpose of his independent investigation . So, it is clear that the stipulation of maximum of 72 hours has not been adhered by OP No. 2. Still further, by the said letter dated 28.08.2008, OP No. 2 did not repudiate the claim on the ground of delay in intimation. Again, OP no. 2 wrote to the Complainant on 10.09.2008 asking for any interest of the Complainant in such claim. Thereafter, Complainant issued lawyers notice dated 16.09.2008 to both the OP no. 2 and Mr. Debajit Chakraborty, to which OP no. 2 replied on 24.09.2008. Lastly, on 25.10.2008, OP No.2 repudiated the claim of the Complainant on the ground that original documents had not been filed and also violation of the terms and conditions of the policy by giving delayed intimation to the Insurance Company, and accordingly as already 3 months have been passed from the date of loss and due to no response with respect to submission of the documents, they have no other option left except to repudiate the claim and ,therefore, in view of such facts and noncooperation in settlement of the claim, the claim stands repudiated. As mentioned earlier no undue stress was given to delay in intimation of the loss of the vehicle by the Complainant to OP no. 2. The only ground made out in the W.V. of the OP nos. 1 & 2 as against the Complaint is delay of 22 days in giving notice/intimation of missing/loss as vehicle was missing on 17.07.2008 but the Complainant informed the OP No. 2 on 08.08.2008 and as such there is violation of the policy condition no. 1 in this respect. No other point has been raised by the OP nos. 1 & 2 in repudiating the claim of the Complainant. But, the Complaint has been dismissed by the Ld. Forum below on the ground that the policy does not cover criminal breach of trust and so the case of the Complainant is not entertainable and beyond the periphery of the insurance policy, and further more, the Complaint was lodged violating the terms and conditions of the insurance policy and thus the Forum was of the view that the Complainant has failed to establish its case of theft of the vehicle in question rather it comes within the purview of primafacie criminal breach of trust and therefore the OPs cannot be held liable for deficiency of service as alleged by the Complainant.
In this case, the Ld. Forum below has been solely (mis) guided only by the nomenclature of the police case which listed it u/s 406, IPC, though Complainant made out in its Misc. Petition no. 85/2008, u/s 156 (3), Cr.P.C that the offence has been committed u/s 379, I.P.C, and thereby wholly misconstrued the implication of the decision of the Honble National Commission reported in IV (2007) CPJ 32 (NC), though referred therein. The instant case is closely in tune with the case before the Honble National Commission. The State Commission, by the impugned order, has confirmed the order passed by the District Forum, Hazaribagh, in Complaint Case No. 200/1997 filed by the complainant (respondent) for reimbursement of the loss suffered by him because of the theft of the car owned by him during the currency of the policy period. The District Forum , by its judgment and order dated 20.10.2003 , allowed the complaint and directed the Insurance Company to pay a sum of Rs.1,65,000/- with interest @ 10% p.a from 1.1.1998 till its payment , together with a compensation of Rs.1,000/-.
2. Undisputedly, the policy cover is for Private Car B policy, wherein it has been stated that the Insurance Company will indemnify the insured against the loss or damage to the motor car and /or its accessories whilst thereon inter alia, by burglary, house breaking or theft and also by malicious act, etc. It is the case of the complainant that the vehicle was taken away by the driver for servicing but the driver neither turned up nor did he bring back the vehicle. Hence, an FIR was lodged on 6.10.1994 against the driver for committing theft of the vehicle. Simultaneously, the Insurance Company was also informed and claim was lodged. However, the Insurance Company repudiated the claim in July 1997.Hence, the complaint was filed.
3. The State Commission relied upon the say of the complainant that the vehicle was taken away by the driver and was not returned and that the driver was not traceable. However, the Ld. Counsel for the petitioner submitted that the police had registered a case under section 406 of the Indian Penal Code ( I..P.C.) and, therefore, the act of taking away of the vehicle by the driver would not amount to theft.
4. In our view, this submission is without any justification because of the definition of theft. Under Section 378 of the I.P.C. Illustration (d) to Section 378 specifically provides that A, being Zs servant, and entrusted by Z with the care of Zs plate, dishonestly runs away with the plate, without Zs consent. A has committed theft.
5. In any case, this would be a malicious act and the policy covers such peril. Further, the exclusion Clauses also nowhere provide that an offence under Section 406 of I.P.C. is excluded.
6. Further, in our view this loss of the car could also be construed to be covered by the general category of malicious acts, a set of grounds used in the policy. It is a malicious act of a person who was an employee of the insured at the relevant time.
7. Hence, this Revision Petition is dismissed. There shall be no order as to costs, as none appears for the respondent. (IV(2007)CPJ32 (NC).
Ld. Advocate for the Respondent nos. 1 & 2 has produced the Policy Holders Manual Private Car Package of the Bajaj /Allianz, in which it is found that in the private car package policy, the Company will indemnify the insured against loss or damage to the Motor Car insured and/or its accessories whilst thereon by burglary , housebreaking or theft and by malicious act. So, the terms and conditions in this respect of the instant Motor Car is the same as of the missing vehicle in the case before Honble National Commission.
Ld. Advocate for Respondent Nos. 1 & 2 has referred to a decision of this Commission in SC Case No. FA/09/25, dated 28.04.2009. In that case also this Commission has gone into the case of Pt. Rama Nanda Sastri. Vs- Oriental Insurance, Ltd., 1998 (3) CPR 1, which is a case where paid employee of the insured have stolen the vehicle. In the case before this Commission, the insured delivered possession of vehicle to a transporter to carry on business with the vehicle for a long period of time which is different from the said case of paid employee causing theft of the vehicle.
Ld. Advocate for Respondent Nos. 1 & 2 has referred to 3 decisions in respect of delay in intimation , viz., (1) of the Honble National Commission reported in 2008 (2) CPR 132 (NC) , wherein it was held that where claim under Janata Personal Accident Policy was inordinately delayed, it was rightly repudiated by Insurance Company. There was inordinate delay in lodging the claim in November 2002 while the accident occurred on March 2002. In 2008 (3) CPR 116, the Maharastra State Commission held that delay of more than two years is the direct breach of condition no. 1which cast a duty on the insured to inform about the accident within one month from happening of the accident and such delay is very much fatal and it goes to the root of the policy condition and this delay cannot be condoned. In 1999 (2) CPR 262, Andhra Pradesh State Commission held that when Motor Cycle insured stolen on 3.3.1994 and the Complainant lodged report with police after 2 months and 16 days and the claim made with the appellant only on 10.10.1994, the repudiation of the claim could not be termed deficiency in service. But, in the present case, there is no such inordinate or abnormal delay.
Further, Ld Advocate for the Respondent Nos. 1 & 2 has cited a decision of the Honble Supreme Court of India reported in II (1997) CPJ 1 (SC), wherein it was held that while curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of Insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred. He has also cited a decision in this respect of the Honble Supreme Court of India reported in 1999 (7) Supreme 195, where it was held that the terms of the agreement have to be strictly construed to determine the extent of the liability of the insurer. In this respect, as earlier found and stated that OP No. 2 did not repudiate the claim initially on the basis of delayed intimation and proceeded with the claim case in toto and also appointed investigator into the matter and also did not repudiate the claim by its letter dated 25.10.2008 solely on the ground of delayed intimation by the Complainant.
Ld. Advocate for the Respondent Nos. 1 & 2 had also relied upon a decision of the Honble Apex Court reported in AIR 2004 SC4794, in which the Insurance Policy was against burglary and /or house breaking and as element of force and violence or threat defining burglary was not present, the insurer cannot claim compensation against theft from Insurance Company. But, the Honble Court suggested Insurance Companies to amend definitions in Policy and it should have meaning which common man can easily understand. This case does not go to help the case of the Respondent Nos. 1 & 2 in this matter.
As mentioned before, this case almost fits with the case before the Honble National Commission IV.(2007) CPJ 32 (NC), which has been referred by the Ld. Advocate for the Appellant as well as by the Ld. Forum below in the impugned judgment Ld. Advocate for the Appellate has also referred a decision of the Honble Supreme Court of India in National Insurance Co. Ltd. Vs- Nitin Khandelwal, 2008(7) SBR 63, in which it has been held that it is well settled that in case of theft of vehicle , nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
It is also found that the Ld. Forum below has quoted the decision of the Honble Apex Court reported in 2008 Vol.III Supreme Court 63 in which their Lordships held that Court must take realistic view and compensation if possible on the material on record should not be denied on hypertechnical pleas. Further, it was quoted therein a decision of the Orissa State Commission reported in 2009 CPJ Vol IV 96 wherein it was held that Consumer Protection Act is a beneficial Act and claim should not be repudiated only on hypertechnical grounds which is otherwise genuine and that repudiation on technical ground is not in the line of the spirit of the Act or the legislation. It was quoted in the impugned judgment that the Investigator in his report dated 26.08.2008 filed on behalf of OP Nos. 1 & 2 opined that the claim is apparently genuine. So, there is no need to be swayed by mere hypertechnical points.
Accordingly, following the similar case in the Honble National Commission as mentioned earlier, the Complainant of this case is also entitled to get his claim from the OP Nos. 1 & 2. The Ld. Forum below has erred in deciding the matter against the Complainant both on facts and law. Accordingly, the impugned judgment is liable to be set aside.
Hence, Ordered that the appeal be and the same is allowed on contest against the Respondent nos. 1 & 2 with cost of Rs.3,000/- and ex parte against Respondent no. 3 without cost. The impugned judgment is hereby set aside.
The Respondent nos. 1 & 2 are directed to pay a sum of Rs.1,80,000/- with interest @ 10 % from 25.10.2008 till its payment, together with a compensation of Rs.5,000/- and a litigation cost of Rs.2,000/- within a period of 45 days.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)