Date of Filing:-26/08/2015
Order No. -17 Dt.- 07/04/2016
Shri Asoke Kumar Das,President
F I N A L O R D E R
Complainant’s case in short is that on 13/09/2013 he had purchased a Bolero XL vehicle having registration no. WB-72J/5778 from O.P.3 taking finance from O.P.2. The complainant insured that vehicle with O.P.1 viz Royal Sundaram Alliance Insurance Company Ltd. under Policy no. VPC0588368000100. On 16/07/2014 the vehicle was stolen away from his premises. The complainant lodged complaint with Nagrakata police station over that incident which was registered as Nagrakata P.S. Case no.121/2014 dt.16/07/2014 u/s 379 I.P.C. . He gave intimation about theft of his vehicle and submitted his claim but O.P.1 has repudiated his claim on 20/05/2015 on certain grounds. The complainant has prayed for reliefs only against O.P.1 as mentioned in the petition of complaint. Hence, this case.
O.P.1 has resisted this case by filing a Written version denying and disputing the claims and contentions of the complainant with prayer for dismissal of the case with exemplary cost.
Specific stand of O.P.1 is that the complainant has intimated O.P.1 the incident of theft of this vehicle after 12 days and he used the vehicle for illegal purpose i.e. for transportation of of illicit liquor violating the terms and conditions of the policy deed and that the repudiation of the claim of the complainant by O.P.1 was just and proper on the basis of the facts and circumstances discovered by their investigator.
O.P.2(Financer) has supported the case and claim of the complainant by filing a written version with prayer that if the claim of the complainant is settled in his favour then the complainant may be directed may be directed to pay the same to it (O.P.2) as financer of the complainant.
POINTS FOR CONSIDERATION
- Is the case maintainable ?
- Is the complainant a consumer?
- Is O.P.1 guilty for deficiency in service and /or Unfair Trade Practice as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All points are taken up together for consideration and decision.
Seen and perused the materials on record i.e. the petition of complaint, the Written Version(both are supported by affidavits)., the documents and the written notes of arguments filed by both the parties.
We have heard arguments of Ld. Lawyer of both sides in full.
After due consideration of the materials on record and the arguments of the Ld. Lawyers we find that this case was filed within the statutory period of 2 years form the date of repudiation of complainant’s claim by O.P.1 and that this Forum has jurisdiction both pecuniary and territorial to hear and to dispose of this case and that the complainant is a consumer of O.P.1. So this case is well maintainable.
Admittedly the complainant had purchased his vehicle in question having registration no. WB-72J/577 8 on 13/09/2013 taking finance from O.P.2 . Admittedly the complainant insured his said vehicle with O.P.1 vide insurance policy no.VPC0588368000100, which was valid on and from 13/09/2013 to 12/09/2014. Admittedly the said vehicle of the complainant was stolen away on 16/07/2014 from in front of his house and he lodged FIR with Nagrakata P.S.- on 16/07/2014 which was registered as Nagrakata P.S. Case no. 121/2014 dt.16/07/2014 u/s 379 IPS and that case was ended in FRT no. 161 dt.29/10/2014. Admittedly the complainant reported about theft of his vehicle and submitted his claim application to O.P.1 on 28/07/2014 . Here the O.P.1 and his lawyer raised strong objection stating/submitting that the vehicle of the complainant was stolen away on 17/07/2014 and as per terms of insurance policy the complainant should inform that matter to O.P.1 immediately but the complainant has informed the matter to O.P.1 on 28/07/2014 i.e. after lapse of 12 days and he took no reasonable care to safeguard his vehicle and he used the vehicle for transportation of illicit liquor though he purchased the car for private use and for these reasons his claim was rightly repudiated by O.P.1 and that the complainant is not entitled to get any relief in this case and the case is liable to be dismissed. Ld. Lawyer for O.P.1 referred some case laws reported on I(2015)CPJ 206(NC), I(2015)CPJ 74(NC), II(1995)CPJ 9(NC) and II(1996)CPJ-111, IV(2010)CPJ 38(SC), I(2011)CPJ-278(NC) in support of his above contention/submission.
Ld. Lawyer for the complainant and O.P.2 argued that the above case laws referred by the side of O.P.1 are not applicable in the present case in view of the observation and decision of the Hon’ble Supreme Court of India in National Insurance Co.Ltd. Vs. Nitin Khandelwal case reported in IV(2008)CPJ I(SC) wherein Hon’ble Apex Court has held that - “Breach of policy condition not germane in case of theft of vehicle..............,” and so in view of the guideline of the Hon’ble Supreme Court of India the complainant is entitled to get the reliefs in this case due to repudiation of complainant’s claim by O.P.1 which act of O.P.1 tentamounts to deficiency in service and/or Unfair Trade Practice.
Seen and perused the case laws referred to above by the Ld. Lawyers of both sides . We find that most probably the observation made by the Hon’ble Supreme Court in National Insurance Co.Ltd. Vs Nitin Khandelwal case, were not brought to the notice of Hon’ble Supreme Court and Hon’ble National Commission at the time of hearing of the cases referred to above by the side of O.P.1 and for this the principle of law as laid own by the Hon’ble Apex Court in National Insurance Co.Ltd. Vs Nitin Khandelwal case, that in case of theft of vehicle, violation of the terms and condition of the policy is not germane has not been elaborated or differed with. Therefore we are of clear opinion that the case laws referred to above by the side of O.P.1 are not applicable in our case in hand. In view of observation and decision of Hon’ble Supreme Court of India in National Insurance Co.Ltd. Vs Nitin Khandelwal case mentioned above breach of violation of policy condition by complainant as alleged by O.P.1 is not germane in our present case . Furthermore O.P.1 could not establish by reliable evidence that complainant used his vehicle for transportation of illicit liquor. Therefore we are of clean opinion that the act of repudiation of the claim of the complainant by O.P.1 certainly comes within the mischief of deficiency in service and/or Unfair Trade Practice and the O.P.1 is liable rather duly bound to pay/reimburse the complainant of the loss caused due to theft of his vehicle and that the complainant is entitled to get relief specified below.
All points are disposed accordingly.
In the result the case succeeds.
Hence, it is
O R D E R E D
that the case /application stands allowed on contest against O.P.1 with litigation cost of Rs.3000/-, without cost against O.P.2 and ex-parte without cost against O.P.3.
O.P.1 is hereby directed to pay to the complainant Rs.6,37,313/-(sum assured) towards his loss caused due to theft of his above mentioned vehicle, within 30days from the date hereof through O.P.2(financer) and then the O.P.2 will pay to the complainant, the amount of money he is entitled after deducting its dues within seven days after receiving Rs. Rs.6,37,313/- from O.P.1.
The complainant do get an award of Rs.10,000/- against O.P.1 in the head of compensation for his harassment, mental pain etc and for said deficiency in service and /or Unfair Trade Practice by O.P.1.
The O.P.1 is hereby directed to pay to the complainant the aforesaid litigation cost of Rs.3,000/- and to comply the direction regarding payment of the sum assured Rs.6,37,313/- and the awarded sum of Rs.10,000/-= Rs.6,50,313/- (Six Lacs Fifty Thousand Three Hundred and Thirteen) in total within 30 days from the date hereof failing which the entire amount will carry interest @7% p.m. till realisation and the complainant shall be at liberty to put this order into execution in accordance with law.
Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgement/sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
