OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.120/13
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri Upendra Nath Deka - Member
Shri Dilip Kumar Maheshwari -Complainant
S/o. Shri Sagarmal Rathi,
Rathi House,House No.15,
Ward No.52, Ganeshguri-781005
District: Kamrup ,Assam
-vs-
1) The Chairman Cum Managing Director, -Opp.parties
The New India Assurance Company Ltd
Registered Office at New India Assurance Building,
87,M.G.Road,Fort,Mumbai,400001.
2) The Regional Manager,
The New India Assurance Company Ltd.
Opposite Rajiv Bhawan,Bhangagorh,
G.S.Road,Guwahati-781005, Assam.
Guwahati-781005,Assam.
Appearance-
Learned advocates Mr.Mahendra Kumar Jain for the complainant
Learned advocates Mr.Kamal Kr.Bhatta and Mr.Jocky John for the opp.parties.
Date of argument- 28.6.2016
Date of judgment- 28.7.2016
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by complainant, Sri Dilip Kumar Maheshwari was admitted on 27.12.13 and the notices were served on the opp.parties namely the Chairman Cum Managing Director, The New India Assurance Company Ltd. and the Regional Manager, New India Assurance Company Ltd.; and they filed their written statements on 4.8.14. Thereafter, the complainant filed his evidence in affidavit on 19.3.15 and he was cross-examined by the ld counsels of the opp.parties . The opp.party side filed their evidence in affidavit of Sri Dulal Kr.Pushilal and he was cross examined by the ld counsel of the complainant. Thereafter, Ld advocate Mr.Mahendra Kr.Jain files written argument for the complainant and Ld advocate Mr.Kamal Kr.Bhattacharyee for the opp.parties. Thereafter, on 28.6.16 we have heard oral argument of Mr.M.K.Jain for the complainant and of Ld advocate Mr.Jocky Jhon for the opp.parties, and today, we deliver the judgment which is as below.
2) The gist of the pleading of the complainant is that he being the registered owner of vehicle Tata Tipper (LPK 2518 TC) bearing registration No.AS-01-CC-2723, approached Opp.Party No.2, namely Regional Manager, New India Assurance company Ltd.,Bhangagorh,Guwahati, for making a policy and accordingly the latter issued a Commercial Vehicle Package Policy against his said vehicle vide Insurance Policy No. 53020931110100004799 with effective from 28.1.2012 to 27.1.2013 which covers own damage losses as well as third party liability arising out of the use of said vehicle with an IDV of Rs. 11,50,000/- only; but on 6.3.2012 at about 5-45 A.M. the said vehicle was stolen away by some unknown miscreants from the parking place at 9th Mile , Baridua near Classic Restaurant under Khanapara Police Station and the matter was immediately reported to Khanapara Police Station with a written F.I.R. and Khanapara Police Station also registered a case u/s 379 I.P.C. and also started investigation; and the opp.party was also immediately communicated about the matter over phone, and thereafter a written report was also submitted about the said theft to Opp.Party No.2, and after receipt of the information of the theft, Opp.Party No.2 had registered a claim in respect of aforesaid vehicle. Thereafter, Opp.Party No.2 had asked the complainant to submit his vehicular documents and the claim form duly filled up and signed, and accordingly, he submitted all the requisite documents and also filed duly filled up claim form for settlement of his claim. Opp. Party No.2 , thereafter, deputed their investigator Mr.Dipak Das to investigate the incident of said theft and thereafter he also collected possible information and vehicular documents from the complainant. Opp.Party No.2, later on- , informed the complainant that claim is under process and would be settled shortly, but asked him to submit some more documents i.e. certified copy of Police Final Report, NCRB Report in original, and the letter of Undertaking, the letter of Subrogation and Form No.29 & 30 for early settlement of the claim and he also submitted required documents on 23.5.2013,but on 16.7.2013, Opp.Party No.2 sent a letter to the complainant asking him to submit road permit of Meghalaya as because the theft had occurred at 9th Mile which comes within the perview of Meghalaya and then he submitted his reply on 27.8.2013 explaining the facts and circumstances. The complainant had taken public carrier permit issued by the Regional Transportation Authority, Kamrup, Guwahati, vide permit PP/GC/04/15556 which was effective from 5.2.2010 to 4.2.2015 for plying of his vehicle within jurisdiction of Assam, and the said permit is also called All Assam Route Permit. On the date of incident the vehicle was engaged at 9th Mile which is within the land area of Assam, but after completion of daily work it was parked on the other side of the road in the parking place at 9th Mile, Baridua near Classic Restaurant under Khanapara Police Station . It is difficult for driver/layman to understand the geographical demarcation in which one side of the road is in Assam and other side is in Meghalaya. No separate permit is required for plying of vehicle from Khanapara to Jorabat and moreover, Public Carriers Permit issued by Regional Transportation Authority, Kamrup,Guwahati is sufficient for plying of public vehicle in the said vehicle area. Both Khanapara as well as Jorabat fall under the jurisdiction of Assam as well as Meghalaya due to faulty demarcation of Route and the Geographical area and that if any one is going by road towards Jorabat from Khanapara, then entire area of left hand side falls within jurisdiction of Assam, but while returning from Jorabat towards Khanapara, more area of left hand side falls within jurisdiction of Assam and whereas some of the areas fall within jurisdiction of Meghalaya. Opp.Party NO.2 vide letter dtd. 11.11.2013 informed the complainant about repudiation of the claim on the ground of ineffective Route permit which is quite unjustified in the eyes of law owing to the fact that there is no need of support route permit for plying of vehicle in between Khanapara and Jorabat . The repudiation of the theft claim by Opp.Party No.2 on the ground of any effective Route Permit is baseless, illegal and as per decision of the Supreme Court in National Insurance Company Ltd.-vs- Nitin Khandelwal, (2008) 11 SCC 259 in a case of theft of vehicle, breach of condition is not jermane and the Insurance Company is liable to indemnify the owner of the vehicle in case of comprehensive policy for the loss caused to the vehicle. The opp.parties, by repudiating the claim as filed by the complainant, committed deficiency of service towards the complainant, and by that deficiency of service and thereby caused mental agony and harassment to the complainant and therefore the opp.parties shall be directed to pay the compensation to the complainant to the tune of Rs.11,50,000/- with interest @ 12% per annum from the date of filing of the complaint till realization as insured value of the vehicle and also to pay Rs.1,00,000/- as compensation for causing harassment and mental agony to the complainant and also Rs.57,500/- as interest on the insured amount @ 12% per annum from the date of lodging of claim till filing of this complaint.
3) The gist of the pleading of the opp.parties is that there is no cause of action for filing the complaint by the complainant. There is no deficiency of service on the part of them. There is no consumer dispute for adjudication by the forum. The claim of the complainant was repudiated after carefull processing the same and therefore, it cannot be termed as deficiency of service towards the claimant. Opp.party side is liable to compensate the insured subject to the terms and conditions enumerated in the policy issued, and if there is a violation of any of the said terms and conditions, then the insurer is no longer liable to compensate the insured. In the instant case, the complainant violated the terms and conditions of the policy by plying his vehicle without road permit and parked the said vehicle in a area for which there was no road permit, and as such, opp.parties are not at all liable to satisfy the claim of the complainant and hence they repudiated the claim. The vehicle was insured with them vide policy No. . 53020931110100004799 which was effective from 28.1.2012 to midnight 27.1.2013 and the risk of the said vehicle was taken by the company subject to the terms and conditions of the policy. The place where the vehicle was parked just before the theft is an area for which the vehicle did not have road permit and the said parking area near temporary camp of hill cutting side at 9th Mile, Baridua near Classic Restaurant is apparently falls under state of Meghalaya and the vehicle was parked there without having valid road permit from State of Meghalaya.They got the instant theft investigated as per their requirement and found that condition of the policy were violated and therefore, the claim was repudiated. The claim is therefore, liable to be dismissed.
4) We have perused the pleading of the parties as well as their evidence. We have also perused the argument of both sides’ ld counsels’. We are giving our decision which is as below.
After perusing the pleading as well as the evidence of the parties, it appears to us that both sides admit that the complainant, Sri Dilip Kumar Maheshwari was the owner of a Tata Tipper (LPK 2518 TC) bearing registration number AS 01-CC-2773 TC) and it was insured with New India Assurance Company, G.S.Road, Guwahati branch vide policy No. 53020931110100004799 which was effective from 28.1.2012 to 27.1.13 which covers own damage losses and the third party liability arising out of using the said vehicle, and the vehicle was commercial vehicle and at the time of insurance IDV was Rs.11,50,000/-; and during effectiveness of the said policy on 6.3.2012 at about 5-45 A.M.. The said vehicle was stolen away by some unknown miscreants while it was parked at 9th Mile, Baridua near Classic Restaurant and the police of Khanapara P.S. Raivo District, Meghalaya investigated the case registering a case under section 379 I.P.C. as per F.I.R.filed by the complainants’ brother Sri Dilip Kumar, and gave the final report. The second fact admitted by both the parties is that the said vehicle has All Assam Route Permit vide Permit No. P.P./GC/04/15556 with the effect from 5.2.2010 to 4.2.2015 issued by Regional Transport Authority , Kamrup.
The third fact admitted by both the parties is that after the commission of the said theft, the complainant informed the insurer (OPp.Party No.2) about the theft, and he also lodged the claim with Opp.Party NO.2 and Opp.Party No.2 repudiated the said claim vide his letter Memo No. NERO/CCH/TC dated 11.11.2013 only on the ground that theft in respect that vehicle had taken place while it was parked at 9th Mile, Baridua which falls under Meghalaya.
5) Now, moot question is that whether the place from where the said vehicle was stolen away by the miscreants falls under the state of Meghalaya.
On this point, the pleading of the complainant is that on 6.3.2012 at about 5-45 A.M., the vehicle was stolen away by the miscreants while it was parked at 9th Mile, Baridua, near Classic Restaurant under Khanapara P.S.. In the affidavit the complainant states the same thing, but in the cross-examination, he admits that the parking place, wherefrom, his vehicle was stolen away on 6.3.2012, is situated at Raibhoi District, Meghalaya and his brother lodged F.I.R. at Khanapara P.S. of Raibhoi District , Meghalaya. Thus, it clearly proved that the said vehicle was stolen away on 6.3.2012 while it was parked near Classic Restaurant at 9th Mile, Baridua, which is a place falls under Raibhoi District of the state of Meghalaya. Admittedly, the vehicle had All Assam Route Permit only, and hence as per said permit the driver/owner of the said vehicle has no authority to park the said vehicle in the said place and by the act parking of the said vehicle in said place violated the provision of the Route Permit.
But the complainant’s sides plea is that it is difficult for a driver/layman to understand geographical demarcation of the road of the said place between Assam and Meghalaya and both Khanapara as well as Jorabat falls within the jurisdiction of Assam as well as Meghalaya due to faulty demarcation of the route and geographical area and while going by road towards Jorabat from Khanapara, the entire area of left hand side falls within the jurisdiction of Assam and while returning from Jorabat towards Khanapara, some arreas of the left side towards Khanapara, some arreas falls within jurisdiction of Meghalaya. In the cross examination the C.W.-1 (P.W.-1) admits that the parking place where from the vehicle was stolen away, falls within the jurisdiction of Raibhoi District of Meghalaya and that he could ply and park his vehicle within the territory of Assam only.
In this case, the complainant side adduce evidence of neither of the driver of the concerned vehicle nor of any independent person , nor of any technical person to prove their plea that the some portions of the southern side of N.H. 37 in between Khanapara and Jorabat falls within the jurisdiction of state of Assam and some portions within the jurisdiction of state of Meghalaya (Rivoi District). The complainant in his evidence specifically states that the parking place of the said vehicle is situated within the jurisdiction of Rivoi district, Meghalaya and that his brother lodged the F.I.R. at Khanapara P.S. of state of Meghalaya about the alleged theft. Thus, it is clearly established that the place, where the concerned vehicle was parked on the day of theft, where from the vehicle was stolen away, is situated within the jurisdiction of Rivoi district of Meghalaya, and at the time of parking of the said vehicle by the driver/owner knew well that the said place is within the jurisdiction of Rivoi district of Meghalaya. It is admitted fact that the said vehicle has no permit to ply or to park within the territory of state of Meghalaya. Thus it is clear that, the owner of the vehicle as well as his driver had parked the said vehicle in the said place knowing well that, that place falls within the jurisdiction of Ribhoi district of Meghalaya, and they have no authority to park the vehicle in the place . Therefore, we hold that the owner / driver of the said vehicle had parked at 9th Mile , Baridua near Classic Restaurant under Khanapara Police Station of district Rivoi, state of Meghalaya in violation of road permit No. PP/GC/04/15556 dtd. 5.2.2010 issued by Regional Transport Authority , Kamrup, Assam as well as violation terms and condition of policy . However, act of violation of condition of road permit has caused repudiation of a claim under the policy taken from Insurance Company (Opp.Party No.2).
6) Moreover, the very act of parking the vehicle by its owner/driver of the alleged vehicle in a place, which they knew well that it is a place where they have no authority to park as per road permits issued to them, is an act of negligence.
Therefore, we hold that very act of parking the said vehicle of the alleged day at 9th Mile, Baridua, under Rivoi district of Meghalaya is act of negligence on the part of the owner/driver of the said vehicle and for that negligence, the said vehicle have been got stolen away by the miscreants. It is general rule that the owner and driver of a vehicle cannot park a vehicle in a place where they have no authority to park and nor they can leave the vehicle in a place unattended where there is very probability of committing theft in respect of the said vehicle. But in the present case, they had parked and left the vehicle in a place with a vulnerability of commission of theft in respect of the said vehicle, and for such reason they are to face consequences of leaving or parking in the said place. Had the vehicle been parked within the state of Assam it could not have been stolen away by the miscreants. Thus, we hold that for the negligence of the owner/driver of the vehicle the said vehicle had been stolen away by the miscreants. In Oriental Insurance Co.Ltd. –vs- Ashwini Kumar, I (2013) CPJ 21 B(NC)(CL) National Commission by delivering judgment observed that flagrant and gross violation to the terms and condition of the insurance policy, the insurer cannot be called upon to settle the claim even on non-standard basis. The complainant side ld advocate Mr.M.Jain submits that in the case of theft, breach of condition is not germane to repudiate the claim, and, in support of his argument, he refers the judgment of the Supreme Court. In (2008) II Sec.259 National Insurance Co.Ltd. –vs- Nitish Khandelwal. We have perused the said judgment of Hon’ble Supreme Court and found that Hon’ble Supreme Court in the said judgment observed that the insurance company is laible to pay compensation to the owner of the vehicle, Sri Nitin Khandelwal. We have found that the factual situation of the said case is that on the way, the vehicle was stopped by unknown people and the driver was dumped and the vehicle was stolen away . This factual situation is different from the factual situation of our present case. Ours’ is a case of flagrant violation of the condition of the policy as well as negligence of the owner/driver of the vehicle. So, the complainant side cannot get support from the ratio of said judgment of Supreme Court. The complainant side ld counsel also refers the decision of National Commission in New India Assurance Company Ltd. –vs- B.Mangaltrum and Co.-(2013) 4CPJ 211: (2013) 3CPR 718 in support of his submission . We have perused the said judgment of National Commission and found that Hon’ble National Commission observed that in the case of theft of vehicle even in violation of condition of insurance policy, the insurance company are liable to compensate the owner in non-standard basis, and they cannot repudiate the claim in toto. The ratio of that judgment cannot come to help the complainant side having the owner/driver of the vehicle did flagrant of violation of condition of policy as well as they had been negligent by not parking the said vehicle in the permissible place and leaving the vehicle unattended.
7) After perusing the repudiation letter, we have found that the opp.party repudiated the claim of complainant on the ground that the owner/driver violated the terms and condition of the policy by parking the vehicle at 9th Mile , Baridua, which falls under Meghalaya in violation of road permit. We have also found that the opp.party side has succeeded to prove that fact and we hold that, that act is a flagrant violation of terms and condition of insurance policy under which the complainant is claiming compensation. Therefore, we are of view that the complainant is not entitled to any amount from the opp.parties as prayed.
8) Because of what has been discussed as above, we hold that the complaint has no merit and accordingly we dismiss the complaint on contest.
Given under our hands and seal of this forum on this day 28th July,2016.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Mr.U.N.Deka)
Member
