Order No. 21 Dt. 04.09.2009
Brief facts, of the case, are that the petitioner purchased one Hero Honda Splender Motor Cycle of red colour ( being Regd. No. WB-66-A/6407,Chesis No 00H20F17602, Engine No. 00H18E17058. The son of the petitioner after using the said motorcycle kept the same in front of his house under lock and key on 12.03.2007 but at about 13-30 hrs. his son to his utter surprise noticed the non-existence of the motorcycle in the said place. His son, however, made a thorough search of the said motorcycle at many places but to no effect. The petitioner, however, on 12.03.2007 lodged a written complaint with I.C. Englishbazar Police Station on the basis of which E.B.P.S. Case No. 98/07 dt. 12.03.2007 u/s. 379 I.P.C. was started.
The petitioner also informed the matter of theft to the Branch Manager, Oriental Insurance Co. Ltd., Malda (O.P. No.1) on 20.03.2007 in writing with a request to take necessary step over the matter. After completion of investigation, F.R.T. was submitted on 11.04.2007 which was accepted by the ld.Court on 13.11.2007. Further case is that the said motorcycle was insured with the O.P. / Oriental Insurance Co. Ltd. under Policy No. 313204/2007/1426 the policy being valid on and from 01.09.2006 to 31.07.2007 midnight. Inspite of repeated request the O.P. No.1 did not take necessary step in order to make payment of insured amount. Ultimately lawyer’s notice dt.03.05.2008 was sent to the O.P. No.1 under registered post with A.D. but inspite of receiving the same the O.P. did not pay any heed. Hence this case with the prayer as mentioned in the petition.
The O.P., Oriental Insurance Co.Ltd. has been contesting the case by filing written version wherein all material allegations contained in the complaint have been denied. The positive case of the O.P. is that the petitioner did not furnish documents like blue book, registration book/ certificate, tax token and cashmemo etc. inspite of the requisite being made by the O.P., Insurance Co. to the petitioner. That apart the petitioner did not surrender the two keys of the motorcycle. Further it has been stated in the written version that the fact of theft of motorcycle ought to have been reported to the R.T.O., Malda. Again it is stated that the motorcycle was of the year 2000 and as such the valuation of the same was gone down to a great extent which was much lesser than that of the cost price. Again it has also been averred in the written version that the Insurance Co’s liability is upto the extent of Rs.19,000/- being the insured amount. With all this the O.P. has prayed for the dismissal of the case.
Upon the pleadings of both parties the following points emerge for effective disposal of the case.
::POINTS::
- Whether due to negligence of the petitioner the theft of the motorcycle in question was made or not ?
- Is the petitioner entitled to get the actual cost of the motorcycle i.e. for Rs. 44,303/- or not ?
- Is there any deficiency in service on the part of the O.P. Insurance Co. in the matter of settlement of claim of the petitioner owing to theft of motorcycle or not ?
- To what other reliefs, if any the petitioner is entitled to get ?
::DECISION WITH REASONS::
Point Nos. 1 to 4
All the points being interlinked character are taken up together for the sake of brevity and for convenience of consideration.
The petitioner in order to substantiate his case has examined himself as PW-1 and he appears to have corroborated the actual state of affairs which has been depicted in the petition itself. That apart the petitioner has also submitted certain documentary evidences before the Forum which have been marked Exbts. 1 to 12. It has come out from the cross-examination of PW-1 that on the very date of occurrence the vehicle was kept in front of his house under proper lock and key in secured zone. One Digendra Nath Halder, an Administrative Officer of Oriental Insurance Co. Ltd. has deposed as OPW-1 for and on behalf of the O.P. Oriental Insurance Co. Ltd. It has come out from his cross-examination that the vehicle in question was actually stolen away and they are ready to make necessary payment according to the terms and conditions of the policy.
Again one Arpan Roy has been examined on behalf of the O.P. as OPW No. 2. This OPW No. 2 is an Investigator who on being appointed by the Oriental Insurance Co. Ltd. investigated the case. He in his evidence has admitted that except the vehicle keys the petitioner surrendered all other demanded papers. Also he has admitted in his cross-examination that the factum of theft of motorcycle is genuine, which gets effective support from the investigation report ( Exbt.-F).
The factum of theft of motorcycle and also lodging the FIR with E.B.P.S. and after investigation the case being ended with the submission of F.R.T. having been ultimately accepted by the Court also get effective support from the F.I.R. ( Exbt.-1), Final Report True ( Exbt.-2), acceptance order of the Court ( Exbt.-3). It has also been proved from other documentary evidences like Exbt.-5, Exbt-8, that immediately after the theft of motorcycle correspondence was with the Insurance Co. by the petitioner. Reiterate to mention that the OPW No. 1 in his evidence has categorically stated that they are ready to make payment according to the terms and conditions of the policy. The document of insurance policy in which the vehicle in question was insured has been produced before the Forum which has been marked (Exbt.-4). From the insurance policy it is very much evident that the vehicle in question was under valid insurance coverage on and from 01.09. 2006 to 21.08.2007 midnight. Again it is seen therefrom that the vehicle was insured for Rs. 19,000/- . It has also been proved from the F.I.R. and other documentary evidences that the vehicle in question was stolen away on 12.03.2007 which is obviously within the coverage period.
In the instant case the petitioner has claimed the actual cost of the vehicle and in support of his case the petitioner has submitted purchase receipt which has been marked Exbt.- 7. From Exbt.- 7 it is seen that the motorcycle in question was purchased in consideration of Rs. 44,303/- on 29.08.2000. Admittedly, after seven years from the date of purchase, motorcycle was stolen away. Now the question crops up whether the petitioner is entitled to get the actual cost of Rs. 44,303/- or the insured amount of Rs. 19,000/- .
In this regard we have very much carefully gone through the terms and conditions of the policy together with other documents wherefrom it can be conclusively held that the petitioner is not entitled to get the actual cost of the motorcycle. In our considered view the petitioner is entitled to get payment of Rs. 19,000/- only which has been mentioned in the policy as L.D.V.
All the points are thus disposed of in favour of the petitioner.
In the result, the case succeeds in part.
Proper fees have been paid.
Hence, ordered
that Malda D.F. Case No. 42/2008 be and the same is hereby allowed in part on contest without any order as to cost. The petitioner do get an order of award for Rs. 19,000/- against the O.Ps. The O.Ps jointly and severally are hereby directed to pay the awarded amount of Rs. 19,000/- within one month from the date of this order failing which interest @ 8 % p.a. upon the awarded amount will carry. In the event of non-payment of the awarded amount within the prescribed period mentioned above the petitioner is at liberty to get the awarded amount executed under the law.
Copies be served to both parties free of cost.
