Assam

Nalbari

CC/9/2019

Dhrubajyoti Talukdar - Complainant(s)

Versus

Authorised Official, Liberty Videocon General Insurance Company Limited - Opp.Party(s)

Pankaj Sharma

23 Dec 2022

ORDER

:: BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ::

:: NALBARI :: DISTRICT-NALBARI :: ASSAM ::

 

Present:  1) Miss. Arunima Deka, AJS. President.

              2) Mr. P. K. Sarma. Member.

              3) Mrs. Poonam Choudhury, Member.

 

CONSUMER CASE NO. CC/9/2019

(Under Section 12 of the Consumer Protection Act, 1986.)

 

Dhrubajyoti Talukdar

S/O- Nagendra Talukdar,

Vill: Digheli,

PO: Bardigheli, PS: Nalbari,

PIN: 781335                                            ……………….       Complainant

 

-Versus-

 

1. Authorised Official,

Liberty Videocon General Insurance Company Limited

10th Floor, Tower A, Peninsula Bussiness Park,

Ganpatrao Kadam Marg, Lower Parel,

Mumbai- 400013                                       ………………  Opp. Party No.1

 

2. Mr. Siddhartha Oja,

Saraighat Riders,

N.H. 37, Opp. Akash Hyundai,

Saru Sajai (Gralia), PO Sawkuchi,

Guwahati- 781034            …………………………………… Pro Forma OP No. 2

 

Appearance-

                   For the Complainant        …  Pankaj Sarma

                    For the OP                     …   Kishor Kumar Talukdar

                   For Proforma OP No. 2    …   Rupen Sarma, H. Deka

 

Date of Argument –  21.11.2022, 19.12.2022

Date of Judgment –  23.12.2022

 

 

J U D G M E N T

         

       The case of the complainant in brief         is that on 26.04.2017 claimant / complainant purchased a new Enfield Classic 350 black motor cycle from the proforma defendant No. 2 i.e. under sale certificate dated 26.04.2017 and Retail invoice No INV6976171800057 at a price of Rs. 1,38,550 and get insured with the OP No. 1 under policy No. RELV2604170138 dated 26.04.2017 covering the period of insurance 26.04.2017 2.27 PM to 25 April 2018 till midnight 11.59 and paid premium of Rs. 3739 only. The alleged vehicle was allegedly stolen on the midnight in between of 05.06.2017 and 06.06.2017 from his compound by breaking open the lock of the gate.

 

      An FIR at police station Nalbari was filed and police registered a case vide Nalbari PS case No. 382/2017 U/s 380/457 IPC and I/O started investigation. On the same day complainant also filed a claim petition before OP No. 1 referring claim No. 30020/20/2171100 regarding to theft of vehicle. After passed sometime OP No. 1 informed him that unless the investigation of the police case is completed, claim made by the claimant cannot be settled. Investigating authority after due investigation submitted Final report before ld CJM Nalbari vide FR No. 382 dated 31.08.2017 which was accepted by passing an order dated 12.12.2017 but before the final report accepted by court, the OP No. 1 sent claim rejection letter to complainant on 09.08.2017 at his address and  it was received by him on 20.08.2017.

 

      Being aggrieved from the rejection of the claim complainant approached before this District Commission carried his grievance by way of a complaint. Accordingly notice were issued to OP No.1 and proforma defendant No. 2 and after appearance OP No. 1 and proforma defendant No. 2 filed their respective objection against complainant separately and resisted the claim of the petitioner on the ground that complainant has committed breach of terms and condition of the policy by leaving the key of the vehicle  in the vehicle and did not lock the vehicle when it was stolen from his compound at night before going to sleep; As per terms and condition of the policy of section No-4 of policy says that  “The insured shall take all reasonable steps to safeguard from loss and damaged well to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle and part thereof as any driver and employee of insured in the event or accident or breakdown the vehicle shall not be left un attendant without proper precautions being taken to prevent further damage or loss and of the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured own risk”.

 

      According to OP No. 1 and proforma defendant No. 2, the insured was required to take all reasonable steps to safeguard the vehicle from loss and damage. The complainant ought to have locked the vehicle before he went to sleep and taken the key with him instead of leaving it in the ignition and should not keeping the vehicle in his sight. From the contents of the FIR of the complainant, it appears that he left the key with the vehicle before going to sleep on the fateful day and the vehicle was out of his sight where it was stolen and this very much proved that complainant fails to take necessary step to safeguard the vehicle and it amounts to negligence for safeguard the vehicle from loss and damage, However OP No. 1 admitted that complainant got insured his newly purchased vehicle with OP No. 1 which was valid from 26.04.2017 to 25.04.2018. It was also denied by OP No.1 and proforma defendant No. 2 that complainant lodged an FIR at Nalbari PS which was registered vide Nalbari PS case No. 382/17 u/s 380/457 IPC . Further it was admitted by OP No.1 that it received a claim petition from the insured and it was get registered as claim No. 300201217110010201 and it also admitted that a rejection letter dated 09.08.2017 sent to claimant Dhubajyoti Talukdar and it was also denied that complainant is entitle to get Rs. 1,38,355 as insured liability and also denied that the complainant is entitle to get an additional amount of Rs. 1,50,000 as mental agony, cost of litigation and interest thereon. OP No. 1 further submitted that the alleged vehicle was plying by complainant on road without valid registration certificate. However OP No. 1 collected a photocopy of the temporary registration certificate of the vehicle issued by itself which was valid from 04.05.2017 to 03.06.2017. However alleged that complainant did not take any initiative for getting permanent registration by applying before concern authority hence the complainant violates the provision of section 39 of the MV Act. Proforma defendant No. 2 fully supported the written objection as raise by OP No. 1 and submitted written statement on the same line.

 

       Performa defendant No. 2 also submitted written objection after impleading as a party voluntarily in this case and fully supported written objection of OP No. 1. Proforma defendant No. 2 stated that proforma complainant made defendant No. 2 made as a party of this case and stated that though the complainant has no claim against it but if the proforma OP resisted the claim of the petitioner then proforma OP may also be considered as principal OP and necessary order or award/ compensation may also be passed against him. Hence proforma defendant by filing written objection contested the case and resisted the claim of petitioner. Proforma defendant also denied the claim of the complainant and stated that his company is not at all liable to pay any compensation as claimed by complainant before this Commission.

 

       Complainant side in order to substantiate his case examined two witness on the other hand OPs are also examined two witness on their side and both the parties exhibited a few documents in support of their respective pleas during adducing evidence before this Commission. After closing evidence, both the parties submitted their written arguments separately at court. I have heard argument advanced by both parties and carefully gone through the record.

 

 

Discussion and decision and reason thereof

 

      Complainant examined himself as PW1 at court and fully supported the content of his complaint petition and exhibited a few documents in support of his claim. Ext. 1 the sale certificate dated 26.04.2017 in respect of alleged vehicle (Royal Enfield Classic 350) color – Black, Chassis No. ME3U3S5CIHC828673 Engine No. U3S5CIHC49004326, is the signature of the Siddhartha Oja, the managing partner of Saraighat rides. Ext. -2 Retail invoice dated 26.04.2017 Ext – 2(1) is the signature of Siddhartha Oja. Ext-3 copy of insurance Policy of Liberty Videocon General Insurance Company. Ext.-4 Rejection letter of Op No. 1 dated 09.08.2017 Ext-5 envelope containing the date of receipt of the rejection letter, Ext -6 Certified copy of FIR, Ext-7 Certified copy of FR No. 383 dated 31.08.2017 of Nalbari Ps case No. 382/17. In cross examination the complainant admitted that on the date of alleged on the fateful night of the committing theft of his newly purchased motorcycle, Complainant left the key of the motor cycle in the ignition and it was unlocked with it before he going to sleep but the entrance gate was properly under locked and denied that he had violated any of the terms and conditions of insurance policy. PW2 Rajani Kt. Talukdar supported the claim of the petitioner and adduce evidence on that line. DW, Chiranjit Pradhan adduce evidence on behalf of OP No. 1 and stated that he has holding the post of legal manager of the Liberty Insurance Ltd. at Guwahati office and admitted that his employer company entered into a contract of policy with complainant and after getting Rs. 3,728/- by his company and issued policy being No. 2012-300201-17-1000218-00-00 which was exhibited by complainant under Ext No. C and alleged that the complainant himself admitted during his cross examination before this Commission as well as before the investigator of insurance company that on the day of fateful night of committing theft, he left his key of the motor cycle with it and it was unlocked and the statement of complainant recorded by their investigator Exhibited under Ext. –A. This Ext- B identity card and Ext C- is the policy. This witness further submitted that complainant broke the terms and condition of the policy lays under section 4 as such, he is not entitled to claim any compensation from OP NO. 1 as well as from proforma defendants No. 2 as the complainant fails to take reasonable safeguard of his vehicle as such loss damage caused to the complainant was entirely at the insured’s own risk. Complainant also fails to comply terms and conditions of the section 8 of the policy. As the complainant fails to get registered his vehicle after purchase hence he violates the terms and conditions of section 39 and 43 of the MV act. And Exhibited B and C.

 

      From the evidence of the both parties it appears that the aforesaid vehicle i.e. the Motor Cycle was stolen on from the residence of complainant on 06.06.2017 Accordingly an FIR was lodged by the complainant at Nalbari Police Station, in the district of Nalbari which was registered as Nalbari PS Case No 382/17 and the intimation of theft of the motor cycle was given to the insurer on 06.06.2017. From the evidence of the both parties, it appears that immediately after the incident of theft claimant filed his claim petition before the proforma No. 2. The claim of the complainant with the insurer was repudiated on the ground that ignition key was left in the ignition switch of the vehicle when theft was committed.

 

       Not only complainant’s claim was resisted by OP No. 1 and proforma defendant OP No. 2 i.e. the insurer on further ground that there was delay in filing FIR and also delayed in intimating the incident of theft to the insurer and the alleged vehicle was found without valid registration. And OPs are requested and prayed for dismissed the claim of the complainant.

 

       After going through the record and hearing both parties, the first question arises for consideration in this case is as to whether the complainant had committed breach of the terms of the policy by leaving the key of the vehicle in the vehicle.  Admitted as per terms and conditions of the policy insurer required to take all necessary steps to safeguard the vehicle from loss and damage. From the evidence of the complainant it appears insured has left the vehicle unlocked in his compound. From the evidence of both parties, it is found that, It is not a case that insured has left his vehicle un-attended and the vehicle was kept out of his sight when it was stolen. According to OPs had the vehicle been in the sight of the driver or owner, certainly he would raise an alarm on seeing the theft while someone driving it away. But the vehicle owner could not raise alarm as he was in deep sleep and such this act of complainant amounts to failure to safeguard the vehicle. The owner knew that if he left the key in the ignition, anybody could commit theft of the vehicle taking the advantage of his being away from vehicle.

 

      On the other hand complainant’s counsel submitted that owner of the vehicle took proper care to safeguard the vehicle and he kept it in the varandah of his house and the varandah of the house was covered by iron grill and the gate of iron gril was locked. But on the date of the fatal day, some miscreant come and by broken the lock of the grill, the alleged vehicle was taken away while the owner was asleep inside his house. Certainly it would amount to negligence on the part of the owner if he unlocked the gate of the Compound. The owner took proper care by locking the entrance gate. Therefore, it would be difficult to forming opinion on mind that there was negligence on the part of the driver of the vehicle.

 

      Ld counsel for the OPs relies in the following case laws and submitted it before this Commission.

 

1. Reliance Gen. Ins. Co. Ltd. Vs Vinod Kumar, 2016 (3) CPR 502 NC
2. Ashish Kumar Walecha Vs Manager, Cholamandalam Gen. Ins. Co. Ltd, & ANR, 2017(2) CPR 513 NC
3. Bajaj All. Gen. Ins. Co. Ltd. Vs Astha Cement Pvt. Ltd, 2021 (1) CPR 105 NC

For violating terms and conditions of the policy and various provisions of MV Act, 1988 by using his vehicle without any valid and effective registration.

United Court.

 

Upon the decision of the hon’ble SC in-

1. Supreme Court:- United India Ins. Co. Ltd Vs Susil Kumar Godara, (2021) ACJ 2679
2. SC:- Narinder Singh Vs New India Assurance Co. Ltd. & ORS (2014) 9 SCC 324
3. Kaushalendra Kumar Mishra Vs Oriental Insurance Co. Ltd. 2012 (1) CPR 362 (NC)
4. ORIENTAL INS. CO. LTD. VS VIDYA RAO, 2015 (1) CPR 379

 

      Ld. counsel for OP further submitted that on the day of alleged incident of theft of the vehicle, complainant vehicle was found without a valid registration and it plying on the road without any registration and it would constitute a fundamental breach of terms and condition of the policy. But from the records and materials available before it, shows that OPs themself brought into the record the temporary registration certificate of the alleged vehicle which was valid from 04.05.2018 to 03.05.2018. In this present case records reveals that the alleged vehicle was temporarily registered and the temporary registration of the claimants vehicle had expired on the night of 03.05.2018. But the vehicle of the claimant was in his house and at the committing of theft and it was not plying at any public road. Though there is nothing on the record to suggest that the claimant had applied for a permanent registration or prayed for extending the period of temporary registration, however, the alleged vehicle was found not plying at any public road when theft was committed and the vehicle was kept inside the compound of complainant and the entrance gate was properly locked. As the alleged vehicle was not found plying on the road and it was not used by claimant without a valid registration at the relevant time of incident, it would not constitute a fundamental breach of terms and conditions of the policy. As such it would not amounting to violation of section 39 and 192 of the Motor Vehicle Act. Hence the Commission is of the opinion is that claimant has not contravene any terms and policy of the insured company. On perusal the case record as well as from the evidence of complainant it appears that he lodged an FIR immediately after the incident of theft with the Nalbari police station and he sent his claim letter to the OPs without any delay. Though it was found that the period of temporary registration was expired just before the day of incident, i.e. 03.06.2017 but the alleged vehicle was stolen when it was kept inside his compound under proper care. The alleged vehicle was not use or driven by complainant at any public road hence the complainant did not violated the section 39 and 192 of the Motor Vehicle Act 1988. As such the complainant is succeeded to established his plea before this Commission with the help of adducing evidence.

 

Order

 

      After scanning the record of this case as meticulously this District Commission arrived into an opinion that complainant is entitle to get compensation as claim in his petition against the OPs with a modification. Accordingly the complaint petition is allowed and this Commission directed the insurer company to indemnify the complainant, and to pay the amount which is 5% less than the amount of the purchased amount (Rs. 1,38,550/-) which come to about Rs. 1,31,625/-. Ops are further liable to pay another amount of Rs. 5,000/- to the complainant for causing mental harassment and Rs. 10,000/- being the litigation cost.

     Thus the OPs are held liable to pay a total amount of Rs. 1,46,625/- only to the complainant. The aforesaid amount has to be paid the complainant within 3 months from the date of the passing this order, in failure proforma defendant No. 2 is liable to pay interest at a rate of 6% PA on aforesaid amount from the date of passing order till realization. All the contested OPs are held jointly and severally liable to pay the aforesaid amount to the complainant.

     Accordingly the case is disposed off.

 

 

 

 

 

                                                                                                                                               President

                                                                                                                    District Consumer Commission Nalbari

 

 

 

 

 

                  Member                                                                                     Member

District Consumer Commission Nalbari                               District Consumer Commission Nalbari