OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.69/09
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Sri Mukul Das
S/o -Sri Lashmi Das - Complainant
R/O -Kamakhyagate,Durgasorobar
District-Kamrup, Assam, P.S.Jalukbari
Guwahati-9
-vs-
The Branch Manager,
Bajaj Allianz General Insurance Co.Ltd. - Opp.party
Ulubari.Guwahati-7.
Police Station-Paltan Bazar,
District-Kamrup, Assam
Appearance-
Learned advocates Pajiruddin Ahmed for the complainant .
Learned advocates Sri Rajesh Kr.Bhatra for the Opp.Party.
Date of argument- 14.2.2017
Date of judgment- 1.3.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Mukul Das against Branch Manager,Bajaj Allainz General Insurance Co.Ltd., Ulubari, Guwahati was registered as a proceeding u/s 12 of Consumer Protection Act ,1986 by this forum on 29.7.09, and notices were served on the opp.parties and they filed written statement on 15.11.10. The complainant filed his affidavit as evidence in support of his case and also filed affidavit of one Smti Chitra Das and Sri Maheswar Rajbanshi as evidence in support of his case and all of them were cross examined by the ld counsel of the opp.parties. One Sri Joshwuwanta Kotoki filed his affidavit as evidence in support of the case of the opp.party and he was also cross examined by the ld counsel of the complainant. Before filing affidavit by Sri Joshwuwanta Kotoki, one Sri Yunush Ahmed filed affidavit as evidence in favour of the opp.party, but his affidavit was expunged by this forum vide our order dtd. 29.4.2015 allowing Joshwuwanta Kotoki to file evidence in affidavit in support of the case of the opp.party. After closure of the hearing of evidence, both sides’ ld counsels filed their written argument and finally on 4.10.16. We heard oral argument of ld advocate Mr. Pajiruddin Ahmed for the complainant and of ld advocate Mr.Rajesh Kr.Bhatra for the opp.partyand fixed the day of 25.10.16 for delivery of judgment , but on that day we failed to deliver the judgment owing to the fact of resignation of the lone member of this forum. After joining of the new member, we , again on14.2.2017, heard the oral argument of both sides ld counsels. Today, we deliver the judgment which is below,-
2) The case of the complainant is that the Maruti Car 800 STD under registration No.AS-01AA3383, which he had purchased at Rs.2,09,000/- through hire purchase from ICICI Bank, Guwahati branch obtaining a loan of Rs.1,88,000/- and which was insured with the opp.party vide policy No.0G-08-1001-1801-00034840 with effectiveness from 3rd sep.2007 to 2nd sep.2008, was taken by their driver Maheswar Rajbanshi on 27.2.2008 at about 3 p.m. stating to his wife that the vehicle needed to change the mobile and for minor check up through mechanic nearby garage. But the driver did not return with the vehicle till night and he tried to contact his driver, but failed to contact him and on the next day he went to the village of his driver, but could not found him there. Thereafter, he after searching his vehicle filed an F.I.R. before Jalukbari P.S. on 24.2.2008 for theft of his vehicle by the said driver and the police also registered a case vide Police Station Case No. 94/08 u/s 381 IPC on 25.2.08, but the police also failed to recover the vehicle, and later on his driver stated to him that some other persons committed theft in respect of the said vehicle. Thereafter, he filed a claim of compensation before the forum, but the opp.party, vide letter dtd.27.3.09, repudiated his claim; and then he again submitted two applications vide dtd. 13.4.09, 20.5.09 with the opp.party requesting them to pay him the compensation as the matter is covered by insurance policy, but they refused to pay him compensation. Accordingly, he prays to this forum for directing the opp.party to pay him Rs.1,88,000/- as sum assured of his insurance policy made with them against the theft of his vehicle and Rs.1,12,000/- as cost of the proceeding totaling Rs.3,00,000/-.
2) The gist of the pleading of the opp.party is that the driver of the vehicle bearing registration No..AS-01AA3383 was not made party in this proceeding and that is why the complaint is liable to be dismissed. The vehicle was insured with them with a package policy No.0G-08-1001-1801-00034840 which was effect from 3rd sep.2007 to 2nd sep.2008. The story webbed by the complainant is not believable . The delay in filing FIR proves that the complainant did not take proper steps in time to safeguard the loss of his vehicle. The complainant filed the FIR three days after the vehicle went missing i.e. on 24.2.2008, which was registered by the police on 25.2.2008 vide Jalukbari Police Station Case No. 94/08 u/s 381. The vehicle was used by the complainant for hire and reward , although vehicle was insured as a private care package, and as such, utilizing the said vehicle for hire and reward, which is in violation to policy condition the complaint is liable to be dismissed. The vehicle was insured with them with a package policy No. 0G-08-1001-1801-00034840 which was effect from 3rd sep.2007 to 2nd sep.2008. The story webbed by the complainant is not believable . The delay in filing FIR proves that the complainant did not take proper steps in time to safeguard the loss of his vehicle. The complainant filed the FIR three days after the vehicle went missing i.e. on 24.2.2008, which was registered by the police on 25.2.2008 vide Jalukbari Police Station Case No. 94/08 u/s 381. The vehicle was used by the complainant for hire and reward , but vehicle was insured as a private care package, and as such, utilizing the said vehicle for hire and reward is not utter breach of the terms and conditions of the insured policy as well as violation of provision of Motor Vehicle Act, 1939. The claim was repudiated on the ground that the complainant breached the policy condition as on the day of missing of the vehicle it was being used for hire and reward on an agreement with whatever fare would be collected would be distributed proportionately between the complainant and the driver. From the final report of the investigation of the police, it is observed that on 22.2.2008 on about 9 a.m. the driver Sri Maheswar Rajbonshi took six persons from Kamakhya Nursery to Kamakhya temple and dropped them there and returned to Durga Taxi stand and again at about 3-30p.m. he took four youths to Balaji temple at a fare of Rs/400/- and he then took them to Basistha, where the said youths made him to drink in the car and asked him for the keys of the vehicle and when he refused to hand over the keys, they snatched the keys from him and fled away with the vehicle and he being inebariated state felt asleep. The repudiation of the claim was made after consideration of the facts and circumstances as well as the documents and therefore , the repudiation cannot be deemed as unjust or inequitable and as such the complainant as no cause of action to filing the present complaint . The complainant had also approached the insurance ombudsmen and the latter also disposed of the application of the complainant after hearing both the parties and held that the repudiation order is proper. The complaint is liable to be dismissed.
3) We have perused the pleading of the parties as well as the evidence . It transpires to us that both side admit that the complainant purchased one Maruti 800 Car STD financed by ICICI bank , which was registered as AS-01-AA-3383 and the vehicle was insured with Bajaj Alliance General Insurance Company Ltd., Guwahati branch (Opp.party) vide policy No. 0G-08-1001-1801-00034840, within coverage of the said policy while it was stolen away. Both sides also admit that the complainant filed the claim before the opp.party claiming the value of the vehicle on the basis of the policy; but the opp.party repudiated the said claim vide their letter dtd. 27.3.2009, and that the ground of repudiation of the claim as per opp.party is that at the time of theft of the said vehicle, the said vehicle was used for hire.
4) The plea of the complainant in respect of theft of his vehicle is that on 22.2.2008 at about 3 p.m. his private car driver , Sri Maheswar Rajbanshi, took the said vehicle for change of mobile and for minor check up in the mobile pipe by mechanic of a nearby garage reporting to his wife, while he was out of his house; and in the evening, while he came home, he came to know from his wife that the vehicle was taken by the said driver for the above purpose; but the driver did not return with the vehicle till then, and he then searched the vehicle and failing to trace out the vehicle, he filed one F.I.R. at Jalukbari Police Station on 24.2.08, which was registered as Jalukbari P.S. Case No. 94//08 u/s 381-I.P.C., but the police failed to recover the vehicle.
In this context, the plea of the op.party is that on 22.2.2008 at 9 A.M. the driver of the complainant, Sri Maheswar Rajbanshi, took six persons from Kamakhya Nursery to Kamakhya temple and dropped them there and returned to Durga taxi Stand and again at about 3-30 p.m. the said driver took four youths to Balaji temple at a fare of Rs.400/- and then he took them to Basistha, where the youths made him to drink liquor and asked him for the key of the vehicle and they snatched the key from him on refusing to do so and fled away with the vehicle. Their another plea is that the complainant failed to safeguard and maintain his vehicle but allowed his driver to ply the vehicle on hire for reward private and while the driver was carrying passengers on hire, then the theft was committed to that vehicle, and thereby the complainant violated policy condition and therefore his claim has been repudiated.
The complainant, in his evidence, states that on 22.2.2008 while his driver Sri Maheswar Rajbanshi took his vehicle stating to his wife that the vehicle needed change of mobile and for minor check up in the mobile pipe, then theft committed in respect of his vehicle and his vehicle was stolen away and then he searched the vehicle as well as the driver, but failed to trace out the vehicle and the driver and then he filed F.I.R.before Jalukbari Police Station on 24.2.2008. Supporting his version , P.W.2 Smti Chitrai Das (wife of the complainant) states that on 22.2.2008 at 3 P.M. their driver, Sri Maheswar Rajbanshi took their vehicle stating to her that the vehicle needed to change of mobile and for minor check up in the mobile pipe, while her husband was out of his house and she also permitted him to check up the vehicle, but he did not return with his vehicle and then her husband searched the vehicle and the driver, but failed to trace out them, and then her husband lodged a F.I.R. before Jalukbari Police Station on 24.2.2008 which was registered as Case No. 94/08 on 25.2.2008 u/s 381 I.P.C.. The driver of the complainant, Sri Maheswar Rajbanshi, filed his evidence in affidavit as a witness of the complainant side wherein he states that on 22.2.2008 he on permission of the wife of the complainant took their vehicle to a garage for repairing and after getting the vehicle repaired he took the vehicle to Basistha to see his daughter Smti Dipali Das and her husband Balen Das at their residence at Basistha and while he was returning from Basistha, a few boys, whose name he did not know requested him to take liquor (wine) with them and he took liquor and became intoxicated and then one of them punched a blow on his forehead and he became senseless and while he regained sense , he knew that the said boys had already taken away the vehicle and then he informed the complainant about the matter. In the cross-examination, the opp.party side put a suggestion to him that he had taken these boys to Basistha temple on hire in the said vehicle, but he denied that suggestion . He also denied another suggestion of the opp.party that the said vehicle was used for commercial purpose . From the first suggestion, which is put by the opp.party, it is clear that the opp,.party side admits that the concerned vehicle was stolen away by miscreants from the hand of the driver of the complainant (P.W.3) on 22.2.08. Now, we are to see, whether opp.party side succeeds to prove their plea that the complainant used the vehicle for commercial purpose and that on 22.2.2008 the complainant’s driver took the said thieves on hire to Basistha. The opp.party side adduces no witness except Joshowanta Kotoky to prove their plea that the vehicle of the complainant was used for commercial purpose and on the relevant day the driver took the thieves to Basistha on hire and he took liquor with them willingly and the said thieves took away the said vehicle.
The opp.party sides’counsel ld advocate Mr.Bhatia submits that the report of the police who investigated the concerned case found that the driver of the said vehicle on the alleged day tooks the miscreant in his vehicle to Basistha on hire and the miscreants forcibly fed him high dose of liquor and made him senseless and took away the vehicle but they failed to trace out said miscreants as well as the vehicle . After perusing the final report of Jalukbari P.S. case No. 94/08, it transpires that the police wrote such things in the final report on the basis of the statement of the driver, but not on the evidence of independent persons. It is also found that the driver (P.W.3) in his evidence states that he was forcibly fed high dose of liquor by some youths with whom he has no acquaintance and made him senseless and then the vehicle was stolen away by those youths, but he denies the hypothesis that on that day he took those youths in his vehicle on hire. It is law that chargesheet/ final report is not an evidence and the narration given in the chargesheet /final report requires to be proved by adducing evidence. So , we can not relly on the final report and its narration . It is also found that the opp.party side adduces no concrete evidence to prove that the driver on that day took the miscreants on the said vehicle on hire. So, their hypothesis that on that day the said driver took the thieves to Basistha in his vehicle on hire is not proved at all, rather it is proved that, on the alleged day, the said driver took the vehicle to the garage for filling mobile and for minor repairing and completion of repairing he went to the residence of his daughter, Smti Deepali Das at Basistha for social visit and while he was returning to the residence of the complainant, on the way a few boys requested him to participate with them in taking liquour and he did it but one of the boy pounced a blow on his forehead and then he became senseless and then they stolen away the vehicle. Thus, it is not established that on the alleged that the complainant allowed his vehicle to be used on hire and the driver took the thieves of his vehicle on hire. So,we hold that neither the complainant nor his driver on the alleged day violated the terms and condition of the policy. It is already found that the fact of stealing away of the said vehicle by some unknown miscreants and no trace of the vehicle as well as thieves are found is admitted by the both sides. It is found that theft in respect of said vehicle is covered by the policy, which the complainant did with the opp.party. Therefore, we hold that the opp.party; being the insurer of the said vehicle, is liable to pay proper compensation to the complainant for the loss of his vehicle (stolen away of his vehicle by miscreants) and on that count their act of repudiation of his claim is a clear case deficiency of service towards him.
5) The vehicle was a Maruti 800 STD car and it was purchased in the month of August ,2006 and its price was Rs.2,09,000/- and theft committed on 22.2.2008 and in the relevant year, the insured value of the vehicle was Rs.1,88,000/-. Hence, the opp.party is liable to pay the said insured value to the complainant for loss of his vehicle. They are also liable to pay interest on it because they illegally repudiated the claim of the complainant. So, we hold that the opp.parties are liable to pay interest on that amount at the rate of 12%per annum from the date of filing claim (20.1.2009). As the opp.party harrassed the complainant by illegally repudiating his claim, the opp.party is liable to pay atleast Rs.10,000/- to complainant. They are also, on that count, liable to pay Rs.10,000/- as cost of the proceeding.
6) Because of what has been discussed as above, the complaint is allowed on contest. Accordingly, the opp.party (The Branch Manager, Bajaj Allianz General Insurance Co.Ltd.) is directed to pay the insured value of the vehicle (AS-01-AA3383) of the complainant which is (Rs.1,88,000/-) to the complainant along with interest at the rate of 12% per annum from 20.3.2009 till full satisfaction of the award and also to Rs.10,000/- as compensation for causing harassment to him and Rs.10,000/- as cost of the proceeding. They are also directed to satisfy the award within two months, indefault, other two amounts shall also carry interest in the same rate.
Given under our hand and seal of the District Forum, Kamrup, this the 1st March, 2017.
Smti Archana Deka Lahkar (Md.S.Hussain)
Member President
