Date of Filing:-18/12/2015

Order No. -15                                                                                                    Dt.- 22 / 06 /2016

       Smt. Bina Choudhuri, Member

  This is an application u/s 12 of the C.P.Act 1986.

  Complainant Sri Radha Sha filed this complaint against the Opposite Party, Bajaj Allianz General Insurance Co.Ltd.

  The brief fact of the case is that the complainant purchased a car (Model-WAGON R VXI BS4) being Engine No.K10BN4506293, Chesis No. MA3EWDEIS00544495, bearing registration no. WB-74/AA-5819 from Maruti Suzuki India Ltd.  and the car was duly insured by Bajaj Allianz General Insurance Co.Ltd. from the period of 22/03/2013 to the midnight of 21/03/2014. On 14/01/2014 the complainant came to learn from his driver that his vehicle had been stolen away. The complainant immediately raised his claim intimating the Opposite party on their Toll free no.vide Claim no. OC-14-2404-1801-00001725 dated 16/01/2014 and lodged an FIR before the Kalimpong P.S. on 17/01/2014. Later on Kalimpong P.S.  transferred the case to the Kurseong P.S. having proper jurisdiction as the place of occurrence was at Sevoke Bazar being Kurseong P.S. Case No. 114/2014 u/s 328/379 IPC. Thereafter as per request of the surveyor of the O.P., the complainant submitted all required documents to the O.P.

Inspite of repeated requests and reminders the Opposite Party did not settle the claim of the complainant. Lastly on 19/03/2014 the Opposite Party repudiated the claim of the complainant on the ground that the complainant violated the basic terms and conditions of the policy. Hence, the complainant files this case alleging negligence and deficiency in service on the part of the opposite party before this Forum to get redress.

    The opposite party has contested the case by filing written version denying and disputing the claims and contentions of the complainant. The specific case of the O.P. that the complainant is not consumer as he had purchased the vehicle in question exclusively for his commercial use and he violated  the basic terms and conditions of the policy and made a belated claim. So, the O.P. prayed for dismissal  the case with cost.

POINTS FOR CONSIDERATION

1) Is the case maintainable either law or in facts as alleged ?

2) Is the complainant a consumer?

3) Is there any deficiency in service on the part of the O.P.s as alleged?

4) Is the complainant entitled to the reliefs as prayer for? If so, to what extent? 

DECISION WITH REASONS

         All points are taken up together for consideration and decision for sake of convenience.

          We have perused the petition of complaint, written version, written arguments and all other annexures and materials on record filed by both parties. We have also heard the arguments of the Ld. Lawyers of both parties. Seen and perused the following judgements of the Hon’ble Supreme Court and Hon’ble National Commission referred by both parties:-

For the Complainant:-

(1)(2008) IISCC 259;

(2)II(2011) CPJ 241 (NC)

For the Opposite Party:-

(1)(2016)CPJ 448 (NC) : 1(2015) CPJ 206(NC);

(2)(1995)II CPJ (NC);

(3)IV(2010) CPJ (SC);

(4) I(2011) CPJ 278 (NC).

                 The Ld. Lawyer for the complainant submitted that in case of insurance claim the insurance company cannot repudiate the claim due to any breach of condition in case of theft of vehicle and in case of theft of vehicle breach of condition is not germane. The vehicle of the complainant has been snatched or stolen and could not be recovered. So, the insurance company is liable to indemnify the owner of the vehicle when insurer has obtained policy for the loss caused to the insurer.

               Ld. Lawyer for the O.P. submitted that the complainant used his car for commercial purpose. As per FIR the driver of the complainant on 13/01/2014 carried three unknown passengers  on hire basis at Rs.1,000/-  to Sevoke Road and on the way consuming some soft drinks from the passengers the driver became unconscious and then the miscreants fled away with the vehicle. He also submitted that the complainant didn’t inform the matter to the O.P. insurance company immediately after the incident of theft committed on 13/01/2014 . The complainant informed the matter on 16/01/2014 to the O.P. and F.I.R was lodged on 17/01/2014 after long time of the incident violating the terms and “condition no.1” of insurance policy. So the complainant is not entitled to get any benefits for violation of terms and condition of the policy and due to delay of intimation to the O.P. Insurance Company. Ld. Lawyer for the O.P. further submitted that the complainant as well as the driver had failed to take reasonable care to protect the car from loss. So, the insured was vicariously, liable for the acts of his driver. He also submitted that immediately after receiving the claim the claim application the O.P. had duly processed the same by appointing a surveyor and after investigation the O.P. repudiated the claim on the ground that the complainant violated the terms and conditions as such there is no negligence and deficiency in service on the part of the O.P.

          Thus the case should be dismissed.

           After due consideration of materials of record we find that it is admitted fact that the complainant is a bonafide policy holder of his alleged car being registration no. WB-74/AA-5819 of the O.P. Bajaj Allianz General Insurance Co.Ltd. being policy no. OG-13-2404-1801-00009458 covering the period from 22/03/2013 to 21/03/2014 midnight.

           It is also admitted fact that the complainant purchased the aforesaid policy for his aforesaid car from the O.P. for availing of service to indemnify the loss incurred on payment of a consideration premium of Rs.14,103/-only.

           We find form the xerox certified copy of FIR etc, filed by O.P. that the alleged theft was occurred on 13/01/2014, the claim of complainant was repudiated by O.P. on 19/03/2014 and the complainant has filed this case on 18/12/2015 i.e. within the limitation period of two years as per provision of C.P.Act. 1986.

          On perusal of repudiation letter dt.19/03/2014 filed by the O.P. Insurance Company Ltd. we find that the O.P. did not challenge and deny the incident the theft of vehicle but repudiated the claim of the complainant only on the ground for violating the basic terms and conditions of the policy.

          We have also perused the case law reported in (2008) II SC 259 referred by the Ld. Lawyer for the complainant, in this case Hon’ble Apex Court has held that, “………………………………. snatched or stolen. In the case of theft of vehicle breach of condition is not germane.”

         We have carefully perused the case law reported in IV(2010)CPJ 38(SC) referred by the Ld. Lawyer for the O.P. we find that in the case referred by the Ld. Lawyer for the O.P. the aforesaid case law of the Hon’ble Apex Court was not referred. So, the principle as laid down in the aforesaid case law by the Hon’ble Apex Court is well applicable in our present case.

        Therefore, we find and hold that there is no substance in the above argument of the Ld. Lawyer for the O.P. Insurance Co.Ltd. So, in view of the above decision of the Hon’ble Apex Court and National Commission referred on behalf of the complainant, we find and hold that the repudiation of the legitimate and rightful claim of the complainant by the O.P. Insurance Co.Ltd. was not proper and as such it will come under the purview of “Deficiency in Service” as per provision of the C.P.Act 1986 and the O.P. is liable and guilty for “Deficiency in Service” as alleged. And as such the complainant is entitled to get the reliefs as specified below.

  All points are disposed of.

  In the result the case/application succeeds.

   Hence, it is

O R D E R E D

     that the case is allowed on contest against the O.P. Bajaj Allianz General Insurance Company Ltd. with cost of Rs.2,000/- (Two Thousand) only.

 The complainant do get award of Rs.4,07,977/-(Four Lacs Seven Thousand Nine Hundred and Seventy seven) only for loss of vehicle in question against the O.P. Insurance Co.Ltd.

 The complainant do get further award of Rs.5000/-(Five Thousand) only against the O.P. insurance Co. Ltd for deficiency in service, mental harassment and agony suffered  by the complainant.

 The O.P. Bajaj Allianz General Insurance Company Ltd. is hereby directed to pay to the complainant the aforesaid awarded amount with litigation cost (Rs.4,07,977/-+ Rs.5000/-+ Rs.2,000/-) in total Rs.4,14,977/-(Four Lac Fourteen thousand Nine hundred seventy seven) only within 30days from the date of this order, failing which it will carry interest 8% p.a. till realisation the same by putting this order into execution in accordance with law.

          Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgement/sent by general post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.