Tripura

West Tripura

CC/14/54

Sri Debashis Chakraborty - Complainant(s)

Versus

The Divisional Manager Oriental Insurance Co. Ltd. And Others. - Opp.Party(s)

Mr. B. Debnath.

09 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC-54    of   2014

Sri Debasish Chakraborty,
S/O- Lt. Dulal Chakraborty,
Madhya Banamalipur,
Agartala, West Tripura.        ..........Complainant.

     ______VERSUS_____

1. The Divisional Manager,
    The Oriental Insurance Co. Ltd.,
    44/2 Centre Road,
    Agartala,West Tripura.

2. The Union Bank of India,
    Laxmi Narayan Bari Road Branch, 
    Agartala, Tripura West.        ........Opposite parties.
    
                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

 

For the Complainant       : Smt. Silpi Choudhuri and
                 Sri Bhabatosh Debnath,
                         Advocates. 
                           
For the O.P. No.1         : Sri P. K. Debnath, 
                        Advocate.

    For the O.P. No.2        : None appeared. 

 

 

        JUDGMENT  DELIVERED  ON : -  09.01.15.

 

J U D G M E N T

        This is a complaint U/S 12 of the Consumer Protection Act, 1986(herein after referred to as 'the Act') filed by the complainant, Sri Debasish Chakraborty of Madhya Banamalipur, Agartala, West Tripura against the O.Ps, namely The Divisional Manager, The Oriental Insurance Co. Ltd., Agartala, West Tripura and the Union Bank of India, L.N. Bari Road, Agartala over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps. 
2.        The fact of the case as gathered from the record is that the complainant had purchased a motor cycle of model no- Bajaj Discover 125 DR on 06.04.12 from Priya Motors Pvt. Ltd. taking loan from the O.P. No.2, Union Bank of India and got it insured for an amount of Rs.48,916/- with the O.P. No.1, The Oriental Insurance Co. Ltd. covering a period from 06.04.12 to 05.04.13. The motor cycle was temporarily registered for 30 days with effect from 06.04.12. On 07.08.12 at mid-night the motor cycle had been stolen from his rented house situated at Banamalipur, Agartala. The complainant reported the incident to the East Agartala Police station and a case was registered bearing East Agartala P.S. Case No. 155/2012 on an F.I.R. lodged by one Sri Ratan Saha. After investigation, the investigating agency submitted final report. The complainant made a claim to the O.P., Insurance Company seeking compensation but the O.P. Insurance Company repudiated his claim on the ground that at the relevant time of incident the motor cycle in question had no valid registration. Then the complainant served an advocate's notice upon the O.P. insurance company claiming the assured amount with compensation. In reply, the O.P. insurance company asked him to produce the original registration certificate and tax token of the vehicle for settlement of the claim. According to the complainant, the action of the O.P. insurance company attracts negligence and deficiency in service. Hence, this complaint.

3.         The O.P. No.1, The Oriental Insurance Co. Ltd., contested the case by filing written objection stating, interalia, that they could not settle the claim of the complainant as he did not produce the original registration certificate and tax token of the vehicle as demanded by them. Further that, as per General Exceptions to Clause 3, the company is not liable under this policy in respect of any accidental /liability whilst the vehicle insured is being used otherwise than in accordance with the 'limitation as to use'. As the complainant has committed the breach of policy conditions and violated the policy terms for 'limitation as to use' as provided under Sub Clause- 3 of Section 66 of M.V. Act, 1988, the company has no liability to indemnify him. It is denied that they were negligent and deficient in rendering service to the complainant.

4.        The O.P. No.2, the Union Bank of India,  did not contest the case despite receipt of notice. Hence, the case has been proceeded exparte against them.

5.        In support of the case, the complainant has examined himself as P.W. 1 and has proved and exhibited the following documents:
    Exhibit 1: Certified copy of F.I.R. with Final Report,
    Exhibit 2: Photocopy of cheque dated 09.05.12,
    Exhibit 3: Sale certificate,
    Exhibit 4: Policy of Insurance,
    Exhibit 5: Copy of Driving license,
    Exhibit 6: Letter dated 16.08.12 of the complainant,
    Exhibit 7: Letter dated 16.08.12 of the O.P. No.2 addressed to the O.P. No.1,
    Exhibit 8: Advocate's Notice,
    Exhibit 9: Reply to the Advocate's Notice,
    Exhibit 10: Temporary Registration Certificate and 
    Exhibit 11: Statement of Accounts.
        
6.        On the other hand, one Sri Goutam Bhowmik, Senior Assistant, The Oriental Insurance Co. Ltd., has examined himself as O.P.W. 1 and has proved and exhibited 12 number of documents as per firisti dated 27.10.14 as Exhibit A Series.

        FINDINGS:

7.        The points that would arise for consideration in this proceeding are:
    (i) Whether the motor cycle purchased by the complainant taking loan from the O.P. No.2, Union Bank of India had been stolen from his rented house on the night of 07.08.12;
    (ii) Whether the O.P. No.1, The Oriental Insurance Co. Ltd. rightly repudiated the claim of the complainant;
    (iii) Whether the O.P. No.1 was negligent and deficient in rendering service to the complainant. 

We have heard the arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record and the evidence adduced by the parties meticulously.

9.        The admitted position in this proceeding are:
    a) The complainant had purchased a motor cycle of model no- Bajaj Discover 125 DR on 06.04.12 taking loan from the Union Bank of India, L.N. Bari Road Branch, Agartala;
    b) The motor cycle was insured with the O.P. No.1, The Oriental Insurance Co. Ltd, for the period from 06.04.12 to 05.04.13;
     c) The motor cycle had been stolen from the rented house of the complainant at any time on the night of 07.08.12 and
     d) The O.P. Insurance Company repudiated the claim of the complainant on the ground that at the relevant time of incident the motor cycle had no valid registration.

10.        There is no denial of fact that the theft of the motor cycle from the rented house of the complainant had taken place at any time on the night of 07.08.12. This fact has received corroboration by the police investigation report submitted by the investigating agency in connection with East Agartala P.S. Case No.155/2012 u/s 380 IPC and the report of the Investigator appointed by the O.P. Insurance Company to investigate the matter. It is also an admitted fact that at the relevant time of incident the motor cycle was under the coverage of insurance with the O.P. insurance company. From the letter dated 18.06.13 issued by the Assistant Manager I/C of  The Oriental Insurance Co. Ltd. it indicates that they could not settle the claim for non production of registration certificate and tax token of the vehicle.
    
11.        On perusal of the written objection filed by the O.P. Insurance company and the evidence adduced by the O.P.W. 1, Sri Goutam Banik, Senior Assistant of the O.P. Insurance. Co. it is found that as per clause 3 of General Exceptions to the terms and conditions of the policy of insurance the company shall not be liable in respect of any accidental loss/damage and/or liability sustained or incurred, whilst the vehicle insured herein is being used otherwise than in accordance with the limitation as to use. According to the O.P. Insurance Company, since the complainant committed the breach of policy conditions by violating the provisions of sub section 3 of section 66 of M.V. Act, 1988, they are not liable to indemnify the complainant.
        
12.        What is the meaning of the clause 'limitation as to use'. As per terms of policy of insurance, ''the policy covers use only under a permit within the meaning of the motor vehicle Act, 1988 or such a carriage falling under sub section 3 of section 66 of M.V. Act, 1988.'' 
          Section 66 of the M.V. Act, 1988 deals with the provision relating to permit. There is nothing about registration of vehicle in section 66 of the M.V. Act. Therefore, the clause  'limitation as to use' as embodied in the terms of policy of insurance does not include registration. We are all aware of the fact that no permit is required for driving a motor cycle in a public road.

13.        In support of the contention, the learned counsel for the O.P. No.1 has referred to the decision of the Hon'ble Supreme Court delivered in Civil Appeal No- 8463 of 2014 (Narinder Singh Vrs. New India Assurance Co. Ltd. and others), wherein  it is held that 'in our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable u/s 192 of the Motor Vehicles Act but also a fundamental breach of policy of contract.'' 
         We have already pointed out that the motor cycle in question was stolen from the rented house of the complainant in the dead hours of night and it was not used on the public road in contravention of the provision of the section 39 of the M.V. Act when it was stolen and, therefore, the ratio of law laid down by the Hon'ble Supreme Court in the above cited decision has no application in the present case.

14.        It is the case of the O.P. Insurance Company that at the relevant time of incident the motor cycle had no valid registration, for which the O.P. insurance company repudiated the claim of the complainant. It is true that the vehicle was temporarily registered for 30 days with effect from 06.04.12. There is nothing on record to show that when the period of temporary registration expired, the owner of the motor cycle either applied for permanent registration as contemplated in section 39 of the M.V. Act or made any extension of period of temporary registration on the ground of some special reason. 

15.        A bare perusal of section 39 of the M.V. Act shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provision of the Act.

16.        In the instant case, it seen that theft of the motor cycle occurred from the rented house of the complainant at any time on the night of 07.08.12 when it was kept inside the house. At the relevant time of incident the vehicle was not being driven by the complainant or any other person in any public road and thus he  did not contravene the provision as contemplated in Section 39 of the Act. In this context, the O.P. Insurance Company can not escape the liability to indemnify the complainant simply on the ground that it had no valid registration.

17.        In view of the discussions made above, we are of the view that the O.P. Insurance Company committed wrong by repudiating the claim of the complainant. It is needless to say that refusal to settle the claim without justifiable cause amounts to negligence and deficiency in rendering service on the part of the O.P. Insurance Company. That being so, the complainant is certainly liable to be compensated by them. It appears that Insured Declared Value (IDV) of the motor cycle is Rs.48,916/- and the age of the stolen motor cycle was about 4 months. As per terms of policy of insurance, the complainant is entitled to the IDV after deduction of 5% depreciation cost.

18.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P. No.1, The Oriental Insurance Co. Ltd. is directed to indemnify the complainant to the extent of 95% of Rs.48,916/-(Rupees Forty Eight Thousand Nine Hundred Sixteen) of IDV. The O.P. No.1 is also directed to pay Rs.5000/-(Rupees Five Thousand) to the complainant as compensation for causing mental agony and harassment together with Rs.2,000/-(Rupees Two Thousand) as cost of litigation. The O.P. No.1 is to pay the amount to the complainant within a period of 6(six) weeks of the receipt of copy of this judgment, failing which the amount payable will carry interest @ 9% P.A. from the date of judgment till the payment is made.

19.                  A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SHRI. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.