West Bengal

Paschim Midnapore

CC/94/2011

Sk. Nausad Ali. - Complainant(s)

Versus

The Devisional Manager, National Insurance Co.Ltd. - Opp.Party(s)

03 Feb 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

Complaint case No. 94/2011                                              Date of disposal: 03/02/2012                               

 

BEFORE : THE HON’BLE PRESIDENT :  Mr. P. K. Sarkar.

                                                     MEMBER :  Mr. G. B. Bandyopadhyay.

 

For the Complainant/Petitioner/Plaintiff: Mr. S. Chakraborty.

For the Defendant/O.P.S.                          : Mr. M.M.G. Chowdhury.

     Sk. Nausad Ali S/o-Sk. Ahmed Ali, Vill-Mirbazar, P.O., P.S. & Town-Midnapore,

     Dist Paschim Medinipur………….Complainant.

                                                              Vs.

      The Divisional Manager, National Insurance Co. Ltd., Midnapore Divisional Office,

      Station Road, P.O., P.S. & Town-Midnapore, Dist-Paschim Medinipur….…....Op.

The facts of the case as made out by the complainant are as follows:-

SK. Nausad Ali, S/o, of Sk. Ahmed Ali, of vill. Mirbazar, P.O, P.S.&Town- Midnapore, District- Paschim Midnapore has been carrying on his business at Station Road Post Office, P.S and Town Midnapore, District – Paschim Midnapore.  He is the owner of Hero Honda C.D. dealers motor cycle bearing No. WB-34U/3833 having insurance No.HA 11 EA 89 G 37848, chassis No. being MBLHA 11 EE 89G 19439.  He purchased the said motor cycle from M/S Palco Automobile, an authorized dealer at Judges’ Road Post Office, P.O.-Midnapore, P.S. Kotwali, Dist.- Paschim  Midnapore.  The said motor cycle was insured by National Insurance Company Ltd. Midnapore Divisional Office at Station Road, P.S.- Midnapore vide policy No.35070 131086 20075 8352 for the period from 4/10/2008 to 3/10/2009.  On 2/03/2009 the said motor cycle was parked in the stand at Midnapore Central Bus Stand wherefrom the said motor cycle is alleged to have been found missing or stolen.  The matter was reported to Kotwali P.S vide GD Entry No.174 dated 03/03/2009.  But the police did not take any action.  A complaint was sent to the O.C., Kotwali P.S through the court of law for investigation after treating the complaint as F.I.R.   It is alleged that the owner of the stand was responsible for the theft of the motor cycle of the complainant.  Further the owner of the stand and his two sons assaulted the complainant’s son.  The assault upon the complainant’s son as well as the theft of motor cycle was reported to the police station on 03/03/2009.  It is contended by the complainant

Contd………….P/2

 

- ( 2 ) -

that no coupon was given by the owner of the stand for keeping the motor cycle in the stand.  The owner of the stand was reported to have been avoiding his liability for the theft of the complainant’s motor cycle.  The theft of the motor cycle was also reported to the Op. Insurance Company and claim form was submitted according to the insurance policy.  Thereafter, the inquiry was held by the Op. Insurance Company about the theft.  The Op. Insurance Company through their letter dated 05/03/2009 asked for some documents for settlement of the claim.  Accordingly the complainant submitted all documents as asked for along with two keys of the motor cycle on 06/03/2009.  It is further alleged that even after submission of the aforesaid claim along with all documents/papers, the claim of the complainant was not settled.  The complainant sent a letter to the Op. Insurance Company to know the fate of the claim.   The Op. Insurance Company after long period informed through their letter dated 24/08/2011 that the Op. Insurance Company was unable to settle the claim as police was silent about theft of motor cycle in the charge sheet.

Being aggrieved the complainant has moved his Forum praying for ;

1. A direction upon the Op national Insurance Company to settle the claim of the entire assured sum of Rs.41,194/- being the value of the stolen  motor cycle being No. WB 34U/3833 along with interest;
2. An award of a sum of Rs.10,000/- as compensation;
3. Any other order/orders as may be deemed fit and proper according to law. 

                           The Op. National Insurance Company Ltd. Contested the case by filing their written version, wherein it has been stated inter alia that the complaint filed by the complaint on 17/03/2009 through the court of law was treated as FIR, wherein it was alleged that the accused persons, i.e,  the owner of the cycle stand where the motor cycle was kept without any coupon, and his sons, were directly involved in the criminal conspiracy in the matter of committing theft of the motor cycle of the complainant.  Therefore, the Op. National Insurance Company is not liable to compensate the petitioner for the criminal act of third party.  Further it is contended in the written version that the police after investigation filed charge sheet on 23/04/2009 against the accused persons, i.e, the owner of the cycle stand and his sons under Sections 341/323/34 of IPC, and that the I.O specifically stated in the CS that he found no evidence of theft of motor cycle against the accused persons and there is no evidence that the motor cycle was kept in the cycle stand of the accused persons and was stolen as stated by the complainant.  In this perspective it is submitted that the Op. National Insurance Company had no liability to indemnify the complainant for the alleged theft of the motor cycle.

    

Contd………….P/3

 

- ( 3 ) -

Under the given facts and circumstances the following issues are framed;

1. Whether the complainant is a consumer within the meaning of Section 2(1)(d) of the CP Act 1986 ?.
2.   Whether the Op Insurance Company is deficient in service within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the CP Act 1986 ?.
3. If so what relief/reliefs are to be given to the complainant?

Decisions with reason:

Issue No.1.

              Sk. Nausad Ali, S/o, Sk. Ahmed Ali, of vill. Mirbazar, purchased the Hero Honda motor cycle bearing No.WB-34U/3833 having Insurance No.HA 11 EA 89 G37848,chassis No. being MBLHA 11 EE 89G 19439 from M/S Palco Automobile.  It is also an admitted fact that said motor cycle was covered under the Insurance Policy issued by the National Insurance Company from 4^th October, 2008 to 3^rd October, 2009.  He paid a sum of Rs.974/- towards comprehensive insurance policy issued by the Op. National Insurance Company.  It is alleged that the said motor cycle was missing from the cycle stand at Midnapore Central Bus stand on 02/03/2009.  The complainant submitted the claim for assured sum in terms of the insurance policy before the Op. National Insurance Company.  But the Op. Insurance Company repudiated the claim. Being aggrieved the complainant filed the instant complaint against the Op-Insurance Company claiming the reliefs mentioned therein.  Therefore, the complainant must be held to be a consumer within the meaning of Section 2(1)(d)(ii) of the CP Act. 

Issue Nos.2&3.

               These issues are taken together for convenience of discussion.  It is an admitted fact that the complainant was the owner of a Hero Honda Motor Cycle bearing registration No.WB- 34U/3833.  He purchased the motor cycle from M/s Palco Automobiles. The said motor cycle was under insurance coverage for the period from 04/10/2008 to 03/10/2009 under the insurance policy issued by the Op. National Insurance Company Ltd.  As per averment of the complainant, the said motor cycle was parked at the cycle stand of Sri Sukumar Prathihar near the Midnapore Bas Stand on 02/03/2009, wherefrom the motor cycle is alleged to have been missing.  It is also evident that the complainant tried to lodge FIR at Midnapore Kotwali Police Station ( letter as marked Z for identification), and as police refused to accept the FIR, he moved a complaint under Section 156(3) of the Cr. PC before the court of the Ld. CJM, Paschim Midnapur for a direction upon the police for investigation treating the complaint as FIR under Sections 323/324/326/379/120(B)/34 of the IPC for the alleged theft of his motor cycle and causing heart

Contd………….P/4

- ( 4 ) -

of him and his son-in-law by the cycle stand owner Sukumar Prathihar and his sons.  The petition of the complainant was referred to the Kotwali Police Station for inquiry treating the same as FIR.  After holding the inquiry the inquiring police officer submitted charge sheet against the accused persons under Sections 341/323/34 of the IPC with observation that he did not find any proof in support of the theft of the motor cycle and hence Section 379 of the IPC was not included in the charge sheet.  There is no dispute that the complainant submitted claim before the Op. National Insurance Company for the assured sum in terms of the insurance policy, for the loss of the motor cycle.  Exhibit 3 goes to prove that the Op. National Insurance Company repudiated the claim on the ground that as par charge sheet the theft is not established, the police are also silent about the theft of the motor cycle.  On the other hand in the written version submitted by the Op. National Insurance Company another ground for repudiation of the claim of the complainant has been stated as it is clear testimony on the part of the petitioner that the motor cycle was stolen by the owner of the cycle stand. Therefore, this Op. is not liable to compensate the petitioner for the Criminal Act of third party.  On receiving the claim of the complainant the Op. National Insurance Company engaged a private investigator viz Ashoke Dey, under Section 64 of the Insurance Act. The Investigator in his report dated 16/8/2010 had arrived at the conclusion that “in fine it could be boldly stated that the stolen motor cycle was placed inside the motor cycle stand on the date and time cited above.  Because circumstantial evidences prove that the motor cycle No.WB-34U/3833 was parked as par routine practice, but due to lack of proper course of system, like issuing ticket, it could not be established in pen and papers.  So, in consequences of these findings the insurance authority may take the final decision subject to the deserving claimed amount as claim by the insured.  An affidavit of evidence has been submitted by the investigator to this effect.  In the cross-examination the investigator PW(2) asserted that the witness Tarun Das and the witness Anup Show claimed to have seen the parking of the motor cycle in question in the cycle stand of Sukumer Pratihar. However he admitted that he did not explain the circumstantial evidence as mentioned in his report.  In the police report it has been asserted that the theft of the motor cycle was not proved.  But there was no denial of the fact that there was not theft of the motor cycle nor it has been mentioned clearly in the police report that the story of theft was concocted by the complainant.  Therefore, no adverse inference can be drawn from the charge sheet submitted by the police. The insurance policy is a contract. The Insurance Company accepted the liability to indemnify the insured for any loss to the insured.  It is evident that the motor cycle was stolen by some miscreants from the cycle stand of Sukumer Pratihar, if not by the owner of the stand and his sons as alleged by the

Contd………….P/5

- ( 5 ) -

complainant, during the currency of the policy.  The Op. Insurance Company can not discard the report of the Investigator appointed by them as the same was not favorable to them. 

             No cogent and reliable evidence has been produced to dispute the claim of the complainant that his motor cycle was lost by theft. The Op. Insurance Company has failed to produce any reliable evidence justifying the grounds for repudiation of the claim of the complainant

            In view of what is discussed above it is held that the repudiation of the claim of the complainant by the Op. National Insurance Company Ltd. was unjustified. As the complainant suffered total loss due to theft of the insured motor cycle, the Op. National Insurance Company must indemnify him by paying the full price of the motor cycle.

            Hence, ordered that the Op. National Insurance Company Ltd shall pay the complainant the assured sum of Rs.32.088/- along with a litigation cost of Rs.2,000/- within 30 days from the date of communication of this judgment, failing which the Op. National Insurance Company is liable to pay an interest @10% p.a.  on the total amount due till payment is made.  Thus the case is disposed of on contest.                  

                        Let the copies of the judgement be supplied to the parties free of cost. 

Dic. & Corrected by me

                                                                                                                       I agree                      

              

         Member                                                                                               President

                                                                                                                District Forum

                                                                                                             Paschim Medinipur.