F I N A L   O R D E R

The This is a consumer complaint filed by the complainant Under Section 12 of the Consumer Protection Act, 1986 with the prayer directing the opposite party to pay an amount of Rs.486993/- on account of theft of vehicle No WB74N 6054, to pay compensation of Rs.50,000/- for unnecessary harassment and deficiency in service and to pay Rs.10,000/- as litigation cost.

The case of the complainant in short is that he purchased vehicle bearing No. WB-74N/6054 being chassis No. MA1TB2BSL82J67112 & engine No. BS84J34083, Mahindra & Mahindra – Scorpio 206 GLX model. The vehicle was purchased from Arup Kumar Sen at Rs 600000/- and was duly insured with Op Insurance Company vide policy No. 313501/31/2013/8066 valid from 20.01.2013 to 19.01.2014.

That on 15.04.2013 the vehicle was proceeding towards Siliguri when two unknown persons expressed their helplessness and got into the vehicle. They stated themselves as student and requested the driver to get down at Bihar more Bagdogra. On the way in between Tinmile and Sonapur at gunpoint they snatched the vehicle and robbed Rs 12000/- and identity card of the driver. Thereafter the driver reported the theft to IC Chopra PS in writing on 16.04.2013 and also narrated the facts. Chopra P.S. started the case being No. 304/2013 dated 16.04.2013. The matter was communicated to OP orally after the incident and in writing on 18.04.2013. On that day MV dept. at Siliguri was also requested in writing so that name of the owner of the vehicle cannot be changed. On 30.05.13 RTO Uttar Dinajpur was requested in writing to provide particulars of License of the driver. Thereafter by letter dated 30.08.2013 O.P., Insurance Company asked for some documents from the complainant  and complainant on 30.12.14 submitted motor claim form and was duly received and acknowledged by Op .On 18.09.13 he wrote to RTO for certified copies of registration book and tax token of the vehicle.

Petitioner also intimated to the OP about submitting FRT, Charge sheet, Order sheet of the Chopra PS case over the theft being GR case No 1125 of 2013 and also submitted duplicate key to the OP with a request to settle the claim. Advocates letter dated 13.03.2015 was also sent asking OP to make payment of the claim. That he is suffering from financial loss, mental pain as OP failed to comply. That cause of action arrows on 13.03.15 and he filed this case before the Forum with the above mentioned prayer.

The O.P. contested the case by filing W.V.  denying all the allegations of the complainant stating inter alia that the case is not maintainable as there is no cause of action, the complaint petition is barred by limitation. OP denied the theft of the car by miscreants on 15.04.13 at gun point or the starting of Chopra P.S case. The owner of the car purchased it for personal use but actually used the car for any other purpose as hired or reward, carrying goods etc. It was used violating mandatory provision of the policy, as per version of complainant herself. That the investigation report of the Chopra PS also established this fact. That, the driver of the insured vehicle violated the terms and conditions of the policy by using the car for commercial purpose. So, petitioner is not entitled to get any claim and pray to dismiss the complaint petition.

To establish the case, the complainant submitted memo of evidence with affidavit, oral evidence as P.W.-1 & P.W.-2 and photocopies of documents including original documents as per list like policy papers, certified copy of FIR, Charge Sheet and copies of letter as mentioned above.

The O.P. to prove its case submitted W.V. and cross examined the complainant in oral evidence. One Swapan Debnath is examined as OPW 1 in full.

DECISIONS WITH REASONS

We carefully perused the petition of complaint, memo of evidences oral evidence of complainant, documents, W.V. and also considered the argument advanced by both sides. From the petition of complaint and documents it reveals that, the vehicle in question was snatched by miscreants at gun point who boarded the vehicle in guile of helpless student. The incident occurred at Sonapur area and Chopra P.S was informed. Complainant as owner of the vehicle deposed as PW 1 in her examination in chief he stated the fact of this case as per the complaint and also filed documents in support of her prayer. In cross examination she stated about the purchase of the second hand vehicle. That she was informed by the driver about the miscreants who as helpless passengers boarded the vehicle and thereafter committed theft of the vehicle. That FIR was lodged over the incident.   

On the other hand the O.P. examined the branch manager in charge of Raiganj Branch as OPW-1. He deposed denying the fact of theft of the vehicle at gunpoint by miscreants as alleged. That the driver of the vehicle used the car for commercial purpose violating the terms of the policy as it is also proved in the FIR and charge sheet of the Chopra P.S. case. And that petitioner is not entitled to any claim. In cross examination he failed to explain as to what document was relied upon by the Quick Recovery Agency to submit a report in this regard.   

In view of the discussions above we are of opinion that the complainant has been able to prove that the vehicle WB-74N/6054 was taken away showing seapon by some miscreants on 15.04.2013 and Chopra PS, Uttar Dinajpur started case over the incident and submitted charge-sheet accordingly. Admittedly, the vehicle of the complainant was insured with the O.P. Insurance Company. Ld. Lawyer for the complainant submitted the reference of Hon’ble Supreme Court as reported in 2008 ACJ 2035 that the repudiation of claim on the ground that vehicle was insured for personal use but it was being used for carrying passengers and that owner had violated terms and conditions of policy. But such breach of terms of policy is not germane in case of theft of vehicle. In the case in hand the vehicle has been snatched or stolen. On consideration of the totality of the facts and the circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the insurance company cannot repudiate the claim on that basis. The insurance company is liable to indemnify the owner of the vehicle, when the insured has obtained comprehensive policy for the loss caused to her. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft. The insurance company ought to have settled the claim on non-standard basis. Therefore the complaint petition succeeds. This Forum is allowing the petition, only 75% of the claim of the complainant on non-standard basis.

Fees paid is correct.

Hence, it is

ORDERED,

That the case, being No.CC-23/2015 is allowed on contest in part. The complainant is entitled to receive 75% of the sum assured of Rs.4,86,993/- i.e. rounded of Rs.3,65,245/- from the O.P. for loss, sufferred for theft of the vehicle. The complainant is further entitled to realize Rs.5,000/- as compensation for harassment and mental pain and Rs.2,000/- as litigation cost. The entire awarded amount will be paid by the O.P., Oriental Insurance Company Limited within 30 days from the date of passing of this order, failing which the entire amount will carry interest @ 8% p.a. till full satisfaction. The complainant is also at liberty to proceed with the law, if O.P. fails to comply.

Copy of this order be supplied to each parties free of cost.