West Bengal

Paschim Midnapore

CC/122/2011

M/S G.B. Yadav - Complainant(s)

Versus

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

30 Apr 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

             Complaint case No. 122/2011                                                         Date of disposal: 30/04/2012                               

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

                                                      MEMBER :  Debi Sengupta.

                                                    

            For the Complainant/Petitioner/Plaintiff: Mr. A.  K.  Dutta.

            For the Defendant/O.P.S.                          : Mr. P. K..  Ghosh.

            M/S. G.B Yadav & Company Pvt. Ltd., Director, Govinda Bihari Yadav, Plot No.1027,

            Old Settlement, P.O.-Kharida, P.S.-Kharagpur, Dist-Paschim Medinipur……Complainant.

                                                              Vs.

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

      Road, P.O.-Midnapore, Dist-Paschim Medinipur…………………Op.

             The complainant’s case, in brief, is as follows :-

             The complainant purchased the Tata Tripper registered as WB-33A 4532 with Financial Assistance of GE Capital TFS Ltd. Kolkata and got the vehicle insured by the Op-Insurance Company for IDV of the vehicle Rs. 8,40,000/- vide policy No.153800/31/09/630002103 for the period from 6/08/2009 to 5/8/2010.  The complainant entrusted their Manager Jagadish Ch. Bera to look after the vehicle.  On 19/12/2009 at 12 p.m., when the drivers of the vehicle was taking food at Sing Siwan Hotel at Jianda, P.S.Panskura, Dist. Purba Medinipur, after parking the vehicle near the hotel, the vehicle was stolen by some unknown miscreants.  The matter was reported to Panskura P.S. on 20/12/2009 and the police started Panskura P.S. Case No.321/09 under Section 379 IPC and after investigation of the case submitted FRT No.247/10 on 20/8/2010. Subsequently the complainant submitted their Insurance claim before the Op-Insurance Company with relevant documents for the theft of the vehicle.  The Op-Insurance Company engaged a secret investigation agency to survey the claim of the complainant and by his letter dated 03/2/2010 the surveyor Mr.A. Das of the secret investigation agency informed that the claim of the complainant could not be settled unless the documents mentioned in the letter are produced.  According to the complainant, they produced all the documents in support of their claim, but the Op-Insurance Company illegally repudiated their claim.  As such the complainant filed the instant complaint alleging deficiency of

Contd………….P/2

 

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service of the Op-Insurance Company with prayer for issuance of direction upon the Op. to pay the assured sum under the insurance policy in respect of the vehicle in question with up to date interest thereon.

                  The Op. contested the case by filing their w/o contending inter alia that the complainant sold the vehicle in question to Jagadish Ch. Bera  about one and half years before the alleged theft of the vehicle  and as such insurance claim by the complainant for the theft of the vehicle is not tenable; that the two drivers and Khalashi of the vehicle left the vehicle on the High Road with its ignition key and as such the miscreants got opportunity to steal the vehicle for such negligence of the drivers and Khalashi  of the vehicle, that during inquiry the driving license of the drivers of the vehicle could not be traced out and as such there was reason to believe that vehicle was in the custody of the some unauthorized persons at the time of the alleged theft; that the complainant had no insurable interest at the time of the alleged theft of the vehicle in question as the vehicle was sold to said Jagadish Ch. Bera about one and half years before the alleged theft, but  the complainant fraudulently took the insurance policy in respect of the vehicle suppressing the fact of sale of the vehicle.  Accordingly the Op-Insurance Company sought for dismissal of the complainant.    

The points for decisions are :

     (1)Whether the complainant is a consumer within the meaning of the section   2 (i) (d) (ii) of the C.P. Act, 1986 ?

     (2)Whether the Ops. were deficient in service within  the meaning of section 2 (1)(g) read with section 2(1)(0) of the C. P. Act, 1986 ?  

      (3) Whether the complainant is entitled to get the reliefs as sought for ? 

Decisions with reasons  

 Point No.1

                 The registration certificate marked exhibit 2 disclosed that the complaint is the owner of the tripper registered as WB-33A/4532. The copy of the policy insurance marked Exhibit 1 disclosed that the complainant took Insurance Policy in respect of the said vehicle for `.8,40,000/- for the period from 06/8/2009 to 5/8/2010.The  FIR marked exhibit 6 disclosed that, on behalf of the complainant, Shri Jagadish Ch. Bera lodged FIR for the theft of the vehicle on 22/12/2009 and the FRT marked Exhibit 8 disclosed that the police of Panskura P.S. submitted final report after investigation of the case started on the basis of complaint lodged by said Jagadish Ch. Bera.  According to the complainant, the Op-Insurance Company illegally repudiated the Insurance claim of the complainant for the theft of the vehicle in question, in spite of receipt of requisite documents in support of their claim. As such the complainant filed the instant complaint praying for issuance

Contd………….P/3

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of direction upon the Op- Insurance Company to pay the assured sum under the Insurance Policy issued by them for the theft of the insured vehicle. Under the given facts and circumstances, there is not doubt that the complainant is a consumer as defined under Section 2(1)(d)(ii) read with Sections 2(1)(g) and 2(1)(o) of the C.P. act 1986.

Point Nos. 2&3

                The letter dated 03/2/2010 issued by Mr. A. Das for the Secret Investigation Bureau appointed by the Op-Insurance Company to survey the insurance claim of the complainant, disclosed that the said investigation agency informed the complainant that latter’s claim would not be settled unless the documents mentioned in the letter were produced by him.  According to the complainant, they submitted all the relevant documents in support of their insurance claim for the theft of the vehicle in question, and that there was a little justification for asking the complainant to produce other documents to settle the claim of the complainant.  On perusal of the letter dated 03/2/2010 sent on behalf of the Secret Investigation Bureau appointed by the Op-Insurance Company, it transpired that the investigation agency asked the complainant to produce documents regarding ownership of the truck, and the moran soil loaded in the truck, the driving licenses of the drivers of the truck etc. which were not at all relevant for settlement of insurance claim of the complainant. In their pleadings the Op-Insurance Company contended that the complainant sold the vehicle in question to Shri Jagadish Ch.Bera about the one and half years before the alleged theft of the vehicle and as such the complainant has got no locus standi to claim compensation from the Op-Insurance Company for the alleged theft of the vehicle, on the basis of the Insurance Policy procured by them suppressing the fact of the sale of the vehicle. In support of their contention, the Op-Insurance Company produced letters written by Shri Jagadish Ch. Bera (Exts B&C) which disclosed that said Jagadish Ch. Bera admitted to have purchased the vehicle in question for `.4 lakh from the complainant, which he was required to pay by 28 installments. The letter dated 11/3/2008 (Ext. C) written by the complainant to said Jagadish Ch. Bera disclosed that the complainant agreed to give sale letter in respect of the truck no.WB-33A/4532, to Mr. Bera on payment of all the installments. Thus the said admission of the Shri Jagadish ch. Bera and the letter issued by the complainant- company disclosed that the sale of the vehicle in question by the complainant to Mr. Bera was not concluded at the time of alleged theft of the vehicle in question. In other wards, it must be held that the ownership of the vehicle in question was with the complainant at the time of alleged theft of the vehicle on 19/12/2009 and as such the complainant is entitled to get compensation for theft of the vehicle in question  under the policy of insurance issued by the Op-Insurance Company . The further contention of the Op-Insurance Company that during inquiry the driving license of the drivers of the vehicle could not be traced out and as such there was reason to believe that vehicle was in the custody of the some unauthorized persons at the time of the

Contd………….P/4

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alleged theft, got no relevance to decide as to whether the Op-Insurance Company was liable to compensate the insured in case of theft of the insured vehicle.   It is settled principle of law that the insurance claim by the owner/insured for the theft of the insured vehicle cannot be defeated on the ground that the driver of the vehicle had no valid driving license at the time of such theft, though the same was a breach of condition of the insurance policy.  In this connection we can place reliance on the decision of the Hon’ble Supreme Court reported in 2008 ACJ 2035 wherein it was held that the breach of the condition of the insurance policy in respect of any vehicle is not germane in case of theft of the vehicle.

                 The FIR marked (Exhibit 6) filed by Shri Jagadish Ch. Bera on behalf of the complainant and the FRT (marked Exhibit 8) submitted by the police of Panskura P.S. after investigation of the case started on the basis of complaint lodged by said Jagadish Ch. Bera, are sufficient to prove that the vehicle in question was stolen by some unknown miscreants on 19/12/2009 at 12 p.m., when the drivers of the vehicle was taking food at Sing Siwan Hotel at Jianda, P.S.Panskura, Dist. Purba Medinipur, after parking the vehicle near the hotel, in absence any evidence to the contrary. As such the Op-Insurance company was not at all justified to repudiate the insurance claim of the complainant demanding some additional documents from the complainant vide their letter dated 03/2/2010. So we propose to direct the Op-Insurance company to pay the IDV of the tripper registered as WB-33A/4532 i.e., Rs. 8,40,000/- with interest thereon @ 10% per annum from the date of expiry of two months of submission of the claim by the complainant till this date, and to pay a litigation cost of Rs. 2,000/- to the complainant

                             Hence, it is

                                                Ordered

                                                              that the complaint be allowed on contest. The Op-Insurance company is directed to pay the IDV of the tripper registered as WB-33A/4532 i.e., Rs. 8,40,000/-, with interest thereon @ 10% per annum from the date of expiry of two months of submission of the claim by the complainant till this date, and to pay a litigation cost of Rs. 2,000/-  to the complainant, within 45 days of communication of this judgement, failing which they are liable to pay interest on the amounts due @ 12% per annum till compliance of the order.               

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

Dic. & Corrected by me

                                                                        I agree                      

              

         President                                                Member                             President

                                                                                                              District Forum

                                                                                                           Paschim Medinipur.