- Mr. Shiv Kumar Jaiswal,
450, R.B.C. Road, Garifa,
Naihati, Kolkata-743166. _________ Complainant
____Versus____
- Manager, Kolkata Branch,
Cholamandalam M.S.
General Insurance Co. Ltd.
Chhabildas Tower, 3rd Floor,
6A, Mideleton Street,
Kolkata-71, P.S. Shakespeare Sarani.
2) Cholamandalam M.S.
General Insurance Co. Ltd.
“Dare house”, 2nd Floor, N.S.C. Bose Road,
Chennai-600001.
3) United Bank of India,
Naihati Branch,
29, Aurobindo Road, Naihati,
Dist. North 24 Parganas. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 23 Dated 04-06-2015.
The case of the complainant in short is that complainant purchased a Mahindra Scorpio LX (Red) on 25.12.09 against payment of Rs.8,23,545/- having regn. no.WB 24K 6409. The engine number of the vehicle is HA94M35683 and chassis no.MAITA 2HANA 2A13030. After purchasing of the said vehicle complainant insured the vehicle with o.p. nos.1 and 2 i.e. insurance company being policy no.3385/00305968/000/00 and the cover note number is 50653561 for the period from 29.1.10 to 28.1.11 in lieu of premium of Rs.18,359/- of the said insurance policy. Complainant purchased the said vehicle with the financial assistance from o.p. no.3. Complainant further stated that upon request of his friend, complainant gave the said vehicle to one Mr. Nair with his driver namely Montosh Rajak. Complainant further stated that the driver of the said vehicle parked in Dankuni Garage near Himalayan Plaza for 3 days. Since the driver was staying nearby hotel namely Ritika Lodge, Dankuni for the period from 5.3.10 to 8.3.10. Complainant further stated that on 8.3.10 in the morning the driver had seen that the other drivers of different vehicles are lying unconscious condition and immediately they were removed to nearest Uttarpara General Hospital and after coming from the hospital it came to the notice of the driver that the said vehicle along with the other vehicles were stolen and immediately he lodged written complaint to the nearest Dankuni P.S. on 8.3.10. The policy started enquiry and after that treating he said complaint as FIR and registered a case at Dankuni P.S. being no.18 of 2010 dt.8.3.10 u/s 328/379 IPC. The driver intimated over telephone to the complainant about such incident. Complainant further stated that upon knowledge of such incident he visited Dankuni P.S. on 8.3.10. Complainant further stated that the Chief Judicial Magistrate, Srerampore, Hooghly took cognigence of the said FIR registered at Dankuni P.S. in respect of the aforesaid case u/s 328/379/34 IPC, G.E. no.210/10 and thereafter the same case was transferred to the Additional Chief Judicial Magistrate, Srerampore, Hooghly. I.O. of the said case submitted the final report before the ACJM, Srerampore on 18.7.11. Complainant has annexed all the photocopy of documents as stated hereinabove with the petition of complaint.
Complainant further stated that he lodged the insurance claim in respect of the said vehicle to o.p. no.1 on 9.3.10 against the coverage of insurance policy as stated above. Needless to mention that it was very much within the period of coverage of the insurance policy and the same complaint has been recorded by o.p. no.1 as claim no.3385000784 dt.10.3.10 in respect of the theft of the vehicle. Complainant further stated that he intimated in writing in respect of the theft of the said vehicle to o.p. no.3 on 11.3.11. Complainant further stated that the claim of such theft of the vehicle has been repudiated by o.p. nos.1 and 2 since o.p. nos.1 and 2 stated that complainant had violated the policy condition pertaining to “limitation as to use”. O.p. no.1 further stated that the vehicle was registered as private vehicle and which cannot be used on hire basis which is a gross violation on the part of the complainant since the claim has been repudiated by o.p. nos.1 and 2, complainant filed the case with the prayers contained in the prayer portion of the petition of complaint being aggrieved by complainant since complainant stated that o.p. made deficiency of service as service provider to him as complainant is a consumer in respect of o.p. nos.1 and 2 as service provider.
All o.ps. appeared in the case by filing w/v and contested the case. Ld. lawyer of o.p. nos.1 and 2 submitted that admittedly the vehicle was stolen but complainant violated the terms and conditions of the insurance policy in respect of “limitation as to use” since the said vehicle was hired by somebody through an advertisement in the news paper namely ‘Sanmarg’ published on 14.2.10. A photocopy of the said paper cutting has been annexed by o.p. nos.1 and 2 with their w/v from which it is evident that the vehicle in question was used on hire basis though it is absolutely private vehicle and as such, they have violated the terms and conditions of the policy in question. Besides, ld. lawyer of o.p. nos.1 and 2 also stated that complainant also violated the terms and conditions of the policy since they have intimated them as well as o.p. no.3 more than 15 days after the incident took place which it contrary to the terms and conditions of the policy in question.
Ld. lawyer of o.p. no.3 submitted that they are nothing but the financer. So, under no circumstances they could be deprived for getting payment in respect of the loan already disbursed to the complainant and he submitted that necessary order may be passed so that o.p. no.3 can realize the loan which has been disbursed by them to the complainant in respect of the purchasing the said vehicle. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.
Decision with reasons:
Upon considering the submissions of all the parties stated hereinabove and on perusal of the entire materials on record, we find that since it is admitted fact by insurance company that the vehicle in question was stolen and they have accepted the premium in respect of the said vehicle and the incident took place during the pendency of the insurance policy and as such mere violation of some condition of the policy cannot be hundred percent justified to repudiate the claim in total as has been submitted by o.p. nos.1 and 2. Under such condition this Forum hold that definitely deficiency has been made by o.p. nos.1 and 2 since all documents are there in the record that the vehicle in question was stolen. But as complainant has violated the policy conditions, so it is ordered that o.p. nos.1 and 2 disburse payment on non standard basis in respect of he sum assured of the insured value i.e. Rs.6,99,319/-. Mere precisely this Forum hold that 75% of the sum assured of the insurance policy i.e. Rs.6,99,319/- on non standard basis to be paid to o.p. no.3 i.e. financer by o.p. nos.1 and 2 in respect of the theft of the vehicle in question as has been stated hereinabove. In view of the above, this Forum hold that complainant has substantiated his case and is entitled to relief.
Hence, ordered,
That the case is allowed on contest with cost against o.p. nos.1 and 2 and without cost against o.p. no.3. O.p. nos.1 and 2 are jointly and/or severally directed to pay 75% of the sum assured of the insurance policy i.e. Rs.6,99,319/- (Rupees six lakhs ninety nine thousand three hundred nineteen) only on non standard basis to o.p. no.3 and are further directed to pay to the complainant compensation of Rs.10,000/- (Rupees ten 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 @ 10% 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.
