Sri A. K. Bhattacharyya, President
Case of the complainant, in short, is that he is the registered owner of Vehicle being no. WB-33B/1535 which he purchased with the financial assistance of Mahindra Finance. He took a policy being no. 150305/31/10/6300015766 and the same was valid for the period from 16-03-2011 to 15-03-2012. The insured vehicle in question was garaged at Chandipur under P.S. Panskura, Dist. Purba Medinipur on 16-03-2011 from where the same got stolen. Then the complainant lodged an FIR on 20-03-2011 with Panskura P.S. and the said P.S. started Panskura case no. 65/2011 dt.20-03-2011 u/s 379 IPC.OP was also apprised of the said incident by complainant on 17-03-2011. Later on, complainant lodged his insurance claim with the OP and on being informed about such incident of theft of the insured vehicle, OP deputed their Investigator to enquire the matter. However, for the reasons best known to them, OP refused to settle his legitimate claim, hence the case.
In support of his claim, complainant filed photocopies of policy certificate, papers pertaining to GR No. 405/11 filed before the court of ld. CJM, Purba Medinipur at Tamluk, copy of Permit, Intimation dt. 29-03-2011 given to National Crime Record Bureau, New Delhi, letter received from Investigator M/s A.K. Sinha & Associates dt. 16-05-2011, Copy of driving license of the driver etc.
On receipt of notice OP appeared to defend their case. OP submitted written version as well as W.N.A. and also took a positive part during the whole proceeding. The OP denied all material allegations made in the complaint. It is stated inter alia by OP that complainant is not entitled to get insurance benefit for breach of terms and conditions of the insurance policy and also for the fact that the driver of the vehicle did not have valid driving license to drive such type of vehicle. Thereby, there is no deficiency in service on their part and as such, the instant case is liable to be dismissed.
Points for consideration
After hearing the submission of ld. lawyers of both sides as also on perusal of the materials on record, we frame the following points to decide the matter.
- Whether there is any deficiency in service on the part of OP as alleged?
- Whether complainant is entitled to any relief, as prayed for?
Decisions with reasons
Point nos. 1 & 2:
Both these points are taken up together for the sake of convenience of discussion.
Ld. advocate appearing on behalf of the OP contended that complainant is not entitled to any relief for breach of express terms and conditions of the insurance policy because (1) complainant brought the vehicle in question from Paschim Medinipur to Purba Medinipur District without any permit (2) the vehicle was kept in open place violating Rule 193 of the W.B.Motor Vehicle Rules, 1989 (3) the driver of the vehicle did not have valid license to driver such vehicle.
Ld. advocate for the complainant opposed the aforesaid argument as advanced by the ld. advocate of OP with the submission that violation of Rule as contended by the ld. advocate for the OP does not come within the purview of the terms and conditions of the Insurance Policy and that breach of condition of permit is not material in case of theft related cases. In support of his contention, he refers to the decisions reported in 2012(4) CPR 196 (NC), 2011 (2) CPR 342 (NC) and 2012(3) CPR 169.
We have carefully gone through the aforesaid decisions cited by the ld. lawyer for the complainant.
According to complainant the vehicle in question was garaged at Chandipur (Battala) at night under P.S. Panskura, Dist. Purba Medinipur and the said vehicle was stolen from that place. While the incident is not in dispute and that the vehicle was stolen when it was in stationary condition, in our considered view, it is inconsequential whether the driver of the vehicle had valid driving license or not.
It has been held by the Hon’ble State Commission in 2012(3) CPR 169 that “breach with respect to plying of vehicle without permit is only a breach with respect to provisions of Motor Vehicles Act and it is not a breach of terms and conditions of insurance policy”.
The Hon’ble National Commission has been pleased to held in 2011 (2) CPR 342 (NC) that “Breach of terms and conditions of insurance in case of theft of vehicle is immaterial”.
As per the decision held in 2012(4) CPR 196 (NC)“ïn case of theft of vehicle breach of conditions are not germane”.
In view of the aforesaid decisions of the Hon’ble National Commission and Hon’ble State Commission and in the facts and circumstances of the case, we are unable to accede to the argument as advanced on behalf of the OP.
Thus, having regard to discussions made above and also considering the materials on record we feel that OP had no cogent reason to refuse to settle the legitimate claim of complainant which clearly indicates gross deficiency in service on the part of the OP. Therefore, we hold that complainant is entitled to get insurance benefit for a sum of Rs. 1,38,250/- along with compensation Rs. 10,000/- and litigation cost Rs. 2,000/- from OP.
Both these points are, thus, disposed of in favour of the complainant.
Hence, it is
ORDERED
that the instant C. Case no. 44/2013 be and the same is allowed on contest against the OP. OP is directed to pay Rs.1,38,250/- to the complainant towards insurance benefit together with compensation Rs. 10,000/- and litigation cost Rs. 2,000/- within 45 days from the date of communication of this order i.d. complainant is at liberty to execute this order in accordance with law in which case, OP shall be liable to pay interest @9% over the total awarded amount from this day till compliance of this order in toto.
