JUDGEMENT

By filing this complaint, complainant has prayed for directing the op for release and to pay a sum of Rs.1,48,701/- as claimed for repairing cost of the vehicle against which there was insurance policy having Policy No.030600/31/01/06356 and said policy was purchased for covering the transit of new motor cars from the works shop of the dealer to the showroom of the complainant, including demonstration drive of New Motor Vehicles and policy covering the period was from 15.01.2002 to mid night of 14.01.2003.  But it is claimed by the complainant under the complaint that on 06.10.2002 at about 10:30 P.M. the insured car met with an accident near 8A, Alipore Road, Kolkata-700027 causing external damage to the car by the offending tanker coming from the opposite direction and the information was intimated to the local Alipore Police Station by a letter dated 07.10.2002.

          The insured vehicle was inspected by the mechanical expert of the Alipore

Police Station who submitted a report on 07.10.2002 signed by the expert on 08.10.2002 which was furnished by the authority concerned and the fact of facing accident and damage of the car was reported  to the insurance company by a letter dated 22.10.2002 enclosing a claim form and same was received by the insurance company on the subsequent date and by another letter dated 13.08.2003 the complainant intimated the cause of accident to the insurance company as well as to the surveyor S.K. Tulsiyan.

          It is further stated as per provision of Section 64UM of the Insurance Act 1983 the insurance company is liable to appoint a licensed surveyor and was appointed and he was S.K. Tulsiyan who surveyed the matter and submitted the report to the insurance company and thereafter insurance company turned down the matter accepting the damage of the insured car due to operation of the insured car and the complainant thereafter repaired the said damage at his work shop which raised the bill Rs.1,48,701/- and op insurance company as well as surveyor were intimated by the claimant/complainant vide a letter dated 15.01.2003 that the car had duly been repaired any lying at the showroom and requested the surveyor to conduct re-inspection of the repaired vehicle.  But subsequently by a letter dated 31.03.2005 insurance company raised some frivolous question by threatening to close the claim.  So, complainant by their letter dated 11.04.2005 responded to the aforesaid letter of the insurance company and answer to the queries raised therein.  Thereafter the complainant again wrote a letter requesting the op to settle the claim but op did not respond and for which this claim is treated as non-settled claim and so the cause of action arose and the case was filed.

          On the contrary insurance company by filing a written statement submitted that the cause of action arose on 06.10.2002 at about 10:30 P.M. when the car faced an accident.  Moreover, the insurance company lastly on 31.05.2005 finally informed the complainant that the said claim is treated as closed because complainant did not give any reply of the specific queries that is purpose of taking subject vehicle to Calcutta Rowing Club on the date of accident.

          It is further submitted that the said insurance policy was issued for specific terms and conditions in order to run the vehicle only from workshop to showroom and in around showroom complex.  But it is a matter of fact that Managing  Director, complainant company Mr. Bijay Bothra along with his wife had been using the car illegally for some other purpose on that night at Rowing Club violating the terms and condition of the insurance policy though the insurance cover is not extended to that extent.  So the cause of action arose at least with effect from 16.03.2005.  So the complainant ought to have filed the complaint before 16.03.2007 as per provision of Section 24A of C.P. Act 2002.  But peculiar fact is that complainant filed the said complaint in the year 2011 after lapse of nine years from the date of accident.  In the above circumstances, op has submitted that the insurance claim is barred by limitations and moreover it is a vexatious claim demonstrable in the eye of law and there is no such police case report that the car was damaged badly and a sum of Rs.2,01,801/- was spent for its repairing and it is also submitted that the note acceptance by and between surveyor and the complainant is subject matter of authentication by the insurance company as per terms of insurance policy and moreover violating the terms and conditions of the policy, the car had been used for personal purpose by the Managing Director of the said company.  So the present complainant is not entitled to get any relief as prayed for.

                                                 Decision with reasons

          On proper consideration of the material including the fact as alleged in the complaint and verse of the op in the written version and also considering the admitted fact that the said insurance policy covered the transit of new cars from the workshop of the dealer to showroom of the complainant including demonstration driving of new motor vehicle surrounding the showroom.

          Fact remains that the complainant’s address is Bothra Automotives Pvt. Ltd. at 234/3A, A.J.C. Bose Road, Kolkata-700020, P.S. Bhownipur whereas complainant reported to Police Officer-in-charge at Alipore Police Station, Kolkata-700027 that Ford Ikon No. WB-02TC-374 met an accident near 8A, Alipore Road, Kolkata-27 on 06.10.2002 at around 10:30 P.M. and it is specifically stated that in that car at that time Bijay Bothra and his wife were travelling and Bijay Bothra is the Managing Director of the complainant company and from the mechnacial examination report dated 07.10.2002 signed on 08.10.2002, it is found that Bumper, show, engine, Bonnet, mudguard, headlights, left door were damaged.  So, considering that fact it is clear that the present car for personal pleasure purpose had been used for personal use for the Mr. Bothra and his wife and they had been using the car at night hours for their personal purpose at far place from the complainant’s showroom when the accident took place and it is also proved that it was not driven by Bothra who had been travelling that vehicle at that time but invariably from the complaint it is clear that Bothra, the Managing Director had been driving the said vehicle along with his wife.  So, it is proved that as per admission of the complainant in para-I, it is proved that the car had been used by Bijay Bothra the Managing Director for his pleasure trip with his wife at night hours at 10:30 P.M. on 06.10.2002 but policy covers the transit a new motor car from workshop to the dealer’s showroom of the complainant including demonstration drive of new motor vehicle.  But it was neither demonstration drive of the new motor vehicle nor the motor was proceeding from workshop of the dealer to showroom of the complainant and further it is found from the insurance policy that Bijay Bothra the Managing Director of complainant’s company used the car in violation of the terms and conditions of the said Policy No.030600/31/1/06356  and peculiar matter is that claim application was submitted by the complainant but when the queries was made about detail history of accident and for what purpose the car had been used at night hours at far place from the workshop, complainant was silent and did not give any answer when ultimately on 31.03.2005 the claim application was finally closed.  So, it is clear that complainant cause of action arose on 31.03.2005 when by a letter it was decided by the op that on and from the date of clause of the claim shall be treated as closed when the specific queries regarding use of the car at that night and reason for proceeding of such car at such place were not at all answered and not only that till today the complainant has not explained why violating the terms and conditions of the present special insurance policy vehicle had been driven.  The Managing Director used the car at different places for his pleasure trip with his wife at night hours at 10:30 P.M.  So apparently it is clear that complainant violated the terms and conditions of present insurance policy which is issued for the purpose (transit of new motor car from the workshop to the showroom new demonstration drive of new motor vehicle) but in this case it is proved at the time of accident the said car had been used by the Managing Director Bijay Bothra for his pleasure trip with his wife at different places that is far from the showroom or workshop and purpose was not demonstration of a new motor vehicle.  So, invariably the complainant violated the terms and conditions of the present insurance policy.

          On proper consideration of the arguments advanced by the Ld. Lawyer for the complainant it is found that Ld. Lawyer for the complainant failed to give the light or failed to prove any document to show that at the time of accident the car had been used for the very purpose as per terms of the insurance policy.  Rather Ld. Lawyer for the complainant tried to convince that when Managing Director had been using the same then there is no question to disclose for what purpose he used it.  But in this regard the Ld. Lawyer for the op submitted the car for sale, cannot be used for the Managing Director for his personal use.  But in this case that had been done which is proved from the own document of the complainant that is the complaint filed before the Police on 07.10.2002.  In the light of the above observation we are convinced to hold for violation of the terms and conditions of the insurance policy, the complainant is barred to claim any compensation and insurance company is not liable to pay any compensation for violation and breach of that contract as per insurance policy and in this regard a ruling reported in CPR 2012 (3) CPR Page 366 (NC) and relying upon that judgement we are convinced that compensation cannot be granted beyond the terms of the insurance policy and it is settled principle of law that the insurance policy cannot be utilized beyond the terms and conditions as mentioned therein and in this regard we have also relied upon the ruling reported in 2012 (3) CP (I) 89 (NC).

          Now, we consider the vital question whether the present case is barred by the provision of Section 24A of the CP Act.  In this regard a very strenuous argument was advanced by the Ld. Lawyer for the complainant stating that as because the claim was closed, then it was not settled and till settlement cause of action shall continue.  But Ld. Lawyer for the op submitted cause of action arose on and from 31.03.2005 when the matter was fully closed for non-supply of the queries as made by the op and fact remains that complainant’s cause of action arose on and from that accident from 06.10.20102 and thereafter when the claim of the complainant was closed on and from 31.03.2005 in that case after a lapse of 15 days from 16.04.2005 complainant cause of action started that is with effect from 16.04.2005.  But peculiar factor is that the case was filed on 10.01.2011 that is long after six years from the second cause of action and nine years from the first cause of action.  The most interesting factor is that no application is filed for condonation of delay as per Section 24A of C.P. Act and for which the present complaint is barred by limitation under Section 24A of C.P. Act. 

          Considering the entire arguments as advanced by the Ld. Lawyers of both the parties and also considering the judgement passed in Civil Appeal 4962 of 2002 by Hon’ble Apex Court in a case Ref: Kandimalla Raghabah & Co.  Vs  National Insurance Co. and after considering the said judgement and relying upon the spirit and decision of that judgement we are convinced to hold that the present complaint is barred by limitation for filing the same on 10.01.2011, though cause of action finally arose on and from 31.03.2005 with extension period that is from 16.04.2005 but without praying for any condonation of delay.  In view of the above reasons we are convinced to hold that the present complaint which was filed on 10.01.2011 without any application for condonation delay was manifestly barred by limitation and for which there is no other alternative but to dismiss the complaint on both grounds- one barred by limitation u/s 24A of C.P. Act and also on the ground for violation of the breach of contract that is insurance policy they are not entitled to get any relief.

          In the result, the complaint fails.

          Hence, it is

                                                   ORDERED

          That the complaint be and the same is dismissed on contest with cost of Rs.5,000/- against the ops and complainant shall have to pay the same to the Insurance Company within one month failing which the necessary legal action shall be taken against him.