Tripura

StateCommission

A/10/2017

The New India Assurance Co. Ltd. - Complainant(s)

Versus

Sri. Biswajit Paul - Opp.Party(s)

Mr. G.S Das, Mr. K.Deb, Mr. S.Deb

24 May 2017

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.10.2017

 

 

 

1. The New India Assurance Co. Ltd.,

Agartala Division,

Mantribari Road, P.O. Agartala, P.S. West Agartala,

District - West Tripura.

[Represented by its Sr. Divisional Manager]

 

                                                  ….    ….    ….    ….    Appellant/Opposite Party.

 

Vs

 

1. Sri Biswajit Paul,

S/o Late Abhoy Ch. Paul,

Resident of Churaibari,

P.S. Churaibari, P.O. Churaibari,

District - North Tripura, Pin - 799262

….    ….    ….    ….   Respondent/Complainant.

 

 

                                       

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellant:                                           Mr. Gitangshu Sekhar Das, Adv.

                                                                           Mr. Kushal Deb, Adv.

 

For the Respondent:                                 Mr. Saktimoy Chakraborty, Sr. Adv

                                                                    Mr. Suman Bhattacharya, Adv.

 

Date of Hearing & Delivery of Judgment:   24.05.2017.

 

 

J U D G M E N T [O R A L]

 

U.B. Saha,J,

This instant appeal is filed by the appellant, New India Assurance Company Ltd. under Section 15 of the Consumer Protection Act, 1986 against the Judgment dated 09.02.2017 passed by the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 42 of 2015, whereby and whereunder the Ld. District Forum allowed the complaint case filed by the respondent directing the opposite party, New India Assurance Company Ltd., the appellant herein, to pay an amount of Rs.3,31,566/- i.e. the insured amount as claimed by the complainant, the respondent herein, as per insurance policy certificate, and also to pay an amount of Rs.20,000/- for deficiency in service. The amount is to be paid within one month and if not paid, then it will carry interest @9% per annum.

2. Heard Mr. Gitangshu Sekhar Das, Ld. Counsel as assisted by Mr. Kushal Deb, Ld. Counsel appearing for the appellant, New India Assurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company) as well as Mr. Saktimoy Chakraborty, Ld. Senior Counsel as assisted by Mr. Suman Bhattacharya, Ld. Counsel appearing for the respondent (hereinafter referred to as complainant).
3. Brief facts needed to be discussed are as follows:-

The respondent-complainant filed an application before the Ld. District Forum under Section 12 of the Consumer Protection Act, 1986 alleging that he purchased one Alto K10 (LMV), Maruti vehicle, which was registered as TR-02-F-0615 and the said vehicle was duly insured with the opposite party-Insurance Company vide Policy bearing No.31260031110100172107, which was a package policy and was issued on 10.02.2012 for a period of one year up to the mid-night of 09.02.2013. On 19.02.2012, the respondent-complainant i.e. the insured instructed his driver Mr. Habibur Rahaman to go to Lowarpua and then to Netaji Mela at Karimganj for purchasing some goods. Accordingly, the driver went to Lowarpua and when he was about to return he was approached by two persons who requested him to give lift to Karimganj. The driver of the complainant informed them that it was a private vehicle, so he cannot carry any passenger. Then those two persons replied that they were also driver in profession. Then the driver of the complainant accepted their request and allowed them to board in the vehicle, not as a paid passenger, and went to Karimganj. After completing his marketing at Netaji Mela when he was about to return, the said two persons along with another person again requested him to take them back to Lowarpua and the driver agreed to do so that time also, but on the way back, when the vehicle reached near bridge no.1 of the bypass at about 09.00 p.m., those persons physically assaulted the driver and made him senseless and they fled away with the vehicle. On 20.02.2012, the complainant became anxious as his driver did not return and made searches here and there and ultimately, when he decided to start for Karimganj, he came to learn from Churaibari Police Station that his driver was found in senseless condition on Manipur-Baskandi Road of Cachar District, Assam within Laxmipur Police Station and he was admitted to Silchar Medical College. Thereafter, collecting the names of the said unknown persons, he filed a complaint case in the Court of the Chief Judicial Magistrate, Karimganj, Assam numbered as C.R.516 of 2012 under Section 392/384/34 IPC and the said complaint was sent to Karimganj Police Station by the CJM, Karimganj to register the same as FIR and to make necessary investigation. Karimganj Police Station submitted final report in connection with the aforesaid case on 06.11.2012 stating that the said vehicle of the complainant could not be traced. As the aforesaid Maruti Alto vehicle was covered by insurance policy, the respondent-complainant, owner of the vehicle claimed the insured amount as covered by the aforesaid insurance policy, but the claim of the complainant was repudiated on 25.06.2013 by the opposite party-Insurance Company on the ground that the respondent-complainant used the vehicle in violating the policy condition in respect of the 'limitation as to use’.

The aforesaid application of the respondent-complainant was registered as C.C. No.90/2013, which was dismissed for default on 10.09.2014. Thereafter, the respondent-complainant filed a restoration application for setting aside the order of dismissal for default, which was also dismissed by the District Forum by an order dated 16.01.2015, as the Ld. District Forum has no power to restore the complaint case dismissed for default. Again, the respondent-complainant filed an application under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum, which was registered as Case No. C.C. 42 of 2015.

The opposite party-Insurance Company appeared and filed the written statement denying the claim on the ground that the complainant earlier filed a similar complaint petition with the same cause of action and also raised the question of jurisdiction of the District Forum though admitted the fact, inter alia, that the Maruti Alto Policy bearing No.31260031110100172107 was insured with the opposite party-Insurance Company. It is also contended that the contention of the respondent-complainant in the GD entry before the Churaibari Police Station and the complaint case before the Ld. Chief Judicial Magistrate, Karimganj, which was subsequently investigated by the police was totally contradictory as in the GD entry, the complainant stated that the driver was sent to Lowarpua for his personal work and on that night, the driver informed over telephone to the complainant that he went to Karimganj to perform the duty, but such story had not been stated in the complaint case as well as in the instant complaint petition. Further case of the opposite party-Insurance Company is that the opposite party-Insurance Company rightly repudiated the claim of the respondent-complainant as he violated the condition of policy.

4. The respondent-complainant produced FIR, final report given by the police, letters of the Insurance Company, Registered Letter Slip and also examined two witnesses i.e. complainant himself as P.W.1 and his driver, namely, Habibur Rahaman as P.W.2.
5. On the other hand, the opposite party-Insurance Company produced FIR, G.D. Entry, Insurance Policy, affidavit of the driver, copy of intimation, forwarding letter, office copy of the letter regarding rejection of claim.
6. The Ld. District Forum after hearing the Ld. Counsel of the parties and considering the evidence on record passed its judgment on 26.04.2016 allowing the complaint case.
7. Being aggrieved by the said judgment, the Insurance Company filed an appeal before this Commission, which was registered being Appeal Case No.A/23/2016.
8. As agreed by the Ld. Counsel of the parties, the judgment dated 26.04.2016 was set aside by this Commission and remanded the case to the Ld. District Forum to decide the case afresh after providing opportunity to the parties. Thereafter, the Ld. District Forum directed both the parties to give evidence, but neither of the party adduced any further evidence as they had relied on the evidence given earlier. Both the parties argued their respective case afresh. The appellant-Insurance Company also filed written argument, but the respondent-complainant did not file any written argument. On the basis of the argument and evidence on record, the Ld. District Forum decided the case afresh and passed the impugned judgment. Hence the appeal.
9. Mr. Das, Ld. Counsel appearing for the appellant-Insurance Company while urging for setting aside the impugned judgment would contend that the whole case of the respondent-complainant is a concocted and fabricated one. He has also submitted that the G.D. Entry was made just after the alleged incident while the respondent-complainant did not mention the name of the assailants and the complaint case was filed before the Ld. CJM, Karimganj after two months, wherein the respondent-complainant mentioned the name of assailants, which were found fictitious by the Investigating Authority. He has again submitted that the insured respondent-complainant violated the policy conditions by allowing some strangers to travel in the vehicle in question.
10. Per contra Mr. Chakraborty, Ld. Sr. Counsel while supporting the impugned judgment would contend that the Ld. District Forum rightly passed the impugned judgment as there is no denial on the part of appellant-Insurance Company that the insured vehicle was stolen by the robbers/unknown persons who were allowed by the driver to board in the vehicle. He has also contended that as per the letter of the Sr. Divisional Manager of appellant-Insurance Company, except the violation of conditions of the policy as regards the limitation to the use of the vehicle, no other plea was taken. He has further contended that according to the police report also, the insured vehicle could not be traced out and two/three persons who were allowed to board in the vehicle by the driver could not be arrested, as the names of those persons were found to be fictitious. He has also submitted that the appellant-Insurance Company did not deny the fact of admission of the driver in the Silchar Medical College as the same was also admitted by the police in the investigation report of Mr. Rahim Uddin Borbhuiya and the police report confirmed regarding the theft of insured vehicle. He has finally submitted that the District Forum did not decide the criminal case for punishing the accused person, but the claim of the respondent-complainant regarding theft of his vehicle which was insured with the appellant-Insurance Company.
11. We have gone through the evidence on record as well as the findings of the Ld. District Forum in the impugned judgment. From the evidence of P.W.1 & 2, i.e. the complainant-owner and the driver respectively, it is established that the vehicle was stolen away, but the culprits could not be detected. It is also admitted from the police report that the driver i.e. P.W.2 was injured by the persons who were allowed to be boarded in the vehicle and admitted in the hospital. It is also admitted that regarding the incident of theft of the insured vehicle, the respondent-complainant informed by an application dated 27.02.2012 to the Manager of appellant-Insurance Company Ltd., Branch Office at Agartala along with certain documents and the Insurance Company did not deny the facts regarding the alleged theft of vehicle within the validity period of the insurance policy, rather they took a plea that the respondent-complainant violated the policy condition. From the evidence of P.W.2, the driver, it is clear that he had allowed two unknown persons for boarding in the insured vehicle as they disclosed them as driver and not as a passenger. Therefore, according to us, mere allowing two/three persons, who disclosed themselves as man of the same profession i.e. the driver, without knowing their intention, would not be a violation of condition of the policy. The Insurance Company failed to produce any evidence that the respondent-complainant used the vehicle for any other purpose except the purpose for which the vehicle was insured. It is also admitted position that the insured vehicle was not traced out by the police even after proper investigation. Therefore, it cannot be said that the plea taken by the respondent-complainant in the complaint case is false.
12. The reasons stated above, according to us, the Ld. District Forum did not commit any wrong while passing the impugned judgment. Thus, no interference is called for.                       

Accordingly, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura