Date of Filing : 28/07/2014
Order No. 21 dt. 17/01/2018
The case of the complainant in brief is that the complainant being the owner of a vehicle no.WB 26K 5300 and the vehicle was insured with o.p. insurance company. The complainant as per the terms and conditions of the policy paid the premium regularly. On 17.5.13 at about 20-00 hours the driver of the complainant parked the vehicle in front of DC Project Pvt. Ltd., Siliguri and the said vehicle was kept under lock and key and all precaution was taken regarding the safety and security of the said vehicle. After finishing his job while the complainant returned to the parking space of his vehicle he found that the vehicle was missing. The complainant tried to recover the vehicle, but all his efforts went in vain. The complainant thereafter lodged a complaint at the P.S. on 18.5.13 and a police case was started being Pradhannagar P.S. Case No.324 of 2013 dt.18.5.13. On the basis of the said complaint the case was started and final report was submitted by the concerned investigating officer. On the basis of the said fact the complainant submitted the claim to o.ps. and at the time of submission of the claim the complainant produced the key of the vehicle and necessary documents. Subsequently o.ps. repudiated the claim of the complainant on 8.5.14. The complainant thereafter made several letters to the insurance company for considering the claim of the complainant, but not fruitful result was achieved. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. to pay the claim amount of Rs.2,36,800/- as well as compensation of Rs.2 lakhs and litigation cost of Rs.10,000/-.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant is not a consumer and does not come within the purview of the C.P. Act. The complainant was using the vehicle for commercial purpose, as such, the instant complaint is liable to be dismissed. The policy in question was an insurance policy for a period of 19.4.13 to 18.4.14 and the sum assured of the vehicle was Rs.2,36,800/-. During the subsistence of the policy the complainant has alleged that the theft was committed. The complainant was very much careless about his own vehicle. The vehicle was parked in the night in an open and isolated place. Moreover, he had left the key of the vehicle inside the said vehicle. He also left the original documents inside the said vehicle. The driver of the vehicle left the key inside the vehicle for the reasons best known to him. Hence it is crystal clear that the driver and owner of the vehicle did not take reasonable care of the vehicle and the complainant violated the general condition no.4 of the policy. The leaving of key of the vehicle inside the said vehicle infers the gross negligence by the driver and the owner of the vehicle. The FIR maker Kalyan Guha stated in his complaint that the vehicle was used for DC Project Pvt. Ltd. Hence it is clear that the vehicle was being used for hire where the nature of the policy was of a private car. Hence the insured has violated the clause of the policy and accordingly the claim of the complainant was repudiated. There was no deficiency in service on the part of o.ps. and as such, o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant’s vehicle was insured with o.ps.?
- Whether the vehicle was stolen in spite of taking proper care?
- Whether there was any negligence on the part of the complainant to keep the vehicle with proper safety and security?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant being the owner of a vehicle no.WB 26K 5300 and the vehicle was insured with o.p. insurance company. The complainant as per the terms and conditions of the policy paid the premium regularly. On 17.5.13 at about 20-00 hours the driver of the complainant parked the vehicle in front of DC Project Pvt. Ltd., Siliguri and the said vehicle was kept under lock and key and all precaution was taken regarding the safety and security of the said vehicle. After finishing his job while the complainant returned to the parking space of his vehicle he found that the vehicle was missing. The complainant tried to recover the vehicle, but all his efforts went in vain. The complainant thereafter lodged a complaint at the P.S. on 18.5.13 and a police case was started being Pradhannagar P.S. Case No.324 of 2013 dt.18.5.13. On the basis of the said complaint the case was started and final report was submitted by the concerned investigating officer. On the basis of the said fact the complainant submitted the claim to o.ps. and at the time of submission of the claim the complainant produced the key of the vehicle and necessary documents. Subsequently o.ps. repudiated the claim of the complainant on 8.5.14. The complainant thereafter made several letters to the insurance company for considering the claim of the complainant, but not fruitful result was achieved. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. to pay the claim amount of Rs.2,36,800/- as well as other reliefs.
Ld. lawyer for the o.ps. argued that the complainant is not a consumer and does not come within the purview of the C.P. Act. The complainant was using the vehicle for commercial purpose, as such, the instant complaint is liable to be dismissed. The policy in question was an insurance policy for a period of 19.4.13 to 18.4.14 and the sum assured of the vehicle was Rs.2,36,800/-. During the subsistence of the policy the complainant has alleged that the theft was committed. The complainant was very much careless about his own vehicle. The vehicle was parked in the night in an open and isolated place. Moreover, he had left the key of the vehicle inside the said vehicle. He also left the original documents inside the said vehicle. The driver of the vehicle left the key inside the vehicle for the reasons best known to him. Hence it is crystal clear that the driver and owner of the vehicle did not take reasonable care of the vehicle and the complainant violated the general condition no.4 of the policy. The leaving of key of the vehicle inside the said vehicle infers the gross negligence by the driver and the owner of the vehicle. The FIR maker Kalyan Guha stated in his complaint that the vehicle was used for DC Project Pvt. Ltd. Hence it is clear that the vehicle was being used for hire where the nature of the policy was of a private car. Hence the insured has violated the clause of the policy and accordingly the claim of the complainant was repudiated. There was no deficiency in service on the part of o.ps. and as such, o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the vehicle of the complainant was insured with o.ps. and during subsistence of the said policy the vehicle was stolen. It appears that when the vehicle was kept in front of DC Project Pvt. Ltd., Siliguri the said vehicle was stolen and the complainant immediately lodged a diary and a case was started at the concerned P.S. The complainant lodged a claim on 17.2.14 which was subsequently repudiated by o.ps. The o.ps. claimed that the vehicle was used for commercial purpose, but the vehicle was insured as a private car. In order to prove the fact that the vehicle was used for commercial purpose o.ps. should produce cogent evidence to that effect. Mere allegation of using the vehicle for commercial purpose violating the terms and conditions of the policy cannot be accepted. It was also alleged by o.ps. that the vehicle in question was not properly kept with proper safety and security and the key was lying in the vehicle itself, but the complainant produced the key to the insurance company. How the insurance company came to the said conclusion that the vehicle was not kept under proper safety and security. The o.ps. in order to evade their responsibility of payment of the insured sum made such wild allegation which cannot be entertained. Accordingly we hold that the o.ps. committed deficiency in service in repudiating the claim of the complainant and thereby we hold that the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.493/2014 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to pay the claim amount of Rs.2,36,800/- (Rupees two lakhs thirty six thousand eight hundred) only to the complainant along with compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
