Date of filing : 01.02.2018
Judgment : Dt.5.2.2019
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Lalmoni Sardar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) The Manager, Bajaj Allianz General Insurance Company Ltd., (2) The Branch Manager, HDFC Bank and (3) Finex Merchant Pvt. Ltd.
Case of the Complainant, in brief, is that the Complainant purchased one car Hyundai I20 bearing registrationNo.WB-20AG-8575 from OP No.3 taking loan from OP No.2 and insured the same with OP No.1 on 8.8.2016 vide Policy No.HBZ/11360793 against proposal No.P7622143 dt.8.8.2016.
The Complainant has stated that being unable to maintain the said car the Complainant decided to sell off the car after obtaining permission from the Management of HDFC Bank and one Gourab Nag Roy a well known person of the Complainant was agreeable to purchase the same and after having discussion with said Gourab Nag Roy the Complainant took his car at the Kamalgazi More for conducting a test drive by said Gourab Nag Roy on 8.12.2016 but o n pretext of test drive said Gourab Nag Roy along with his 2/3 associates drove away the car and did not return and assuming the car had been stolen the Complainant lodged complaint with Sonarpur P.S. vide GDE NO.806 Dt. 8.12.2016 as well as to the SDPO, Baruipur and a case being No.811 dt.5.5.2017 under section 379/120B of IPC was initiated against said Gourab Nag Roy & Ors as per order of Ld. ACJM Baruipur in respect of complaint filed by the Complainant for investigation u/s 156(3) Cr. P.C. and charge sheet was filed by the Sonarpur P.S. which was intimated to OP No.2 by letter dt.18.11.2017 issued by the Complainant.
The Complainant has further stated that he intimated the OP No.1 on 8.5.2017 regarding theft of the said car claiming disbursement of Insurance amount which was registered as claim being No.OC-18-2401-1801-00003242 and thereafter sent a letter dt.30.8.2017 for disbursing claim of Rs.8,67,732/- and again on 11.10.2017 sent Demand Notice but in spite of receiving said notices the OP No.1 did not pay any heed to that notice and therefore, the Complainant by filing the instant Consumer Complaint prays for direction upon OP No.1 to sanction and disburse an amount of Rs.8,67,732/- in favour of the Complainant, to pay Rs.1,00,000/- towards compensation and Rs.15,000/- towards cost of litigation and other reliefs.
The Complainant annexed tax invoice dt.8.8.2016, Insurance Policy, G.D. entry No., copy of FIR, Charge sheet, letter dt.30.8.2017, 11.10.2017 issued by the Complainant to OP No.1, letter dt.18.11.2017 issued by the Complainant to OP No.2, copy of order dt.4.1.2018 passed by D.C.D.R.F., North 24-Parganas.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that no Registration Certificate of the vehicle has been filed by the Complainant to substantiate his ownership on the said vehicle. The OP No.1 further stated that as per terms of the Insurance Policy for Private Car Package Policy the Company shall not be liable in respect of any accidental loss or damages or liability caused outside of the geographical area, any claim arising out of any contractual liability, any ;accidental loss being used otherwise than in accordance with the limitation of use or not being driven as per Driver’s Clause.
It is stated by the OP No.1 that test driving as stated by the Complainant is nothing but a reliability trial for a motor trade and if any liability arises during that situation the Insurance Company is not liable at all to pay any compensation or IDV. Furthermore no copy of application u/s 156(3) Cr. P.C. which was filed before Ld. ACJM Baruipur as claimed by the Complainant has been filed before this Forum. It is further stated by OP No.1 that the alleged incident was occurred on 8.12.2016 and the Complainant initiated claim on 8.5.2017 which is gross violation of condition No.1 of Policy condition and moreover, at the time of occurrence of said incident, admittedly the car was driven by one Gourab Nag Roy, which falls under the ‘Limitations of use claim No.(6) & (7)’ and beyond the coverage of Insurance Policy and accordingly prays for dismissal of the case.
The OP No.2 by filing written version contested the case stating inter alia that no relief has been sought against OP No.2. The OP No.2 has stated that on being approached by the Complainant, OP No.2 sanctioned loan of Rs.8,29,590/- for purchasing a car being Hyundai I 20 and a written agreement was executed between the Complainant and the OP No.2 but the Complainant failed to pay EMI regularly and the Bank terminated the loan agreement and referred the matter to arbitration vide letter dt.4.4.2017 and notice was served upon the Complainant but the Complainant did not turn up. So, the Ld. Arbitrator passed ex-parte award dt.1.8.2017 declaring the Bank has first and paramount charge over the vehicle and further awarding an amount of Rs.9,07,032/- together with interest @ 18% p.a. in favour of the Bank. It is further stated by the OP No.2 that the Complainant neither obtained any permission from the OP Bank nor did intimate the incident of theft to the Bank at any point of time and accordingly prays for passing necessary order.
The OP No.2 annexed copy of Agreement for Auto loan. Copy of award passed by Ld. Arbitrator, letter dt.29.11.2017 issued on behalf of OP No.2 to the Complainant.
The OP No.3 also filed written version stating that being car dealer of Hyundai they sold the car maintaining all formalities.
The Complainant and the OP Nos.1 & 2 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate for the Complainant submitted that the incident took place during the period when the car was under Insurance coverage.
Ld. Advocate for the OP No.1 submitted that the Complainant is not entitled to any relief since he has violated the terms of Insurance Policy and this OP draws our attention towards condition No.1 of the said Insurance Policy and further submitted that the Complainant was engaged in Motor trade because he has purchased two vehicles on the same date as decided to sell out the car on same date.
OP No.1 relied upon the decision of Hon’ble NCDRC passed on 11.11.2013 [New India Assurance Co. Ltd. VS Ram Avatar] and submits a copy of letter dt.30.8.2017 issued by the Complainant and a copy of complaint lodged before Ld. ACJM Baruipur by the Complainant.
Ld. Advocate for the OP No.2 submitted that the complainant never sought permission from the OP no.2 for selling out the vehicle purchased by the complainant taking loan from HDFC bank.
Points for determination
- Whether there is deficiency in providing service on the part of the OP.
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Points No. 1 & 2
Both the points are taken up for comprehensive discussion and decision.
Admittedly, the Complainant purchased an I 20 Hyundai car on 8.8.2016 obtaining loan from the OP No.2 HDFC Bank and the said car was under Insurance coverage for a period of one year i.e. from 8.8.2016 to 7.8.2017.
The Complainant has stated that he intended to sell the car after obtaining permission from OP Bank and said car was stolen from Kamalgari More by one Gourab Nag Roy on 8.12.2016 on pretext of test driving and a complaint was lodged by the Complainant in respect of theft of car with Sonarpur P.S. on 8.12.2016. In support of such averment the Complainant filed GDE No.811 of 2016, wherefrom it appears that a complaint was lodged with Sonarpur P.S. on 8.12.2016 but in absence of copy of said complaint, it is not possible to ascertain for what G.D. was made and, therefore, it is not taken into consideration. No documentary evidence is also filed to substantiate the claim of seeking permission from OP Bank for selling of the car.
The Complainant has further stated that by order of ACJM Baruipur a Police Case was lodged against said Gourab Nag Roy. Copy of FIR and charge sheet has been filed in support of this averment. On perusal of said documents, it appears that the said car along with another car were stationed in front of the house of the Complainant, wherefrom said Gourab Nag Roy drove away the cars but in the petition of Complaint the Complainant has stated that he brought his car to the Kamalgazi More for test driving.
The Complainant has claimed that his car was under insurance coverage at the time of occurrence of said incident. It appears from copy of insurance policy that the said car was undr insurance coverage from 8.8.2016 to 7.8.2016. The OP No.1 has stated that the Complainant admittedly lodged claim of insurance on 5.5.2017 whereas the incident of theft was happened on 8.12.2016, which is violation of condition No.1 of insurance policy.
On perusal of condition No.1 of said insurance policy which runs as “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process of copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution in quest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
It appears that the Complainant was to intimate the incident to the OP Insurance Company immediately after occurrence of the incident.
On perusal of reply filed by the Complainant against question No.2 put by OP No.1, it is found that the Complainant filed a case before Ld. ACJM on 7.4.2017. It is therefore evident that the Complainant did not take any step immediately after occurrence of incident even did not intimate the incident to the OP No.1 and admittedly he intimated the same to OP No.1 after151days from the date of occurrence of the incident.
In the case law filed by OP No.1 upon which the OP No.1 placed reliance, Hon’ble NCDRC also held “that an Insurance Policy being a contract between the two parties, its terms and conditions are binding on both parties.
Therefore, in accordance with the terms and conditions of the Insurance Policy, Complainant was required to immediately inform the Insurance Company about the theft of the Insured vehicle which he failed to do”.
In the instant case too the Complainant failed to inform the theft to the OP Insurance company which is violation of condition No.1 of insurance policy.
On perusal of charge sheet No.1019/2017 dt.5.6.2017 filed before Ld. ACJM Baruipur, it appears that number of accused person charge sheeted is one namely Gourab Nag Roy S/o Sambhu Nag Roy and it further appears from the said charge sheet that the Complainant on request of said Gourab Nag Roy, brought his two cars one 1-20 ASTA CARDI made of Hyundai Motor India Ltd., Registration No.WB 20 AG-8575 and another Swift Dezire VDI BS-IV made of Maruti Suzuki India Ltd. Registration No.WB-06M-9646 at the Kamalgazi More wherefrom said two cars were drove away by said Gourab Nag Roy. It creates serious doubt on our mind that how come a single person could drove away two cars simultaneously at a time.
It is therefore, evident from discussion made hereinabove that the Complainant has failed to prove his allegation and thus is not entitled to any relief.
Point Nos.1 & 2 are decided accordingly.
In the result, the Consumer Complainant does not succeed.
Hence
ordered
That CC/45/2018 is dismissed on contest but without any order as to cost.
