Jharkhand

Pashchimi Singhbhum

CC/33/2015

Mr Balaji Pradhan - Complainant(s)

Versus

Branch Manager - Opp.Party(s)

08 Jun 2022

ORDER

  IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

WEST SINGHBHUM AT CHAIBASA

 

                                            Present: - 1. Sri Vijai Kumar Sharma, President,

                                             2. Sri Rajiv Kumar, Member.

                                              3. Smt. Aparna Mishra, Member,

 

C. C. Case No.33/2015

Chaibasa, Dated: 08.06.2022

 

Mr.Balajee Pradhan, S/o Late Urdhan Pradhan, Village- Danti, P.O.& P.S Chakradharpur, District- West Singhbhum, Jharkhand……….……Complainant

Vs.

Branch Manager, Oriental Insurance Company Ltd., Jain Market Chaibasa, P.O-Chaibasa District- West Singhbhum, Jharkhand……………………Opposite Party

 

Learned Counsel for the Complainant…………. Mr. N.N. Pandey & P.K. Daripa

Learned Counsel for the Opposite Party………………….……..Mr. P.K. Ghosh

Judgment

     Instant case has been filed for an award of Rs.4,50,000.00 including insurance claim with interest, litigation cost and for compensation towards physical as mental harassment against opposite party insurance company for his deficiency in service.

     Briefly stated case of the complainant Balajee Pradhan son of Late Urdhan Pradhan resident of Village Dhanti, P.O. & P.S. Chakradharpur, District West Singhbhum Jharkhand, that he is owner of Bolero Vehicle bearing No.JH06C-3732. Further that above Vehicle was insured with Oriental Insurance Company and aforesaid vehicle was stolen for which F.I.R. was lodged by Tanveer Alam driver of the aforesaid stolen vehicle and accordingly case was registered in Telco Govindpur P.S.Case No.120/2009. Further that complainant claimed insurance amount in the office of O.P. which was registered as Claim No.333002/31/2010/000008 by the letter dated 24.07.2009. Further O.P directed complainant to deposit the documents regarding the stolen vehicle in compliance of the same complainant deposited entire documents along with original application for getting the claim regarding stolen vehicle and those documents were received in the office of O.P. on 05.05.2009 further that criminal case registered in the Telco Govindpur P.S. was investigated by Police Officers and charge sheet was submitted but stolen vehicle was not recovered further that despite observing all formalities by the complainant O.P. did not take any step rather claim was avoided by the O.P. till six years then complainant sent a legal notice on 03.06.2015 then reply was given by the O.P. on 10.06.2015.  In reply by the O.P. it has been mentioned that vehicle was used as commercial purpose while vehicle was registered as private vehicle so claim has been repudiated on the ground of commutation and using the vehicle commercially but as matter of fact vehicle was not used commercially rather vehicle was used for Barat of relative of the complainant and no any consideration was received by the complainant as fare.  Further that as per condition of the Policy complainant is entitled to get the entire amount of the insurance valuation of the stolen vehicle and accordingly claim has been raised forRs.4,50,000.00 with interest, litigation cost Rs.30000.00 and Rs.20000.00 as compensation towards physical and mental harassment.

     On the basis of office report case was admitted and notice was issued to the O.P.  O.P. has appeared in this case and show-cause has been filed with intention to contest the case.  On perusal of the show-cause it transpires that O.P. has mentioned legal as well as ground of facts in the show-cause.  Ground of maintainability of the case, ground of limitation after filing the case, jurisdiction of the court to try the case, cause of action has been taken as legal ground.  Further that it has been stated by the O.P. that complainant has used his vehicle as commercial vehicle which fact has come in the light in Police investigation in the stolen case registered by the complainant further that vehicle was registered as private car which cannot be used commercially in the material time of theft of vehicle.  Further that claim of the complainant for Rs.450000.00 as mentioned in the complaint petition is baseless, hypothetical, wrong which cannot be accepted therefore O.P. has repudiated the claim.  Finally that complaint case is without merit and prayer has been made to dismiss the complaint case with cost.

     In support of the case both parties have adduced affidavited and documentary evidences in this case. Complainant has adduced Xerox copy of documentary evidences which are as follows

1. Certificate of Registration in the name of the complainant Balajee Pradhan (Exhibit 1)

2. Insurance Policy Certificate as private car package of the Oriental Insurance Company Ltd. (Exhibit 1A)

3. Schedule of premium (Exhibit 1B)

4. Xerox Copy of application dated 05.05.2009 (Exhibit 2)

5. Xerox Copy of certified copy of F.I.R and Charge Sheet in 5 sheet (Exhibit 3, 3A, 3B, 3C and 3D respectively)

6. Xerox Copy of the letter issued by the O.P. dated 24.07.2009 (Exhibit 4)

7. Xerox Copy of the notice to the O.P. through Advocate on dated 03.06.2015 with receipt and acknowledgement in 4 Sheet (Exhibit 5&5A)

8. Xerox Copy of reply notice issued by O.P dated 10.06.2015 (Exhibit 6).

     On the other hand O.P filed affidavited evidence of Purnachandra Pingua Deputy Manager of the Oriental Insurance Company Ltd Divisional Office Jamshedpur and documentary evidence which are as follows:-

1. Copy of the letter dated 17.03.2011 issued to Balajee Pradhan in one sheet (Exhibit A)

2. Note sheet of R.M. Patna dated 08.03.2011 in one sheet (Exhibit B)

3. Letter of the recommendation of Divisional Manager the Oriental Insurance Company Ltd. in one sheet (Exhibit C)

4. Copy of the written report of Tanvir Alam driver of the Bolero Vehicle No.JH06C-3732 in one sheet (Exhibit D)

     Learned counsel for the complainant during argument has submitted that vehicle of the complainant was insured with the O.P. Oriental Insurance Company Ltd and insurance was valid from 09.06.2008 to midnight of 08.06.2009 and date of occurrence of theft took place in the night of 27.04.2009 and it is clear that theft of vehicle has been committed during the subsistence of insurance period and in this regard complainant has made several efforts to realised the claim form the O.P. but claim was not given by the O.P. rather the same was refused on the ground that vehicle was used for hire purpose which is violative of the insurance policy because vehicle in question was registered as private car but fact is that complainant has sent the vehicle in Barat for his relatives without taking any consideration as fair therefore complainant is entitled to get claim , litigation cost and compensation towards mental and physical harassment.

     On the other hand learned counsel for the O.P. has strongly opposed the submission of the learned counsel for complainant and submitted that as per the certificate of registration vehicle in question was registered as private car for which complainant has paid life time tax and as per the written report of the driver given in the Govindpur Police station it is Cristal clear that vehicle is used for commercial purposes by using in Barat. Further that although complainant has taken defence that he has given vehicle to his relatives without taking any consideration but this fact is not proved properly by the complainant even complainant has not adduced any evidence of the so-called relative regarding this matter.  So defence taken by the complainant cannot be accepted in this case or a matter of fact report of the surveyor of O.P and P.S investigation in C.D. clearly reveals that vehicle in question was used as commercial vehicle and in this regard O.P. has filed detail description in the shape of letter issued by the competent authority of O.P. regarding repudiation of the claim of the complainant. Finally he has submitted that complainant is not entitled for any relief in this case in support of the contention. Learned counsel of O.P has relied upon the decision given by the Honorable Jharkhand High Court and reported in 2009 Vol-(2) JCR page 423(JHR).

     On the basis of affidavited and documentary evidences adduced in this case on behalf of both sides and principal laid on by the Honorable Jharkhand High Court as mentioned above will be basis for finding in this case.

FINDING

     After careful perusal of the affidavited evidence and documentary evidence it is clear that vehicle in question was insured with the O.P on the alleged date of occurrence of theft. Also it is admitted fact that alleged Vehicle No.JH06C-3732 was registered as private vehicle.  Main issue in this case is that whether the vehicle was used in commercial purposes after taking consideration money from the passenger or from the person who has boarded the persons in the vehicle for transporting them in marriage party?

 

    In this regard submission of the O.P. is that complainant has used the vehicle in marriage party for commercial purposes after taking consideration money, on the other hand complainant has taken ground that he sent his vehicle for marriage party for his relatives without taking money.

     On perusal of the affidavited evidence of the complainant it is clear in para-8 in which he has stated that it is not true that his vehicle was used for commercial purposes on the date of occurrence for Barat rather his vehicle was used for Barat for his relatives and not for commercial purposes nor he has taken any consideration money from relative.  Only piece of evidence is above mentioned para of the complainant during the stage of complainant evidence neither name of the relatives has been disclosed by the complainant nor relative evidence has been adduced to corroborate his evidence as mentioned in para 8 of the affidavit.

     On the other hand O.P. has filed Xerox copy of letter dated 10.06.2015 mentioning there in that claim of the complainant has been repudiated as to use in vehicle for hire or reward i.e, common purpose at the time of accident and such letter was issued by the O.P. to the counsel for the complainant on 10.06.2015 as well as 12.03.2011 and these letters have been filled by the complainant as well as O.P.

    Further that O.P has also filed Xerox copy of report submitted by administrative officer Regional office Patna to his higher authority mentioning there in that Mr. O.P. Singh was deputed to investigate the case and he found that papers are genuine of the stolen vehicle but the Divisional office recommended repudiation of the claim as the vehicle was being used on hire basis as per Police Case Diary, so he recommended for repudiation of the claim and the same was accepted by Divisional Manager Regional office Patna as well as Regional Manager Regional Office Patna. (This documents has been marked as Exhibit B)

     Further Senior Divisional Manager has also sought opinion in the motor claim department by recommending repudiation of claim due to violation of 'limitation as to use'. (Exhibit C).

    On perusal of the reported case relied upon by the complainant of O.P. we find that Honorable Jharkhand High Court had laid down principal that if the vehicle is registered as private car, not as a commercial vehicle and the same vehicle was taken on hire and met with an accident then in such situation insurance company has no liability for payment of compensation.

     Principal laid down by the Honorable Jharkhand High Court in the case of United India Insurance Company Ltd. vs Sukhni Mahato & others reported in 2009(2)JCR421 clearly gives guide line that if the vehicle is registered as private car and used for commercial purposes by the owner then insurance company is not liable for any kind of payment. Although in the case in hand complainant has taken plea that he has given his vehicle to his relatives for marriage party without taking any consideration but complainant has not taken name of that relative nor he has taken pain to adduce evidence of that relative in support of his plea.  So we are of the view that only affidavited evidence of the complainant on this point without corroboration cannot be accepted. Further there is no doubt that vehicle in question was a private vehicle and the same was used in marriage party on alleged date of occurrence so it was duty of the complainant to prove the fact that vehicle was not used commercially after taking consideration money but complainant has not proved this fact in this case satisfactorily. Further we are of the view that since complainant has not proved material fact in this case, so he is not entitled for any relief in this case rather the instant case is fit for dismissal.

     Accordingly it is therefore

ORDER

     The case of the complainant is hereby dismissed on contest but without cost.  Let copy of this judgment be furnished to both parties free of cost for their information.

 

   (Rajiv Kumar)             (Aparna Mishra)                               (Vijai Kumar Sharma)

   Member                       Member                                                President