C.F. CASE No. : CC/11/29
COMPLAINANT : Sri Joydeb Ghosh
S/o Ananda Ghosh
Vill. Kultala, P.O. Tangra,
P.S. Chapra, Dist. Nadia
OPPOSITE PARTY/OP : Branch Manager,
New India Assurance Company Ltd.
Krishnagar Branch, Krishnagar Bus Stand,
36, L.M. Ghosh Road, P.O. Krishnagar,
P.S. Kotwali, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 29th April, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he purchased one Bajaj motor cycle being No. WB 52H-9551 and the said motor cycle was duly insured with the OP New India Assurance Co. Ltd. having its validity from 15.02.10 to 14.02.11. It is his further case that on 24.02.10 he went to the LIC Office, Krishnagar Branch along with his motor cycle and entered into the said office after keeping the said motor cycle at parking zone under lock and key. At about 03.45 pm when he came out from the office he found that his motor cycle was not in that place and on search it was not traced. So he then and there lodged a F.I.R. at Kotwali P.S. which started a case No. 128/2010 dtd. 24.02.10 under Section 379 IPC. On 16.06.10 the I.O. of the case submitted final report before the CJM, Nadia. Thereafter, the complainant submitted a claim form before this OP along with two keys of the said motor cycle on 20.08.10, but the OP did not take any step to settle his claim. So on 30.12.10 he sent a lawyer’s notice to the OP by registered post which was received by him on 31.12.10, but to no effect. So having no other alternative, he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP New India Assurance Co. Ltd. has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is his submission that one insurance certificate was issued by the OP in respect of the alleged vehicle for the period of 15.02.10 to 14.02.11 with terms and conditions as per the said policy. There is a specific provision in Section (I) – loss or damage or the vehicle insured – (II) by burglary, house breaking or theft. That as per general exception of Section (III), 3(b) of the terms and conditions of the said policy – being driven by or is for the purpose of being driven by him in the charge of any person or than a driver stated in the driver’s clause. He also submits that the complainant had no valid driving licence at the relevant period and the OP on several occasions requested the complainant to produce the same as per the terms and conditions of the policy, but the complainant failed to produce the same. So this OP did not consider the claim of the complainant as per the law. Besides this no claim intimation was duly intimated to the complainant by him by registered post on 30.12.10 which was received by the OP. Therefore, this complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version filed by the OP along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that admittedly this complainant’s motor cycle being No. WB 52H-9551 was insured with the OP Insurance Co. for the period from 15.02.10 to 14.02.11. It is the case of the complainant that on 24.02.10, his motor cycle was stolen from the parking zone at LIC Office, Krishnagar Branch and regarding this theft incident he lodged a F.I.R. at Kotwali P.S. which started a case No. 128/2010 dtd. 24.02.10 under Section 379 IPC. After investigation, I.O. submitted the final report in that case before the Court of Chief Judicial Magistrate, Nadia. Regarding the theft and insurance of the motor cycle there is no denial by the Insurance Co. and also submission of claim application before him by the complainant. His only allegation is that as per the general condition of claim, Section (iii) 3(b) of the terms and conditions of the policy this complainant is not entitled to get any compensation as claimed by him. Sections 3 (a) speaks that the holder of an effective learner’s licence issued to him in Form No. 3 to drive the vehicle is also competent. In the present case it is available from the documents filed by the complainant that the complainant had learner’s licence for the period from 29.12.09 to 28.06.10 and the vehicle was stolen on 24.02.10. So at the relevant time the complainant had a valid learner’s licence to drive the vehicle. Section 3 (b) provides, “Such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle.” Ld. lawyer for the OP has stressed on this point and submits that the complainant has not produced any evidence or document to show that at the time of driving the vehicle their instructor was sitting on the vehicle to control or stop it. From the contents of the application, we find that the vehicle was stolen when it was kept in the parking zone of LIC Office, Krishnagar. It was not stolen on the way or at the time of driving by the complainant, nor it is a case of any accident or claim for any damage caused due to that. It is undoubtedly a case of theft from the parking zone of LIC Office, Krishnagar. The F.I.R. lodged to the IC, Kotwali P.S. by the complainant clearly speaks that to that extent that on 28.02.10 he kept his motor cycle bearing No. WB 52H – 9551 near the office premises of the LIC Office from where it was stolen and the said matter was detected by him at 03.45 pm when he came out from the office and searched for the motor cycle. So on a careful consideration of the F.I.R. and the relevant provision of law as agitated by the ld. lawyer for the OP our considered view is that there is no scope to apply this provision of law as mentioned in 3 (b) of the Central Motor Vehicle Rules, 1989 which is general exception in this case. Rather we hold that it is a clear theft case which is included in the terms and conditions of the insurance policy. By a letter dtd. 30.12.10 the OP repudiated the claim of the complainant on the ground that as per para for general exception (No. 3) under two wheelers’ package policy which is not justified at all.
Therefore, in view of the above discussions our considered view is that as it is a theft case which is covered by the policy condition, so this complainant is entitled to get compensation as claimed in this case. In result the case succeeds.
Hence,
Ordered,
That the case, CC/11/29 be and the same is decreed on contest against the OP. The complainant is entitled to get Rs. 57,950/- (cost of the said motor cycle) along with compensation of Rs. 5,000/- for deficiency in service caused by the OP plus litigation cost of Rs. 2,000/- i.e., in total Rs. 64,950/-. The OP is directed to make payment of the decretal amount within a period of one month since this date of passing this judgment, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
