OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.58/2009
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Sri Prasanta Sarma, - Complainant
S/O Late Giridhar Sarma.
Harihar Colony, New Rehabari, ,
Guwahati-781008
-vs-
1) The Manager, -Opp. parties
HDFC Chubb General Insurance Co.Ltd.
2nd Floor PIBCO Building,
Rukminigaon, Khanapara,Guwahati.
2) The Branch Manager,
HDFC Bank,Retail Asset Division
2nd Floor PIBCO Building,
Rukminigaon, Khanapara,Guwahati.
3) HDFC ERGO General Insurance Co.Ltd.
Upper Ground Floor, Mayur Garden, ABC bus stop
G.S.Road,Bhangagorh, Ghty-5
Appearance-
Learned advocates for the complainant- Mr.Mantu Kr.Das
Learned advocates for the Opp.Party No. 1 & 3- Mr.Ghausal Alam ,
But none for Opp.Party No.2.
Date of argument- 12.6.17
Date of judgment- 11.7.17
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986
1) The complaint filed by Sri Prasanta Sarma against the manager of HDFC CHUBB General Insurance Co.Ltd., Khanapara,Guwahati and the branch manager, HDFC bank was originally admitted on 19.6.09 as proceeding u/s 12 of Consumer Protection Act and notices were served on both the opp.parties; and thenafter as per our order dtd. 29.4.2010 the address of Opp.Party No.1 was corrected as HDFC Chubb General Insurance Co.Ltd. and as per our order dtd. 29.4.2010 HDFC ERGO General Insurance Co.Ltd.Bhangagorh, Guwahati was impleaded as Opp.Party No.3. Thenafter, Opp.PartyNo.1 & 3 filed a joint written statement on 12.10.2010, but the case against Opp.Party No.2 is proceeding on experte as per our order dtd. 12.10.10. Thenafter, the complainant filed his evidence on affidavit on 5.8.2011 and he was also cross- examined by Ld.counsel of Opp.Party No.1 & 3. After completion of hearing of evidence of the complainant side, Opp.party No.1 & 3 side filed the evidence of one, Sri Saswata Banerjee on affidavit as their witness. He was also cross-examined by Ld.counsel of complainant side. Thereafter, Ld.advocate, Mr.Mantu Kr.Das filed written argument on16.4.17 for the complainant and Ld.advocate Ghausul Alam filed written argument on behalf of the Opp.Party No.1 & 3 on 16.3.2017. Finally, on 21.6.2017, we have heard oral argument of Ld.advocate Mr.Mantu Kr.Das for the complainant and of Ld.advocate Ghausal Alam for Opp.Party No.1 and today we deliver the judgment which is as below.
2) The case of the complainant, , in brief, is that , after purchasing a TATA SUMO (VICTA) vehicle bearing No.AS01-AA-6910 in the month of Sep.2006, the complainant insured his vehicle with the HDFC Chubb General Insurance Co.Ltd.vide policy No. VP00259600000100 with Cover Note No.892578 dtd. 6.9.06 . He purchased the said vehicle after taking a loan of Rs.3,22,700/- from HDFC bank,Guwahati by paying down payment of Rs.1,30,000/-. On 1.1.2007 three policemen approached the complainant for his said vehicle while it was parked at Paltanbazar area stating that the vehicle was required by the police and the necessary papers for requisition would be furnished to him in due course and they had apparently taken away the vehicle immediately without giving any opportunity of hearing to him and the said vehicle was under their possession from that day, but on 3.3.2007 the said vehicle was stolen away from the Gorolia APBN camp, Guwahati , while it was in the custody of Assam Police and was engaged by the Police Reserve. Knowing that fact he lodged an FIR on 4.3.2007 at Basistha Police Station regarding theft of said vehicle and he also informed the branch manager of HDFC Bank vide application dtd. 5.3.07 about the said theft and copy of said application was also served upon HDFC Bank chubb General Insurance Co.Ltd. for necessary action and he approached HDFC Bank Khanapara on several occasions with request to waive interest on the said loan taken from them on the ground of theft of said vehicle. He has already paid an amount of Rs.10,000/- as EMI till the day of loss of his vehicle. But the said bank has been continuously asking him to deposit his EMI’s evenafter the said theft. He also approached manager of HDFC chubb General Insurance Company Ltd., Guwahati on several times with the request for payment of assured amount after depositing two sets of original keys and original registration certificate of said vehicle to them on 31.3.2007. Basistha Police Station submitted the final report vide No. 154/07 dtd. 30.9.2007 to the Chief Judicial Magistrate , Kamrup and Hon’ble Magistrate is also accepted the final report vide his order dtd. 21.11.07 and at the time of accepting the final report Hon’ble Chief Judicial Magistrate was pleased to record that the value of the stolen vehicle as Rs.4,50,000/-. Thereafter, almost two years has elapsed from the date of theft of his vehicle, but till date, no action was taken by insurance company to pay him the assured amount, rather they illegally repudiated his claim by observing that at the time of theft the vehicle was let on hire in violation of policy condition. The said vehicle was not let on hire on that day, but was under requisition of Assam Police. For that reasons, the opp.parties are liable to pay him the value of the vehicle - Rs.4,50,000/-with interest at the rate of 12% per annum from 3.3.07 and also to pay damage of Rs.1,00,000/- with other reliefs.
3) The gist of the pleading of the Opp.Party No.1 & 3 is that the vehicle of the complainant which is a Tata Sumo Victa bearing registration No. AS-01/AA-6910 was insured with them vide policy certificate No. VP00259600000100 and it was covered use only 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 and (f) reliability trials, but it does not cover uses of the vehicle of hire or rewards. The said vehicle was used for hire month after month under Assam Police and it was attached with duty to Sri R.K.Bania, I.P.S.(D.I.G.P.)MPC till the said vehicle was stolen on 3.3.07, meaning thereby the complainant used the said vehicle contrary to the limitations provided in the said policy and thereby the complainant have violated the terms and condition of the said policy (Private Car Package); and hence they repudiated the claim. The concerned vehicle is covered by hire purchase agreement with Opp.Party No.2 and their insurance policy is covered by the endorsement, IMT 5 and IMT 7 and therefore, Opp.Party No.2, HDFC Bank has an interest in the claim. The act of repudiation of the claim, in such case, does not amount to deficiency of service and therefore the complaint is liable to be dismissed.
4) We have perused the pleading of the complainant and of Opp.Party No.1 & 3 and it is found that both sides admit that the vehicle of the complainant Tata Sumo Victa bearing registration No. AS-01/AA-6910, which was purchased by the complainant on being financed by HDFC Bank , Guwahati, was insured with HDFC Chubb General Insurance Co.Ltd., Khanapara branch, Guwahati vide policy No. VP00259600000100 with Cover Note No.892578 dtd. 6.9.06 and the said vehicle was stolen away on 3.3.07, while it was under possession of Assam Police and regarding the said theft, the complainant lodged FIR before Basistha Police Station and he also informed Opp.Party No.2, HDFC Bank the matter;and the Manager HDFC Chubb General Insurance Co.Ltd. and the police of Basistha Police Station investigated the matter by registering a case as Basistha P.S. Case No. 78/07 u/S 279 I.P.C. and after investigation Basistha P.S. submitted final report before the Court of Chief Judicial Magistrate , Kamrup on 30.7.07 stating that no trace of the said vehicle and the thief who stolen away the said vehicle was found. Thus, it is crystal clear that, after purchasing the instant vehicle, the complainant insured the said vehicle with Opp.Party No.1 HDFC Chubb General Insurance Company Ltd. vide policy No. VP00259600000100 on 6.9.06 which was effective from 6.9.06 to 6.9.07, but during the effectiveness of said insurance policy on 3.3.07 the said vehicle was stolen away by some miscreants while it was in possession of the Assam Police.
5) From the policy of the said vehicle (Ex.1) it is found that the insurer had valued the vehicle at Rs.4,52,710/- as it was on newly purchase vehicle . Complainant also states that he purchased the said vehicle paying Rs.4,52,700/- out of which a sum of Rs.3,20,700/- was a loan from HDFC Bank and the rest amount of Rs.1,30,000/- was paid by him as down payment. Thus, it is crystal clear that, the value of the said vehicle on the date of theft was Rs.4,52,700/-.
6) Now, question is that ,whether vehicle was a private vehicle or commercial vehicle. Both sides admit that the instant vehicle was a private vehicle of the complainant and it was insured under Private Car Package and as per policy the said vehicle cannot be used for hire or reward.
7) Regarding use of the said vehicle the plea of the complainant is that the said vehicle was requisitioned by Assam Police on 1.1.2007 from Paltan Bazar , while the same was parked at the Paltan Bazar area, without giving him any opportunity of hearing, and the said vehicle was stolen away by miscreants on 3.3.07 while it was under the possession of Assam Police in requisition . The opp.party side admits that the vehicle was stolen on 3.3.07 while it was under the possession of Assam Police, but their plea is that, it was stolen away while the vehicle was given to Assam Police by the complainant on hire. Reversely, the plea of the complainant is that it was not given on hire, but the police forcibly requisitioned the said vehicle. In this case, it is clear that the vehicle was under the possession of Assam Police while it was stolen away, and that Assam Police was using the said vehicle for certain period till the date of theft. Now , question is that whether the vehicle was let on hire to the Assam Police by the complainant. The complainant states that it was forcibly requisitioned by the Assam Police on 1.1.2007 and it was under possession of Assam Police till 3.3.07. The opp.party side has failed to adduce any concrete evidence to show that the said vehicle was taken by the Assam Police on rent. The opp.party side witness Smti Saswata Banerjee states in her evidence that the complainant on 5.3.2007 intimated them that the said vehicle was used as Escort vehicle for D.I.G.(MPC)(Assam Police) for previous few months till the date of theft and this fact shows that the vehicle was under possession of Assam Police on hire, but she fails to adduce any documentary evidence to prove that Assam Police had used the said vehicle in the relevant period on hire. From Ex.2 , it is seen that MTO city Assam Police Reserve , Guwahati vide certificate dtd. 25.10.10 certifies that the instant vehicle was requisitioned by City Police on 1.1.07 and it was attached with duty of Sri K.K.Bania I.P.S. (BIGP, MPC (Assam Police) and the same was stolen away from Beltola on 3.3.2007. Thus , it is established that the plea of the complainant that the said vehicle was under requisition of Assam Police in the relevant period and it was stolen away while it was in the possession of Assam Police under requisition.
8) Now, next moot question is that whether a vehicle which is under requisition of police can be said to be given on hire ? The opp.party witness Smti Banerjee in her cross-examination states that if a vehicle is requisitioned by law and order authority then it is impliedly included in terms of “hire and reward” mentioned in the policy. She also admits that the word requisition is specifically written in the policy in different place. Therefore, if the insurer had intention to include the word “requisition” in the prohibition column of the policy, they could had included said word in the said column, but they are not doing so, which is therefore implies that requisition of vehicle is not impliedly included in the terminology “hire and reward” used in prohibition column of the policy . Ld.counsel of opp.party side submits that the amount paid by the police to the complainant for using the vehicle is fare for hiring the said vehicle while Ld.counsel of the complainant submits that it is not a fare or rent, but nor compensation to the complainant for reimbursing the cost of keeping the driver and the depreciation of the value of the vehicle. We have perused Sec.4 of the Assam Requisition and Control of vehicle’s Act,1968 and it is found that the money paid to the owner of the vehicle under requisition is not a rent or fare, but a compensation. Thus, it is clear that an amount to be paid by the Assam Police to the complainant for requisitioning the vehicle is not a fare, reward or rent, but a compensation for cost of keeping the driver and depreciation of the value of the vehicle. So, in such situation, it is our opinion that the instant vehicle which was under requisition of Assam Police, at the relevant period cannot be said to have been given to Assam Police on hire or reward meaning thereby on the day of theft the complainant had not let the instant vehicle on hire or reqard. Thus, we hold that the complainant has not violated any term and condition of insurance policy and therefore the opp.party insurer is liable to pay proper compensation to the complainant for loss of his vehicle (theft of the vehicle).
9) We have already discussed in above paragraph that, the opp.party side has failed to establish their plea that the complainant had let his vehicle on hire to Assam Police on the day of theft and thereby he violated the terms and condition of the insurance policy .On the other hand the complainant succeeds to prove their plea that the theft committed to his vehicle while it was under police requisition , but not a hire or reward. Therefore, we hold that, the very act of repudiation of the claim of the complainant by Opp.Party No.1 is an illegal act and it amounts to committing deficiency of service to the complainant. Admittedly, the vehicle was insured with HDFC Chubb General Insurance Co.Ltd.,Guwahati branch (Opp.Party NO.1) which is a sister concern of HDFC ERGO General Insurance C.Ltd. (Opp.Party No.3) at the relevant period. Hence , Opp.Party No.1 & 3 both are jointly and severally liable to pay compensation to the complainant for loss of his vehicle.
10) It is already found that the value of the said vehicle on the day of thief was Rs.4,50,000/- , So, Opp.Party No.1 & 3 are liable to pay the said value to the compensation for loss of his vehicle in theft. Secondly, it is found that the Opp.Party No.1 & 3 are found to have put the complainant in constant mental agony by illegal repudiating his claim and compelled him to prosecute them before this forum. Therefore, they are liable to pay compensation atleast Rs.10,000/- to the complainant for putting him in mental agony and also to pay Rs.10,000/- as cost of proceeding. The Opp.Party No.1 & 3 are also liable to pay interest on the value of the vehicle (Rs.4,50,000/-) @ 12% per annum from the date of filing the claim before them i.e. 3.3.07 for the reason that they illegally debarred him from getting the value of the vehicle from them in due time. They are also liable to pay another amount of Rs.20,000/- as compensation for causing inconvenience by illegally debarring him to get the compensation in due time .
11) Because of what has been discussed as above, we hold that the complaint against Opp.Party No.1 (HDFC Chubb General Insurance Co.Ltd.,Guwahati branch) and Opp.Party NO.3 (HDFC ERGO General Insurance C.Ltd.) has merit. Accordingly, in view of our discussion as above, the complaint against Opp.Party No.1 & 3 is allowed on contest and they are directed to pay Rs.4,50,000/- (the value of the lost vehicle) to the complainant with interest @ 12% from 5.3.2007 and also to pay compensation of Rs.10,000/-to him for putting him in mental agony and causing harassment to him as well as Rs.10,000/- as cost of the proceeding as well as Rs.10,000/- as compensation for causing inconvenience to him, to which both are jointly and severally liable . They are asked to make the payment within 45 days , in default of which, other two amounts shall also carry same interest.
Given under our hands and seals in this day of the 11th July, 2017.
Free copies of judgment be delivered to the parties.
Smti A. D. Lahkar (Md.S.Hussain)
Member President
