Date of filing: 02.07.2015                                                                      Date of disposal: 14.12.2017.

Complainant: Shyam Bahadur, S/o. Sri Churamoni, resident of Kirtaniya Para-4, P.O. & P.S.-

                           Raniganj, Dist.-Burdwan.

-VERSUS-

Opposite Party: 1. National Insurance Company Ltd., Benachity Branch, having its office at

                                   Nachan Road, Ajit Banerjee Building, P.O.-Durgapur, Dist.-Burdwan, Pin-

                                   713213, represented by its Branch Manager.

                            2.  Tata Motors Finance Pvt. Ltd., represented by its Manager, having its

                                     office at Chowranghee, Middleton Street, Kolkata, W.B., Pin-700 071.

Present: Hon’ble President: Smt.Jayanti Maitra(Ray).

    Hon’ble Member:  Miss Nivedita Ghosh.

Appeared for the Complainant              : Ld. Advocate, Suvro Chakraborty.

Appeared for the Opposite Party No.1: Ld. Advocate Tapan Kumar Jash   

Appeared for the Opposite Party No.2 : Ld Advocate Arindam Mukherjee.

JUDGEMENT

This is a case U/s.  12  of the C.P.  Act for an award directing the O.Ps.  to pay Rs.15,20,000/- towards loss of value of the vehicle of the complainant, to pay Rs.3,60,000/- towards loss of business during the period of loss of vehicle, to pay Rs.20,000/- towards compensation for mental pain, agony and harassment and to pay  litigation cost of Rs.10,000/- to the complainant.

The complainant’s short case in hand is that he is the owner of the vehicle bearing No.WB39A2349 (Tipper Dumper) which was engaged in a coal transporting work at Lal Matia to Pirpainty Railway Yard side, Bhagalpur, Bihar which was theft on 10.10.2010.  The FIR was lodged with Pirpainty Police Station vide P.S. Case No.228 dated 12.10.2010 U/s.381/34 IPC, Dist.-Bhagalpur, Bihar and during investigation by P.S. the accused person was arrested and whose confessional statement was also recorded by the police of the P.S.  Although the FIR was submitted by the police to the Ld. Court, Bhagalpur but the vehicle has not been recovered till now and this has been informed to the RTA, Durgapur, Dist.-Burdwan on 26.11.2010. 

That the matter of the theft was informed to the O.P., National Insurance Company Ltd. Durgapur Branch on 20.10.2010 by Email, phone and verbally in their office and lastly sent a letter  on 17.8.2011 but all the vain.  All copies of available letters are submitted herein.  The O.P. insurance company issued two/three letters to the complainant demanding the D/L & permit, which was already sent firstly to the Surveyor/Representative, thereafter Sr. Branch Manager, Benachity Branch, Durgapur.

The complainant also stated that said vehicle was engaged under Neelkanth Transport, a contractor to transporting under ‘NKAS Services Pvt. Ltd., Kolkata-17 since 2.9.2010 with valid permit, valid D/L of driver engaged to driving the alleged vehicle under the statutory rules of the principal company and under obligation to the agency of the transport company NKAS.

            The complainant has no other source of income for maintain his livelihood.  He is directly involved in the transporting job for property maintenance of the vehicle and therefore he is well acquainted with the valid papers and fitness of the vehicle for satisfaction of the transport company as well as the insurance company.  On 27.12.2012 a complaint was lodged before the Grievance Cell , NIC, Kolkata and before the General Manager, National Insurance Company Ltd. by the complainant stating all  the facts of status of the grievance but there was no fruitful result, the O.P. has not considered/ examined the document submitted by the complainant.

            The O.P. repudiated the claim of the complainant by sending a repudiation letter to the complainant on 3.7.2013 illegally.  Finding no other alternative the complainant filed this case before this Forum for relief as stated above.

            The O.P. No.1 contested this case denying all the material allegations and stating inter-alia that the vehicle No.WB 39A 2349 was insured with this O.P. under policy No.150403/31/09/630005898 from 23.3.2010 to 28.3.2011 subject to terms and conditions exceptions and limitation as to use and own damage of the vehicle was covered in the said policy subject to terms and conditions of the policy and limitation as to use and the said vehicle was hypothecated with Tata Motor Finance Ltd., Kolkata and the said Finance company has not been made party in the instant case and as such the case is bad for defect of parties.  This O.P. also stated that this O.P. received an information from the complainant on 20.10.2010 about the theft of vehicle No.WB39A/2349 which was stolen away on 8.10.2010 when the driver Bambam Singh, S/o. Naresh Singh was returning from Pripaity Coal Dam after unloading coal and after receiving the said report from the complainant this O.P. issued claim form on 20.10.2010 to the complainant and on the same day the complainant submitted the claim form duly filled in to this O.P.  After getting information and duly filled in claim form, this O.P. appointed an investigator namely A.K. Singh and Associates on 4.11.2010 for investigation and report.  The investigator investigated the matter and collected documents from the complainant ad submitted his report to this O.P. on 10.12.2010 and after perusing the report and documents collected by the investigator during investigation it was found that temporary permit in respect of the said vehicle was valid from 3.9.2010 to 30.9.2010 for Durgapur to Jharkhand & Bihar Region where as on the date of theft i.e. 8.10.2010, the said vehicle was plying without permit and thereby the insured violated the statutory condition of the policy.

            This O.P. also stated that this O.P. appointed another investigator namely Prabir Kumar for verification of the driving license  of driver Bombom Singh being D.L. No.WB 41/030875 from office of RTA, Burdwan, which has been by the complainant, and also mentioned in the claim form by the insured himself and after verification of the said D.L. investigator submitted his report on 30.11.2010 along with driving license, particulars of D.L. No.WB41/030875 issued by Licensing Authority, Burdwan it is found that the said driving license was issued by the Licensing Authority, Burdwan in the name of Driver Arman Khan, S/o. Salam Khan of Pirbaharam, Nutanganj, Burdwan, Class of Driving License LMV.MGV.HGV date of issue is 23.5.2004 valid upto 02.04.2010, not in the name of Bombom Singh and the said driving license so produced and submitted by the complainant is fake one and Bombom Singh who was driving the said vehicle at the time of theft has no valid/effective driving license and there by the insured complainant   has grossly violated the terms, conditions and stipulations of the policy.

            This O.P. after perusing the claim file and all documents submitted by the complainant including D.L. and Route Permit this O.P. vide their letter dated 6.1.2012 informed the complainant to give his comments about the temporary permit valid upto 30.9.2010 and the driving license  Bombom Singh found not genuine but the complainant did not give any reply about the said queries and thereafter  this O.P. on considering the claim file and t he documents carefully and also terms and conditions of the policy found that at the time of occurrence the said vehicle was plied without permit and also was driven by Bombom Singh holding fake driving license who has/had no valid/effective driving license and thereby the insured violated the terms and conditions of the policy more so the said vehicle was stolen on 8.10.2010 and the matter was reported to the P.S. on 12.10.2010 i.e. after four days of the incident the matter was informed to this O.P. on 20.10.2010 i.e. after 12 days and also informed to the RTA on 25.11.2010 and the delay in reporting of theft of the vehicle to the police station and also to Insurance Company is a gross violation of the policy condition and policy provides that in case of theft the matter should be reported immediately but the insured ignored the terms and conditions of the policy and thereby violated the terms and conditions of the policy.  Finding no other alternative this O.P. repudiate the claim of the complainant on 26.11.2012.  Hence this O.P. prayed for dismissal of the complaint.

            The O.P. No.2 also contested this case by filing a petition stating that the case has no cause of action nor the complainant has locus standi to fie the instant case against this O.P.  this O.P. denies and disputes each and every allegations, if any made against them save and except what are the matter of record.  There is no single allegation against O.P. No.2 in the entire complaint and hence the case is liable to be dismissed against the O.P. No.2.   It is pertinent to mention that as per the standard president and terms, if any compensation is ordered to be paid by the O.P., same should be paid to the financer (O.P. No.2, Tata Motor Finance Ltd.) who will in turn adjust its dues against such vehicle loan and pay excess amount (if any) to the complainant.

DECISION WITH REASON

To prove the case the complainant has filed his evidence on affidavit where he stated all the facts and circumstances of the case.  O.P. Insurance Company also filed their written version denying all the facts and praying for dismissal of the case.  However, O.P. No.2, financer did not file any evidence but he has filed a petition which is supported by affidavit where O.P. No.2 also prays for dismissal of the case as there is no single allegation against this O.P.

            Both parties placed their elaborate argument.  At the time of hearing argument the complainant stated that the case is maintainable as he purchased the vehicle for his livelihood and he filed the documents like registration certificate of the vehicle, insurance certificate and other documents regarding ownership.  He also filed driving license of the driver and permit.  He purchased the policy on 29.3.2010 and the said vehicle was stolen on 08.10.2010.  The FIR was lodged at Pirpainty Police Station on 12.10.2010 vide P.S. Case No.228/2010 started.  Following the case the accused persons including driver of the complainant were arrested.  Police submitted their FRT after completion of investigation and the vehicle remain untraced till now.   Intimation of theft was given to the O.P., Insurance Company on 20.10.2010.  Thereafter he submitted claim form.  The RTA, Durgapur was informed on 26.11.2010 about the theft.  The complainant filed all those documents in support of his claim.  The vehicle was engaged in a coal transporting work at Lal Matia to Pirpainty Railway at Bhagalpur and the vehicle was stolen away on 10.10.2010 from Pirpainty area.  O.P. Insurance Company repudiated the claim of the complainant vide letter dated 3.7.2013 on the ground that that valid permit and D/L of the driver was not valid at the time of incident.  The complainant submitted his claim form along with documents as per requirement as asked for by the O.P. Insurance Company.  The complainant stated that he was not aware that the D/L of the driver was fake. Through the RTA he come to know that D/L of the driver was not valid and which is stand in the name of one Arman Khan, S/o. Salan Khan.  In this connection he cited a decision of Hon’ble National Commission as reported in 2014(4) CPR 759 (NC), that in case of theft of vehicle the breach of condition is not germane. In that case the claim was repudiated that at the time of theft the vehicle was not covered under valid permit.  He further submits that D/L and permit cannot be treated as proximate cause of peril which is theft and similar observation was taken by the Hon’ble Station Commission, Calcutta in FA/196/2009 decided on 16.2.2010 and reported in 2010(2) CPR pages-469, that the claim cannot be repudiated  by the Insurance Company on the ground that the vehicle was not registered.  During argument Ld. Lawyer for the O.P. argued that there is delay in intimating the theft to the Insurance Company which causes the repudiation of the claim.  Ld. Lawyer for the complainant challenges this argument that this ground was never taken by the O.P. either in written version or any time before repudiation.  He cited the decision of Hon’ble National Commission as reported in 2003(1) CPR 85 (NC) in this regard.  

            Ld. Lawyer for O.P. submits a decision of Hon’ble National Commission reported in 2013(2) CPR 99, stated that ‘delay of 22 days in the lodging of FIR and delay of 59 days in informing the insurer of incident, which is clear cut violation of terms and condition of Insurance Policy’.  But in this instant case the complainant lodged the FIR on 12.10.2010 and incident was took placed on 08.10.2010.  So, the complainant lodged FIR just after four days from the incident and he informed the insurer of incident on 20.10.2010 after ten days from the incident.  These grounds were never taken in the letter of repudiation of O.P.

            From the report of the surveyor dated 10.12.2010 with observation that actually the vehicle was stolen away and the enquiry was conducted by the local police station.  Following such investigation the driver and two others persons were arrested.  So, the factum of the theft has also proved by the investigation report of the surveyor, engaged by the O.P. Insurance Company. In terms and conditions of the policy the complainant is entitled to get value of the vehicle for the loss of the vehicle as prayed for.  The los value of the vehicle was Rs.15,20,000/- as per IDV (Insurance Declared Value)  less 5% depreciation.  The complainant also prays for compensation and loss on business and litigation cost.

            In our considered value, if the complainant is entitled to receive the claim amount of Rs.15,20,000/- from the O.P. and if a sum of Rs.3,000/- is awarded for mental pain and agony  and litigation cost of Rs.2000/-, then it will meet the ends of justice. 

C.F. paid is correct.  Hence, it is

Ordered

that the C.C. No.139/2015 is allowed on contest against the O.P. No.1 and dismissed against the O.P. No.2 without any cost.

The O.P. No.1 is directed to pay Rs.15, 20,000/- towards value of the vehicle to the complainant.

The O.P. No.1 is also directed to pay Rs.3,000/- towards compensation for mental pain, agony and harassment to the complainant.

The O.P. No.1 is further directed to pay Rs.2000/- as litigation cost to the complainant.

The above all directions will be complied with within 45 days from this date of order, failing which an interest @ 8% will be carried on total amount.  The complainant is at liberty to execute this order in accordance with law.

        Jayanti Maitra (Ray)        

             Dictated and corrected by me.                                                         President      

                                                                                                                   D.C.D.R.F., Burdwan

                   Jayanti Maitra (Ray)

                           President,

                   D.C.D.R.F., Burdwan

(Nivedita Ghosh)

Member

 D.C.D.R.F., Burdwan