DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.67/2007. Date of filing of the Case: 26.12.2007 Complainant | Opposite Parties | Mr. Nandadulal Ghosh S/O. Late Ratikanta Ghosh Vill. Noornagar, P.O. Jabdalpur, P.S. Baishnabnagar, Dist. Malda. W.B. | 1. | CEO Bajaj Allianz General Insurance Company Limited. GEE Plaza, Airport Road, Yerwada Pune, PIN – 411006. Maharastra. | 2. | Regional Manager Bajaj Allianz General Insurance Company Limited. City Plaza (4th floor), 2nd Mile Sevoke Road, P.O. Siliguri, P.S. Siliguri, Dist. Darjeeling, PIN – 734401. W.B. | 3. | Branch Manager Bajaj Allianz General Insurance Company Limited, National High Way – 34, Sukanta More, P.S. Englishbazar, P.O. Malda. Dist. Malda. PIN 732101. W.B. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member |
For the Petitioner : Shankar Mukherjee & Joynarayan Chowdhury, Advocates. For the O.Ps.: Pranab Kundu, Advocate. Order No. 14 Dt. 09.06.2008 Briefly the complaint case is that the complainant insured his Bajaj Pulsar motorcycle bearing No.WB-66/D-5383 with the O.Ps. (Bajaj Allianz General Insurance Company Limited) on 20.2.2006. On 16.02.2007 the complainant parked his motorcycle on the roadside at Bianpur after it has been locked properly and went to attend natures call. In the meantime some miscreants stole away the motorcycle and the complainant reported the matter to English Bazar Police station on the same day. The matter was also reported to the O.P. observing all formalities with a request to settle his claim. On 06.06.2007 he was informed by the O.Ps. that his claim has been repudiated. This gives rise to the present petition of complaint with prayers for relief as have been mentioned in complaint. The O.Ps. (Bajaj Allianz General Insurance Co. Ltd.) contests the case by filing a joint written version denying allegation and specially denying the plea of the petitioner that he failed to lock his motorcycle prior to attend nature’s call after parking the same at Bianpur which has been considered as negligent act and his claim has been repudiated for violation of rules and regulations of the policy condition. The O.Ps. therefore, pray for dismissal of the petition of complaint. On pleadings of both parties of following points have been emerged for effective disposal of the case. 1) Whether the petitioner be termed as ‘Consumer’ u/s 2(1)(d)(ii) of the C.P. Act? 2) Whether the service of the O.Ps suffer from deficiency? 3) Whether the petitioner is entitled to get the releifs as prayed for. Point No.1 The petitioner Shri Nandadulal Ghosh got his Bajaj 150 DTSI Pulsar of 2006 make insured with the O.P. bearing Policy No.0G-06-2404-1802-00010248 on 20.2.2007 on payment of Rs.1192/- as premium which was valid till midnight of 19.02.2007. The policy was a comprehensive one and thus by the service for consideration in part he has become the consumer as has been engrafted in Sec.2(1)(d)(ii) of the C.P. Act which disposes the present point in the affirmative. Point No.2 This question, is to be decided in the context of definition of words ‘Consumer’, ‘Service’ and ‘Deficiency’ under the C.P. Act 1986. Under the C.P. Act 1986 the word ‘Consumer’ is inter-alia defined u/s 2(1)(d)(ii) to mean a person who hires or avails of any service for consideration which have been paid, partly paid and partly promised etc, Sec.2(1)(o) defines the meaning of word ‘Service’ to mean service of any description which is made available to potential users. The relevant definition is a meaning of the word ‘Deficiency’ as defined in Sec.2(1)(g) which means:- “Any fault imperfection, shortcoming, or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of contract or otherwise in relation to any service.” The aforesaid expressions are in wide terms and are also interpreted in the same way so as to refer justice to the ‘consumer’. Now we shall consider how far Bajaj Allianz General Insurance Company Limited (hereinafter the O.Ps.) has discharged its duty in respect insured motorcycle in question or whether there is any breach on the part of the O.Ps. It appears from records that the petitioner has examined as P.W. –1 and he corroborated the petition of complaint and also stated that on 16.02.2007 at about 03.30 P.M. while he was proceeding towards Malda along Madhughat Bridge he had to halt on the roadside to attend nature’s call. In the meanwhile two unknown persons appeared at the spot and stole away his motorcycle and left the spot driving the same. He lodged FIR No.68/07 dated 16.02.2007 u/s 379 IPC at EBPS and submitted claim petition alongwith original documents to the O.Ps. He has filed xerox certified copies of FIR. Certificate cum policy schedule, purchase memo, and repudiation letter of O.P. dated 06.06.2007 which have been marked Ext.-1 to 4. He has also filed the certified copy of final report of police investigation. In the cross examination the petitioner stated that information of theft of motorcycle was also reported to SP, Malda, to the O.Ps, Branch Manager Centurion Bank. These documents have been filed by the O.Ps. which were marked Ext. A to C. He admitted that either side of the road where the motorcycle was parked there were mango garden and no habitation of human being and also admitted that he could notice the miscreants at the time of taking away the motor cycle. He stated that motorcycle was stranded with the help of side stand and properly locked. In the cross examination he also admitted that he did not handover the key of the motorcycle to the O.P s. and in the intimation letter to Branch Manager O.P., Branch Manager Centurion Bank and S.P. Malda he reported that the motorcycle was not left after lock & key at the time to attend the natures call on the date of incident. He denied that the theft took place due to his negligence. A perusal of Ext.4 which reveals that the O.P. repudiated the claim of the petitioner on the ground that “The insured parked his motorcycle without lock and key at the time of theft which is a violation of insurance policy condition No.4 that clearly states that insured should take all reasonable steps to safeguard the vehicle.” In view of the said observation the claim was repudiated. From the above observation of the O.P. it can safely be concluded that the O.Ps. repudiated the claim of the petitioner on the ground of negligent conduct. In order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct complained of, must be judged not by ideal standards nor in the abstract but against the back ground of the circumstances. In instant case the complainant was in a hurry rather in duress to find place for toilet to release the pressure of abdominal pain, which has been evident from Ext.A to C filed by the O.Ps. In our view the failure to lock the motorcycle in a circumstance when a human being suffers from severe tension as to how and soon he can be relieved of the pressure of abdominal pain, he may fail to exercise that reasonable and proper care to guard against the probable theft which a reasonable man could not do in normal circumstances. The pertinent question – negligence is required to be analysed in the context of jurisprudential concept. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgements have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential though is well stated in the law of Trots, Ratanlal and Dhirajlal (Twenty Fourth Edition 2002 edited by Justice G.P. Singh). It is stated (at P-441 – 442) “Negligence is the breach of a duty caused by the omission to do some thing which a reasonable man, guided by those consideration which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Siyad Akbar :Vs: State Karnataka (1980) 1 Sec.30. The Hon’ble Supreme Court has dealt with and pointed out with reasons the distinction between negligence in Civil law and in criminal law. “Their Lordships have opined that there is a marked difference as to the effect of evidence, Viz the proof, the civil and criminal proceedings……………… where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon a error of judgement.” Let us look into the circumstances stated by the petitioner in Ext.A to C which compelled him to keep his motorcycle stranded on roadside mistaking to operate locking system in course of his journey to Malda. Ext. A is the written statement filed before investigator of O.P s. wherein the petitioner stated that after crossing Madhughat Bridge he felt serious pain in abdomen, road condition was bad for which he could not undertake speedy driving and an urge for toilet forced him to stop his motorcycle and went for toilet in the nearby jungle. He also stated that he forgot to takeout the key. Within a short while he noticed two unknown persons took away his motorcycle and he immediately raised alarm. Afterwards one Maxi Taxi was halted by him and reported the matter to the driver and with his help he reached English Bazar P.S. lodged the FIR. Ext. B and C are the intimations to Branch Manager Centurion Bank and S.P. Malda respectively wherein the circumstances compelled him to stop journey on the way have been explained more or less in similar manner. A perusal of exhaustive report of the surveyor of O.Ps. its appears from para 4 (a) which is the column for findings and observations, that the investigator reported that “it appears from written statement of the insured Mr. Nandadulal Ghosh including some local people that the gist of all the aforesaid written statements is more or less same identical in meaning / interpretation which apparently justifies the merits of the claim without any doubt whatsoever.” In our view the O.P. did not take into consideration the views of prudent persons whether negligence is established in any particular case, the alleged act or omission or course of conduct complained of, must be judged not by ideal standards nor in the abstract but against the back ground of the circumstances. This Forum finds opportunity to go through the discussion in Para 3 appearing in 2006 CTJ 445 (CP) (NCDRC) that “ It is to be remembered that proceedings before consumer Fora are inquisitorial and not adversary. The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record. The Act is for the protection of the consumers and matters are required to be decided by having rational approach and not technical one. This is made clear in Indian Photographic Co. Ltd. Vs. H. D. Shourie, 1999CTJ 566 (SC)(CP)= (1999) 6 SCC 428 wherein the Apex Court observed: “4. The Consumer Protection Act, 1986 has been enacted to …………………………………………. With reference to the consumer movement as the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. A rational approach and not a technical approach is the mandate of law.” This Forum also takes the opportunity to refer the observation of the Apex Court in the case of Life Insurance Corporation of India :Vs: Asha Goel (Smt.) and ANR (2001)2 Sec.160 that “The approach of the corporation in the matter of repudiation of the policy, admittedly issued by it, should one of extreme care and caution. It should not be dealt with in a mechanical and routine manner. In the above view of the matter it can safely be concluded that the approach of the O.Ps. in dealing with the claim petition of the petitioner was not a rational approach but a technical one. The omission on the part of the petitioner to lock his motorcycle and the relevant circumstances referred to hereinabove, is considered an ‘error of judgment.’ In the premises the service of the O.Ps. (Bajaj Allianz General Insurance Company Ltd.) suffers from deficiency which disposes the present point in the affirmative. Point No.3 In the process the case succeeds. Proper fees have been paid. Hence, ordered, that Malda D.F. Case No.67/2007 is decreed on contest against all the O.Ps. [ 1)CEOBajaj Allianz General Insurance Company Limited.GEE Plaza, Airport Road, Yerwada Pune, PIN – 411006. Maharastra. 2)Regional ManagerBajaj Allianz General Insurance Company Limited. City Plaza (4th floor), 2nd Mile Sevoke Road, P.O. Siliguri, P.S. Siliguri, Dist. Darjeeling, PIN – 734401. W.B. 3) Branch ManagerBajaj Allianz General Insurance Company Limited, National High Way – 34, Sukanta More, P.S. Englishbazar, P.O. Malda. Dist. Malda. PIN 732101. W.B.]. The petitioner do get return of Rs.54,981/- (Rupees Fifty Four Thousand Nine Hundred Eighty One Only) as compensation. O.P. No.1, 2 & 3 jointly and severally do pay the aforesaid quantum of money within 30 days from date. Failure to comply the above order by the O.Ps. will carry interest @ 8 % p.a. till its final realization and the petitioner will have the liberty in putting the decree in execution and other relevant laws envisaged in C.P. Act. In the peculiar circumstances there will be no order as to the costs. Let a copy of this order be given both the parties free of cost at once. Sd/- Sd/- Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
