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ORISSA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CUTTACK
Dr. D.P. Choudhury, President, Pramode Kumar Prusty, Member, Sudhiralaxmi Pattnaik, Member
Senior Branch Branch Manager,
United India Insurance Co. Ltd.
and Anr. – Appellants
versus
Guru Nanak Service Station – Respondent
First Appeal No.A/30/2020
Decided on 12.4.2023
Consumer Protection Act, 1986 – S.15[Consumer Protection Act, 2019 – S.41] – Services – Services – Insurance – Repudiation of Claim – unjustified - Exclusion clause Cannot be pressed - It is admitted fact that the complainant has to prove its case and deficiency in service on the part of the OP - The delay in registration of the FIR cannot be ground to discard the claim of the complainant - So far repudiation of the complainant is concerned appellant submitted that the money was taken away due to unattended vehicle and at that time the son of the complainant was attending the telephone call by standing near the vehicle and some persons were standing who took away the money and by this one can conclude that there was sufficient precaution taken to keep the money in the car – Therefore, in this case Exclusion clause-V appears to have not been conveyed to the complainant because no such proof has been adduced as per decision of the Hon’ble Supreme Court in Civil Appeal No.8249 of 2022 M/s. Texco Marketing Pvt. Ltd. -Vrs- Tata AIG General Insurance Co. Ltd. and others. Where it is held that if the exclusion clause is not conveyed in accordance with law, the exclusion clause cannot be pressed against complainant – Therefore, to modify the impugned order by directing the OP to pay Rs.3,20,000/- with 6 % interest from the date of impugned order till date of payment made and rest part of the impugned order will remain unaltered. When the interest is awarded there is no question of compensation to be awarded. Thus, OP is directed to pay Rs.5,000/- towards cost – Appeal dismissed. [Paras 8 to 11].
Result: Appeal dismissed.
JUDGMENT
Heard learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act, 1986 (herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant had obtained a money insurance policy from the OP covering the period from 24.09.2011 to 23.09.2012 for sum assured of Rs.5,00,000/-. It is alleged inter-alia that on 09.06.2012 at around 9 PM complainant alongwith his son Sandeep Gill were coming from their petrol pump, carrying a brief case containing Rs.3,20,000/- with other documents. It is alleged that after reaching the house, while his son received a telephone call on his mobile, some persons were standing outside and took away the money and documents from the car. Thereafter the matter was reported to the OP. Not only this but also the complainant informed about the facts in Khandagiri Police Station on 11.06.2012. Thereafter the claim was made but it was repudiated because the condition of the policy for taking care of the property in question while it was under transaction has been violated. Challenging such repudiation, the complaint was filed.
4. The OP filed the written version stating that the policy condition has been violated by the complainant because as per Exclusion clause-V of the terms and conditions of the contract the company shall not be liable in respect of “Money carried under contract and affreightment and theft of money from unattended vehicle.” The terms and conditions of the agreement has been violated. Therefore, they have rejected the claim. Therefore, there is no deficiency in service on the part of the OP.
5. After hearing both the parties, learned District Forum passed the following order:—
Xxxx xxxx xxxx
“The complaint is allowed in part on contest against the Ops with cost. The Ops are hereby directed to pay a sum of Rs.3,20,000/- (Rupees three lakhs twenty thousand) only to the complainant alongwith interest @ 8 % per annum from the date of filing of the case i.e. 07.08.2013 till the date of actual payment. The Ops are further directed to pay to the complainant compensation of Rs.10,000/- (Rupees ten thousand) only for mental agony and harassment alongwith further sum of Rs.5,000/- (Rupees five thousand) only towards cost of litigation. The order is to be complied with by the Ops within a period of one month from the date of communication, failing which the complainant shall be at liberty to execute the order against the Ops in accordance with law.”
6. Learned counsel for the appellant submitted that learned District Forum has failed to apply judicial mind involved in this case. Since, it is money insurance policy, it should be guided by the terms and conditions of the policy. He submitted that the police has been informed when the occurrence took place. Learned counsel for the appellant submitted that the complainant had informed the police station on 11.06.2012 and one of the condition of the policy is to inform the police and the insurer immediately after the occurrence and since it is violated, they have repudiated the claim. Besides this they have kept the car in open condition and at that time the son of the complainant engaged in telephone call outside the car. So, he submitted to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that learned District Forum after applying judicial mind to the fact and law have passed the impugned order in correct manner and there is no latches on their part. He supports the impugned order.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. It is admitted fact that the complainant has to prove its case and deficiency in service on the part of the OP. It is admitted fact that during currency of the policy, there was allegation of theft of Rs
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