HON’BLE MR DEBASIS BHATTACHARYA, PRESIDING MEMBER
This is a case u/s 17 of the Consumer Protection Act,1986. In short, the case of the Complainant is that he is owner of a transport vehicle bearing registration no.WB-29A-0434 which has been purchased through L& T Finance Ltd., which has been insured with the OP bearing Policy No.OG-11-2410-1803-00002703 of a sum assured of Rs.11,70,000/- for the period from 08.03.2011 to 07.03.2012. On 05.05.2011, the driver of the Complainant, Sk Jalaluddin and helper, Bhola Modi went to Rampurhat from Kolaghat for transport of stone from Rampurhat. It was stopped by them near petrol pump at Goda Bypass NH-2 for nature's call and thereafter they did not find the vehicle. Some miscreants stole the vehicle at about 02.40 A.M. along with all the original documents. The driver intimated the incident to the Complainant, who immediately lodged complaint before the local PS, namely, Burdwan P.S. on 05.05.2011 and G.R. No.720/2011 was started. He also intimated the incident to the Insurance Company with the request for early survey and settlement of claim who appointed one Surveyor, namely, Pitterjee Risk Involve Solutions Management(PRISM). The police authority submitted FRT stating the facts as true. But, the Insurance Company neither settled the claim nor repudiated it. Pertinently, as per demand of the Financier, namely L&T Finance, the Complainant cleared all the outstanding dues and balance EMI in one time settlement and paid an amount of Rs.8,10,992/- and the financier issued NOC to the Complainant on 22.03.2014. Accordingly, the case.
On the other hand, the case of the OP is that after getting information of the alleged theft, the OP appointed one IRDA licensed independent Surveyor, PRISM, and according to the survey report, there were lot of discrepancies in the statements made by the Complainant regarding the theft in the claim form, FIR and information to financier. There is violation of condition No.5 of the policy, as the Driver has not taken reasonable care to safeguard the vehicle and left ignition key with the vehicle. There is no deficiency in service on the part of the OP. So, the complaint be rejected.
The following points are raised for proper adjudication of the case :-
- Is the case not maintainable as alleged?
- Is the Complainant guilty of suppression of facts as alleged?
- Is the incident of theft true?
- Has the Complainant failed to take reasonable steps to safeguard the vehicle?
- Is the repudiation by the OP authority valid?
- Is the Complainant entitled to the claim as made?
Decision with reasons
Point No.1. There is nothing on record to hold the case as non-maintainable. It is answered in favour of the Complainant.
Point Nos. 2 to 6. All these points are taken up together for brevity in discussion and their inter-connectedness.
The incident of theft is nowhere in dispute. On enquiry, police also filed final report to the effect that the incident is true u/s 379,IPC. It is categorically found that both the driver and the helper left the vehicle unguarded for their nature’s call. It was about 02.40 AM then. In their absence, the vehicle in question, namely, truck was taken away by some miscreant, which was not traced out by the police. May be the driver and the helper were in belief that at that dead night when they were attending nature’s call there would be a theft of the vehicle. In any case, it happened. It is not a case where the owner of the vehicle helped in the matter of taking way of the vehicle by someone else in order not to repay the loan amount taken from the financier out of his pocket but from the claim to the Insurance Company, as the Complainant fully satisfied the loan. In this case, there has been repudiation of the claim by a letter dated 29.08.2011 by the OP Insurance Company, which did not come to the hand of the Complainant. There is, however, some short of proper care on the part of the staff of the Complainant for which vicarious liability is cast on the Complainant. Accordingly, the Complainant will be entitled to 75% of the claim. In this respect, a decision of the Hon’ble National Commission reported in 2013 (3) CPR 729 (NC) referred by the Ld. Advocate for the Complainant is gone into. Accordingly, all the points are disposed.
Hence,
ordered that the complaint is allowed in part. OPs are directed to pay 75% of the claim of the Complainant within 30 days, in default to pay an interest at the rate of 12% p.a. from the date of the claim till realization.
