In essence petitioner’s case is that he purchased one Bajaj Discover DTS motorcycle bearing No.WB-66E/3379 on 27.12.2006 from Biswas Automobiles, Pakuahat Malda for Rs.46,399/- through hypothecation with Bajaj Auto Finance Ltd. and the said motorcycle was insured with Bajaj Allianz General Insurance Company limited vide Policy No.0G-07-2414-1802-00000579. The petitioner was holding proper driving license which was valid from 06.02.2007 to 05.08.2007. On 08.03.2007at 08:00 P.M. the petitioner went to Kuladanga and kept the motorcycle near Radha Gobinda Mandir to meet personal requirement and on return to the place after a while he did not find his motorcycle. After search the said motor cycle could not be traced out and he reported the matter to Habibpur P.S. Accordingly Habibpur P.S. Case No.46/07 dated 09.03.2007 u/s 379 I.P.C. was started on receipt of the written complaint of the petitioner. The investigating officer on completion of investigation submitted final report. The petitioner then lodged a claim before Bajaj Allianz and supplied required documents in support of claim No. 0C-07-2404-1802-00000713. The appointed investigator of Bajaj Allianz General Insurance Company Limited investigated the loss of said motorcycle and during such investigation he also supplied required document to the investigator on demand. Inspite of fulfillment of formalities the insurance company did not settle the claim and repudiated the claim of the petitioner through a letter dated 20.07.207 and for which the petitioner has filed the instant application praying for reliefs which have been mentioned in the petition of complaint.

 

 

 

(1)      Whether the petitioner be a consumer under Sec.2(1)(d) of Consumer Protection Act.?

(2)      Whether the service of O.P. suffers from deficiency?

(3)      Whether the petitioner is entitled to get the reliefs as prayed for?

 

 

 

 

 

 

 

“Any fault, imperfection, shortcoming, or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been under taken to be performed by a person is pursuance of contract or otherwise in relation to any service.”

 

 

Now we shall consider how far the Bajaj Allianz General Insurance company has discharged its duty in respect of motorcycle in question or whether there is any breach on the part of the Bajaj Allianz General Insurance Com. Ltd. (hereinafter to be called the O.P.).

 

The petitioner approached inspector in charge Habibpur P.S. and submitted application about theft of his motorcycle on 09.03.2007 (Ext.4) and on the basis of the complaint Habibpur P.S. Case No.46/07 dated 09.03.2007 u/s 379 I.P.C. was started. This document (Ext.4) reveals that therein particulars of motorcycle have been given being No.WB-66E-3379, Engine No.DSG-BVJ-08252 and chassis No.MD-206 D522NCJ-29207. A perusal of Ext.5 reveals that O.P. has insured the motorcycle of above description on 05.01.2007 against Policy No.0G-07-2414-1802-00000579 on receipt of Rs.1060/- for a period of 04.01.2007 to 03.01.2008 midnight and the product was comprehensive.

 

It appears from the record that the petitioner has examined as P.W. – 1 and he corroborated the petition of complaints. He also stated that he informed the O.P. after theft of his motorcycle and on his intimation the O.P. appointed official who enquired into the matter. The enquiring officer examined him and he supplied original R.C. Book, Original Tax token, Certified copy of FIR, original policy copy ignition keys and copy of driving license. He has also filed xerox copies of the same in the Forum which have been marked Ext. 2 to 6.

 

A perusal of Ext.7 which reveals that the O.P. repudiated the claim of the petitioner on the ground.

 

(1)                            Despite reminders till 20.07.2007 required documents have not been produced.

(2)                            Insured did not have a valid permanent license at the time of theft and moreover as per Rule No.3 of central Motor vehicle Rules 1989 a learner license holder cannot drive the vehicle at public place.

(3)                            Petitioner has not submitted certified copy of R.C. Book. Final investigation report and RTO intimation etc.

(4)                            Ignition key set submitted by the petitioner is not original one of the said vehicle.

 

Let us see what evidence has advanced by the O.P. to substantiate the above grounds and to treat the claim of the petitioner as ‘No claim.’

 

          On scrutiny of records it appears that no oral or documentary evidence was adduced by the O.P. In the cross examination the petitioner stated that he kept his motorcycle under lock & key near Radhagobinda Mandir at Kuladanga on 08.03.2007 where other motorcycles were kept. He stated that he handed over one key which was kept with him and the other kept at the showroom was also handed over to the investigator in his presence including the tag affixed with the ring.

 

          On perusal of document produced by the petitioner on 9.4.2008 during his examination as P.W. – 1 which is the letter dated 24.03.2007 of Shri Debjoti Chakraborty entrusted investigator asking for 9 items of documents, of which the original R.C. Book and original letter towards concerned Registering authority were not received by him, although the petitioner as P.W. – 1 stated that original R.C. Book and other documents except original letter towards concerned registering authority were deposited. P.W. – 1 has not been shakened by the O.P. on this point. The investigator would be the best witness to contradict this point but he was not produced by the O.P. in the dock.

 

          On the other hand the R.C. Book of motorcycle in question has been marked Ext.2. As regards final investigation report of the petitioner was asked to submits on 06.06.2007 and 03.07.07 as it appears from Ext.7 but in the mean time the same has not seen the light of the earth during the aforesaid period. A perusal of Ext. 1 being the notice to the petitioner from Ld. CJM asking for appearance on question of acceptance of the final investigation of report of police, date of which was fixed on 10.3.2008.

 

          On scrutiny of points No.4 of the grounds of repudiation of claim it appears that the petitioner in cross examination stated the manner of delivery of ignitions keys to the investigator and he was not given opportunity to challenge the investigator during the proceeding as he was not cited as witness of the O.P. We may take the opportunity to refer salutary observation of Hon’ble National Commission in the decision reported in 2004 (8)CLD394 between New Harizan Sugar Mills Ltd. VS United India Insurance. It was held that the report of the surveyor, who was appointed under provision of the insurance Act. have to be given greater importance as has been held by the Hon’ble Supreme Court. In the instant case the O.P. has neither produced the surveyor’s report nor produce him in dock as witness.

 

Let us discuss the another pertinent ground of repudiation of the claim which is point No.2 as referred to herein above. On perusal of the conditions of the policy in (Ext.5) in the column Driver – nowhere it is referred that any person including the insured driving will hold permanent driving license. It is also stated that “the person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule – 3 of the Central Motor vehicles Rules 1989. Ext. 6 reveals that the petitioner was holding an effective learner’s license which was valid for the period from 06.02.2007 to 05.08.2007. Rule 3 of Central Motor Vehicles Rule 1989 envisages that it prohibits the holder from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and in every case the vehicle carried ‘L’ plates both in the front and the rear of the vehicle.

 

Now for argument shake if we agree that the complainant violated the provision of Rule 3 of the central Motor Vehicles Rules 1989 but by no stretch of imagination it be can be said that due to non compliance of above rule the theft took place. Moreover, it has not been stated by the petitioner as P.W. – 1 that he went to Kuladanga on 08.03.2007 driving the motor cycle alone nor he was not shakened by the O.P. during cross examination on this point. From the above discussion it can safely be said that the O.P. has not dealt the matter with extreme care and caution and was dealt with a mechanical & routine manner. This Forum finds opportunity to refer the observation of the Apex Court in the Case of Life Insurance Corporation of India VS Asha Goel (Smt) & Anr (2001) 2 Sec. 160 that the approach of the corporation in the matter of repudiation of the policy, admittedly issued by it, should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner.

 

It also needless to say that the O.P. has made breach of exercising his ordinary care and skill towards the present petitioner whom he owes the duty of observing ordinary care by mis-interpreting the spirit of Rule 3 of Central Motor Vehicle Act. 1989 which he has cited as one of the major ground of repudiation of the claim of the petitioner and asking the petitioner to submits some documents which in the mean time did not reach his hand as this has not been light of the earth during the aforesaid period as is apparent from the notice of Ld. CJM Malda dated 21.05.2007.

 

Bajaj Allianz General Insurance Company Limited City Plaza, (4th floor), Sevoke Road, 2nd mile, Siliguri – 734401) suffers from deficiency which disposes of the present point in the affirmative.

 

 

 

 

that Malda D.F. Case No.02/2008 is decreed on contest against the O.P. (The Branch Manager Bajaj Allianz General Insurance Company Limited City Plaza, (4th floor), Sevoke Road, 2nd mile, Siliguri – 734401) the petitioner do get return of Rs.46,339/- (rupees forty six thousand three hundred and thirty nine) only as compensation and the O.P. do pay the aforesaid quantum of money within 30 days from date failing which the entire amount shall carry interest @9% per annum till its final realization. Failure to comply with the above order by the O.P. will result in putting the decree in execution by the petitioner and other relevant loss envisaged in C.P. Act.

 

 

 

 

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