Date of filing: 03.12.2005 Date of disposal: 26.03.2018
Complainant: Sri Raja ram Sahu, S/o. Ram Prasad Sahu, resident of 347, Nirmala Bhavan,
Khaluibill Math, P.O., P.S. & Dist.-Burdwan.
-VERSUS-
Opposite Party No.1: The Authorised Signatory, Magma HDI General Insurance Co. Ltd.,
having registered office at 24, Park Street, Kolkata-01.
2. The Regional Officer, Eastern Zone, Magma HDI General Insurance Co.
Ltd., having registered office at 24, Park Street, Kolkata-01.
3. The Branch Manager, Magma HDI, Banerjee Bajaj Building, G.T. Road,
Bhiringi, (west), Durgapur-713203.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member: Miss Nivedita Ghosh.
Hon’ble Member : Dr. Tapan Kr. Tripathy.
Appeared for the Complainant: Prosenjit Das.
Appeared for the Opposite Parties: Ld. Advocate Saurav Kr. Mitrea.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.P. to pay a sum of Rs.7,00,000/- as insurance claim, to pay Rs.1,00,000/- for loss of goodwill, to pay Rs.1,00,000/- towards compensation for harassment and mental agony and to pay Rs.1,00,000/- as litigation cost to the complainant.
The complainant’s case in short is that he is a transport businessman. He is the owner of a truck being Chassis No.MAT4260191K26485, Engine No.90K62802645 and Registration No.WB 41D 9663. The said vehicle was hire purchased vehicle and hypothecated to the L & T Finance Company and after payment of all premiums and outstanding dues the said company gave NOC in favour of the complainant.
That in the year 2009 due to bad conditions of the complainant’s business and ill health the complainant could not regularize the loan premium and after consultation with the finance company the complainant entered into agreement of conditional sale with one Tapas Kundu, S/o. Rajen Kundu, residing at Aambagan, Chotonilpur, P.O.-Sripally, Burdwan, Pin-713103, for the abovementioned vehicle with a condition that in case all premiums will be paid by the said Tapas Kundu in time, the premium will be credited in the account of finance company.
That in terms and conditions of the said agreement to conditional sale said Tapas Kundu took possession of the truck and maintained the truck and pay the loan premium. But the registered owner of the said truck is the complainant till date. As per the law and in terms with the agreement the said vehicle was insured by the complainant to the respondent company bearing policy No.P0115400006/4103/141347 from 7.6.2014 to 6.6.2015.
That suddenly the vehicle was not traceable and accordingly as per instruction of the complainant said Tapas Kundu lodged a general diary on behalf of the complainant which was converted to FIR being Burdwan P.S. Case No.971/2014 dated14.08.2014 U/s.406 of IPC. On the basis of the police report the vehicle was not recovered till date and the complainant demanded his legitimate claim from the insurance company in terms of insurance policy.
On 16.10.2014 the O.P. No.2 sent a letter to the complainant for some quarries of the said vehicle ad on the basis of the demand necessary papers were sent to the O.P. No.2 vide letter dated 31.10.2014 but till date no reply or claim amount was given by the O.P. No.2.
The complainant time to time visited the office of the insurance company but till date they have not given reply nor settled the legitimate claim of the complainant though the complainant fulfilled all the requirements in terms of law and also satisfied all the quires. The complainant is the registered owner of the vehicle. The abovementioned Tapas Kundu was running the vehicle as agent of the complainant. In terms of the agreement with Mr. Kundu he used to hand over the key of the vehicle after completion of every trip. The vehicle was completely under control and supervision of the complainant. At the time of missing the vehicle, the vehicle was covered under the valid insurance policy and as such the complainant is entitled for realization of the insured amount of the vehicle. Finding no other alternatives the complainant filed this case for relief.
The O.ps. contested this case jointly by filing written version denying all the material allegations as alleged by the complainant. These O.ps. submit that a policy of insurance bearing No.P0115400006/4103/14137 was issued in favour of the complainant by covering the risk of vehicle No.WB 41D 9663 subject to terms, condition, stipulation thereof. The said policy was valid from 7.6.2014 to 6.6.2015. The original copy of the police and registration certificate is in the custody of the owner and those are very essential documents for proper disposal of the case.
These O.Ps. further submitted that the vehicle is a heavy goods vehicle and within the meaning of transport vehicle as per Sec.2(42) of M.V. Act. The policy was issued as commercial vehicle class (GCV) package policy. So, the complainant cannot be a consumer as per Sec.2 of Consumer Protection Act. The case is bad for defect of parties as the Financer of the vehicle has not made a party in the instant case.
These O.ps. beg to submit further that an intimation of theft of vehicle No.WB 41D 9663 was lodged before this O.Ps. As per intimation an investigator was appointed and he submitted his report on 9.10.2014. The complainant also submitted documents. From the documents of the complainant it appears that the vehicle was transferred to another person and the ownership has not been changed in the registration certificate nor the same has been endorsed in the policy certificate. From the FIR it appears that there is a delay of 49 days in intimating to the police and 51 days in intimating the Insurance Company. The O.Ps. vide their letter dated 16.10.2014 asked for clarifications and/or documents to that effect. It was also mentioned that those should be produced within seven days and as the complainant failed to comply the same the claim has been closed. There is no deficiency in service and unfair trade practice on the part of these O.ps. That the contract of insurance is a contract of good faith and trust. The complainant has not made any intimation to these O.ps. regarding transfer of the vehicle and on the other hand he has not intimated the police authority or these O.Ps. forthwith of the alleged theft. As such the claim has been closed for violation of terms of the policy. Thus these O.ps. prayed to dismiss the instant case.
DECISION WITH REASON
To prove the case the complainant has filed evidence on affidavit along with documents and O.Ps. also file their evidence on affidavit. Thereafter argument heard from both sides. The complainant has stated in his evidence as per his complaint petition that the truck was purchased for his transport business and he entered into an agreement that Tapas Kundu. But the vehicle was in the name of the complainant and the policy is also in the name of the complainant. As the ownership of the truck was not transfer to the Tapas Kundu the complainant has insurable right on the vehicle. The truck was missing as per complaint petition and complainant informing the matter to the police. Ld. Lawyer for the O.P. cited judgments reported in 2016(1)CPR (NC) 377 and 2016(1) CPR (NC) 552 in this regard.
The fact remains that the information was made to the police and the Insurance Company after 49 days and 51 days respectively and he claimed for insurance money from the O.Ps. alleging that the truck went missing during validity of the insurance period. O.P., therefore, rightly argued that vehicle was transferred to Tapas Kundu without any information to the Insurance Company and there was 51 days delay in informing the Insurance Company without giving any explanation for such delay. Therefore, the complainant failed to comply the terms and conditions of the policy immediately informing the missing of the vehicle.
More over, O.Ps. argue that the vehicle was heavy goods vehicle and as per Section-2(42) of M.V. Act, the policy was issued as commercial vehicle class (GCV) package policy. So, vehicle was used for commercial and business purpose and vehicle was given on contract to the third party without informing the insurer violating the policy terms and the third party hires and avails of the service on consideration as admitted by the complainant and therefore, the complainant used the vehicle for the commercial purpose and not exclusively for the purpose of his self employment. Therefore, such conduct of the complainant debarred this claim as a consumer U/s.2(1)(d) of the C.P. Act.
In the FIR the complainant stated that the vehicle was used by the driver Azahar Mondal and it is a case of mis-appropriation by the paid driver and police correctly booked the case U/s.406 IPC against the driver. So, it is not a simply case of missing or theft of a vehicle. Therefore, complainant could not inform the incident of theft/missing in time. In the written statement O.P. specifically mentioned that the perils as ‘alleged theft’ but we find that the perils was not a theft but it is a simple case of criminal breach of trust and it is not covered under the policy. The allegation is driver theft away with the vehicle and never returned the same. Moreover, there was a huge delay of 51 days which necessarily violation of the terms and conditions of the policy even the complainant could not produce the documents in time after filing his claim petition and the Insurance Company has failed to settled the claim. Therefore, after hearing argument from both sides and on perusal of evidence field by the parties, this Forum hold that complainant failed to prove his case and he is not entitled to get any relief as prayed for. C.F. paid is correct. Hence, it is
Ordered
that the case be and the same is dismissed on contest against the O.Ps. without any cost.
Let the copies of this order be supplied to the parties free of cost.
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) (Dr. Tapan Kr. Tripathy)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
