KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the final order/judgement dated 23/03/2023, passed by the Ld. DCDRC, Cooch Behar, in CC/06/2022.

The Appellant’s case in brief is that, the Respondent/Complainant had purchased one e-rickshaw from Aahana Commercial Pvt. Ltd., being no. WB-63B-3544 and registered under the Registering Authority, Cooch Behar district. The said vehicle had been insured with the Appellant/Insurance Company, under Policy No. OG-21-2401-1303-00007664 from 25/09/2020 to midnight 24/09/2021, with the value of the vehicle fixed at Rs.91,000/- (Rupees ninety thousand) only and after payment of final premium of Rs.6,919/- (Rupees six thousand nine hundred nineteen) only.

On the night of 20/01/2021 at about 8 PM, the said e-rickshaw with original documents had been stolen from Malirhat Bazar, where the Respondent/Complainant, had parked his e-rickshaw under lock. The Respondent/Complainant, had informed the matter before the Kotwali PS, but the Police did not receive the FIR, in the absence of the copy of RC. After collecting a copy of the RC, the Police received the written complaint on 22/01/2021, but did not start the case. On 10/03/2021, the Respondent/Complainant, preferred an application u/s 156(3) of the CRPC and after the direction passed by the Ld. CJM, Cooch Behar, the police started a specific case, being Kotwali PS Case No.187/21 dated 25/03/2021 u/s 379 IPC, against unknown miscreants and after full investigation the case had ended in FRT No.567/21 dated 30/09/2021, even though the IO had admitted that the theft was a genuine one. After the incident of theft, the Respondent/Complainant had also intimated the Agent of the Appellant/Insurance Company. On 29/01/2021 the investigator of the Appellant/Insurance visited the PO and enquired into the matter after receiving the original documents, but till date the claim was not released. Finding no alternative, the Respondent/Complainant, lodged a complaint before the Ld. DCDRC, Cooch Behar, with necessary prayers.

The Appellant/Insurance Co., appeared to contest the claim by filing written version, wherein the case of the Respondent/Complainant, was denied and also stated that the Respondent/Complainant, by failing to issue a Notice in writing, immediately after the theft, had violated the conditions of the Insurance Policy, as the Respondent/Complainant had informed the matter only on 23/01/2021. It was also stated that the Respondent/Complainant, did not intimate the RTA, Cooch Behar and therefore was barred from filing this instant case. Moreover, the Respondent/Complainant, by leaving the keys in the vehicle, had failed to take proper care and therefore violated the provisions of the Insurance Policy and was not entitled to any claim. Furthermore, as the vehicle in question was hypothecated to Pooja Finelease Ltd., they ought to have been made a party and therefore the case suffered from non-joinder of party. It was therefore prayed that the case be dismissed.

After going through the evidence and materials on record, the Ld. DCDRC, Cooch Behar, passed the impugned order directing the Appellant/Insurance Co., to pay a sum of Rs.1,51,000/- (Rupees one lakh fifty-one thousand) only, within 30 days, from the date of passing of the order, failing which interest @ 6% p.a. would be levied.

Being aggrieved by the impugned order, the Appellant/Insurance Co., preferred this instant appeal on the ground that the Ld. DCDRC, Cooch Behar, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant/Insurance Co., at the time of final hearing, had argued that the Respondent/Complainant, had violated two conditions of the policy terms, which was not intimating the incident to the police immediately, after the incident and failing to take reasonable steps to safeguard the vehicle from loss or damage, after the Respondent/Complainant, had left the ignition keys along with the vehicle, at the time of theft. He had also relied in the judgement passed in Revision Petition No.3222/2015, passed by the Hon’ble NCDRC, in Universal Sompo General Vs. Chander Singh & Anr. on 04/4/2016 and the Revision Petition No.3251/2013 passed by the Hon’ble NCDRC, in Oriental Insurance Co. Ltd. Vs. Shyam Sundar on 05/5/2014.

Ld. Advocate for the Respondent/Complainant, had countered the above argument, by submitting that the theft was a common phenomenon, which occurred in spite of precautions and vigilance and had relied in the judgements passed by the Hon’ble Supreme Court in Amalendu Sahu Vs. Oriental Insurance Co. on 25/03/2010, in National Insurance Co. Ltd. Vs. Nitin Khandelwal and in Kamalesh Vs. Shriram General Insurance Co. Ltd. on 19/11/2019.

The theft of the vehicle on 28/01/2021 is not disputed, in as much as, the theft investigation report also concurs with the theft, having being occurred on that date at 8p.m. Therefore, the only point that needs to be decided is whether, the Respondent/Complainant, violated the condition of the policy, where he was required to intimate the police as well as the appellant/ Insurance Company and the second condition is, by leaving the ignition in the vehicle,   at the time of theft, the condition of the policy of committing negligence, was violated or not.

In this respect, the vehicle had been stolen from Malirhat on 20/01/2021 when the insured vehicle being no. WB-63B-3544, had been stolen from near the tea shop, when the Respondent/Complainant had gone to take tea. It is also not disputed, that the GDE had been lodged on 21/01/2021and the Appellant/ Insurance Company had been intimated on 23/01/2021. The very fact that the GDE had been lodged on 21/01/21, clearly establishes the fact that the Respondent/Complainant had gone to the PS, to intimate regarding the theft of the insured vehicle. It is a different matter that the police did not start a specific case and only treated the intimation as GDE. For this reason, the Respondent/Complainant cannot be held liable, for not intimating the matter to the police on time. Moreover, the incident had occurred at 8p.m on 20/01/2021, and being a winter evening, the immediate intimation of the theft not being done to the PS can be overlooked on the ground, that the Respondent/Complainant, would immediately try to locate the vehicle or trace the vehicle on his own without involving the authorities. As regards the intimation to the Appellant/insurance Company on 23/01/2021 a delay in few days would not matter much, as the investigation report indicates, that the investigation report was prepared after exactly a month later on 23/02/2021, which suggests that, the Appellant/ Insurance Company had not taken up the investigation immediately, after receiving the intimation on 23/01/2021. Moreover, the investigation report also does not dispute the occurrence of theft, therefore no malicious intent can be attributed to the behavior of the Respondent/Complainant. Under the circumstance, this violation of the condition of the policy, by the Respondent/Complainant, does not appear to be as fatal as made out to be. Therefore, this contention of the appellant cannot be sustained.

As regards the leaving behind of the ignition key in the vehicle, when the theft occurred, it can be stated, that the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal laid down, that in 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 had obtained comprehensive policy for the loss, caused to the insurer. In such circumstances, the Appellant/Insurance Company, ought to have indemnified the insurer on non-standard basis without resorting to repudiating the claim. In the instant case the Respondent/ complainant is the owner of the Toto who had insured the vehicle for Rs. 91,000/-( ninety-one thousand) only and therefore, 75% of the said amount would be Rs. 68,250/- (sixty-eight thousand two hundred fifty) only, which would be apt amount to be paid by the Appellant/ Insurance Company. The impugned order needs to be modified to the extent, that the Appellant/ Insurance Company, should pay the Respondent/ Complainant Rs. 68,250/- (sixty-eight thousand two hundred fifty) only, instead of Rs, 1,51,000/- (Rupees one lakh fifty-one thousand) only as directed in the impugned order.

As the results instant appeal succeeds in part.

It is therefore,

Ordered

That the instant appeal be and the same is allowed in part, on contest, but without costs.

The impugned order is hereby modified to the extent as mentioned in the body of the Judgment.

The Appellant/ Insurance Company, is directed to comply with this order within 45 days of receipt of this order failing which interest @9% PA, would be attracted.

Copy of the judgment, be sent to the parties, free of costs.   

Copy of the judgment be sent to the Ld. DCDRC, Cooch Behar, for necessary information.

Statutory deposits, be return from whom received.

Joint registrar of Siliguri Circuit Bench of WBSCDRC, to do the needful.