State Consumer Disputes Redressal Commission
The Branch Manager, United India ... vs Sri Saikat Ghorai, Paschim Jarpai, P.S. ... on 9 June, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA 700 087 S.C. CASE NO FA/1004/2012 (Arisen out of Order Dated 10.10.2012 in Case No. CC/124/2009 of District Unit-I, Kolkata DF) DATE OF FILING :28.12.2012 DATE OF ORDER:09.06.2014 APPELLANTS : 1. The Branch Manager, United India Insurance Co. Ltd., Contai Branch, LDS Building, 2nd Floor, N.S. Road, P.S. Contai, District-Purba Medinipur-721401. 2. The Regional Manager, United India Insurance Co. Ltd., 38B, J.L. Nehru Road, Kolkata-700071. RESPONDENT : Shri Saikat Ghorai, Paschim Jarpai, P.S. Contai, P.O. Amal Beria, District-Purba Medinipur, Pin-721401 BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Ms. Sumita Roy Chowdhury, Ld. Advocate FOR THE RESPONDENT : Mr.D.B. Chowdhury, Ld. Advocate. Sri Debasis Bhattacharya , Member
This appeal is directed against the order dated 10.10.2012 passed by the Ld. District Forum, Unit-I, Kolkata in Case No. 124/2009.
By the impugned order, the Ld. District Forum has allowed the case on contest against the OP Nos. 1 and 2 with cost and the OPs have been jointly and/or severally directed to pay a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand) only (after standard deduction as per settled principle of law) together with an interest @9% p.a. from the date of repudiation till the date of realization and have been further directed to pay compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5,000/- (Rupees five thousand) only within 45 days from the date of communication of the order, i.d. an interest 9% shall accrue over the entire sum due to the credit of the Complainant till full realization.
Being aggrieved by and dissatisfied with the same, the OPs thereof have preferred this appeal.
The case of the Complainant is that he is owner of vehicle no. WB-30A-5927 (Tata Sumo), for which he obtained a Private Car Package Policy from the OP No.1 being no. 031701/31/04/05124 for the period from 20.02.2005 to 19.02.2006 for an insurance coverage of Rs.2,00,000/- only. On 10.09.2005, the family members of the in-laws of his elder brother had been to Mathura for excursion with his said car. On 13.09.2005, at about 00.45 hrs., when the Driver of the vehicle came out to attend to natures call, found the car missing. On the next morning, he went to Vrindaban P.S. to lodge an F.I.R., but the same could be lodged only on 18.09.2005 being Crime No. 387/2005, u/s 379, I.P.C. The incident was duly informed by the Complainant to the OP No.1 by a letter dated 14.09.2005. Accordingly, the OP No.2 appointed Apex Surveyors Pvt. Ltd. to survey and assess the loss. Lastly, the OP No.1 by a letter dated 25.11.2008, repudiated the claim on the ground of violation of policy terms and conditions of limitation as to hire or reward, which is unjust, unreasonable, motivated and afterthought, for which the Complainant has been highly prejudiced. So, he by a letter dated 18.12.2008 to the OP No.2 vehemently objected to the said letter of repudiation and requested for reconsideration of his claim, but without any avail. Hence, the case.
On the other hand, the case of the OPs is mainly that the Apex Surveyors Pvt. Ltd., was appointed as the Surveyor to assess the loss and Gautam Kumar Jana was appointed as the Investigator. The Investigator came to know on enquiry that the insured vehicle was hired for tour of Northern India by the neighbours and P.K. Dandapat was the tour operator, who paid Rs.13,570/- to the Complainant. Further, the incident occurred on 12/13.09.2005, but the F.I.R. was lodged on 18.09.2005, after expiry of 05 (five) days, which was in contrary to the policy condition no.1. There is no deficiency in service on its part in repudiating the claim. Accordingly, the case is not maintainable and liable to be dismissed.
It is to be seen and considered if the impugned order suffers from a kind of incongruity, irregularity, illegality, or jurisdictional error.
Decision with reasons.
Ld. Advocate for the Appellants has submitted that the claim was rejected as the vehicle was being used commercially against reward, which is a breach of policy warranty. On the basis of proved action of hire and reward, the award has been made by the Ld. District Forum on non-standard basis, which being a distinct breach of policy condition. But, in doing so, the Ld. District Forum has whimsically imposed 9% interest from the date of repudiation, compensation of Rs.20,000/-, litigation cost of Rs.5,000/-, further, in default an interest again @ 9% given, which are conflicting one and impermissible in nature. There is no scrap of paper regarding mental agony and harassment caused by the Insurance Company towards which Rs.20,000/- has been imposed as compensation, without detailing the reasoning of such assessment. Further, by posting 9% additional interest additionally, the right of the OPs for appeal has been overshadowed and made curtailed, which is a natural right. The money, in any case, is coming from public exchequer. The amount, therefore, must be right and just. She has relied upon a decision of the Honble National commission, reported in III (2006) CPJ 389 (NC).
Ld. Advocate for the Respondent, however, has submitted that there is no escape for the Insurance Company to pay the claimed amount as per observation of the Honble Supreme court in a case, reported in IV (2008) CPJ 1 (SC). Further, he relied on this issue a decision of the Honble National Commission, reported in I (2010) CPJ 167 (NC), and also of this Commission, reported in 2010 (2) CPR
462. Further, there is no proof of breaking the policy condition as envisaged. It was so held by the Ld. District Forum in the matter. In any case, the user of the vehicle for hire and reward has not at all been established and proved. In this respect, he has referred a decision of the Honble Maharastra State Commission, reported in 2007 (3) 163 CPR, in which it was stated that when the Insurance Company repudiates the claim on the ground of breach of condition, the burden lies on it to prove the same. A copy of the Survey Report has not been given to him. The Insurance Company did go in deep slumber. So, the award should have been on standard basis.
The fact of theft of the vehicle has come into picture and its recovery could not be made by the Police of Vrindaban P.S. A cause for delay in lodging the F.I.R. has been made out in this matter. So, even if there had been a breach of policy by using the vehicle for hire and reward, the same is not germane in view of the decision of the Honble Supreme Court in the matter and as referred by the Ld. Advocate for the Respondent, reported in IV (2008) CPJ 1 (SC), where also the norm of non-standard was made intact by the Honble Court. This impugned order was also held non-standard in favour of the Complainant. But, peculiarly enough, some kind of stringent interest, as also normal interest along with compensation, has been ordered by the Ld. District Forum. Both interest and compensation cannot run together, which is the dictum of the Honble National Commission in the decision referred by the Ld. Advocate for the Appellants, being reported in III (2006) CP 389 (NC). As no other point has been raised by the Appellants in this appeal, the impugned order is modified by deleting the amount of compensation of Rs.20,000/- and the stipulation of further interest of 9%, being payable after 45 days from the date of the communication of the impugned order, as made.
In the result, the appeal partly succeeds.
Hence, ORDERED That the appeal be and the same is allowed in part against the Respondent, but without cost. The impugned order is modified to the extent as under.
The OPs are jointly and severally directed to pay a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand) only together with an interest @ 9% p.a. from the date of repudiation till the date of realization and a litigation cost of Rs.5,000/-, payable within a period of 45 days from the date of the communication of this order.
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