West Bengal

Paschim Midnapore

CC/111/2013

Smt. Nibedita Ghosh (Das) - Complainant(s)

Versus

National Insurance Co. Ltd - Opp.Party(s)

17 Jun 2014

ORDER

                                                    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.111/2013                                                         Date of disposal: 17/06/2014                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr.A. K. Dutta. Advocate.

    For the Defendant/O.P.S.                           : Mr. A. K. Paul. Advocate.                                   

          

           Smt. Nibedita Ghosh (Das), W/o Late Joydeep  Das, Originally residing at-Sahabharang   

           Bazar, P.O. & P.S.-Medinipur, Dist- Paschim Medinipur, at present residing at P-411,  

           Kalidas Apartment, Parnasree, Behala, Kolkata-700 060.…………..Complainant

                                                           Vs.

       National Insurance Co. Ltd., Medinipur Divisional Office, at Station road, P.O. Medinipur,   

       P.S. Kotwali, Dist.  Paschim Medinipur…....……………Op/Ops.

           

           The case of the complainant Smt. Nibedita Ghosh (Das), in short, is that the vehicle under Registration No.WB-33A/6624 (Truck), owned by her deceased husband, under Insurance Policy No. 153800/31/09/6300003006 w.e.f. 23/09/2009 to 22/09/2010 was stolen by unknown person from the place of Mahespur within P.S. Goghat, Dist. Hooghly out of possession of the driver and cleaner.  After receiving information from the driver, the complainant lodged F.I.R. No.125/2010 dated 23/07/2010 under Section 379-IPC.  Police started investigation and submitted Final Report No.202/11 dated 28/07/2011.  The theft case was also reported to Motor Vehicle Registration Authority and Insurance Company.  Accordingly one surveyor was engaged by the Insurance Company for investigation. But the Insurance Company withheld the claim of the complainant. Stating the case, the complainant raised an allegation of deficiency of service against the Op Insurance Company.  In this connection, it is claimed that by operation of law the complainant became lawful owner of the said vehicle and entitle to get compensation of  10,32,500/- (Ten lakhs thirty two thousand five hundred) only with interest and litigation cost payable by the Op.

           The Op contested the case by filling written objection challenging that the case is not maintainable for want of cause of action and also barred by law of limitation.  The name of the

Contd………………..P/2

 

- ( 2 ) -

complainant has not been registered in the record of RTA in respect of the vehicle after death of registered owner.  So the Op has no legal obligation towards the complainant.  The alleged case of theft of Vehicle is false in toto.  Neither the theft information in respect of the vehicle nor death of it’s registered owner was reported to the Op for its recording in the Insurance Certificate as per rules.  One Raghunath Mallick was permanent driver of the said vehicle and during his leave the vehicle was kept in the custody of one temporary driver -Jhantu Khan and cleaner -Susanta Roy at the relevant time of theft.  Admittedly there is no valid driving license in the name of driver Jhantu Knan in violation of terms and conditions of the policy.  It is also admitted by the complainant in her FIR that the vehicle was kept uncared for by the driver and cleaner on the open road. The driver left the place for his residence at a distance of five minutes walking.  Similarly, the cleaner left for his home at a distance of twenty five minutes walking.  There was no arrangement made for safe keeping of the said vehicle during that night.  There is no document to show that the said driver and cleaner were authorized for keeping the vehicle under their custody.  Thus the Op made specific challenge in the matter of alleged case of theft which throws some doubt over the entire episode and claims for dismissal of the case.            

          Upon the case of both parties the following issues are framed.

Issues:

1. Whether the case is maintainable in its present from?
2. Whether the complainant has any cause of action for presentation of this petition of complaint?
3. Whether the case is barred by law of limitation?
4. Whether the complainant is entitled for getting relief as prayed for.?

 

Decision with reasons

Issue Nos.1 to 4:

              All the issues are taken up together for discussion as those are interlinked each other for the purpose of arriving at a correct decision in the dispute.

              Ld. Advocate for the complainant made his argument that the vehicle was theft and accordingly police case was started and after investigation police has submitted final report.  The case of theft was reported to the Insurance Company but even after verification of the case no claim has been granted in favour of the complainant.  In this connection, it is submitted by the Ld. Advocate that the registered owner of the said vehicle was the husband of the complainant. So, as per law the complainant being the legally married wife of the owner of the said vehicle and as such she is entitled to get the value of the vehicle declared at the time of issuing 

Contd………………..P/3

 

- ( 3 ) -

Insurance Policy.  Loss of vehicle by theft is to be assessed by the surveyor of the Insurance Company and on the basis of the assessment report, the compensation is to be paid by the Op Insurance Company.

                  Ld. Advocate of the Op on the other hand made his argument that the complainant is not Registered owner of the said vehicle.  It is the fact that there was no appropriate steps taken by the complainant immediately after death of registered owner for getting the Insurance Policy Certificate corrected.  So, the complainant has no right to claim compensation.  Apart from that, there is no reasonable information regarding the incident disclosing the correct name of driver under whose possession the vehicle was given to.  There was no evidence in support of the allegation of deficiency of service against the Op-Insurance Company.  Ld. Advocate as referred to the decision made in the case of L.I.C.I & others versus Manik Sudhaker Dahale and others as reported in II 2010 CPJ 15 that suppression of facts is the justified ground for repudiation of the claim of complainant.

                    Ld. Advocate for the complainant in reply submitted that in case of theft of vehicle it is duty of the Insurance Company to make payment of compensation on the assessment of the surveyor by taking value of the vehicle declared at the time of issuing of the policy.  In this respect, it is also referred to by the Ld. Advocate that the Hon’ble State Commission granted favourable order towards the claim of the complainant vide S.C. C. No. FA/466/12 arisen out of C.C.No. 122/2011 of this District Forum.

                    We have carefully considered the case of both parties on the basis of relevant documents admitting by them without any objection raised vice versa.  It appears from police report that there was a theft case in respect of the vehicle under Registration No.WB-33A/6624 (Truck), now question is that whether the matter was promptly reported to the Op-Insurance Company.   In this subject, there is no Iota evidence to show that the report on theft of vehicle was immediately made both to the Vehicle Registering Authority and the Op-Insurance Company.  Secondly, it is evident from the case of the complainant that reasonable care was not taken for safekeeping of the vehicle in order to prevent such theft from the open road.  It is very much anxious for any responsible person that the vehicle will be lying remain in the open place and its driver and cleaner will go away elsewhere at a distance place without keeping any person to reasonably guard the same.  This conduct of the complainant amounts to have failure in looking after the interest of the Op-Insurance Company.   Taking every aspect into consideration it is a case of loss of vehicle due to theft as per FIR of the complainant supported by police report and there is no challenge in the matter of temporary custodian of the vehicle.

                     Under the facts and circumstances as discussed here in above it is held and decided that there is sufficient cause of action for filing this case and the Op who could have considered

Contd………………..P/4

 

- ( 4 ) -

the claim of the complaint on the basis of documents duly submitted before them. Thus, the issues are disposed of in favour of the complainant. As a result, the case succeeds. The complainant should get the sum 10,32,500/- (Ten lakhs thirty two thousand five hundred) only less depreciation cost of 20% thereof.

               Hence,

                           Ordered,    

                                         that the case be and the same is allowed on contest  without cost.

The complainant is entitled for get the IDV of 10,32,500/- (Ten lakhs thirty two thousand five hundred) only less 20 percent for depreciation cost within 60 (sixty) days payable by the Op.

Dic. & Corrected by me

              

         President                                Member              Member                                  President

                                                                                                                              District Forum

                                                                                                                           Paschim Medinipur.