Orissa

Cuttak

CC/19/2018

Sarada Prasanna Swain - Complainant(s)

Versus

Branch Manager,The New India Assurance Co Ltd - Opp.Party(s)

K Parija

27 Jan 2020

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

 

C.C No.19/2018

 

Sarada Prasanna Swain,

S/O:Sri Siba Charan Swain,

At:Khankarpur,PO:Parahat,

P.S:Balikuda,Dist:Jagatsinghpur..                                                             … Complainant.

 

                Vrs.

                                                

1.        The New India Assurance Company Ltd.,

(Wholly Owned by Government of India),

Represented through its Branch Manager,

Choudwar Branch,Kapileswar,

Cuttack.

 

2.        The New India Assurance Company Ltd.,

(Wholly Owned by Government of India),

Represented through its Divisional Manager,

Badambadi,Kathajodi Road,

Town/Dist:Cuttack.… Opp. Parties.

                

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    09.02.2018

Date of Order:  27.01.2020

 

For the complainant.  :    Sri Kumar Parija,Adv. & Associates.

For the O.Ps.1 & 2       :    Sri N.N.Mishra,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

The complainant having attributed deficiency in service to the O.Ps has filed this complaint seeking appropriate relief against them in terms of his prayer in the consumer complaint.

1. The backdrop of the complainant’s case in short is that the complainant had purchased an auto rickshaw under hypothecation from the financier, the Syndicate Bank, Parahat Branch,Jagatsinghpur in the year 2014 to earn his livelihood by way of self-employment.  The cost of the said vehicle is Rs.1,44,900/- which stood insured with New India Assurance Co. Ltd.,Choudwar Branch under Cuttack Division on payment of premium of Rs.5,323/-.  The objective of this policy is to provide safety against theft, fire, accident, burglary, house breaking, riot,strike,earth quake and flood etc and the said policy was valid from 29.10.14 to 28.10.15.
2. On the fateful day on 16.8.15 the complainant had brought some “Bolbomb Bhaktas” in his auto rickshaw bearing Regd. No.OD-05-K-9597 to Lingaraj Temple,Bhubaneswar.  The vehicle was parking near the said temple at Kathgola Chhack on Kabiraj Marg.  The driver of the said vehicle handed over the key to the complainant and went to slip in the night in the house of one of his relatives.  The complainant himself also went to slip in another Bolero along with the driver of the said vehicle standing nearby.  In the next morning when the complainant got up, he found that his auto rickshaw was missing from the spot.   Immediately he reported the matter to police at Lingaraj P.S on 17.8.15.  This fact was also brought to the notice of O.Ps and the claim form was duly submitted to them on 20.8.15 along with all relevant documents.  Lastly the police submitted final report in that case to the Court of S.D.J.M,Bhubaneswsar in C.T No.3755 of 2015 on 23.2.2016 stating that “the case is true but no clue”.

On 25.7.2016 the O.P vide their letter of the 25^th inspant narrated a different story about the occurrence of this case from what has been stated in the claim form.That apart it is also stated in the said letter that the driver was not present in the said auto rickshaw and only the complainant was driving that vehicle on that date, the complainant was entitled to drive the light motor vehicle and a three wheeler non-transport vehicle with effect from 8.4.15.In response to the aforesaid letter, the complainant had given reply to the O.Ps vide his letter dt.31.7.16 wherein it is clarified that the driving license is not mandatory under the claim settlement guide when the settlement of the claim was for theft of a vehicle from a free parking place.It is further stated that since the complainant failed to take reasonable care to safeguard the vehicle and had gone to take rest in another vehicle leaving his own auto rickshaw entirely unattended, the claim was unsustainable and as such it was repudiated.

Repudiation of the claim by the O.Ps according to the complainant in the instant case is illegal and baseless and it has caused serious mental agony and harassment to him.As such the complainant has prayed that the O.P No.1 and 2 be directed to pay Rs.1,37,655/- towards sum assured together with interest @ 18% per annum from 16.8.15 till the date of actual payment , to pay Rs.25,000/- towards compensation for causing mental agony and harassment to him together with any other relief as deemed fit inthe interest of justice.

The complainant has filed the photo copies of a number of documents in support of his contention.  Annexure-1 series are the photo copies of the R.C.Book of the said auto rickshaw and other allied documents.  Anexure-2 is the photo copy of the insurance policy.  Annexure-3 is the photo copy of the driving license of the complainant   Annexure-4 is the photo copy of the driving license of the driver.  Annexure-5 is the photo copy of the F.I.R and Annedure-6 is the photo copy of the final report submitted in the police case to the court of S.D.J.M,Bhubaneswar.  Annedxure-7 is the photo copies of the claim form and Annexure-8 is the photo copy of letter dt.25.7.16 issued by the O.Ps and Ananexure-9 is the photo copy of the reply letter dt.31.7.16 given by the complainant.  Annexure-10 is the photo copy of the repudiation letter of the claim of the complainant dt.26.8.16.

3. Both the O.Ps entered appearance and contested the case.  From their joint written version it is found that the case is not maintainable both in fact and law and there is no cause of action to file the case.  The case is also barred by limitation. Under the condition no.4 of the Indian Motor Tariff published by Tariff Advisory Committee (General Insurance) in its general exceptions has categorically envisaged that insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient conditions.  It is further stated that in the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss.

In that view of the matter it is averred in the written version that the complainant committed violation of the conditions of the commercial package policy and as such he is not entitled to the benefit of the claim lodged by him.Accordingly the claim of the complainant was repudiated on valid and justified grounds.Therefore, it is prayed that the case may be dismissed in limini.

4. We have heard the learned counsels from both the sides and gone through the case records.

At the outset it is fairly submitted by the learned counsel for the O.Ps that Indian Motor Tariff published by the Tariff Advisory Committee(General Insurance) in its general exception U/S-4 has clearly envisaged that the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in an efficient condition.It is also stated that in the event of any accident or break down, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss.According to learned counsel for the O.P. it is an admitted fact that the complainant had left the auto rickshaw in question fully unattended in the night of occurrence and slept in another Bolero with the driver of the said vehicle which was parking nearby.It is clear breach of rules of the general exceptions as submitted by him.There is no counter submission to it in any manner. That apart,the learned counsel for the O.P. has also relied upon a decisions dt.20.1.2016 passed by the Hon’ble National Consumer Disputes Redressal Commission,New Delhi in a revision petition no.3974 of 2013( Avatar Singh Mahendra Singh Gotra Vrs. Oriental Insurance Co. Ltd.) to this effect.It has been clearly held in the above decision that Anil Madavi the owner of the truck which was transporting grains from Warehouse to various ration shops, left the truck in queue by keeping keys in cabin of the truck withoutinforming anybody and without taking adequate safety of the said truck and went home.As per the policy conditions, it is the duty of the complainant to safeguard the vehicle from theft.Since the driver of the vehicle did not take adequate precautions while leaving home when the theft took place, there was breach of the policy conditions.In that view of the matter it can be held in the case in hand that the complainant has left his auto rickshaw entirely unattended and slept in another vehicle (Bolero) which was parking nearby. He is also liable to breach of policy conditions and his claim on that ground is not worth considering.

5. Learned counsel for the O.Ps although has submitted that the present case is barred by limitation yet it is found that the date of repudiation of the claim was 26.8.2016 and the present case was filed on 9.2.2018.  The cause of action arises out of bundle of circumstances and considering the specific date of repudiation of the claim on 26.8.2016 and the date when the consumer complaint was filed on 9.2.18, it is held that the consumer complaint is not barred by limitation.

In the ultimate analysis, we held that the complainant has failed to prove deficiency in service on the part of O.Ps in any manner and hence ordered;

                                                                                ORDER

The case be and the same is dismissed on contest against the O.Ps.

  Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 27^th day of January,2020  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                      President.

                                                             

 

                                                                                                               

 

                                                                                                                   (Smt. Sarmistha Nath)

                           Member(W)