BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.1 /2008
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc Former Dy
Director, FCS & CA - Member
Smti Panchali Goswami - Complainant
W/O Sri Satyadev Goswami
S.B.I. Housing Complex, Ambikagiri Nagar,
Hatigarh Chariali, P.S. Geeta Nagar,
Guwahati-24, District Kamrup(M), Assam.
-vs-
I) The HDFC Chubb General Insurance Co.Ltd. - Opposite parties
Represented by its General Manager
2) The HDFC Chubb General Insurance Co.Ltd.
5TH Floor, Expresess Towers, Nariman Point,
Mumbai-400021
3) Manager Claims East.1 Ho Min
Sarani 10th Floor, Kolkata 700071
Appearance
Learned advocate Mr. K K Dutta for the complainant .
Learned advocate Mr.R.Goswami , Mr.T.Kalita, Mr.I.Barooah & Mr. K.Talukdar for the opp. parties
Date of filing written argument:- 31.10.18
Date of oral argument:- 21.1.21
Date of judgment: - 18.2.21
JUDGMENT
1) This is a complaint u/s 11& 12 of Consumer Protection Act, 1986 filed by applicant Mrs. Panchali Goswami for deficiency in service by HDFC Chubb General Insurance Company , Guwahati, claiming compensation for deficiency in service and for causing harassment and mental agony to the complainant .
2) The brief history of the case is that complainant Smti Panchali Goswami took a loan of Rs.3,80,000/- from HDFC Bank for purchasing a Bolero car bearing registration No. AS-01U-8484 and the vehicle was insured with HDFC Chubb General Insurance Co.Ltd. vide policy No. VP00218105000100 with validity from 20.2.2006 to 9.2.2007 covering the risk with theft. One Sri Rahim Ali was engaged by the complainant to drive the vehicle. On 9.7.2006 at about 8 p.m. complainant handed over the vehicle to the driver for routine check up at Sarkar Garage at Zoo Road Tiniali, Guwahati , but the driver did not turned up till evening . Therefore the complainant inform her husband and when they enquired the Sarkar Garage , Zoo Road, then only came to know that the vehicle was never brought there on that particular day for check up. In the evening they tried to find out the driver at his local address at Zoo Road , Tiniali and went in search for him to his native place at Mandakata but the driver was not found there . Accordingly on 10.7.2006 the complainant lodged a complaint at Geetanagar Police station and police registered a case vide No. 118/06 u/s 365/379 I.P.C. The police investigated the case and submitted final report in the aforesaid case. The complainant submitted her claim in a prescribed form to the O P no.1 on 22.9.2006. It is submitted that opp.party No.3 sent a letter to the complainant asking income, E.M.I. details , Pan card or income tax return of the complainant etc. for the settlement of the claim. Accordingly on 11.10.2006 the complainant had submitted the letter to HDFC Chubb including all the required documents , Thereafter opp.party No.3 by a letter dtd. 25.6.2007 stated that they are not liable for compensation due to breach of of policy condition because the vehicle was a private one but on the date of incident the driver of the vehicle was sent by the complainant for taking a customer on hire for which the complainant has received payment . The opp,party No.3 had stated in their letter dtd. 25.6.2007 that there is a breach of trust of policy condition and complainant is not entitled for any compensation. It is submitted by the claimant that reasons of repudiation of the claim by the opp.party is not acceptable in the eye of law because the complainant stated that she used the vehicle for her personal use as well as dropping and picking of child from school. It is again stated by the complainant that opp.party cannot be allowed to abstain from making their commitment and is liable to pay an amount of Rs.3,08,000/- along with other compensation and cost of proceeding.
3) The case is contested by the opp.party No. 1,2 & 3 by filing written statement denying the allegation made in the complaint. It is submitted that case is bad for non-joinder of the necessary party i.e. H.D.F.C bank. It is submitted that there is no deficiency on the part of opp.parties . The claim was processed with all fairness and complainant was given a fare chance to establish her case of theft, but the complainant failed to satisfy with cogent evidence that her vehicle was not used for hire or reward. The opp.party alleged that as per investigators report the driver of the vehicle stated before the investigator that the vehicle was used for hiring purpose for which the claim was repudiated. It is pleaded further that as per final report of police the vehicle was taken to Bornihat by some youth and those youth took away the vehicle from the driver. The opp.party in their pleading denied their liability as to the claim and also compensation for mental harassment etc. as claimed by the complainant.
Decision and Reason thereof-
4) Now the question is to determine the allegation of violation of policy terms by the complainant with a specific allegation of using the vehicle for hire /rewards . For the above , we have taken up the following issues for determination.
i) whether the complainant used the concerned vehicle for hiring purpose other than personal use.
ii) Whether the complainant is entitled for getting any compensation from the opp.party if the complainant used the vehicle for hiring purpose violating the terms and condition of the policy as claimed by the opp.party .
5) As both the issues are analogus they are taken jointly for convenience of discussion. It is found from the pleading of the parties that the complainant obtained an insurance policy for her vehicle bearing registration No. AS-01/U-8484 w.e.f. 10.2.2006 to 9.2.2007 from the opp.party No. 1. As per pleading of the complainant the vehicle was stolen by some miscreants on 9.7.2006 and the complainant lodged a complaint with the Geetanagar Police station and also filed a formal claim petition before the opp.party No.1.
6) We have found that it is an admitted fact by both the parties that the complainant ‘s vehicle in question was insured with the opp.party No.1 for a period of 1 year i.e. from 10.2.2006 to 9.2.2007 under policy no. VP00218105000100 .
7) From the evidence on record it is found that D.W.2 in his evidence as an investigator of the op.party stated that he was duly engaged by the said insurance company to investigate the relevant fact on the theft of the vehicle of the complainant and during the course of investigation after observing all the formalities he met the driver of the vehicle in question who gave a statement in writing that the vehicle in question was used for commercial purposes and on the day of theft also the vehicle was used for hiring purposes. D.W. 2 exhibited the written statement of the driver as Ext.B and investigation report as Ext.C. We have carefully gone through Ext.B (1) which is the statement of the driver of the vehicle concern testify by D.W. 1 in his evidence and we have found that the statement of the driver of the vehicle which has been recorded as D.W.3 is found consistent with the statement made before the investigator by the driver of the vehicle concerned . He had categorically mentioned that on the day of occurrence he was told by the complainant to go to army camp gate where 4 persons are waiting to go on the vehicle for going to Tezpur. Accordingly D.W. 3 Rahim Ali stated that he met four persons who asked him to carry them to Tezpur Misamari, Army Camp via Jorabat . On that day the above persons returned back from Sonapur and on arriving Guwahati they told him to come again on the following day and gave him an advance of Rs. 500/- for hiring the said vehicle for going to Tezpur. According to him he came back to the complainant’s residence and gave Rs. 500/- to the complainant. According to him on the next day he came to army gate and carried the said four person from Narengi . They instructed him to go towards Shillong and on arriving Nongpo , they tied him with the seat belt and beat him and forcefully taken away the vehicle getting him down from the vehicle. He further stated that he become nervous and did not inform the owner of the vehicle but lateron he was arrested by police. This witness strongly supported the case of the opp.party saying that the vehicle was used for carrying passenger on hire. This witness was cross examined by the complainant but no contradictory statement was found and complainant have failed to establish any fact adverse to the case of the opp.party.
8) The evidence of D.W.2 the investigator is found consistent about the fact that that he met the driver Rahim Ali and recorded his statement and testified his report as Ext. C. This witness was cross examined by the opp.party on several point, but no inconsistency is found to disbelief the version of the D.W.3 . The entire case is based on the limitation clause of the insurance policy which is testified by the complainant as Ext.1 and same is testified by the opp.party as Ext.A. It is very clearly mentioned on the limitation clause over the policy documents which read as under,
“Limitation as to use:
The policy covers use of the private car for any purpose other than
a) Hire or reward , b) Carriage of goods (other than samples or personal luggage , c) Organised racing, d) Pace Making, e) Speed testing, f) Reliability Trials, g) Any purpose in connection with the Motor Trade. “
9) In our present case in hand it is proved beyond any doubt that vehicle of the complainant on the day of theft was used for hire. As such under the limitation clause of Insurance policy as indicated above the complainant is not entitled for any coverage under the policy.
10) In the result , the case is dismissed for violation of insurance policy by the complainant and claim petition is found without merit. Hence petition is dismissed on contest . Parties will bear their own cost.
Given under our hand and seal of the District Commission, Kamrup, this the 18th day of February/2021.
( Md J.Islam) ( Smt A.D.Lahkar) (Sri A.F.A Bora)
Member Member President
Dictated and corrected by me
Sri A.F.A Bora
President,
District Consumer Commission, Kamrup.
Typed by me
Smt Juna Bora
Stenographer, District Consumer Commission, Kamrup.
