OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 62/15
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Md.Abdul Latif - Complainant
S/O Late Abdul Gafar
Vill: Jyotinagar Barama Rd,
Ward No.8,Dist:Nalbari (Assam)
-vs-
1) National Insurance Company Ltd. - Opp.parties
Div.No.10,Flat No. 101-106, N-1,
BMC House, Cannaught Place ,
New Delhi-110001 India
2) National Insurance Company Ltd.
Guwahati Division Office-II,
Motilal Nehru Road, Panbazar,
Guwahati-1,Assam
3) The In-charge Maruti Business Vertical ,
National Insurance Company Ltd.
Guwahati Division Office-II,
Rani Sati Sadan, Motilal Nehru Road,
Panbazar,Guwahati-1,Assam
Appearance-
Ld.advocate Mr.Chinmoy Chakravarty for the complainant and Ld.advocates (1) Ms.Rita Das Majumdar and (2) Mr.Samujjal Pratim Sarma for the opp.parties.
Date of argument- 19.9.17
Date of judgment- 26.9.17
JUDGMENT
THIS IS A CASE U/-12 OF CONSUMER PROTECTION ACT,1986
1) The complaint filed by Md.Abdul Latif, against (i) National Insurance Company Ltd.New Delhi (ii) National Insurance Company Ltd. Guwahati Division Office-II, Panbazar, and (iii) The In-charge Maruti Business Vertical , National Insurance Company Ltd. Guwahati Division Office-II, Panbazar was admitted on 11.8.15 and notices were served upon them and they also jointly filed written statement on 6.1.15. The complainant filed his evidence on affidavit on 18.11.15 and he was cross-examined by the counsel of the opp.parties on 27.1.17. One, Md.Poinur Ali also filed his evidence on affidavit on 2.2.16 in support of the complainant and he was also cross -examined by the counsel of the opp.parties on 27.7.17. Thereafter, one Sri Banti Ram Rabha filed evidence on affidavit on behalf of the opp.parties on 25.5.17 and he was cross-examined by the complainant side’s Ld.counsel. After closure of evidence Ld.advocate Mr.Chinmoy Chakravarty filed written argument on 9.8.17 and Ld.advocate Ms.Rita Das Majumdar filed written argument on behalf of opp.parties on 29.8.17. Finally, on 19.9.17, we have heard oral argument of Ld.advocate Mr. Chinmoy Chokroborty for the complainant and of Ld.advocates Ms.Rita Das Majumdar and Mr.Samujjal Pratim Sarma for the opp.parties; and today we deliver the judgment, which is as below.
2) The gist of the case of the complainant Md. Abdul Latiff is that his personal used car bearing registration No.AS-14D-6541(Maruti Alto K10) of Chassis No. MA3EADE1S00494436 and Engine No. K10BN4595811, which he had purchased from Bimal Auto Agency, Adabari (authorized dealer 0f Maruti Suzuki India Ltd.) on being financed by Mahindra and Mahindra finance , Nalbari which was insured with National Insurance Company Ltd. vide policy No.351010311361 33968161 (effective from 23.11.2013 to 22.11.14) had been lost by him on 22.12.13 as it was stolen away near Hajo. He , on 23.12.13 , lodged F.I.R. in the Hajo P.S. On that day his driver Jeherul Ali look his car stating that he is going to his home, but the said driver did not return back, and on being enquired, the vehicle was not found, but the driver was found in Hajo P.H.E. and on suspicion he lodged F.I.R. against the said driver, and Officer-In-Charge of Hajo P.S. registered a case vide Hajo P.S. Case No. 500/2013 U/S 381 I.P.C.(Corresponding G.R. No. 61813) and the Police of Hajo P.S. has seized certain documents from the driver. On 30.12.2013, with details of the vehicle stolen he submitted an application before the Branch Manager, National Insurance Company Ltd., Panbazar branch intimating them that his vehicle was stolen away by thieves on 22.12.13 at 8 p.m. from a place near to Hajo P.S. Hajo P.S.after completing the investigation has submitted final report bearing No. 142/14 dtd.29.7.14 with a report that the vehicle was stolen away on the relevant day from the driver by miscreants by providing him intoxicating things. In the final report the police also states that even by using all possible means, they failed to arrest the accused persons and to trace out the vehicle, but they found no incriminating materials against the driver. In the final report, the police also mentions that they used all possible means to find out the two accused persons , but failed to trace them, and there is no future possibility to arrest them, and that there is no incriminating material against the driver, and hence he was released from the case. The investigation officer concerned, during investigation, found the value of the stolen vehicle around Rs.3,47,000/, which he mentions in his final report. In view of letter Memo No. 200600/AKD/BR/13-14(428 dt.13.3.2014, after finding final report by the police, on 10.10.14, he (complainant) filed one application with all the relevant documents before Opp.party No.3 ( the Branch Manager,National Insurance Company Ltd. Panbazar branch ,Guwahati) to settle his claim at the earliest and the documents he filed before Opp.Party No.3 are original R/C card/book, copy of police final report collected from CJM court, Insurance Policy, Ignition Key, case dismissal order of Hajo Police Station Case No. 500/13, copy of CID report in the context of the vehicle and photo-copy of the driving licence of the driver. The said application was registered by Opp.Party No.3 as theft of vehicle claim No. 35101031136196020022 and assured him that they will settle his claim within a very short period. But he suddenly received letter Memo No. 200600/MIBL/Tech/AKD/450 dt. 9.1.2015 from Opp.Party No.3’s office where it is stated that due to contradiction of statement between his written statement on the day of theft and the statement given in the Final Report No.142/14 dtd. 29.7.14, his claim does not fall with in the purview of consideration for settlement; and by that letter he was also asked to submit his comment within fortnight. Opp.Party No.3, by doing so, was trying to deprive him from his legitimate claim, and then being compelled he sent a Pleader Notice to Opp.Party No.3 on 26.3.2015 , but found no reply and then he again on 29.4.2015 sent another application to Opp.Party No.3 through registered post requesting them to clear his claim and after sending that letter, he received the letter vide No. 200600/MIBI/TECH/AKD/15 dtd. 26.6.2015 from Opp.Party No.3, where it is mentioned that due to contradiction of his statement with the Final Report of Police, the claim could not be considered for settlement. There is also mention that he is asked to give his comment within fortnight. He then again sent his reply to Opp.Party No.3 which Opp.Party No.3 duly received on 1.5.2015 and in the reply he mentions that he had lodged FIR on the basis of facts where are in his knowledge and he is not concerned with what the driver states before the police and it is the duty of the police to find out the truth and they also made all the efforts to do so and his claim is within purview of consideration and settlement. After receiving that reply also, the Opp.Parties have not settled his claim. All such activities of the opp.parties is clear case of deficiency of service towards him, and such acts on their parts harassed him and his family and put them in mental agony. For not settling his claim by the opp.parties, he became unable to clear the remaining installments of his loan. He is entitled to get Rs.3,47,000/- (the value of his lost vehicle) and Rs.38,000/- as compensation for causing harassment to him and his family and Rs.15,000/- as cost of proceeding from the opp.parties.
3) The gist of the pleading of the opp.parties is that there is no cause of action for filing this complaint, the complaint is not maintainable, which is liable to be rejected U/S 26 of the Act. The complainant is not revealing the whole truth regarding the dispute and withholds the fact of the Final Report of the police, and does not disclose that he had allowed the vehicle to be taken on hire whereas the policy was Private Vehicle Package Policy which does not cover the use of his vehicle for hire or reward. The complainant used his vehicle on that day for hire and hence repudiation of his claim is correct as per policy condition . The investigating office also found that on that day, the complainant had used his vehicle for hire and he also mentions in the final report that the complainant’s vehicle was used for hire on that day on his instruction and the complainant has not forwarded any objection against the Final Report, rather he filing a petition before Judicial Magistrate, 1st Class, stated that he has no objection against the final report and in result Hajo P.S. Case No. 500/13 was dismissed. By allowing the vehicle to be used for hire, the complainant violated the contract, and for such violation, the claim was repudiated and hence repudiation of the claim does not amount to deficiency of service, nor such repudiation amounts to negligence on their part and therefore, the complainant does not deserve to get any compensation from them and his complaint is liable to be dismissed.
4) We have perused both sides’ pleading as well as their evidence. We have also perused argument of both sides’ Ld counsels. We have found that both sides clearly admit (i) the complainant, Md Abdul Latif had, on 22.11.2013, purchased one Maruti Alto K10 car bearing registration No.AS-14D-6541 (Maruti Alto K10) of Chassis No. MA3EADE1S00494436 and Engine No. K10BN4595811 from Bimal Auto Agency,Adabari,Guwahati being financed by Mahindra and Mahindra Finance Ltd. and he insured his said vehicle with National Insurance Company Ltd. , New Delhi(O.P.No-1) through their Nalbari Branch vide policy No. 35101031136133968161 dtd.23.11.2013 for the period w.e.f. 23.11.2013 to 22.11.14, which is a Private Car Package Policy. (ii) the said car is a private car purchased for personal use of the complainant and the complainant used that vehicle engaging one Md.Jehirul Ali, S/O –Md.Jarin Ali of village Madhapur, P.S. Barma, Dist-Nalbari as driver, (iii) the said vehicle was stolen away by the miscreants on 22.12.13 at about 8.00 AM from Hajo while it was being driven by the said driver.(iv) the said vehicle was stolen away within the effective period of the Insurance policy No. 35101031136133968161.(v) Regarding theft of the vehicle, the complainant, on 23.12.13 lodged one F.I.R. at Hajo Police Station alleging that some unknown miscreants had stolen away his vehicle on 22.12.13 from Hajo from his driver, Jehirul Ali, while his driver had taken the vehicle telling him that he was to visit his house; and the police of Hajo P.S. registered a case on the basis of his FIR vide Hajo Police Station Case No. 500/13 U/S 381 IPC (G.R. 618/13) and started investigation and seized receipt of the vehicle, insurance policy, one Tax Invoice, one delivery challan, one sale certificate, one ignition key of the vehicle on being produced by the complainant (vi) Hajo P.S. did the investigation from 23.12.13 to 12.8.14, but found no trace of said vehicle as well as the thieves who stole the vehicle and sent final report to the count of Judicial Magistrate, 1st Class, Hajo on 12.8.14 and the complainant by filing a petition before the Magistrate stated that he has no objection if the Final report is accepted and Judicial Magistrate, 1st Class, Hajo also accepted the final report, (vii) In the final report, the police of Hajo P.S. states that on 23.12.13, two miscreants had stolen the said vehicle of the complainant from the driver of the vehicle Md.Jehirul Ali at Hajo after assaulting him , but they failed to trace the said vehicle as well as the thieves who had stolen the said vehicle and in the act of said theft, the driver Jehirul was not involved and there was no chance of apprehending the thieves and tracing the vehicle, (viii) Just after the theft of vehicle, the complainant vide a letter dtd. 30.12.13 (Ex.5) informed the Branch Manager of Panbazar branch of National Insurance Company Ltd.(OPp.Party No.2) about the said theft and produced sale certificate, delivery challan, tax invoice, insurance certificate and a copy of FIR and the Opp.Party No.2 vide ihis letter Memo No. 200600/AKD/AKD/BR/B-14/428 dt. 13.3.14 asked the complainant to produce some more documents and in compliance with that letter, the complainant vide his letter dtd. 10.10.14 deposited original R/C Card, copy of final police report, original policy, one Ignition key, case dismissal order of Hajo P.S. Case No. 500/13, CID Report dtd. 17.9.14 and copy of driving licence , which are accepted by Opp.No.2, but opp. parties Memo No. 200600/ MIBL/ TECH/ AKD/ 450 dt.9.1.14 the complainant that his claim does not fall within purview of consideration of settlement and also asked him to give comment and on receipt of the said letter, the complainant again through his pleader Mr.Kader Ali vide letter dtd. 26.3.15 (Ex.9) again requested the opp.parties to settle his claim; and thereafter also the complainant vide letter dtd.23.4.15(Ext.10) again requested Opp.Party No.2 to give him insurance claim for loss of his vehicle and on receiving that letter opp.party side through their office Mr.A.K.Dey vide letter Memo No. 200600/ MIBL/ TECH/ AKD/ 15 dt. 26.5.16 (Ex.12) informed the complainant the complainant that his claim does not fall within the purview of considerations for settlement due to contradiction of his statement with the police final report but again asked for submitting his comment, and then the complainant vide his letter (Ex.13) again requested Opp.Party No.3 to take step to settle his claim narrating all the factual things and Opp.Party No.3 received the said letter and thereafter, neither the Opp.Party No.2 , nor OPp.Party No.3 made any compensation with the complainant.
5) After perusing the letters through which the opp.parties made correspondence with complainant and found that the opp.party side vide their letter Memo No. 200600/ MCBL/ TECH/ AKD/ 450 dt.9.1.15 (Ex.8) for the first time informed the complainant that his claim was repudiated and also vide their letter Memo No. 200600/ MIBL/ TECH/ AKD/ 15 dt.26.5.15 again informed the complainant that his claim was repudiated stating that his claim does not fall within the purview of consideration for settlement due to contradiction between his statement and the police final report.
Now, question is whether the ground of repudiation of the claim is a justified ground. The main plea of the opp.party side is that on the day of theft, the complainant allowed his vehicle to be used for hire while the plea of the complainant is that his vehicle is for his private use and he never allowed his vehicle for hire and on the day theft also he never allowed his vehicle for hire , but he took his vehicle to his home, but it was stolen away by the miscreants while the driver took it to Hajo. Commission of theft in respect of the vehicle of the complainant is admitted by the opp.parties . The opp.party side also admits that the said vehicle was stolen away by two miscreants, who, the police failed to apprehend and that the vehicle was out of trace. They also admit that the police, after investigation, found that the vehicle was stolen away by the said miscreants by administering intoxicated items to the driver Md.Jeherul Ali, but their plea is that on the day of theft the vehicle of the complainant was allowed by the complainant to be used for hire, and while the driver was carry passengers then the miscreant had stolen away the said vehicle nereby Hajo which the complainant denies to prove their said assertion they bases on the Police Final Report only. The opp.party No.1 Sri B.R.Rabha in the cross- examination states that he on the basis of Final Report filed by the investigation officer, Hajo Police Station, come to decision that on that day the vehicle was let on hire. He further states that he has not called for statement of the driver and the owner of the vehicle given to police U/S 161 CRPC , nor he has exhibited the said statements . He also further states that he has not called the driver of the vehicle and the investigating officer of Hajo Police Station as their witness to prove his assertion, and that he has no personnel knowledge as to what the driver and the owner of the vehicle had stated before the investigating officer . Thus, it is seen that the opp.party side has not made any endeavor to prove their plea by adducing sufficient evidence. The Police Final Report, as per law, cannot be accepted as evidence in any legal proceeding unless and until the statements given to the I.O. are recorded in the proceeding by calling the givers of the said statements. Ld. counsel of the opp.party submits another point that as the complainant had filed no objection before the Judicial Magistrate, First Class, Hajo as to acceptance of Final Report, hence their plea that on the day of theft the vehicle was let on hire by the complainant stands proved. We have perused the F.I.R. as well as the Final report and found that the complainant filed the F.I.R. suspecting that his driver might had stolen his vehicle, but investigating officer found that the driver of the complainant was no way involved in the theft of his vehicle , so his no -objection is only as to accepting final report which gives clean chit to his driver only , but that does not meant that his vehicle was not stolen by the miscreants and that on that day he had allowed his vehicle to be used for hire. From evidence of O.P.W.1 it is crystal clear that he is basing only on the Police Final Report to come into decision that on that day of the theft, the vehicle was let on hire. We have already found that the final report cannot be used as evidence in a proceeding unless and until the authors of the statements given are examined as witness. The opp.party side is found taking no step for examining these persons as well as the investigating officer as witness in support of their plea. Thus, we are of opinion that the opp.party side has failed to establish their plea that on the day of theft of the vehicle, the complainant had allowed his vehicle to be used for hire,reversely, the plea of the complainant that on the day of the theft, his driver had taken his vehicle to his home for parking, but the vehicle was stolen away by the miscreants nearby Hajo whom the police failed to apprehend stands fully established. In such premises, we hold that the plea of the complainant that on the alleged day of the theft his driver Jeherul Ali had been taking the vehicle to his home, but the vehicle was stolen away by two miscreants nearby Hajo is fully established. In such situation, we hold that the ground of repudiation of the claim of the complainant by the opp.party side is not lawful one, and therefore the opp.parties are liable to pay proper compensation to the complainant for the loss of his vehicle in the said theft.
6) As per insurance policy (Ex.1) the IDV of the vehicle of the complainant, on the day of theft was Rs.3,59,496/- but complainant has valued his lost vehicle at Rs.3,47,000/- .So, the complainant is entitled to get that amount as compensation for loss of his vehicle in theft. It is also found that the complainant had filed claim before Opp.Party No.2 firstly on 30.12.13 and thereafter on 10.10.2014, but the opp.party side repudiated his claim, Therefore, we are of view that the opp.parties are liable to pay interest on the value of the vehicle @ 12 % from the date of 30.12.13. Secondly, it is also found that the opp.party caused harassment to the complainant, who is a partially handicapped person and also caused mental agony to him and his family by illegally repudiating his claim; and therefore, opp.parties are liable to pay him atleast Rs.25,000/- as compensation for such acts and also to pay another amount of Rs.15,000/- as cost of the proceeding.
7) Because of what has been discussed as above, the complaint against the opp.parties namely (i) National Insurance Company Ltd.New Delhi (ii) National Insurance Company Ltd. Guwahati Division Office-II, Panbazar, and (iii) The In-charge Maruti Business Vertical , National Insurance Company Ltd. Guwahati Division Office-II, Panbazar are allowed on contest and they are directed to pay the complainant compensation of Rs.3,47,000/- for loss of his vehicle in the said theft with interest @ 12% per annum from 30.12.2013 and also to pay Rs.25,000/- as compensation for causing harassment to him and putting him and his family in mental agony and also to pay Rs.15,000/- as cost of the proceeding, to which all of them are jointly and severally liable. It is further directed that they are to pay the awarded amounts within 45 days, in default, other two amounts shll also carry interest in the same rate.
Given under our hand and seal on this the 26th day of September ,2017
Free copies of judgment be delivered to the parties.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
