IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Smti S.Bora
Member(F)
District Consumer Disputes
Redressal Forum, Sonitpur
Sri P.Das
Member(Gen.)
District Consumer Disputes
Redressal Forum, Sonitpur
CONSUMER COMPLAINT NO.16/2016
1.Sri Gautam Das : Complainant
S/O: Late Jatish Chandra Das
C/O: jagat Bandhu Pharmacy, M.C. Road
Tezpur P.O & P.S: Tezpur
Dist: Sonitpur, Assam.
Vs.
1.The Branch Manager. : Opp parties
The Oriental Insurance Company Ltd.
Tezpur Branch, Dist: Sonitpur,Assam
2.The Branch manager
Punjab National Bank,M.C.Road
Tezpur
Appearance:
Mr.Abhijit kar, Adv. : For the Complainant
Mr.Ashim Choudhary,Adv. : For the Opp. party No.1
None : For the Opp. party No.2
Date of argument : 29/08/2017
Date of Judgment : 18/09/2017
J U D G M E N T
- The averments under the complaint of the complainant, in brief, are that complainant is the owner of the vehicle No.AS-12-K-2634 (Maruti Suzuki Swift Dzire) owned under financial assistance of Punjab National Bank,Tezpur branch, which was under comprehensive Package Policy of the opposite party No.1 as private car, effective w.e.f 08-02-2014 to 07-02-2015 . That on 24-12-2014, on request of three unknown persons to take them to Jorhat to visit a serious patient, the driver on humanitarian ground agreed and proceeded towards Jorhat from Tezpur, but on the way the driver was sprayed upon with some gaseous substance at which the driver fell unconscious and the next morning the driver found himself in the Dimapur bus stand with the vehicle stolen. The driver somehow managed to return to Tezpur and having narrated the story to the Complainant, FIR was lodged before the Tezpur Police Station, but the vehicle could no longer be traced and recovered. Final report having been drawn by Police, Insurance claim was accordingly submitted on 08-01-16 claiming the amount of Rs.6,27,144/- as the Insured Declared value(IDV in short) of the vehicle. But the opposite party on 29-01-2016 repudiated the claim on the ground of policy violation. Being aggrieved with the repudiation, the complainant is thus before the Forum praying a total relief of Rs.8,37,144/- inclusive of the I.D.V of the vehicle in question.
- Opposite party Insurance company contested the case by filing written version. Contending that despite the vehicle being under private car package policy the complainant, by carrying three unknown passengers to Jorhat from Tezpur, had violated policy conditions in using the vehicle for commercial purpose for which the opposite party had rightly repudiated the claim. Alleging that the complainant had cleverly concocted the story of theft to unfairly reap the benefit of insurance from the opposite party, had thus prayed for dismissal of the complaint with cost.
- Complainant along with the driver of his vehicle had tendered their evidence in chief on affidavit exhibiting some documents thereunder. Opposite party examined one administrative officer of its Tezpur branch on affidavit. Witnesses on either side were cross-examined.
We have carefully gone through the entire evidence on record inclusive of written argument filed on either side.
POINTS FOR DETERMINATION
- Whether there was deficiency in service in repudiating the claim of the Complainant ?
- Whether the Complainant is entitled to get relief/reliefs as prayed for ?
DECISION ON THE POINTS WITH DISCUSSION
- According to the opposite party the Complainant failed to comply with the terms and conditions of the Insurance Policy. As per terms and conditions of the Policy, the vehicle was covered under Private Insurance Policy and there is limitations as to use as follows-
“The Policy covers use of the vehicle for any purpose other than a) Hire or reward,
b) Carriage of goods (other than samples or personal luggage), c) Organized racing, d) Pace making, e) Speed testing, f) Reliability Trials, g) Use in connection with Motor Trade”
5. The learned counsel appearing for the opposite party pointed out that on the fateful day of theft the vehicle was given on hire to carry passengers to Jorhat. When the vehicle was taken away by the passengers the Complainant and his driver fabricated a false story to get handsome amount as compensation from the Insurance Company. As the Policy condition was violated, so the Complainant is not entitled to get any relief, learned advocate asserted.
6. We have considered the submission. On a careful scrutiny of the documents, we have found that there is no dispute that the vehicle in question was insured under “Private Car Package Policy”. The vehicle at the relevant time was in charge of the driver.
7. To substantiate the claim that the vehicle was not given on hire, both the Complainant (C.W.1) and his driver(C.W.2) in a harmonious concert, in their evidence in chief on affidavit stated that on 24-12-2014 three unknown persons who were supposed to visit a serious patient approached the driver and requested to drop them at Jorhat. On humanitarian ground the driver agreed and proceeded. In their cross-examination, contradicting their own statement they stated that a patient was emergently required to be taken to Jorhat. The Complainant has stated nothing about the fuel required for taking the vehicle to Jorhat which is at a distance of about 180-190 k.m from Tezpur. The driver in cross-examination stated that fuel was not refilled by the persons and at the relevant time the vehicle in question was parked at the Taxi stand.
8. The Complainant and his driver carefully tried to assert that the vehicle in question was never on its way to Jorhat on commercial arrangements and on humanitarian ground only the driver proceeded towards Jorhat with the passengers. Their evidence clearly shows that the persons or any one of them was never taken to the owner of the vehicle and the driver of his own proceeded towards Jorhat.
9. If the vehicle was a private vehicle how a driver of his own accord could take the vehicle to a distance of about 180 k.m without the approval of its owner ? The driver even did not make any discussion about fuel either with the owner or with the passengers. At the relevant time of occurrence the vehicle was a new one and value of which, as per the Insurance Policy was Rs.6,27,144/-. Such conduct of the driver and owner clearly suggests that the vehicle was taken to Jorhat by the driver on commercial arrangement. Both the driver and the owner denied that the vehicle was used for commercial purpose.
10. Ld Advocate Sri A.Kar relying on the judgment pronounced by the Hon’ble Apex Court in National Insurance Company vs. (i) Nitin Khandelwal (decided on 08-05-2008) and (ii) Civil Appeal No.2703 of 2010 (arising out of SLP(C) No.11227/2009) Amalendu Sahoo Vs. Oriental Insurance Company (decided on 25th March,2010) submitted that- in case of theft of the vehicle, nature of use of vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis. Here in the instant case, even if Policy condition is violated,
even then Insurance Company, as per decision of the Hon’ble Apex Court, is liable to pay 75% of the Insured Declared Value of the vehicle.
We have gone through the judgments rendered by the Hon’ble Apex Court.
11. In Nitin Khandelwal’s case the vehicle was insured for personal use. According to the Insurance Company four persons hired the vehicle for going from Gwalior to Karoli. On the way the persons tied the driver and snatched away the vehicle. The insured company rejected the claim for violation of the terms and conditions of the Policy. Nitin Khandelwal approached the District Forum and the Forum rejected the claim. Being aggrieved by the order of the District Forum an appeal was preferred before the State Consumer Disputes Redressal Commission. The State Commission held that the claim ought to be settled on non-standard basis and thus Complainant was entitled to 75% of the sum insured. The State Commission accordingly, allowed the appeal and directed the Insurance Company to pay 75% of the insured amount with interest @6% from the date of complaint till payment.
12. The Insurance Company being aggrieved by the order of the State Commission preferred Revision Petition before the National Consumer Disputes Redressal Commission. The National Commission affirmed the order of the State Commission. Being aggrieved by the Order of the National Commission, the Insurance Company preferred an appeal before the Supreme Court. The Supreme Court observed that the National Commission correctly upheld the order of the State Commission.
13. In the judgment of Amalendu Sahoo the Hon’ble Supreme Court referred the judgment of Nitin Khandelwal. In the case of Amalendu Sahoo also the vehicle was used in violation of the terms and conditions of the Policy. The Supreme Court on the basis of guidelines issued by the Insurance Company about settling non-standard claims directed the Insurance Company to pay a consolidated sum of Rs.2,50,000/-against prayer for compensation of Rs.5,00,000/-.
13. The judgment of Nitin Khandelwal is found to be squarely applicable to the case in hand. In the light of decision of the Supreme Court, we hold that the Insurance Company ought to have settled the claim on non-standard basis. As the Insurance Company turned down the entire claim, so we deem it just and proper to direct the Insurance Company to pay 75% of the value of the vehicle.
14. It is found from the Insurance Policy (Ext-2) that the vehicle was insured for one year w.e.f 08-02-2014. The vehicle was stolen away on 24-12-2014. On 08-02-2014 the value of the vehicle was Rs.6,27,144/- After 10(ten)months 16 (sixteen) days its value as per guidelines of the Insurance Company would be Rs.5,95,786/- (Deducting value of depreciation of 5%). Applying the guidelines referred to above, the Insurance Company is liable to pay 75% of Rs.5,95,780 (Rupees Five Lakh ninety five thousand seven hundred eighty)only
15 According to the Complainant the vehicle was purchased by taking financial assistance from Punjab National Bank, Tezpur branch. Complainant
has not submitted any statement of loan account. In view of the above, we are of the opinion that the financier Company is only entitled to get the amount from the Insurance Company. The Complainant is only entitled to receive excess amount if any, after adjustment of the outstanding loan amount. The case record reveals that the Complainant had taken several adjournment. As such he is not entitled to get any interest from the date of filing complaint. However, he is entitled to get interest @6% per annum from the date of this order on the awarded sum with litigation cost of Rs.5000/- which we consider as just and proper.
ORDER
In the result, the complaint stands allowed on contest. Opp. Party Insurance Company is directed to pay 75% of Rs.5,95,786/- on non-standard basis to the Complainant; which however, shall be paid to the Punjab National Bank as financier of the vehicle in question. The Complainant is entitled only to receive excess amount if any, after adjustment of the outstanding loan against the vehicle. Complainant shall also be entitled to get interest @6% per annum from the date of order on the awarded sum with litigation cost of Rs.5000/-(Rupees Five thousand)only. Opposite party Insurance Company is directed to comply with the award within 30(thirty) days of receipt of copy of the judgment & Order.
The Insurance Company and the Complainant are to follow all other necessary formalities as per provisions of law including intimation to the concerned District Transport Officer.
Given under our hands and seal of this Forum this 18th day of September, 2017.
Dictated and corrected by: Pronounced and delivered
( A.Devee)
President (A. DEVEE)
District Consumer D.R Forum,Sonitpur President
Tezpur District Consumer Disputes Redressal Forum,
Sonitpur,Tezpur
We agree:- (P.DAS) (SMT.S.BORA)
Member Member
