BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 1 of 2015
Md. Mujibur Rahman Mazumder
S/O Lt. Abdul Bari Mazumder of Madhurbond, Silchar.……………………………… Complainant.
-V/S-
The Oriental Insurance Co. Ltd.,
Represented by the Divisional Manager
The Oriental Insurance Co. Ltd.,
Town Club Building, 1st Floor, PWD Road, Silchar …………………………………….. Opp. Party
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared: - Mr. Dipak Kumar Deb Advocate for the complainant.
Mr. Shibojyoti Choudhury, Advocate for the O.P.
Date of Evidence 02-04-2018, 14-08-2018
Date of written argument 02-07-2018, 14-08-2018
Date of oral argument 13-09-2018
Date of judgment 12-10-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- Md. Mujibur Rahman Mazumder brought the complaint against the Oriental Insurance Co. Ltd. Silchar Division for award of sum insured of the vehicle bearing Registration No. AS-II/E-6550 and compensation as per provision of Consumer Protection Act 1986.
- He stated inter-alia in the complaint that his aforesaid vehicle was insured with the Oriental Insurance Co. (referred as O.P) for the period from 01-02-2011 to 31-01-2012, vide policy No. 322600/31/2011/5932. But on 24-11-2011 at evening about 7-30 P.M the said vehicle has been snatched away by unknown miscreant from public Road at Rail crossing, Tarapur, Silchar. Accordingly, FIR lodged and informed the insurance company. After investigation, the investigation officer of Lakhipur P/S submitted FR, vide Lakhipur P/S case No. 305/2011 U/S 395 IPC. The said FR also accepted by the Judicial Magistrate. But the O.P-Insurance Company repudiated the claim on the plea that at the relevant time of accident, the driver did not possess valid driving license.
- However, notice issued but the O.P-Insurance Co. fail stated to submit W/S. Accordingly, this case was proceeding exparte against the O.P. Subsequently prayers of the O.P allowed the O.P to participate in the hearing. Accordingly, the O.P submitted evidence of Subha Sundar Dutta Choudhury to establish the fact that the driver of the vehicle did not possess valid driving license.
- I have perused the evidence and written argument of the parties. In this case, the moot point as whether the complainant is entitled compensation for snatching away of his vehicle by miscreant when the driver did not possess valid driving license.
- On perusal of evidence on record it is revealed that claim was repudiated on the sole ground that driver did not possess valid driving license. In that aspect, the O.P unable to produce any material or relevant report of concern DTO to establish the fact that driver possess a fake driving license. However, the Ld. Advocate of the complainant tried to convince this District Forum to say that in the terms and conditions of insurance policy it is written that ‘A person driving holds an effective driving license at the time of accident’. As per him the word accident is important to give effect of the said clause. He said the vehicle did not meet any road accident rather the vehicle has been snatched away. But in my considered view the wider meaning of accident includes snatching the vehicle by unknown miscreant too while the vehicle was plying on the road.
- Nevertheless, the O.P took plea that driver did not possess valid driving license as per report of DTO, Thoubal, Manipur but no such driving license verification report is produced to establish the said fact. Police investigation report is also not produced by the complainant to peruse and conclude the facts. Moreover, the complainant never denied the alleged fact of fake driving license. That is why, at this perflexion keeping in mind the fact that at the relevant time of incidence of snatching the vehicle the driver possessed a fake driving license. I am of opinion that on the non-standard basis, the insured value of the vehicle can be determined to meet the ends of justice,
- This is also view of the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal Appeal (Civil) 3409/2008. In that case Supreme Court upheld the decision of the National Commission vide RP No.2638/2006 to say that in case of violation of condition of the policy as to nature of use of the vehicle, the claim ought to be settled on non-standard basis. The National Commission has frame out guideline for non-standard basis in the case of New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak (2006) CJP 144(NC) as follows:-
Sl. No. Description Percentage of settlement
(I) Under declaration of licensed Deduct 3 years difference in premium
Carrying capacity from the amount of claim or deduct 25%
of claim amount, whichever is higher.
(II) Overloading of vehicles beyond Pay claims not exceeding 75% of
Licensed carrying capacity admissible claim.
(III) Any other breach of warranty/ Pay upto 75% of admissible claim.
Condition of policy including
Limitation as to use.
- Thus, complainant is entitled 75% of sum insured of the vehicle along with cost of the proceeding of Rs.5,000/- (Rupees Five Thousand) only. Therefore, on calculation I find 75% of sum insured of the vehicle is Rs.7,33,356 (Seven Lakhs Thirty Three Thousand Three Hundred Fifty Six) only.
- But as per cover note vide Ext-I, the vehicle was under hypothecation of HDFC Bank. That is why, the complainant is to entitle to receive balance amount after adjustment of bank loan if any to HDFC Bank. So, complainant is to furnish particular of bank loan for purchasing of the vehicle as early as possible and O.P is asked to make payment of awarded amount within 45 days from today to this District Forum through banker’s cheque/bank draft in the name of District Consumer Forum. In default, interest at the rate of 10% per annum to be added with the total awarded amount.
- With the above, this case is disposed of on contest. Supply free certified copy of Judgment to the parties. Given under my hand and seal of this District Forum on this the 12th day of October, 2018.
