The crux of the case is that the complainant had a private car (Scorpio) bearing registration no. WB-30K/7348, Engine no. GNB4K16644 Chassis no. MA1TAGNKB2K39556.manufactured year is 2011.The vehicle had a first party insurance from the opposite party no1. The said policy no. being 512600/31/12/01/00000774 valid from 16-11-12 to 15-11-13. The complainant used the said vehicle for private purpose as private car. The driver of the car one Pintu Pramanik was standing at Mahisadal Cinema Morh on02-02-13 at about5.30pm when two unknown persons came to the driver asked him to drop them at Howrah Sanjivani Hospital as their relative was admitted there for emergency treatment, but they had no money to hire any car and on repeated request the driver agreed to drop them at Sanjivan Hospital. When the driver headed towards Uluberia, at Kolaghat the two miscreants stopped the vehicle and requested to take some food and also requested the driver to take food. After that the said driver came to his vehicle and fell ill and unconsciousness. When the driver came to his conscious at $am he saw that he was lying in aroad side in a lonely place near Uluberia and his vehicle was stolen. The driver informed the complainant at his house the next day and the complainant informed the op through phone on 06-02-13 and filed an application on 08-02-13 along with claim form. Thereafter the complainant went to Uluberia Poloce Station to lodge complaint but they refused to take complaint and suggested to go to Mahishadal P.S where the miscreants had taken the vehicle. An FIR was lodged being no. 31/13 dt 5.2.13 wherein it is stated that the money purse and mobile being no. 9733629805 was also stolen.
On the basis of the said FIR, a GR case no. 140/13 was started by Ld A.C.J.M Haldia,Dist –Purba Medinipur,after investigation the accused persons namely 1) Somnath chakraborty,2) Surajit sadhu, 3)Biswanath roy were arrested and cognizance taken by the Ld ACJM Haldia , U/S 395/397 of IPC. One Indrajit Sharmaji who was absconding committed the crime of stealing a selling of the car . Charge sheet of the said case has also been filed. The complainant intimated the facts to the op along with a copy of the FIR for receiving claim; he also informed the same to the RTO on 29-10-10. By a letter dated 10-02-14 the op demanded all relevant papers which were supplied to them on time. As per the letter dated 31-03-14 the insurance company repudiated the claim of the complainant being private car ins policy 3(a) and stated that the car was used for hire or reward purpose which does not fall within the Limitation of use in case of private cars. Hence this case.
The opposite party entered appearance and filed his WV as well as his WNA.
The op stated in his WV that the case is defect for non-joinder of parties i.e. financer Mahindra and Mahindra Services Ltd, being necessary party due to the hypothecation clause, has not been made party in this case. The op denied all of the complainant case.
In para 8 of the WV the op stated that the complainant lodged the intimation before the Mahishadal PS on 5-2-13 after 3 days of the incident and informed the insurance company after a lapse of 7 days. According to the terms and condition of the policy the intimation should be given immediately after the occurrence of the incident to the insurance company as also the police in case of theft or other criminal act. In support of his contention the op upheld few observations made by Hon’ble NCDRC,New Delhi for the year 2011,2013 nd 2012 respectively in his WV itself. The op also admitted in his WV that the stolen vehicle was sold by the accused in Nagaland, and from that TI parade the driver identified the accused and charge sheet has also been filed by the investigating officer. The said vehicle has not been recovered by police for whom the complainant is not entitled to compensation. The op also stated that the driver of the vehicle did not take reasonable care and protection for safety of the insured vehicle. In para 13 of the WV the op states that the intimation of theft of vehicle was given to the op after 5days which is again contradictory. According to the op as the complainant having used the vehicle in violation of the terms and condition of the policy he is not entitled to get any compensation /claim from the opposite party.
We have perused all papers and documents filed by both the parties.
It is admitted fact that the vehicle in question was stolen by some miscreants and sold in Nagaland . The said fact is also clear from the Final charge sheet being no. 226/13 in FIR no 31/13filed by police before the Ld ACJM Haldia court. The opposite party appointed investigator namely Utpal Roychowdhury who filed his report on 27-01-14 wherein he concluded his report stating that the claim may be considered on the basis of the facts put forward.
The complainant relied upon the observation made by the Hon’ble Supreme Court of India in Appeal (civil) 3409 of 2008 that incase of theft of vehicle breach of condition is not germane. Relying upon such observations it can be said that insurance company cannot repudiate the claim of the insured in toto. The vehicle was carrying persons unknown to the driver as well as to the complainant but whether the car was used for Hire purpose is not proved by the op. Keeping in mind the observation of the Hom’ble Supreme Court and the copy of Charge sheet and Investigators report ,we are of the view that the complaint should be allowed in favour of the complainant and the opposite party is directed to pay 75 percent of the total value of the car.
Hence it is ordered;
The instant consumer case is allowed in favour of the complainant on contest. The op is directed to pay RS 499125/-i.e 75 percent of the claim on non –standard basis, together with litigation cost of RS 2000/- within 3o days of passing of this judgment, in default the complainant is at liberty to execute the case as per law in which case the op is also liable to pay interest @ 9 percent p.a. from the date filing this case till realiosation.
