State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Vijay Kumar Agrawal on 27 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/615
Instituted on : 09.09.2014
The Oriental Insurance Company Limited,
Through : Divisional Manager, Divisional Office,
In Front of Rama Trade Centre, Bus Stand,
Bilaspur, District Bilaspur (C.G.) ... Appellant.
Vs.
Vijay Kumar Agrawal, S/o Rampratap Agrawal,
Aged about 55 years, Occupation - Business,
Address : Through : Balaji Agency,
Kanya Shala Marg, Pendra Road,
P.S. Pendra Road, District Bilaspur (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K.PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Raj Awasthi, for the appellant.
Shri K. K. Verma, for the respondent.
ORDER
Dated : 27/03/2015 PER :- HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT. This appeal is directed against the order dated 21.08.2014, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth called "District Forum"), in CC/231/2011. By the impugned order, the complaint of the appellant (complainant) has been allowed and the appellant (O.P.) has been directed to pay within // 2 // a period of one month from the date of order a sum of Rs.26,000/- to the respondent (complainant), which is Insured Declared Value of the vehicle and if the appellant (O.P.) failed to pay the above amount within the stipulated period, then it will be liable to pay interest @ 9% p.a. on the said amount. The appellant (O.P.) has further been directed to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.3,000/- as cost of litigation to the respondent (complainant).
2. Briefly stated the facts of the case are that the respondent (complainant) is registered owner of the Bajaj Discover Motorcycle bearing registration No.C.G.10-E-8616. The said vehicle was insured with the appellant (O.P.) under Comprehensive Package Policy No.153300/31/2010/1945 for the period from 19.06.2009 to 18.06.2010. On 01.05.2010 at about 8.00 P.M., he parked the vehicle in question in front of his house and went to his house, when he came outside then he found that vehicle was stolen by some unknown person. He tried to trace the vehicle here and there at his level best and when he could not trace the vehicle then he lodged report in Police Station Pendra on 02.05.2010. The respondent (complainant) also gave intimation regarding the incident to the appellant (O.P.) through fax on 04.05.2010. The respondent (complainant) has also given intimation regarding the incident to the appellant's (O.P.'s) agent namely Anish Ahmed through whom he has got his motor cycle insured. Lateron, // 3 // on 07.11.2011, the respondent (complainant) has written a letter to Chief Regional Manager of the Oriental Insurance Co. Ltd. On receipt of this letter, the appellant (O.P.) has written a letter dated 10.11.2011 by which respondent (complainant) has been intimated that due to late intimation of the incident, the claim of the respondent (complainant) has been repudiated.
3. The appellant (O.P.) has filed its written statement before the District Forum that the respondent (complainant) has violated terms and conditions of the insurance policy, therefore, his claim was repudiated by the appellant (O.P.) and by doing so they did not commit any deficiency in service, hence the compliant is liable to be dismissed.
4. After having considered the material placed before it by both the parties, learned District Forum, allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. The respondent (complainant) filed documents. Documents are letter dated 10.11.2010 sent by the Oriental Insurance Co. Ltd. to the respondent (complainant), bill dated 04.05.2010 issued by Sanket Mobile, Motor Insurance Certificate Cum Policy Schedule Motorised - Two Wheelers Package Policy - Zone B, Certificate of Registration of vehicle bearing registration No.C.G.10-E-8616, letter dated 07.11.2011 // 4 // sent by the respondent (complainant) to The Chief Regional Manager, The Oriental Insurance Company Limited, Raipur, First Information Report, intimation given to SHO, Police Station, Pendra, District Bilaspur on 02.05.2010.
6. The appellant (O.P.) has also filed documents. Annexure NA-1 is First Information Report, Annexure NA-2 is letter dated 07.11.2011 sent by the respondent (complainant) to The Chief Regional Manager, The Oriental Insurance Company Limited, Raipur, Annexure NA-3 is dated 07.11.2011 sent by the respondent (complainant) to The Chief Regional Manager, The Oriental Insurance Company Limited, Raipur, Annexure - 4 is Motor Insurance Certificate Cum Policy Schedule Motorised - Two Wheelers Package Policy - Zone B,.
7. Shri Raj Awasthi, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum, is liable to be set aside and appeal of the appellant (O.P.) may be allowed. He further argued that the respondent (complainant) has left the vehicle in question unattended and without locking. The respondent (complainant) has violated terms and conditions of the insurance policy. The respondent (complainant) did not inform the appellant (O.P.) regarding the incident within 48 hours of occurrence of the incident, therefore, the respondent (complainant) is not entitled for getting compensation. The appellant (O.P.) has rightly repudiated the // 5 // claim of the respondent (complainant) and District Forum has wrongly allowed the complaint. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. He placed reliance on judgment of Hon'ble National Commission in New India Assurance Co. Ltd. vs. Maha Singh S/o Shri Gopala, 2014 NCJ 530 (NC), Ramesh Chandra s/o Shri Munshi Ram vs. ICICI Lombard General Insurance Co. Ltd., 2014 NCJ 151 (NC); Smt. Suman vs. The Oriental Insurance Company Ltd., 2013 NCJ 339 (NC) and Surender vs. National Ins. Co. Ltd., 2013 NCJ 155 (NC).
8. K.K. Verma, learned counsel appearing for the respondent complainant) has supported the impugned order and argued that the impugned order, does not call for any interference by this Commission. He placed reliance on and judgment of this Commission in Oriental Insurance Co. Ltd. vs. Smt. Reeta Devi, 2014 (2) C.G.L.J. 10 (CCC).
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
10. It is not disputed that the respondent (complainant) is registered owner of motor cycle Bajaj Discover bearing registration No.C.G.10-E-8616, the said vehicle was insured with the appellant (O.P.) for the period from 19.06.2009 to 18.06.2010 and the incident took place on 01.05.2010.
// 6 //
11. According to the appellant (O.P.) the intimation regarding the incident was not given by the respondent (O.P.) within 48 hours of the incident and for the first time written intimation regarding the incident was given to the appellant (O.P.) on 07.11.2011. The above contention of the appellant (O.P.) is not reliable and is not acceptable.
12. The respondent (complainant) filed a document i.e. written report dated lodged in Police Station Pendra, District Bilaspur (C.g.) on 02.05.2010. In the said report it is mentioned that "fuosnu gS fd esjh ctkt fMldoj xkM+h dzza] lh- th- 10 bZ 8616 tks fd eSus ?kj ds lkeus fnukad 01- 05-2010 dks jkr 8 cts ykWd dj [kM+h dh Fkh rFkk [kkuk [kkus ?kj ds vanj x;k Fkk ,d ?kaVs ckn ckgj vk;k rks xkMh viuh txg ij ugh fn[kh eSus dkQh [kkstus dk iz;kl fd;k ijarq xkMh ugh feyh ,slk izrhr gksrk gS fd xkM+h vKkr pksjks }kjk pksjh dj yh xbZ A d`i;k xkM+h pksjh gksus dh lwpuk ntZ djsaA"
13. It appears that the incident took place on 01.05.2010 at about 8.00 to 9 .00 P.M. and the matter was reported to the Police Station, Pendra on 02.05.2010. The appellant (O.P.) sent letter of repudiation dated 10.11.2011 (Annexure N.A.3) in which under against Re : it is mentioned that "your claim under Policy No.153300/31/2010/1945 Date of Accident 01.05.2010 8.00 P.M. Date of intimation to us :
04.05.2011 vehicle No.C.G.10-E-8616 (04.05.2011 has been wrongly // 7 // mentioned instead of 04.05.2010). In the said letter, the appellant (O.P.) admitted that the intimation regarding the incident was given to it on 04.05.2011. It appears that the appellant (O.P.) received intimation regarding the incident on 04.05.2010 i.e. after 3 days of the incident, therefore, the contention of the appellant (O.P.) that it received intimation regarding the incident on 07.11..2011 is false. In the instant case, the offence was registered on 09.05.2010 but written report was lodged by the respondent (complainant) before the Police Station, Pendra, District Bilaspur on 02.05.2010 i.e. on next day of the incident, but it is true that the intimation was given by the respondent (complainant) to the appellant (O.P.) on 04.05.2010 i.e. after 3 days of the incident.
14. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009). There has been a landmark judgment of Hon'ble Apex Court in the // 8 // matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
15. In the case of National Insurance Company v. Lajwanti, II (2007) CPJ 48 (NC), the vehicle was stolen on 19.01.2002 at about 4.00 a.m. and report was lodged on the same day under Section 379, IPC and despite best efforts made by Police, the car could not be traced. The claim of the complainant was repudiated by the Insurance Company on the ground that stolen was doubtful. The State Commission allowed the appeal and awarded compensation to the complainant and National Commission upheld the finding recorded by the State Commission.
16. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble Supreme Court has observed thus :
"12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the // 9 // appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission"
17. In the case of Baljeet v. United India Insurance Company Limited., 2014 (1) CPR 61 (NC), Hon'ble National Commission has observed thus :
"12. The above issue is no more resintegra. Similar question came up for consideration before the National Commission in the matter of United India Insurance Company Limited Vs. Gian Singh (2006) 2 CPJ 83 (NC) wherein it has been held that in case violation of conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a non-standard basis.
13. The question whether the insurance company is justified in repudiating the claim of the insured for violation of the terms and conditions of the insurance policy in the case of theft of vehicle came up before the Hon'ble Supreme Court in the matter of National Insurance Company Limited Vs. Nitin Khandelwal (2008) 11 SCC 259, wherein the Hon'ble Supreme Court observed thus :
"In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance // 10 // policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be 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.
In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission".
18. In the instant case the appellant (O.P.) repudiated the claim of the respondent (complainant) on the ground of delayed intimation. In Baljeet v. United India Insurance Company Limited. (Supra), it is observed by Hon'ble National Commission that claim repudiated on grounds that vehicle was parked in street without any safety, intimation of theft was given to insurance company after a gap of three months and vehicle was being used for hire whereas it was insured with opposite party as private use vehicle. In case of violation of condition of policy as to nature of use of vehicle claim ought to be settled on non-standard basis".
// 11 //
19. We cannot appreciate the action of the respondent (O.P.) of repudiating the claim of the appellant (complainant) in toto only on the ground that the appellant (complainant) left the vehicle unattended.
20. Looking to the law laid down by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Nitin Khandelwal (Supra) and Hon'ble National Commission in the cases of National Insurance Company Limited. Vs. Kamal Singhal (Supra) Baljeet v. United India Insurance Company Limited (Supra), it is proper to adjudicate the claim of the appellant (complainant) on non-standard basis.
21. In the instant case, the respondent (complainant) filed Motor Insurance Certificate Cum Policy Schedule in which the total value of the vehicle in question is mentioned as Rs.26,000/-. The vehicle in question was insured for the period from 19.06.2009 to 18.06.2010. During the period of subsistence of the insurance policy, the incident of theft was happened i.e. on 01.05.2010. In the insurance policy it is mentioned that claim for theft of vehicle not payable if theft not reported to Company within 48 hours of its occurrence. The matter was reported by the respondent (complainant) to the appellant (O.P.) after 3 days i.e. after 48 hours of the occurrence of the incident of theft, therefore, the respondent (complainant) is entitled to get // 12 // compensation form the appellant (O.P.) on non-standard basis i.e. 75% of total value of the vehicle in question which comes out to Rs.19,500/- (Rs. Ninteen Thousand and Five Hundred Only).
22. The learned District Forum, has awarded interest @ 9%p.a. on Rs.26,000/-, if the said amount is not paid within the stipulated period, but we find that the respondent (complainant) is entitled for interest @ 9% p.a. on Rs.19,500/- from the date of order of the District Forum till realisation.
23. The District Forum has awarded a sum of Rs.10,000/- compensation for mental agony in favour of the respondent (complainant), which is not just and proper because the respondent (complainant) has intimated the appellant (O.P.) regarding the incident after 48 hours of occurrence of the incident and the respondent (complainant) is entitled to get compensation on non-standard basis, therefore, the respondent (complainant) is not entitled to get any compensation for mental agony.
24. The District Forum has also awarded Rs.3,000/- as cost of litigation to the respondent (complainant). Looking to the facts and circumstances of the case, we find that it is just and proper.
25. Therefore, the respondent (complainant) is entitled to get compensation of Rs.19,500/- (Rs. Nineteen Thousand Five Hundred // 13 // Only) on non-standard basis from the appellant (O.P.) along with interest @ 9% p.a. from the date of the order of the District Forum till realisation. The respondent (complainant) is not entitled to get any compensation for mental agony. The direction of the District Forum regarding payment of a sum of Rs.10,000/- towards compensation for mental agony, is set aside.
26. Therefore, the appeal filed by the appellant (O.P.) is partly allowed and the impugned order is modified to the extent that instead of a sum of Rs.26,000/-, the appellant (O.P.) will pay a sum of Rs.19,500/- (Rs. Nineteen Thousand Five Hundred Only) to the respondent (complainant) along with interest @ 9% p.a. from the date of order of the District Forum i.e. 21.08.2014 till realisation. The appellant (O.P.) will also pay a sum of Rs.3,000/- as cost of litigation to the respondent. The direction of the District Forum for payment of a sum of Rs.10,000/- to the respondent (complainant) towards compensation for mental agony is set aside. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
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