The complainant/petitioner Sahamed Reza filed a petition under Section 12 of C.P Act which was registered as CC Case No. 51/16 seeking relief as prayed for.
The fact as revealed is that the petitioner/complainant purchased a vehicle being Registration no. WB60L/7722 and the said vehicle was insured with the OP No.1 bearing insurance policy No. 51230131150100000521 which was valid from 23/4/2015 to 22/4/16. The total sum assured amount of Rs.605919/-.
That on 3/12/2015 the driver of the vehicle of the petitioner/ complainant took the vehicle for his own purpose and due to late night driver was unable to return the vehicle into the house of the petitioner/complainant and the said vehicle was parked in front of his house with full lock and key condition. Moreover, he also locked the vehicle with an additional chain and he went to his bed. At about 5 a.m on the next morning that is on 4/12/15 he woke-up from the sleep and found that the vehicle was not there and he did not find the vehicle in the said place. Thereafter he tried his level best to trace out the same but there was no fruitful result.
Thereafter, he informed the matter to the complainant/petitioner. The petitioner lodged a written complaint to the inspector in charge of Karandighi Police station on 7/12/15 and on the basis of the said written complaint a police case was started bearing no.622/15, dated 7/12/15 under Section 379 of I.P.C.
The complainant/petitioner also informed the matter to the Insurance Company through a letter and the Insurance Company duly received the same.
The Insurance Company asked the complainant/petitioner to submit all necessary documents for settlement of the claim. The petitioner/ complainant submitted all the documents but there was no fruitful result. As such the petitioner/ complainant was compelled to file the instant case for compensation of Rs.605919/-, litigation cost of Rs.10000/- and Rs. 30000/-for harassment and mental pain and agony.
The petition has been contested by the O.P/Insurance Co. by filling the written version denying all the material allegations as labeled against the O.P/Insurance Company contending inter alia that the petition is not maintainable. The claim is barred by law of limitation and non joinder of necessary parties. The petitioner/complainant had suppressed the real facts and he has not come to the court within clean hand. The definite defence case is that at the time of the incident the driver of the vehicle had no valid license and in spite of demand for producing driving license by the Insurance Company the complainant did not produce the driving license. Moreover, at the time of incident the vehicle was used for commercial purpose but it is found from the documents that the vehicle was only to be used for private purpose. As such the petitioner /complainant is not entitled to get any compensation. Considering such facts and circumstances the complainant case is liable to be dismissed with cost.
During trial the complainant was examined as P.W.1. One Saddam was examined as P.W.2. The complainant has filed some documents. No other witness is examined on behalf of the complainant. On behalf of the O.P. one Kanai Chandra Chowdhury was examined O. P.W.1 and Bimal Xalxo as O.P.W.2 and he was also cross examined.
Now the point for determination as to whether the complainant is entitled to get any order from this forum or not.
Case laws referred by the Complainant:
- Om Prakash Vs. reliance General insurance and ANR.
{Civil Appeal No. 15611 of 2017 arising out of SLP (c) No. 742 of 2015}
Case laws referred by the OP:
- Kulwant Singh vs United Bank Of India Insurance Co. Ltd 2015 C.J 73 (N.C)
- M/S New India assurance Co. Ltd Vs. Ajit kr. on 4/9/2013(N.C)
- New India assurance vs. T.V. Swathi 19/9/2009(N.C)
DECISIONS WITH REASON
At the time of argument the learned lawyer of the op argued that the vehicle was hired for attending the marriage ceremony which in gross violation in the terms and conditions of the Insurance Policy. The Insurance Policy was for the private purpose not for the commercial purpose. So, the complainant is not entitled to get any compensation. On the other hand the learned Lawyer of the complainant submitted that the vehicle was not taken on hire for commercial purpose but it was taken for attending the marriage ceremony. But from the F.I.R. it is found that the vehicle was taken on hire for the marriage ceremony but this fact has not been mentioned in the petition of complaint. So, definitely it is a subsequent development of the fact by suppressing the real fact. On perusal of the charge sheet, it is also found that the I.O examined the complainant who corroborated the F.I.R. as such the I.O did not record his statement. So under no circumstances it can be said that the vehicle was used for the private purpose. Mere examining any witness to support the case that the vehicle was used for private purpose is not tenable. In this regard the learned lawyer of the complainant submitted a reference of Hon’ble Supreme Court Judgment: Om Prakash Vs. Reliance General Ins. and Anr. [Civil Appeal No.15611 of 2017 arising out of SLP (c) No.742 of 2015]. The learned lawyer of the complainant wants to impress upon the forum that due to technical fault the claim cannot be repudiatated. But the fact of the reported case is completely different with the instant case. The Honorable Supreme Court allowed the award only on the ground there was delay for delay of few days for giving up information to the insurance Company but the fact of the present case is completely different as because the vehicle was used for commercial purpose as it appears from the F.I.R. The complainant tried to make out a new case that the vehicle was not used for commercial purpose. Only it was used for private purpose though it was not proved. Moreover, the driving license of the driver neither produced before this forum nor before the insurance company. The Ld lawyer of the OP submitted that information as regard to the theft of the vehicle must be, lodge within 24 hours at the concern police station, if not given the claim will be repudiated. In this regard the learned Lawyer of the op refers a case laws reported in 2015C.J73(N.C) kulwant Singh vs United India insurance company .In the instant case it is found that the F.I.R was lodged after three days the grown of delay as mentioned in F.I.R is not at all believable. So the case law submitted by the learned Lawyer of the OP is quite applicable for the instant case. On consideration the acts on circumstances the instant case is liable to be dismissed.
C.F paid is correct,
Hence, it is,
ORDERED
That the instant case being No. CC-51/2016 be and the same is dismissed on contest but without any cost.
Let a copy of this order be given to the parties free of cost.
