Orissa

Sambalpur

CC/24/2014

Bipul Sharma - Complainant(s)

Versus

Divisional Manager, New India Assurance Company Ltd. - Opp.Party(s)

A.Purohit

12 Sep 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer Case No- 24/2014

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

 

Bipul Sharma,

S/O-Daya Shankar Sharma

R/O-Saraswati Vihar, Po/PS-Ainthapali,

Dist-Sambalpur.                                         ...………..Complainant

                                                Versus

1. Divisional Manager, New India Assurance Company Ltd.

Sambalpur Divisional office.

At-Chhabra Complex, 1^st Floor,

Budharaja, Dist-Sambalpur.

2. The Regional Manager, New India Assurance Company Ltd.

Regional Office-4, Mango Lane, At/Po-Kolkata,

West Bengal.                                     …………...Opp.Parties

 

Counsels:-

1. For the Complainant                   :-         Sri. A.Purohit & Sri. P.K.Dora.
2. For the O.P.1 & 2                         :-         Sri. B.K.Purohit, Advocate.

 

Date of filing:12.05.2014 Date of Hearing :27.07.2022, Date of Judgement : 12 .09.2022

           Presented by Dr. Ramakanta Satapathy, PRESIDENT,

1. The case of the Complainant is that the truck bearing No. OD-15-3948 of the Complainant insured by the O.P. No.1 vide policy No. 55090031120100000756 covering the period 20.11.2022 to 20.11.2013. The truck was carrying pan masala Gutkha (Safal) from Kaypan Sunnyandha Pvt.Ltd., Pardhiapali to Bhaskar General Store, Big Bazar, Behrampur vide excise in voice No. 05460 and 05461 dated 05.01.2013 amounting to Rs. 15,87,000/- and Rs. 20,16,000/-. Charan Behera was the driver of the vehicle which caught fire on N.H.55 at Balodiabandha, Near Mallikeswari Templr, Dhenkanal. A.S.I. of police Sri. Gopinath Baliar singh of Govindpur P.S., Sadar, Dhenkanal received information about illegal activity of the driver and lodged F.I.R. against Charan Behera on 12.01.2013 u/s 407, 435 of I.P.C. and forwarded to court of S.D.J.M., Dhenkanal and G.R. case no. 38/2013. The truck was seized along with R.C. Book including driver licence. In cal. Misc. Case NO. 14/2013 filed by the Complainant, the S.D.J.M., Dhenkanal directed the police to give Zimanama to the Complainant vide memo No. 121 dated 25.01.2013. The Complainant took the vehicle to Sambalpur, sent it to garage. Due to financial hardship and non release of insurance claim, the complainant could not release the vehicle till date.

The O.P. No.1 issued letter No. 550900/OD/CL/2014/1889 dated 11.02.2014 to show cause why the claim shall not be repudiated. The Complainant sent the reply through regd. Post with AD on 04.03.2014 to the O.P. No.1. The O.P. No.1 vide letter No. 55090/OD/CL/2014 dated 27.03.2014 repudiated the claim stating the loss by fire is due to willful act on the part of driver Charan Behera. After several request and lastly advocate notice dated 07.04.2014 of the Complainant when no reply was given by O.P. No.1, this complaint was filed.

2. The O.Ps in their version stated that the Complainant is not a ‘consumer’ and there is no any deficiency in service of the O.Ps. The O.Ps admitted the commercial vehicle package policy of insurance. The occurrence took place on 09.01.2013 but intimation was sent to the O.P. No.1 on 29.01.2013. On 14.12.2013 the surveyor submitted the report insured vehicle was carrying Zarda, Gutkha contra banned articles, which is banned since 01.01.2013 by the Govt., which is a violation of the policy. The driver of the vehicle had gutted the vehicle by fire, the claim was not accidental but intentional and it a ‘No claim’. The O.Ps rightly repudiated the claim.
3. Perused the statement of the parties documents filed and it is observed that the insurance policy was valid for the period 21.11.2012 to 20.11.2013. The Complainant has paid premium of Rs. 40,942/-. The policy covers individual (OD) for Rs. 14,72,500/-. As the Complainant has paid the premium to the O.Ps, the Complainant is a ‘consumer’ of the O.P. and a valid contract exist between the parties.

As per terms and condition of the policy, the O.P. Company indentified the insured from fire. The present case. The F.I.R in G.R. Case No. 38/2013 court of S.D.J.M., Dhenkanal discloses fire caught in loaded truck OD-15-3948 side of N.H. 55 near Malkikeswari at-Baladiabunda loaded with Safala(Gutkha). The driver was present and the vehicle was full loaded. The driver/Owner might have misappropriated the mal and 50% of the load sold somewhere and in order to conceal their guilt the driver set fire in the truck from dula side and filed away.

It is the admission of the Complainant that vide letter No. 55090/ODCL/2014 dated 27.03.2014 show cause notice was served by the O.Ps. Perused the Excise Invoice Safal Gutkha amounting to Rs. 20,16,000/- was transported in the vehicle dated 05.01.2013 and Rs. 15,87,600/- vide another invoice dated 05.01.2013. On 09.01.2013 the occurance took place. The Complainant is totally silent on the date of intimation to the O.Ps about occurrence.

Certainly the O.Ps are to perform their promise when a contract exist between the parties as per Sec. 37 of the Indian Contract Act. In the other hand the principal is liable for the overt acts of its agent as per section 228 of the Indian contract Act. For the overt act of the driver the contract was violated. A person when coming to the court should come with clean hand. In the present case as police case is initiated against the driver Charan Behera for his act, the insurance Company can not be liable.

Accordingly I am inclined to hold that the O.Ps have rightly repudiated the claim as ‘No claim’. It is ordered:

 

6698606.  

          The complaint is dismissed on contest against the O.Ps. No cost.

          Order pronounced in open court on this 12^th day of  September 2022.

          Supply free copies to the parties.