The complainant purchased a car for private use Maruti Dezire, (Model No VDI DRR DCD2) on 26.10.2017 from JK Wheels Pvt. Ltd. under invoice no VSL/170000240 dt 26.10.2017 being vehicle registration no WB-66 AA 0440, chassis no 208972 and engine no 170024, colour Metalic Artict White/ ZHJ. The vehicle was delivered on 30.10.2017. It was purchased at the assistance of financer namely Magma Fincorp Ltd. Upon payment of rupees 25,526/- as yearly premium under private car policy no OG-18-2414-1801-00001128 issued on 9th November 2017. The period of insurance was from 02.11.2017 to 01.11.2018. At the time of policy insurance declare value of the vehicle is Rs.7,10,596/-. But unfortunately the vehicle as purchased was hijacked by some miscreants on terrorizing the driver of the vehicle namely Gadadhar Mondal on 03.05.2018. The driver was wounded and hospitalized at Moinaguri BPHC, Jalpaiguri. The complainant has come to know about the incident from the driver after his recovery. The incident of hijack was immediately intimated to the insurer OP no 1 to 4 of said vehicle on 04.05.2018 and 04.05.2018. Thereafter the insurance company requested to submit all necessary papers. Complainant on knowing the incident approaches to the English Bazar Police station. But the Police Station denied to take complaint due to the place of incident which was not under their jurisdiction and said to the complainant to bring the driver. Accordingly there was delay in lodging complaint which was under No. 517 of 2018 dated 27.05.2018. The complainant also informed to SP Malda and transport authority on 29.05.2018 for the recovery of the vehicle but all in vain. So due to delay in FIR insurance company refused to pay the insurance claim for the lost of vehicle. Complainant also went to the Consumer Affairs Dept. on 05.03.2019 but due to non co-operation by the insurance company mediation failed. At present the complainant is too much ill and suffering from FUC. On 04.09.2018 insurance company repudiated his claim though he sent all the papers of insurance as asked for by the company. Thereby due to repudiation of claim, this complainant was not able to discharge his burden to the financer of the vehicle, result of which Arbitration case started. He issued lawyer’s notice to the insurance company on 31.07.2019 for his claim as per policy certificate. Complainant also moved to the State Commission who directed to approach before this commission for the claim. Hence he filed complaint petition and entitle to get amounting to rupees 7,10,596/- along with compensation (harassment, damage, metal agony ) rupees 2,00,000/- also with litigation cost 1,00,000/-.
On the other dogma, all the OPs filed W.V.
The insurance company i.e OP no 1 to 4 by WV contended all version of the complainant and averted that though the policy of insurance at their company against the questioned vehicle under the policy no OG-18-2414-1801-00001128, validity of which 02.11.2017 to 01.11.2018 is correct but the policy was valid as per terms and condition of the policy. As per their specific pleading under the W.V. that they appointed an investigator after the claim petition when it was discovered that the information behind the alleged theft was given to the police station on 27.05.2018 i.e. after 23 days of the alleged incident which is a violation of insurance policy/contract. That apart there were many discrepancies found from the part of the version of the complainant i.e in claim form it was written vehicle went to the petrol pump and miscreants hijacked the car, after that in FIR and also to RTO it was written vehicle went to the petrol pump and the car was missing and thereafter hijacked, and when investigator of the company examined the complainant he said that when his driver went to fit the seat cover some unknown persons requested to stop the car and gave the driver cold drink result of which the driver became unconscious and the said car was stolen by the unknown person. Further more in complaint petition it was stated, unknown persons terrorized and beat the driver and stole the car. Apart from various statements from the complainant it is to be said that this specific insurance was for the private use of the vehicle but circumstances said it was being used in commercial purpose because from the date of purchase and the period of insurance started, the odometer reading during last service was 99948 kms, merely in six months after purchase of vehicle as per odometer reading clearly shows that the vehicle was not used privately but used commercially when policy was not for commercial purpose. Moreover incident took place as alleged at Moinaguri under Jalpaiguri district when FIR was filed at Malda that also after 23 days. So complainant did not come in clean hand before the commission. He practically suppressed the real fact. So the complaint is subject to be dismissed. That apart complainant failed to supply all of his documents behind the theft- incident instantly along with claim petition which was asked by the company within the period given by the company.
As financer OP no 5 filed W.V with version that if any positive order behind the claim of the claimant against the insurance company that will be adjusted with the default loan because complainant took loan to purchase the vehicle from their company.
Decision with Reason as per trial
In support of claim petition/ complaint complainant examined himself with the version similar to the petition that vehicle was hijacked by some miscreants terrorizing and severely beating to the driver on 03.05.2018, his vehicle was insured since 02.11.2017 to 01.11.2018, and the value of the vehicle was Rs.7,10,596/-. The driver was hospitalized to Moinaguri BPHC and the driver knew all incidents, he further deposed, incident was instantly intimated to the insurer and company registered the claim and asked all papers instantly. Immediately complainant approached to the English Bazar PS after the incident. But the Police station declined to note the incident due to their territorial jurisdiction. Subsequently after return of driver FIR was lodged 23 days after. But he did not get any news of the stolen vehicle.
______this commission find in support of complaint complainant filed paper of insurance and payment of insurance premium (which became as Annexure A), paper of treatment of driver (annexure B), information to insurance and copy of letter dated 05.05.2018 by the company (
Annexure C and G), the FIR to English Bazar dated 27.05.2018 (annexure D) complainant further filed Annexure ‘E’ i.e. application to Consumer Affairs Dept. Consumer further filed annexure ‘F’ i.e treatment paper of himself about his illness, annexure ‘H’ as all letters of correspondence to company dated 04.09.2018 which are private car policy, advocate letter and order of S.C.D.R.C.
We the commission find, on the other insurance company contested the claim with the weapon as W.N.A in hand that there is gross violation of the policy of insurance contract, contract itself says immediately after any mishap, FIR should be lodged and drawn but that has not been made, long after 23 days, it took place when there no investigation report by the police that actually the vehicle was theft. Through cross examination insurance company tried to convince this commission that the actual fact remains insurance company advanced their stretching of hand as insurer behind a vehicle where package of policy was for private car. But this insured for personal-business-gain used this vehicle in commercial purpose and the date in question i.e. 03.05.2018 driver was engaged for carrying passenger and accident took place, not only that driver was driving the vehicle in intoxicated condition which is opposed to insurance policy, even driver had no driving license which are all opposed to policy. Practically at that fateful day there no evidence of FIR by any party. There no sanctity that the vehicle is used in any private purpose. All the medical papers of the driver namely Gadadhar as deposited by the insured would speak that he was intoxicated. Driver himself did not come before the court. So this story of private use by the insured and hijacked by the miscreants or theft of it is a cock and bull story. This Commission further find through cross examination insurance company further wanted to convince court by argument that factually vehicle was not under any theft it repossessed by the financer due to the loan by the complainant to the financer behind this vehicle and subsequently when loan was satisfied through the proceeding of arbitration and another case under NI act in-between the financer and borrower then the car was released by them and now the car is in the hand of insured, for that reason there no response from the part of the police and the number is in existence. Only to avoid financer’s payment this story is founded by the insured. Insurance company after their investigation came to know about all the matters or entire story of complainant and repudiated the claim. Accordingly complaint to be dismissed.
We the commission find, learned counsel of the financer Magma came and orally argued that at present all loan has been satisfied by the complainant and practically the case of complainant was not very substantial.
Now on careful consideration to the respective versions and WNA of the parties and respective evidence of the complainant along with cross examination to the complainant by the opponent, this commission find no substantial/credible evidence in respect of the theft of the vehicle on the date as alleged by. Firstly there no FIR at Moinaguri/ Jalpaiguri Police Station on the hijacking of vehicle by the miscreants from the outside, and if we hold about the miscreants who are already in the vehicle as passengers, then the statement or argument of the insurance company cannot be wiped-out that the vehicle was used in commercial purpose that is how the miscreants came as passenger in inside of the car, If not boarded as passenger. More to say the version of complainant in argument on the date of incident vehicle was going to Siliguri for taking the wife of complainant, that was also not established by any cogent evidence either documentary or orals. Neither driver came as witness nor wife of the complainant dared to depose about that at that fact. Eventually all these circumstances or variance of statements of the complainant persuaded this commission to hold or to impose reliance to the argument of the insurance company. That due to default of loan at that point of time vehicle was repossessed by the financer and after satisfaction of the loan amount to the financer vehicle was released.
Further to opine on observation by the commission that no final report or any charge sheet against such alleged theft came forward from the part of the police personnel as documentary evidence wherefrom theft was to be confirmed. Even any seal or any seize on number of the vehicle or any application to that respect by the complainant as owner of the vehicle to the RTO to seize the number did not come to this commission to show bonafideness of this statement of theft. Accordingly content of the complaint petition was not proved beyond reasonable doubt to compel insurance company to satisfy the demand of the insured behind this making of policy of this questioned-vehicle no WB-66 AA 0440 under policy no OG-18-2414-1801-00001128.
So, the claim against insurance fails on the dearth of proving of theft.
Hence, ordered
Complaint petition is dismissed on the dearth of its proof. Rather it is held that there sufficient violation of contract between the parties on the part of the insured. Complainant failed to substantiate his statement, on the contrary WNA and cross examination of the complainant became more gothic on the use of vehicle in commercial manner which is strong violation of contract of insurance and repossess of vehicle by the financer at that point of time of filing the case until loan amount was satisfied is reliable.
No order of cost is made.
