Date of filing: 04.09.2013 Date of disposal: 10.04.2014
Complainant: Asish Kumar Dey & Sougata Kumar Dey, both of Kulti, P.S.-Kulti,
Dist.Burdwan.
-VERSUS-
Opposite Party: Senior Branch Manager, The New India Assurance Company Ltd., Raniganj
Branch, 62/1, NSB Road, Raniganj, District-Burdwan.
Present : Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member : Smt. Silpi Majumder
Hon’ble Member : Sri Durga Sankar Das
Appeared for the Complainants: Ld. Advocate Anindya Sundar Mondal.
Appeared for the Opposite Party: Ld. Advocate Bishnupada Santra.
JUDGEMENT
This is an application U/s 12 of the C.P. Act, 1986.
The complainant’s short case is that he is the owner of Motor Vehicle being registration No.WB 37A/7424, which is used for transport and public carriage vehicle.
In the usual course of business the said vehicle was hired by one Subrata Laha of Memari, who is a potato merchant and carried 300 bags of potato from Memari to Durgapur and Nirsha on 25.7.2009 and departed about 10 PM.
The consignor contact with the complainant No.2 over phone and wanted to know whether the potato was unloaded to the destination or not. Thereafter the O.P. No.2 tried to contact with the driver of the said vehicle but contact cannot be completed.
In the morning at about 6/6.30A.M. on 27.7.2009 one unknown call4er informed the complainant No.2 that the driver and khalasi are admitted in the Burdwan Medical College and then and there the complainant No.2 attend the hospital and seen that the driver and khalasi were in ailing condition and learnt that the vehicle with loaded potato was hijacked by unknown miscreants and matter was informed to the Burdwan police station.
Both the driver and khalasi were taken to the Police Station for taking necessary action against the miscreants but unfortunately the police officer did not receive any complainant. On the other hand police arrested the khalasi and taken to the court in C/W Burdwan PS Case No.420/09 dated 27.9.2009 U/s.407 IPC with prayer of police remands but the driver was released from police station.
It would be learnt on 28.7.2013 that one Subrata Laha has filed a case against the driver claiming that his property (potato) has been misappropriated and believing on the basis of the complaint the police arrested the khalasi and as per prayer of I/O three days police remand was granted.
It was learnt from the driver and khalasi that when they reached at Fagupur on NH-2 within the jurisdiction of Burdwan P.S. they stopped the vehicle on the road side land to check tyre and at that time some miscreant forcefully detained both on the point of fire arms and assaulted and looted away cash for Rs.22,000/-, one mobile and wrist watch of driver, some papers and sprayed some poisonous liquid and as a result both driver and khalasi laid unconscious and they snatched with the loaded vehicle.
There was nothing fault on behalf of the driver then to get proper redress the complainant No.2 lodged complaint at Burdwan P.S. staring everything as reported by the driver but police officer refused to accept since earlier one complaint has been recorded over the self same matter. The complainant No.2 filed a complaint in the Civil Court on 29.7.2009 which was sent to Burdwan P.S. with directions to start case and investigate into Burdwan P.S. Case No.923/2009.
As soon the vehicle was theft/snatched by the unknown miscreants the complainant informed the O.P., Insurance Company since the said vehicle was insured with New India Insurance Company Ltd. and claim was recorded being No.512701/31/09/01/90000023001 and petitioners were asked to submit claim form with certain documents which were duly filed on 17.10.2011.
During investigation the police officer did not able to recover the vehicle nor the potato and submitted FRT on 10.1.2011 which was accepted by the Ld. CJM, Burdwan on 6.8.2011.
Though the papers were submitted by the complainant in the office of the Insurance Company the process was delayed for reason best known to O.P. and in each time the petitioners were assured that the matter is being favourable and upon sanction from higher authority the claim would be disbursed. But unfortunately the O.P. sent a letter on 3.5.2013 expressing his inability to allow the claim with some flimsy ground and closed the case as ‘No Claim’. Findings no other alternative the complainants filed this case before this Forum praying for relief claiming total amount of Rs.6,30,000/-.
The O.P. contested the case by filing written version, denying inter-alia all the material allegation as leveled against him. The O.P. further stated that the instant case has a criminal background. The complainant No.2 had initially initiated a criminal proceeding regarding the theft but thereafter the case has dropped at his instance and that has seriously prejudiced the complainants claim and as such the loss due to criminal act is not established that’s why this O.P. compelled to close the claim as “NO Claim”. It is needless to mention here that in the instant case the claimant did not raise any objection against the FRT submitted by the concerned Investigation Officer. The claimants also did not submits the original Insurance Policy, R.S.Book, Route Permit and Road Challan, Tax clearance certificate, Ignition Key of the vehicle, D.L., and certificate of fitness inspite of request by this O.P. by their letter dated 13.9.2011.
This O.P. also stated that from the official record it appears that the claimants have not submitted any proper claim since after the alleged occurrence, far to speak the other requirements in respect of the claim was complied with. More over it appears that during inspection by the investigator the proper co-operation has not been offered by the complainants. In fact, the present complaint in the present Forum is not sustainable in law. There was no deficiency in service on the part of this O.P. nor there was any laches or negligence on the part of this O.P. and this O.P. prayed for dismissal of the case with cost.
Point for consideration in this case is;
- Whether there is any deficiency in service on the part of the Insurance Company by non-settling the claim to the complainant?
DECISION WITH REASON
We are aware that the vehicle was theft and the insurance policy is also under the policy of theft. We do not like to repeat the entire facts of the parties once again but fact remains O.P. repudiated the claim on perusal of the papers in the docket that the claim has a criminal background as per the provisions of law. Apart from that another ground was taken that since the criminal proceedings has been dropped from the side of the complainant, the claim of the complainant seriously prejudiced because loss due to criminal act is not established, for which claim application was closed as “No Claim”.
It may be mentioned here that complainant did not close the criminal proceeding suo-motto. It appears from the order dated 6.8.2011 in G.R. case No.2225/09 that both the Ld. A.P.P. and the Ld. Counsel appearing for the defect the complainant (here in complainant No.2) appeared and complainant No.2 was in court dock and asked him regarding final report submitted by the police, he stated that he does not want to proceed with the case. But it is not the case that during pendency of the investigation, complainant suo-motto filed application stating “not to proceed the case”. Complainant No.2 only after perusing the final report of investigation agency who are the independent body, having no interest in the case, submitted FRT and thereby innocent complainant has nothing to say but he acted according to the direction of his Ld. Counsel, who appeared on his behalf. It is true that complainant can easily disagree with the view of the investigation officer but definitely there was no advice given to him by any persons in this regard. That does not mean that the claim will be repudiated by the O.P. with a finding “criminal proceedings dropped at your end”. We have already stated, that is not the complainant but investigating agency submitted FRT.
In this regard, we are aware that in view of reported decision reported in AIR 2008 (SC) Page 1166 and 2008 (4) CPJ (SC) at page-1 the Hon’ble Apex Court have held that “Insurance Company is liable to be indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.
Here in the instant case accepting the view of the Hon’ble Apex Court we find that repudiation of claim is not justified but the Insurance Company ought to have settled the claim in view of non-standard basis i.e. 75% of the total sum assured (the photocopy of the policy is very much illegible to detect the total sum assured).
With that observation the complaint case is succeeds. Hence it is
ORDERED
that the application U/s 12 of the C.P. Act is allowed on contest against the O.P. The O.P. is directed to settle the claim at non-standard basis i.e. 75% of the sum assured together with litigation cost of Rs.2000/- and compensation of Rs.5000/- within 45 days from this date of order, failing which interest will carry @ 8% p.a. from the date of filling of this case to till its realization, in default complainant is at liberty to execute the instant case through this Forum. Let the plain copy of this order be handed over to all the parties free of cost.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Udayan Mukhopadhyay)
President
D.C.D.R.F., Burdwan
(Silpi Majumder) (Durga Sankar Das)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
