NATIONAL INSURANCE CO. LTD. & ANR. vs BINOD KUMAR SINGH

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 09.02.2015, passed by the Jharkhand State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. 137/2014, "S.D.M., National Insurance Co. Ltd. & Anr. versus Binod Kumar Singh", vide which, the said appeal filed against the order dated 22.05.2014, passed by the District Forum Koderma in consumer complaint No. 2/2012, filed by the present respondent/complainant, allowing the said complaint, was dismissed on grounds of limitation as well as on merits.

The facts in brief are that the respondent/complainant Binod Kumar Singh is the owner of a commercial vehicle bearing No. JH12C 3425, which was insured with the Opposite Party (OP) Insurance Company. The said vehicle loaded with goods is reported to have been stolen on 20.07.2010. An FIR No. 94/10 under section 379 IPC was registered with the local Police. The complainant filed claim with the OP Insurance Company for payment of 13,91,513/-. However, the Insurance Company issued a cheque for 10,42,130/- on 2.11.2011 drawn on HDFC Bank in the name of Bank of India, Koderma Branch, which had financed the vehicle in question. The Insurance Company made deduction of 25% from the claim amount, saying that there was negligence on the part of the driver of the vehicle, as he had failed to carry the keys of the vehicle with him when he went outside to relieve himself. The complainant filed the consumer complaint, seeking payment of balance amount of 3,49,383/- from the OP Insurance Company, alongwith 20,000/- as compensation against mental harassment and 10,000/- as cost of litigation.

The complaint was resisted by the OP Insurance Company by filing a written statement before the District Forum, in which they stated that the driver of the vehicle was responsible for the theft, as he forgot to carry the keys with him, when he went to relieve himself.

The District Forum, after considering the averments of the parties, allowed the consumer complaint, stating that the deduction of 25% of the claimed amount for the negligence of the driver was on higher side. However, they allowed payment of the claimed amount after deduction of 10% of the claim only. In this way, the District Forum directed that a further payment of 2,08,727/- be made to the complainant alongwith interest @9% p.a. from the date of filing the complaint, i.e., 18.1.2012 till payment. Being aggrieved against the order of the District Forum, the OP Insurance Company challenged the same by way of an appeal before the State Commission. However, the said appeal having been dismissed on grounds of delay as well as on merits, the OP Insurance Company is before this Commission by way of the present revision petition.

It was argued on behalf of the petitioner insurance company that they decided to pay 75% of the claimed amount on non-standard basis, keeping in view the fault of the driver in not carrying the keys with him when he went to relieve himself. The said amount had been accepted by the respondent/complainant by putting his signatures on the discharge voucher, and no protest of any kind had been raised, while accepting the amount. The orders passed by the consumer fora below were, therefore, based on an erroneous interpretation of the facts and circumstances on record and should be set aside and the consumer complaint should be ordered to be dismissed.

The learned counsel further argued that the complaint in question was not maintainable before the District Forum Koderma, because the said Forum had no jurisdiction to entertain the same, as the dealing office of the OP Insurance Company was located at Jamshedpur. The learned counsel further stated that a copy of the discharge voucher had been placed on record, upon which the signatures of the complainant as well as the Bank were there. The learned counsel has drawn attention to an order passed by the Hon''ble Supreme Court in " United India Insurance Co. Ltd. vs. Ajmer Singh Cotton & General Mills & Ors." [1999 (6) SCC 400] , saying that the insured was estopped from filing further complaint, after having accepted the amount offered by the Insurance Company without protest. Further, it was a settled legal proposition enunciated in a catena of judgments made by the Hon''ble Apex Court and this Commission, in cases involving violation of the terms and conditions of the policy, that 75% of the amount of claim was to be paid on ''non-standard basis''. There was no justification for increase of the amount payable to the complainant from 75% to 90%. The learned counsel has drawn attention in this regard to the orders passed by the Hon''ble Supreme Court in "Amalendu Sahoo vs. Oriental Insurance Co. Ltd." [II (2010) CPJ 9 (SC)] , in which, the guidelines for payment of 75% of the admissible claim for any breach of conditions of insurance policy/warranty etc., as laid down by the National Commission in the case, "New India Assurance Co. Ltd. versus Narayan Prasad Appaprasad Pathak" [II (2006) CPJ 144 (NC)] , had been accepted. The learned counsel has also drawn attention to an order passed by the Hon''ble Supreme Court in "National Insurance Company vs. Nitin Khandelwal" [2008 (11) SCC 259] , in support of his arguments.

On the other hand, the learned counsel for the respondent has placed reliance on order dated 11.12.2015, passed by the Hon''ble Delhi High Court in Arb.P.459/2015, "WorldFA Exports Pvt. ltd. vs. United India Insurance Co. Ltd. ", saying that since the Insurance Company had superior bargaining power, the system of issuing discharge voucher and getting it signed from the insured, was not fair. The learned counsel further stated that the driver, while leaving the vehicle had left the keys in the locker box of the vehicle and hence, there was no negligence on his part. In fact, the insured had not violated any terms and conditions of the policy. The learned counsel further argued that the District Forum, Koderma had the territorial jurisdiction to entertain the complaint, because a part of cause of the action had taken place at Koderma. The vehicle had been hypothecated to Bank of India, Koderma. The Insurance Company also issued their cheque of payment of claim in favour of Bank of India, Koderma, meaning thereby that the cause of action had arisen at Koderma.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

In so far as the territorial jurisdiction of the District Forum to entertain the consumer complaint is concerned, it is made out from the complaint itself that the branch office of the OP Insurance Company is situated at Koderma. Although the Insurance Company has taken the line of argument that their branch office at Koderma, had no authority to settle the claim, but keeping in view the order passed by the Hon''ble Supreme Court in "Sonic Surgical v/s National Insurance Company Limited" [2010 (1) SCC 135] , the complaint could have been lodged at Koderma, whereas the branch office of the OP Insurance Company is situated. I am in full agreement with the view expressed by respondent/complainant that a part of the cause of action had arisen at Koderma, because the vehicle was hypothecated to the Bank of India, Koderma and moreover, the claimed amount was issued in favour of the Bank at Koderma. The objection taken by the OP Insurance Company about the territorial jurisdiction to entertain the complaint is, therefore, totally unfounded and rejected.

In so far as the quantum of claim payable by the Insurance Company is concerned, it is evident from record that when the driver left the vehicle, he did not carry the ignition key with him. Although it is being stated that he had put the key in the locker box, but in a number of cases decided by this Commission, it has been held that the non-carrying of ignition key by the driver in a similar situation, is considered deficiency on his part. This view has been taken by this Commission in the case " Oriental Insurance Co. Ltd. vs. Tara Singh (deceased) through LRs