C.F. CASE No. : CC/10/55
COMPLAINANT : Smt. Sagorika Guha
W/o Sri Niloy Guha
of Gourpara, Pajir More,
P.O. & P.S. Chakdaha, Dist. Nadia
OPPOSITE PARTY/OP : National Insurance Co. Ltd.
Ranaghat Branch,
of 7 No. Rabindra Sarani,
P.O. & P.S. Ranaghat, Dist. Nadia
Represented by its Branch Manager
Ranaghat Branch
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 20th December, 2010
: J U D G M E N T :
In brief, the case of the petitioner is that she is the owner of the vehicle, No. WB-52B/8523 which is insured with the OP National Insurance Co. Ltd. It is her further case that on 07.08.09 at the time of going to Kalyani Court by her husband, Sri Niloy Guha who found a leakage on the tyre of the vehicle and so he went to garage situated at NH 34 for repairing the same. Suddenly, on the middle way some unknown boys forcibly boarded on the vehicle who got down from the vehicle in front of go-down of Indane Gas at NH 34 within the Chakdaha P.S. Thereafter on the way to home the vehicle met an accident at Talikhola, Simurali on NH 34 at which one woman was injured and the vehicle was also badly damaged. The petitioner thereafter, intimated the OP about this accident and the OP appointed one surveyor who submitted his report also. Regarding this accident a police case was started bearing No. 433/09, under Section 392 dtd. 07.08.09 and another case No. 440/09 dtd. 11.08.09 under Section 279/338 IPC and the vehicle was seized by Chakdaha P.S. which was subsequently released to this petitioner through court. The surveyor of the OP one Rathin Kumar Pal examined the vehicle. The petitioner also repaired the vehicle through Bless Motor and spent the entire amount as claimed by the repairing company. This complainant time and again requested the OP to pay compensation, but the OP did nothing. Rather on 09.02.10 the OP sent a letter to the complainant repudiating her claim. So this claim application is filed by the complainant praying for the reliefs as stated in the petition of complaint.
The OP National Insurance Co. Ltd. has contested this case by filing a written version, inter alia, stating that the case is not maintainable in its present form and nature. He has denied all the material allegations made by the complainant in the petition of complaint. It is his specific contention that the complainant is the owner of the vehicle No. WB 52B/8523 which was insured with the OP National Insurance Co. Ltd. vide policy No. 154302/31/8/6100007626 for the period from 06.02.09 to 05.02.10 subject to the terms and conditions of the policy. The complainant lodged a claim to this OP alleging that the said vehicle met with an accident on 07.08.09 at which the vehicle was damaged. Thereafter this OP appointed his surveyor for investigation and for assessment of loss of the vehicle and the surveyor after proper assessment assessed the loss amount at Rs. 34,000/-. Thereafter, this OP asked the petitioner to submit some documents namely final police report of the case which the complainant did not comply at all. He also submits that this vehicle was used for the purpose of dacoity which is a violation of the policy condition and regarding this dacoity a police case No. 433/09 dtd. 07.08.09 under Section 392 I.P.C. was started against this vehicle by Chakdaha P.S. police. Suppressing the fact the complainant lodged a F.I.R. before Chakdaha P.S. on 11.08.09 on the basis of which Chakdaha P.S. case No. 440/09 under Section 279 / 338 I.P.C. was started. As per the norms of policy it is the duty of the policy holder to submit final report in both the police cases but she did not submit those reports though she was asked to submit. As there is a violation of policy condition by the complainant, so she has no cause of action to file this case. Hence, the case is liable to be dismissed against this OP.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with annexed documents and the written version filed by the OP it is available on record that admittedly the complainant is the owner of the vehicle WB 52B/8523 which was insured with the OP Insurance Co. for the period from 06.02.09 to 05.02.10 subject to the terms and conditions of the policy. From the petition of complaint it is also available that on 07.08.09 the vehicle met an accident when the complainant’s husband was travelling by that vehicle towards his house and in that accident the car was damaged also. Regarding this accident one F.I.R. was lodged by the son of the victim vide Chakdaha P.S. case No. 440/09 under Section 279/338 IPC dtd. 11.08.09. The complainant’s husband or complainant herself did not lodge any F.I.R. or any diary at the P.S. regarding the damage of the car. On the other hand, on 07.08.09, i.e., on the date of the accident another F.I.R. was lodged by one Nisikanta Barman at Chakdaha P.S., vide P.S. case No. 433/09 under section 392 IPC from which it is available that on that very date some persons committed dacoity at the Indane Gas Go-down situated at Panchpota, Tetulberia, P.S. Chakdaha who after committing dacoity boarded on that vehicle bearing No. WB-52B/5823. This F.I.R. was lodged on 07.08.09. Regarding this incident or F.I.R. the complainant was silent in the petition of complaint. From the written version filed by the OP, we find that the OP asked her to submit the final police report of both the cases viz., Chakdaha P.S. case No. 433/09 under Section 392 dtd. 07.08.09 and Chakdaha P.S. case No. 440/09 dtd. 11.08.09 for consideration and settlement of the claim application of the complainant. But the complainant did not submit the final police report of those cases before the OP due to which the OP repudiated the claim of the complainant on the ground that the policy condition was violated by the complainant as the vehicle was involved in a dacoity case. The OP on receipt of the claim application of the complainant assessed the damage of the car by his assessor one Rathindra Nath Pal who duly submitted report to the Insurance Co. assessing the damage of the vehicle at Rs. 34,000/-. There is no whisper in the petition of complaint as to why the complainant has not submitted the final report of the police cases before the OP for settlement of her claim. Ld. lawyer for the OP has drawn our attention to the policy condition at 3(a) where it is stated that the OP Insurance Co. is not bound to give compensation when the vehicle being used otherwise than in accordance with the limitations as to use. In this case prima facie is established that the vehicle was used for the purpose of committing dacoity by some unknown persons on 07.08.09. The complainant herself has stated in the petition of complaint that on that date after repairing the leakage of the vehicle it was proceeding to her house through NH – 34 and on the middle way some unknown boys forcibly boarded at the vehicle and got down from the vehicle in front of Go-down of Indane Gas at NH 34 under Chakdaha P.S. and when the driver was proceeding the vehicle towards the house and in front of Talikhola at Simurali over NH 34 it met an accident with a woman who received injury and the vehicle fell down by the side of the road at which it was badly damaged. We have also discussed that regarding forcibly boarding of some unknown boys in the vehicle and getting down by them in front of Indane Gas Go-down at NH 34 or falling of the vehicle in an accident no F.I.R. was lodged by herself on that date or even thereafter. So we find that the complainant by suppressing the actual fact lodged the claim application before the OP in order to have the compensation from the OP which is a violation of the policy condition also. Ld. lawyer for the OP has cited a ruling in this connection from IV (2005) CPJ (NC) page 115 where the Hon'ble National Commission has decided “Policy represents a contract between insurer and the insured, insured has to act strictly in accordance with statutory limitations – Vehicle used in contravention of Motor Vehicles Act and policy conditions – Company not liable even vehicle was used for personal work.”
On a careful perusal of this above cited ruling we hold that it is applicable in this case also as in this case it is established that the vehicle was used for the purpose of committing dacoity by some unknown persons at the Indane Gas Go-down which is a violation of the policy condition No. 3(a).
In view of above discussions and after hearing the arguments advanced by the ld. lawyers for both sides our considered view is that the complainant has not become able to prove his case. So she is not entitled to get the reliefs as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/55 be and the same is dismissed on contest against the OP without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
