West Bengal

Paschim Midnapore

CC/128/2017

Smt. Dipa Roy (Laha) - Complainant(s)

Versus

Bajaj Allianz General Insurance Co.Ltd. - Opp.Party(s)

Asim Kumar Dutta

27 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,

     Pulak Kumar Singha, Member. 

and 

   Sagarika Sarkar, Member.

 

Complaint Case No.128/2017

 

Smt. Dipa Roy (Laha), W/o-Tapan Laha, Vill.-Sarberia (Durlavgunj),

P.O.-Santbankura & P.S.-Garhbeta, District - Paschim Medinipur.

                                                                                                                    ………..……Complainant.

                                                                              Vs.

1. Bajaj Allianz General Insurance Co., Kharagpur Branch, Atwal Estate Building, OT Road, P.O.-Kharagpur, P.S.-Kharagpur(T), Dist- Paschim  Medinipur
2. Contai Co-operative  Bank, Branch Manager, C.K. Road, P.O.-Santbankura & P.S.-Garhbeta, District - Paschim Medinipur .

                                                                                                 .....……….….Opp. Parties.                                                     

              For the Complainant: Mr. Ashim Kumar Dutta, Advocate.

             For the O.P.                : Mr. Anup Kumar Misra, Advocate.

                                                           

                                                            Date of filing : - 09/08/2017.

Decided on: -27/02/2018

                               

ORDER

                          Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Smt. Dipa Roy (Laha)  against  the O.Ps.,  named above, alleging deficiency in service on the part of the O.P. no.1.

              Complainant’s case, in brief, is as follows:-

                       Complainant is an unemployed women and for self complainant she purchased a truck bearing no.WB-33C-0889 after taking financial loan of Rs.10,00,000/- from the O.P. no.2. She also insured her said vehicle with the O.P. no.1 by paying

Contd…………………..P/2

 

( 2 )

premium of Rs.19,966/- and the period  of insurance was effective from 06/01/2016 to 05/01/2017.  After completion of transport work on 23/10/2016 at about 10 p.m.,  the engaged driver of that  truck kept the vehicle near the house of the  complainant and after locking the door of the vehicle, the driver handed over the key to the complainant. Unfortunately on the late night of 23/10/2016, the said truck of the complainant was stolen away by some unknown miscreants. Regarding such theft, complainant lodged a complaint before Garbeta P.S. and on basis of such complaint,  Garbeta P.S. case no. 342/2016 dated 01/11/2016 was stated. After investigation, police failed to recover the truck and submitted final report on 30/03/2017. The complainant submitted claim of insurance along with all relevant papers in the office of the O.P. no.1 but unfortunately the O.P. no.1 repudiated her claim on 10/01/2017 on the ground that the complainant did not take all reasonable steps for safeguarding her vehicle. It is stated that the O.P. no.1 has most illegally repudiated her claim of insurance. Hence the complaint, praying for directing the O.P.-Insurance Company to pay the total value of Rs.15,20,000/- of the said truck and for an order of compensation of Rs.50,000/- and litigation  cost of Rs.50,000/-.

Both the O.Ps. appeared in this case and O.P. no.1 has contested this case by filing a written version. O.P. no.2 did not file any written version and also did not contest this case.

Denying and disputing the case of the complainant, it is the specific case of the O.P. no.1 that the present complainant is not a consumer under section 2(1)(d) of the C.P. Act as she purchased and used the  vehicle for commercial purpose. It is stated that the alleged claim of insurance was duly processed by the O.P.  by appointing an investigator and after scrutiny of the said report of investigator and other documents, O.P. found that the complainant failed to take reasonable care of the insured vehicle and the driver of the insured vehicle had left the key of the vehicle in the inigation switch of the vehicle by opening the door and the same contributed to the theft of the vehicle. It is stated by the O.P.-Insurance Company that although the vehicle was stolen on 24/10/2016 but the FIR was lodged after 9 days on 01/11/2016 and intimation to the insurance company was given on 03/11/2016. Due to such delay in intimation, the O.P. lost the opportunity to investigate the case and the said delay had contributed in  non-tracking of the vehicle thereby violating the  policy condition no.1. It is further stated that  since the complainant has violated policy condition no. 1 & 5, so the O.P.-Insurance Company rightfully repudiated the claim of insurance.   

To prove her case, the complainant Smt. Dipa Roy has examined herself as PW-1 by tendering a written examination-in-chief, supported by affidavit and during her evidence on oath, documents were marked as exhibit 1 to 5 respectively.

Contd…………………..P/3

                                                           

                                                                                   ( 3 )

  On the other hand, O.P.-Insurance Company adduced no evidence.

                                                            Points for decision

1. Is the case maintainable in it’s present form and prayer ?
2. Is the complainant a consumer of the O.P. under the C.P. Act ?
3. Is there any deficiency in service on the part of the O.P.-Insurance Company ?
4. Is the complainant entitled to get the reliefs, as prayed for ?

Decision with reasons

           Point nos.1 & 2 :

          Maintainability of this case has been questioned by the O.P.-Insurance Company on the ground that since the complainant purchased the vehicle and used the same for commercial purpose, so in view of provision of sec-2(1)(d) of C.P. Act, she is not a consumer. We find from the petition of complaint that the complainant  has made out a case that she is an unemployed women and for self-employment, she purchashed the track in question. Form the cross-examination of PW-1 Smt. Dipa Roy @ Lata, the complainant, we find that she has admitted that she has a business of transport and she had another vehicle bearing no.WB-33A/4272. She has further admitted in her cross-examination that she used to ply the vehicle in question by engaging a driver and she also used to pay salary to the driver. It is further submitted on behalf of the O.P. that since the complainant used to ply her vehicle in question by engaging a paid driver for commercial purpose, so she  cannot be said to be a consumer under the provision of sec-2(1)(d) of the C.P. Act and as such the present case is not maintainable. As against this, Ld. Lawyer for the complainant submitted that although the vehicle in question was a commercial vehicle but the insurance coverage has no link with commerciality of use of the vehicle. In support of such contention, Ld. Lawyer for the complainant referred a decision of the Hon’ble NCDRC reported in (2013)(1WBLR)(CPNC) 322. We have gone through the said decision of Hon’ble NCDRC and found that it has been held by the Hon’ble NCDRC that  a contract of insurance is a contract of indemnity and therefore there is no question of commercial purpose in obtaining insurance coverage and  claim of insurance  can not be repudiated on that ground.  So in view of the said decision of the Hon’ble NCDRC, it is held that the present complainant is a consumer under the provision of sec-2 (1)(d)(ii) of C.P. Act.

     These two points are accordingly decided in favour of the complainant.    

           Point no.3:-  

                           Admittedly the complainant insured her vehicle in question with the O.P.-Insurance Co. and the occurrence of theft took place during the period of coverage of the policy in question.

Contd…………………..P/4

 

( 4 )                           

From the written version filed by the O.P.-Insurance Company we find that the O.P. repudiated the claim of insurance on two fold grounds namely (i) delay in submitting claim and filing of FIR and  (ii) the complainant failed to take all reasonable steps for safe

            guarding the vehicle insured from loss or damage.

Regarding the 1^st ground of repudiation, it is the case of the O.P. that although the occurrence of theft of the vehicle took place on the night of 23/10/2016 but the FIR was lodged on 01/11/2016 and intimation to the O.P.-Insurance Company was given on 03/11/2016. To prove their said case, O.P.-Insurance Company did not produce the claim petition to show and to prove that the same was filed before them on 03/11/2016. In fact, O.P. adduced no sort of evidence in support of their said case. On the contrary, we find from the cross-examination of PW-1 Smt.  Dipa Roy, the complainant,  that in reply to a question put to her by the O.P., she stated that one day after the date of occurrence, she lodged the claim of insurance before the O.P. After such reply, no suggestion was given to PW-1 thereby denying her said statement. It was also not  suggested to her by the O.P. that she lodged the claim of insurance before the O.P. on 03/11/2016. It thus appears from the cross-examination of PW-1 that she submitted her claim of insurance before the O.P.  one day after the date of occurrence of theft. So the said ground of repudiation regarding delay in giving intimation to the O.P. is not justified.

Regarding the 2^nd ground of repudiation, it is the case of the O.P. that the FIR was lodged after nine days of the date of occurrence before the police.  From the cross-examination of PW-1, we find she has stated that she went to the P.S. for lodging the FIR but the police refused to take the FIR . No suggestion was also given to her thereby denying her said statement. From the copy of FIR (Exhibit-4)  we find that in the petition of complaint filed U/s-156 (3) of Cr. P.C by the complainant on 27/10/2016 before the Ld. ACJM, Garhbeta, Paschim Medinipur, the complainant alleged that on 24/10/2016 she lodged a written complaint before the police beat house at Chandrakona Road but the police did not investigate the matter and hence she was compelled to file the petition of complaint U/s-156(3) of Cr. P.C before the Ld. ACJM, Garhbeta. Thus it is evident that the complainant lodged complaint before the police on 24/10/2016 without delay. Therefore the said ground of repudiation regarding delay in lodging the FIR is out and out false. In the above fact and circumstances,  it is held that there is deficiency in service in repudiating the claim of insurance by the O.P. no.1.     

           Point no.4:-

In view of our above findings, the complainant is entitled to get the claim of insurance of her vehicle. In this case, the vehicle had been stolen. It is well settled that in

Contd…………………..P/5

 

( 5 )

case of theft of vehicle, breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the complainant/insured and the O.P.-Insurance Company is liable to settle the claim on non-standard basis. From the copy of policy (Exhibit-1) we find that on the date of insurance, vehicle IDV was Rs.22,00,000/-. 75% over the vehicle IDV on non-standard basis comes to Rs.16,50,000/-. From the petition of complaint we find that the complainant has prayed for an award of her claim for Rs.15,20,000/- and therefore we are of the view that the complainant is entitled to the award of claim of insurance at Rs.15,20,000/-. That apart, she is also entitled to an order of compensation and litigation cost.   

All the points are accordingly disposed of.

In the result, complaint case succeeds.            

                                          Hence, it is,

                                                Ordered,

                           that the complaint case no.128/2017  is allowed on contest  with cost  against the O.P. no.1 and dismissed exparte against the O.P. no.2.

O.P. no.1-Bajaj Allianz General Insurance Co. is directed to settle complainant’s claim of insurance at Rs.15,20,000/- and to pay the said amount with simple interest @ Rs.8% p.a.  from the date of filing of this complaint till payment. O.P. no.1 further directed to pay the complainant a sum of Rs.20,000/- as compensation and Rs.10,000/- as litigation cost.

All such payment shall be made within a month from this date order i.d. 9% penal interest per annum shall carry over the said amount.

                                    Let plain copy of this order be given to the parties free of cost.      

          Dictated and Corrected by me

                  Sd/-B. Pramanik.         Sd/-P.K. Singha            Sd/- S. Sarkar       Sd/-B. Pramanik.

                        President                       Member                     Member                   President

                                                                                                                           District Forum

                                                                                                                        Paschim Medinipur