Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 12 of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.) 1) The Manager, National Insurance Company Ltd., Siliguri Division Office, Ganesh Ram Compound, Hill Cart Road, P.O. & P.S.- Siliguri, District- Darjeeling and 2) Sri Maller Roy, S/O Sri Mintu Roy,Indusind Bank Ltd., Branch Office at 2^nd Floor, Kapil Center Building, Sevoke Road, Siliguri  who contested the case by filing Written Version (W.V.).

                        The case of the complainant as per her complaint is as follows-

            The complainant argued in her plaint that she had a Tata Sumo Gold CX bearing registration no. W.B. 76-8559 which he purchased on 27.09.2012 and on 27.08.2013 the said motor vehicle was found stolen from the rented house of her driver, Bikash Lohagun, S/O Bhakta Bahadur Lohagun at Jyotinagar, P.O.- Sevok Road, Ward No. 14 under S.M.C., District- Jalpaiguri and the fact of the loss was reported by the driver, Bikash Lohagun, at Bhaktinagar P.S. on 27.08.2013 and the same was registered vide Bhaktinagar P.S. Case No. 1609, dated 27.08.2013 u/s 379 of IPC. The complainant added that the said vehicle was insured with the O.P. No.1 and at the time of this incident the insurance of the said vehicle was valid. The complainant also argued that on 27.08.2013 she made a prayer to the O.P. No.1 for claiming the loss of the said vehicle and from that date to 17.04.2014 she visited the office of the O.P. No.1 several times and finally on 17.04.2015 the O.P. No.1issued a letter being Ref. No. 150600/mtcl/pt/15, dated 17.04 2015 mentioning that they repudiated her claim as the vehicle was kept at the place which was not allowed under the permit and if the complainant was not satisfied with the reply of the O.P. No.1 she might send her comments within fifteen days from the date of this letter failing which her claim would stand repudiated. The complainant also argued in her plaint that in connection to the said letter dated 17.04.2015 she sent reply in detail to the O.P. No.1 on 29.04.2015 where she stated that her son-in-law was the driver and the said vehicle was parked as usual in front of the house of her son-in-law and the said vehicle was never used in violation of the permit as alleged by the O.P. No.1 but again on 11.08.2015 the O.P. No.1 sent a letter vide Ref. No. 150600/TMI/mtcl/MKC/PT/15 mentioning the same reason of repudiation. The complainant also added in her plaint that she is a cancer patient and had been suffering a lot of hardship due to the negligence irresponsibility and harassment of the O.P. No.1 and finding no other alternative the complainant filed this instant case.

The complainant also argued that the cost of the vehicle was Rs. 5, 50, 000/- (Rupees Five Lac and Fifty Thousand) only, other expenses including transportation, fooding and lodging in Siliguri and for causing harassment and mental agony to her amounted to Rs. 50, 000/- (Rupees Fifty Thousand) only.    

The prayers of complainant are as follows:

1. To pass an order directing the O.P. No.1 to pay a sum of Rs. 6, 00, 000/-  (Rupees Six Lac) only for theft of her vehicle and for negligence, irresponsibility, harassment and mental agony caused towards her.

                                     List of Documents filed by the complainant:

1. Photocopy of Registration Certificate of the vehicle. (Annexure A)
2. Photocopy of authorization letter issued to the driver. (Annexure B)
3. Photocopy of General Diary (G.D.). (Annexure C)
4. Photocopy of Insurance Certificate. (Annexure D)
5. Photocopy of the letter, dated 27.08.2013 issued by the complainant. (Annexure E)
6. Photocopy of Lease Agreement. (Annexure F)
7. Photocopy of the letter, dated 17.04.2015 being Ref. No. 150600/mtcl/pt/15,  issued by the O.P. No.1. (Annexure G)
8. Photocopy of the letter, dated 29.04.2015 issued by the complainant. (Annexure H)
9. Photocopy of residential certificate of the driver along with his bank account pass book, his L.P.G. consumer connection book and his driving license. (Annexure I)
10.  Photocopy of the certified copy of the order sheet of G.R. case no. 4717/ 2013 along with the Final Report u/s 173 C.P.C. the formal F.I.R. and the written complaint. (Annexure J)
11.  Photocopy of the letter, dated 11.08.2015 being Ref. No. Ref. No. 150600/TMI/mtcl/MKC/PT/15, issued by the O.P. No.1. (Annexure K)
12.  Photocopy of the medical report of the complainant. (Annexure L)

On behalf of the Opposite Party (O.P.) 1) The Manager, National Insurance Company Ltd., Siliguri Division Office, Ganesh Ram Compound, Hill Cart Road, P.O. & P.S.- Siliguri, District- Darjeeling and O.P. 2) Sri Maller Roy, S/O Sri Mintu Roy, Indusind Bank Ltd., Branch Office at 2^nd Floor, Kapil Center Building, Sevoke Road, Siliguri  who contested the case by filing Written Version (W.V.) separately and as per their W.V.s the case is as follows.   

In his Written Versions the O.P. No.1 (National Insurance Company Ltd.) denied all the statements made by the complainant and argued that the vehicle bearing registration no. W.B. 76- 8559 was registered and insured as passenger carrying commercial vehicle which was being commercially used by the complainant for her business purpose and hence as per C.P. Act, 1986 the complainant is not a consumer. The O.P. No.1 also added in his W.V. that the financer Indusind Bank Ltd., Siliguri would be a necessary party in this case. The O.P. No.1 also argued that the complainant did not visited their office several time to enquire about her claim and on receipt of the claim intimation they deputed an investigator, Commercial Investigation Bureau, and after investigation the said investigator submitted the report to them subject to terms and conditions of the policy granted to the insured. The O.P. No.1 also argued that they issued the certificate cum policy schedule bearing No. 25331031126320052836 for the period from 15.09.2012 to 14.09.2013 for total sum insured of Rs. 5, 33, 105/- (Rupees Five Lac Thirty Three Thousand One Hundred and Five) only was issued to the complainant namely Kima Sherpa for her new passenger carrying commercial vehicle subject to the terms, conditions, exceptions and limitations thereof and subsequently the complainant submitted the copy of R.C. Book of her said vehicle being No. W.B. - 76/8559, Registration date - 27.09.2012. The O.P. No.1 also argued that the aforesaid vehicle was stolen from Jyotinagar under Siliguri Municipality area but as per contract carriage permit issued by R.T.O., operational area of the said vehicle was the whole Darjeeling District except Siliguri Municipality area and at the time of theft said vehicle was kept at the pace which was not mentioned in the permit and as per the Section 66 of the M.V. Act, 1988, the O.P. No.1 repudiated complainant’s claim and intimated the same with explanations to the complainant by a letter dated 11.08.2015. The O.P. No.1 also argued that the complainant proposed the policy which was issued in her name and there was no permit of the said vehicle in the name of the complainant and as per the lease agreement, submitted by the complainant had not been legally and properly executed because in the said agreement the name of Md. Israyal had been mentioned as Lessor whereas the name of Kima Sherpa had been stated as the Lessee and the complainant was not having a valid permit in her name and violated the terms and conditions of the insurance policy and therefore she was not entitled to get any money from the O.P. No.1.

List of documents filed by the O.P. No.1 are as follows :

1. Photocopy of certificate cum policy schedule bearing certificate cum policy No. 25331031126320052836 issued in the name of Kima Sherpa (complainant) valid from 15.09.2012 to 14.09.2013 in respect of passenger carring commercial vehicle. (Annexure- A)

2. Photocopy of R.C. Book of Vehicle No. 76/ 8559 issued in the name of Kima Sherpa. (Annexure- B)

3. Photocopy of Contract Carriage Permit No. 8439/12 issued in the name of Md. Israyal in respect of Vehicle No. W.B. – 76/ 8559. (Annexure- C)

4. Photocopy of Lease Agreement dated 28.09.2021 executed by Md. Israyal as Lessor and Smt. Kima Sherpa as leesee. (Annexure- D)

5. Photocopy of F.I.R. lodged by Bikash Lohagun. (Annexure- E)

6. Photocopy of letter dated 17.04.2015 issued by the O.P. to the complainant. (Annexure- F)

7. Photocopy of letter dated 11.08.2015 issued by the O.P. to the complainant. (Annexure- G)

8. Photocopy of General Regulation (GR) No. 20 OF Indian Motor Tariff. (Annexure- H)

9. Other papers and documents will be filed at the time of final hearing of the above case and/ or as and when directed by this Ld. Commission.

The O.P. No.2 (Indusind Bank Ltd.) argued in his W.V. that the complainant availed a loan of Rs. 4, 00, 000/- (Rupees Four Lac) only against the TATA SUMO GOLD Vehicle under a loan agreement and was liable to pay Rs. 5, 75, 600/- (Rupees Five Lac Seventy Five Thousand and Six Hundred) only with interest in 47 periodical installments but the complainant was a defaulter as she had been irregular in making payment of her loan installments and as on 13.05.2016 there was an outstanding of Rs. 4, 34, 320/- (Rupees Four Lac Thirty Four Thousand Three Hundred and Twenty) only in her loan account. The O.P. No.2 also argued that they are that hypothecated owner of the vehicle and in case of nonpayment of the loan amount the financer/ hypothecated owner of the vehicle acquires the right of the possession of the vehicle. The O.P. No.2 also argued that they had the first charge over any insurance claim in respect of the hypothecated property as per law. The O.P. No.2 also added that being a bona-fide lender, if any claim of the complainant is allowed by this Ld. Commission, the Insurance Company may be directed to pay the amount in favour of the O.P. No.2 and after liquidation of the loan amount, if there is any excess amount the same shall be paid to the complainant by them.

     List of documents filed by the O.P. No.2 are as follows :

1. A copy of the Statement of Account- (This document filed with the W.V. marked as Annexure- A).
2. Photocopy of judgment of Chief Executive Officer and Vice Chairman, Gujrat Maritime Board Vs. Haji Harun Abu and Others - (1996) 11 SCC 23 and Savaliram Gotiram Teli (Deceased) by Heris And LRS Vs. Madhukar Yeshwant Patankar and Other - (1996) 11 SCC 28.
3.  An updated copy of the Statement of Account (This document filed on 12.10.2023 vide Order No. 44 of this Commission).

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reasons:-

            All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and written version filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in Siliguri, Darjeeling and O.P. No.1 (National Insurance Company Ltd.) and O.P. No.2 (Indusind Bank Ltd.) are also carrying their business in Siliguri, Darjeeling. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consume Protection Act, 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through his Written Deposition but also by producing documents.  

In this case, the said vehicle was insured with the O.P. No.1 and the O.P. No.1 issued the certificate cum policy schedule bearing No. 25331031126320052836 for the period from 15.09.2012 to 14.09.2013 for total sum insured of Rs. 5, 33, 105/- (Rupees Five Lac Thirty Three Thousand One Hundred and Five) only to the complainant and at the time of theft the insurance of the said vehicle was valid. It is also clear from the evidence that on 27.08.2013 the complainant made a prayer to the O.P. No.1 for claiming the loss of the said vehicle and after a long communication between complainant and O.P. No.1finally on 17.04.2015 the O.P. No.1 repudiated complainant’s claim. So, this Commission has no doubt that the complainant is a very much consumer in this case and this Commission has not heisted to hold that as per the consumer as per C.P. Act, 1986 and C.P. Act, 2019 that this Commission has jurisdiction to decide this case.

In this instant case, the repudiation of Insurance Company is not proper and justified. The question of permit arises when the vehicle is carrying any goods or passengers but in this case, the car was parked and was not in an operational mode. So, for this reason the repudiation of Insurance Company is not proper and justified. In this context the complainant referred some case- Civil Appeal No. 3409 of 2008, Judgment reportable in the Supreme Court of India Civil Appellate Jurisdiction along with some other cases.

In this case the O.P. No.1 (National Insurance Company Ltd.) denied all the statements made by the complainant and all the materials fact as claimed by the complainant. In support of his defense the O.P. No.1 referred judgment reported in – (1) National Insurance Co. Ltd.- Appellant Vs. Challa Bharathamma And Others, Civil Appeal No’s. 6178 of 2004 along with other cases. But the case referred by the O.P. No.1 is not relevant for this instant case.

In this instant case, the O.P. No.2 (Indusind Bank Ltd.) in his prayer dated 16.06.2023 clearly stated that they had settled the loan account of O.P. No.1 with full and final settlement with a amount of Rs. 2, 80, 000/- (Rupees Two Lac Eighty Thousand) only and they have no further dues from the O.P. No.1. In this context on 12.10.2023 the O.P. No.2 also filed the Statement of Account. In support of his defense the O.P. No.1 referred judgment reported in judgment of Chief Executive Officer and Vice Chairman, Gujrat Maritime Board Vs. Haji Harun Abu and Others - (1996) 11 SCC 23 and Savaliram Gotiram Teli (Deceased) by Heris And LRS Vs. Madhukar Yeshwant Patankar and Other -(1996) 11 SCC 28.

As per decision of the Hon’ble Apex Court of India in National Insurance Co. Ltd. Vs. Nitin Khandehoal reported in CIVIL APPEAL NO. 3409 OF 2008-

….The State Commission observed that the theft of vehicle has not been denied by the Insurance Company. However, the claim of the respondent under the policy was repudiated by the Insurance…..Company solely on the ground that the vehicle though registered and insured as a private vehicle, at the time of theft, was being used as a taxi for carrying passengers on payment. So, the said vehicle was…..vehicle in question had been stolen, therefore, in case of the theft of the vehicle, the breach of condition is not germen.    

 In this situation the Commission always follows the decision of the Hon’ble Apex Court of India and this Commission has no right to ignore the decision of the Hon’ble Apex Court of India.

 In this instant case, the Commission allowed the claim only on non standard basis and not heisted to hold that the complainant is entitled to get 75% of the settled amount with the bank, i.e., 75% of Rs. 2, 80, 000/- (Rupees Two Lac Eighty Thousand) only, which stands Rs. 2, 10, 000/- (Rupees Two Lac Ten Thousand) only. The complainant also entitled to get Rs. 40, 000/- (Rupees Forty Thousand) only for mental pain and agony and Rs. 20, 000/- (Rupees Twenty Thousand) only litigation cost. The O.P. is directed to deposit Rs. 10, 000/- (Rupees Ten Thousand) only in the Legal Aid Account of this Commission.  

                        Hence, it is,

O R D E R E D

That the Consumer Case No. 97/ 2015 be and same is allowed in contest against the O.P. No.1 (National Insurance Company Ltd.). 

The complainant do get an award of Rs. 2, 10, 000/- (Rupees Two Lac Ten Thousand) only for his claim, Rs. 40, 000/- (Rupees Forty Thousand) only for mental pain and agony and Rs. 20, 000/- (Rupees Twenty Thousand) only for litigation cost. The total payable amount is Rs. 2, 70, 000 /- (Rupees Two Lac and Seventy Thousand) only and this amount will be paid to the complainant by the O.P. No.1 within 30 days (Thirty days) from the date of this order failing which the complainant will be entitled to get a simple interest of 6 % per annum from the date of incident, i.e. from 27.08.2013 till the realization of total amount. The O.P. is directed to deposit Rs. 10, 000/- (Rupees Ten Thousand) only in the Legal Aid Account of this Commission within 30 days from the date of this order.

 The O.P. (National Insurance Company Ltd.) is directed to pay Rs. 2, 70, 000 /- (Rupees Two Lac and Seventy Thousand) only by issuing a account payee cheque in favour of complainant within 30 days (Thirty days) from the date of this order failing which the complainant will be entitled to get a simple interest of 6 % per annum from the date of incident, i.e. from 27.08.2013 till the realization of total amount. The O.P. is directed to deposit Rs. 10, 000/- (Rupees Ten Thousand) only in the Legal Aid Account of this Commission within 30 days from the date of this order.

  Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.