| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 33 of 2017 - Sri Ashok Kumar Daga
Son of Late Mohan Lal Daga Resident of Nazirpatty, M/s Rajasthan Traders. Silchar. ………….………………… Complainant No.1 - Sri Anil Kumar Daga
Son of Late Mohan Lal Daga Resident of Nazirpatty, M/s Rajasthan Traders. Silchar. ………….………………… Complainant No.2 - Sri Kamal Kumar Daga
Son of Late Mohan Lal Daga Resident of Nazirpatty, M/s Rajasthan Traders. Silchar. ………….………………… Complainant No.3 -V/S- - The Divisional Manager, National Insurance Co. Ltd.
Capital Travels Building, Club Road, Silchar. ………………..………………………… O.P.No.1 - The Branch Manager, National Insurance Co. Ltd.
Silchar Branch Office, Capital Travels Building, Club Road, Silchar. ………… O.PNo.2 Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Sri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared: - Mr. Manoj Paul, Advocate for the complainants. Mr. Debasish Som, Advocate for the O.Ps. Date of Evidence 20-07-2018, 10-10-2018 Date of written argument 26-11-2018, 07-12-2018 Date of oral argument 26-12-2018, 23-07-2019 Date of judgment 09-08-2019 JUDGMENT AND ORDER Sri Bishnu Debnath, - Mohan Lal Daga (now dead) brought the complainant under the provision of the Consumer Protection Act,1986 against the Divisional Manager of National Insurance Company Ltd, Silchar Division and Branch Manager of Silchar Branch for award of sum insured of his Bolero vehicle bearing Registration No. As-11/E-5555 because the insurance company repudiated his claim.
- The facts brought by the complainant is briefly described as- His aforesaid vehicle was under insurance coverage of the OP Insurance Company. The Insurance Policy No. 200501/31/13/6100004105 was purchased on 13.10.2013. The period of risk coverage was from 13.10.2013 to 12.10.2014. But on 03.05.2014 at late night the said vehicle was stolen away by unknown miscreant from Nazirpatty, Silchar. Accordingly, he informed the Silchar Sadar Police Station on 04.05.2014. The O/C Silchar Police Station registered Silchar P/S Case no.1069/2014 u/s 379 IPC (corresponding to the GR Case No.1791/2014). Subsequently, on 06.01.2016 the complainant submitted his claim application to the OPs to get claim and compensation in respect of the theft of his insured vehicle with relevant documents but the original keys of the vehicle could not be handed over to the OPs due to loss or missing of the same in another incidence of theft took place at Pachartal Bazar, Unakoti, Tripura on 27.12.2013. However, the complainant manage to make duplicate keys since the aforesaid theft or missing of the keys and intimated the OPs. But the OPs repudiated the claim, vide their letter dated 30.10.2017.
- Hence, the complaint submitted with the prayer for the reliefs of payment of Rs.4,99,065/- with interest at the rate of 18% per annum, damages for harassment , mental agony etc. of Rs.5,35,000/- and cost of the proceeding.
- The OP No.1 submitted Written Statement but the OP No.2 did not respond. However, the OP No.1 in its W/S stated inter-alia that the Insured (complainant) did not take all reasonable steps to safeguard the vehicle from loss on the night of alleged theft and thereby the petitioner violated the policy condition. The OP No.1 further, stated that the complainant failed to submit the keys of the vehicle to the OPs, and contradicted statement regarding whereabouts of the keys. As per the OP No.1, the complainant made after thought GDE on 24.11.2015 for alleged loss of one key of the vehicle way back on 27.12.2013, which has clouded the claim of the complainant.
- During hearing the Complainant side submitted deposition of one of the substituted complainant, i.e., one of the legal heir of the complainant. He is Sri Ashok Kumar Daga and exhibited as many as 08(eight) sets of documents, including copy of Insurance Policy, FR of Silchar PS Case No.1069/2014 and correspondences regarding submission of second original key of the vehicle, etc. The OP No.1 submitted deposition of Sri Biswajoy Choudhury and exhibited 9 (nine) documents including letter of repudiation of the claim, Investigation Report, clarification of the complainant regarding non submitting of original keys of the vehicle, etc. After concluding the submitting of deposition supporting with affidavit, both sides counsels submitted their written arguments.
- I have heard oral argument of both sides counsels and perused the evidence on record including written arguments and report of the O/C Pachartal Police Station regarding GDE of alleged missing of keys of the vehicle.
- From the Ext.A repudiation letter, it is revealed that the claim was repudiated on the ground that alleged theft of the vehicle on 04.05.2014 is doubtful due to contradictory statement regarding non-submitting the keys of the vehicle. I have gone through the evidence on record very meticulously. It is fact that the complainant did not submit the key of the vehicle in connection with his claim of insured value on account of alleged theft. It is revealed from the Ext. C letter of the complainant Late Mohan Lal Daga that he did not submit both the original keys of the vehicle at the time of submitting of the claim application to the OPs as both the keys were lost in the result of theft of keys at Pachartal Bazar on 27.12.2013. The complainant also narrated a detail fact as why he used to keep both the keys together under his custody. Thus, as per the Ext. C, both the keys were lost or missed or stolen away at Pachartal Bazar on 27.12.2013.
- But the PW Ashok Kumar Daga exhibited a letter, vide Ext.8(9) to say that the second key has been misplaced in the business premises. The said fact is contradicted the fact stated by the complainant Mohan Lal Daga in the Ext. C. Whether the PW wrote the said letter, vide Ext. 8(9) on behalf of his father Mohan Lal Daga from his intuition or the content of the letter was dictated by his father during lifetime, is not clear from the evidence on record. Moreover, the information which received by the O/C Pachartal Police Station on 24.11.2015 regarding missing of key of the vehicle bearing Registration No. As-11/E-5555 on 27.12.2013 does not indicate that both the keys of the vehicle lost on the aforesaid incidence, vide Ext. D.
- It is also not clear from the evidence on record as why, the complainant did not make GD Entry on the date of alleged missing of the Key or keys at Pachartal Bazar on 27.12.2013. Anyhow, as per the complainant, the vehicle was plying on the road since missing of both the keys at Pachartal on 27.12.2013 by making duplicate keys. The fact is understandable that the complainant managed to make new set of keys at Pachartal Bazar on 27.12.2013. Who is the expert maker of vehicle keys is not disclosed in this case by the complainant for the reason best known to him. Nevertheless, the OP No.1 in his W/S as well as in the deposition of the DW stated that due to negligence of the complainant Mohan Lal Daga the vehicle has been stolen away.
- The Investigator of the Insurance Company submitted the Report to the OPs, vide Ext. I. As per paragraph No.13 of that Report the following facts reveled on investigation :- a) Theft of the vehicle bearing Registration No.AS-11/E-5555 was committed in between 09-30 PM of 03.05.2014 to 05-30 of 04.05.2014. b) The insured vehicle above was parked and kept on roadside in front of M/S Bherudhan Bhanwarlal, Nazirpatty, Silchar for whole night as unattended. So, miscreant/ miscreants might took the chance and fled away with the vehicle. c) During the relevant time of theft the Lock and Key used by the insured was not original. The original Lock's keys were lost at Pachartal Bazar. Thus, the OP directly or indirectly admitted the fact of theft of the vehicle. Moreover, Ext.1 FIR and Ext. 2 FR indicated that the fact of theft of the insured vehicle is reliable. However, at the same time it is also concluded without hesitation in view of the evidence on record that vehicle was stolen away from the public road at night while it was remain unattended. The said admitted fact is sufficient to conclude that the complainant did not take proper care to protect the vehicle.
- In this case during oral argument the learned advocate of the OPs stated that the evidence adduced by the complainant that original keys of the insured vehicle was lost but at the time of purchasing the Ext.6 Insurance Policy the complainant intentionally suppressed the material fact regarding missing or theft of the original keys of the vehicle and since the incidence of theft of the original keys he was using duplicate keys. Therefore, his opinion is that the complainant obtained the Ext.6 Insurance Policy with misrepresentation of real fact and as such only on the basis of the above misrepresentation of real fact he is not entitled claim for theft of his insured vehicle.
- From the evidence on record it is crystal clear that at the time of purchasing of the renewed Insurance Policy, vide Ext.6 the complainant did not disclose voluntarily the fact of missing of the original keys of the vehicle to the OPs. But evidence on record does not establish any fact that the complainant with ill motive suppressed the fact of missing of the keys of the vehicles. On the other hand evidence on record does not lead me to say that the OPs asked for the relevant document including the original keys at the time of accepting the proposal for purchasing the insurance Policy by the complainant. Rather, without hesitation it is concluded that the OPs received insurance premium and issued Insurance Policy without inquiry about the original keys. As such, at this stage when claim application submitted by the complainant, the OPs ought not to repudiate the claim on the ground of non-submission of the original keys of the insured vehicle.
- However, in the instant case it is clear from the evidence on record that the Insurance Policy, vide Ext.6 was purchased on 13.10.2013 and subsequently, on 27/12/2013 the original keys of the insured vehicle allegedly lost at Pachartal Bazar, Unakoti, Tripura. So there is no question of suppression of the real fact of missing or theft of the original keys of the insured vehicle. Rather, it is a fact in view of the evidence on record that the complainant obtained the Ext.6 Comprehensive Insurance Policy for the stolen vehicle. Hence, when facts of theft of insured vehicle is believable and it was occurred due to carelessness of the Comprehensive Insurance Policy Holder, it is justified to award compensation for theft of the vehicle on non-standard basis of calculation of the compensation because in the National Insurance Company Ltd. Vs Nitinn Khandelwal [Appeal(Civil) 3409 of 2008], the Supreme Court held that in case of theft of vehicle, breach of condition of insurance policy is not germane and in such case insurance company is liable to indemnify the owner of the vehicle when insured has obtained comprehensive policy for the loss caused to the insured. The court further held that the insurance company cannot repudiate the claim in Toto in case of loss of vehicle due to theft, rather, ought to have settled claim on non-standard basis even assuming that there was a breach of condition of insurance policy. The Supreme Court in Amalendu Sahu Vs Oriental Insurance Co. Ltd [Civil Appeal No.2703 of 2010] upheld the guideline of the National Commission regarding calculation of claim on non-standard basis as follows:-
a) for under declaration of Licensed carrying capacity – Deduct 3 year difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher. b) for overloading of vehicles beyond Licensed carrying capacity – Pay claims not exceeding 75% of admissible claim. c) for any other breach of warranty / condition of policy including Limitation as to use – Pay up to 75% of the admissible claim. - In view of the above case law and guideline, I am directing the Insurance Company to pay 75% of the sum insured of the stolen vehicle as claim of the complainant subject to depreciation if any as per term and condition of the Ext.6 Insurance Policy and also to pay cost of the proceeding of Rs.5,000/-(Rupees Five Thousand) only. Except the above, no compensation on any other head are justified in the established situation of this case. The OP are ask to make arrangement within 45 days from today to pay the above awarded amount on cheque in favour of the District Forum for onward payment to the legal heirs of the Late Mohan Lal Daga on equal share. In default, interest at the rate of 10% per annum will be added to the awarded amount from the date of defaulter till realization of the full.
- With the above, this case is disposed of on contest. Supply free certified copy of the judgment to the parties of this litigation. Given under my hand and seal of this District Forum on this the 9th day of august,2019.
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