State Consumer Disputes Redressal Commission
Mrs Neelam Mahalka vs Hdfc Ergo Gic Ltd on 29 April, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 SC.CASE NO. : FA/738/2012 (Arisen out of Order Dated 11/09/12 in Case No. CC/108/2011 of District Consumer Disputes Redressal Forum, Kolkata-I) DATE OF FILING : 10.10.12 DATE OF FINAL ORDER: 29.04.13 APPELLANT : 1. Mrs. Neelam Mahalka, W/O of Santosh Mahalka, 237, Dharam Tala Road, Flat No. C9, 3rd Floor, Gupta Complex, Budge Budge, Kolkata- W.B.-137, Pin 700 137. RESPONDENTS : 1. HDFC ERGO GIC Ltd., Corporate Office, 6th Floor, Leela Business Park, Andheri Kunta Road, Andheri (East), Mumbai- 400 059. 2. The Manager, Claim Department, HDFC ERGO GIC Ltd., 10/2, Metro Tower, 1. Ho-Chi-Minh Sarani, Kolkata-700 071, P.S. Shakespeare Sarani. 3. The Manager, HDFC Bank Retail Asset Division, Gilander House, 1st Floor, A1. 8. N.S. Road. Kolkata- 700 001. P.S. Hare Street. BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE APPELLANT: Mr. Swarajit Dey, Ld. Advocate. FOR THE RESPONDENTS : Mr. Abijit Saha, Ld. Advocate. Mr. Prasanta Banerjee, Ld. Advocate. : O R D E R :
Mr. J.Bag, Ld. Member The present appeal is directed against the Order dated 11.09.12 of the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit-I, in case No. CC/108/2011, whereby Ld. Forum below allowed in part the complaint on contest with cost against OP Nos. 1 and 2 and without cost against O.P. No.3.
The complaint case, in brief, was as follows:
A Private Car Package Policy was obtained by the Complainant /owner of the vehicle, bearing the registration No. WB-58K/5273 from the O.P insurance company for the period from 15.10.2009 to 14.10.2010 for a sum of Rs.4,50,000/-(Four lakh and fifty thousand) only by paying premium of Rs.17,828/-(Seventeen thousand eight hundred and twenty eight) only . The Complainant/owner of the vehicle took a loan of Rs.4,00,000/- (Four lakh ) only from O.P. No.3 and deposited cheques towards payment of EMIs up to 7th February 2011. On 08.03.2010 the driver of the vehicle, namely, Sri Sandeep Sardar being in senseless condition the vehicle was allegedly stolen from Ritaka Lodge, Dankuni. FIR was lodged with Dankuni Police Station by one Mr. Unni Krishnan Nair who had taken the vehicle from the Complainant for an emergency purpose. Dankuni Police Station started a theft case (No. 18 /2010) under Section 328/379/34 IPC. The Complainant submitted duly filled in Intimation of Theft / Total Loss of Vehicle form to the HDFC Bank Ltd / OP
-3 on 28.4.2010. The claim of insurance was repudiated on the ground of use of the vehicle for hire and reward as provided under General Exception clause of the policy. On such repudiation a complaint case was lodged before the Ld. Forum below for direction for payment of (1) the sum insured of Rs.4,50,000/-only with interest @ 12 % p.a., (2) Rs.2 lakh as compensation for the loss and injury, harassment, mental agonies , peace hampered and loss of money due to negligence and derelictions of duties on the part of O.P. Nos. 1 & 2, (3) Cost of Rs.1,00,000/- for suffered loss of good will gesture in her social front, (4) litigation cost of Rs.50,000/- and (5)also for direction upon O.P. No. 3 not to encash cheque Nos. 005865, 006301 and 006302 for Rs.34161/- each in favour of HDFC Bank Ltd., A/c AL Neelam Mohalka for the purpose of security deposit against her car loan and to keep ECS clearing suspended till realization of the insurance claim from O.P. No. 1 & 2.
The complaint case was contested by all three OPs by submitting written version. After perusal of documents and hearing of all parties Ld. Forum allowed in part the complaint on contest with cost against OP No.1 and OP No.2 with direction upon them to pay 75% of the sum insured relying upon the judgment of Honble Supreme Court as reported in 2010(2) TAC 374(SC), along with interest @ 9% p.a. and also to pay cost and compensation of Rs.5,000/- and Rs. 10,000/- respectively with interest.
Being aggrieved by and dissatisfied with the Order of the Ld. Forum below the Complainant / Appellant herein has come up before this Commission on the grounds that the Ld. Forum below arbitrarily held that the vehicle was used for hire though no documentary evidence was produced in that regard and though the report of the Inspector of Plice CID submitted before the Ld. ACJM Srirampur , Hooghly ruled out the use of the vehicle in question for hire.
We have gone through the appeal together with the order No. 19 dt. 11.09.2012 of the Ld. Forum below, the petition of complaint, the insurance policy, the written complaint in the form of first information submitted by Mr. Unnikrishnan Nair to the Officer-in-Charge , Dankuni Police Station immediately after detection of the alleged theft of the vehicle from the Ritika Lodge , Dankuni on 08.03.2010 , the letter dated 09.03.2010 addressed to the Officer-in-Charge Dankuni Police Station by Sri Santosh Mahalka, husband of the Complainant, the letter of repudiation dated 23.09.10 and the written version filed by OP No.1 and 2 before the Ld. Forum below apart from the written version filed on behalf of OP No.3. FRT has also been perused. BNA filed by the Respondent Insurance Company has been gone through. Ld. Advocates appearing for both the Appellant and the Respondents have been heard .
Ld. Advocate appearing for the Complainant / Appellant argued that the loss of the vehicle was a clear case of theft as evident from the Police report which inter alia stated that there was no evidence showing that the vehicle was being used on hire or reward. The vehicle was given to Mr. Unnikrishnan Nair who is a close neighbour of the Complainant. Accordingly, the insurance company should have given full benefit of the policy covering the risk of theft of the vehicle. Ld. Forum considered their prayer only in part. The impugned order should be modified issuing fresh direction upon the Respondent insurance company to pay full sum insured, apart from Rs.2,00,000/- as compensation and other relief .
Ld. Advocate appearing for Respondent/OP insurance company argued that Mr. Unnikrishnan Nair , said to be close neighbour of the Complainant , after seeing an advertisement in the Sanmarg Newspaper contacted one Mr. Ajay Gupta and as per his need Mr. Nair arranged as many as seven vehicles for shooting of a foreign film and accordingly the vehicles were given for their use. Therefore, the story of giving the vehicle to Mr. Nair for his emergency purpose is not at all tenable. Again from the Final Police Report (Pages 81-85 of Memo of Appeal ) it is clear that all seven vehicle owners were allured by the said Mr. Ajay Gupta for providing their cars for foreign film shooting purpose . All such facts and evidence show that the vehicle of the Complainant / Appellant was used for hire and reward at the time of the alleged incident of theft of the vehicle. Referring to the decision of the Honble Apex Court of India in the case of National Insurance Company Ltd,. v- Nitin Khandenwal reported in 2008 (II) SCC 259 as well as in the case of Amalendu Sahu reported in 2010 TAC 374 (SC), Ld. Forum, after observing that the car of the Complainant was being used for hire and reward, made, as argued, the mistake of imposing liability upon the OP/respondent to the tune of 75 % of the sum insured. Though Honble Apex Court in Amalendu Sahoo v- Oriental Insurance Company Ltd. 2010 (2) TAC , 374 (SC) fixed the liability of the insurance company to the tune of 50% of the sum insured in case of the vehicle being driven by a driver having no valid driving licence at the time of accident , Ld. Forum directed the OP to pay 75% of the sum insured which is not sustainable under the law. It was further argued that none of the ingredients of theft as defined under Section 379 of IPC has been satisfied in this case, as the present case is a criminal breach of trust the vehicle being handed over on an approach by Mr. Nair and then not being given back under the cover of theft of the vehicle. On this point the decision of the Honble National Consumer Disputes Redressal Commission of India in Revision Petition No. 2157 of 2008 , holding that the police report if found to be misleading is not to be considered, was cited . Further, Honble National Commission in Revision Petition No. 3032 of 2009 held that breach of trust is not covered under terms and conditions of policy of insurance. The impugned order deserved to be dismissed , it was pleaded .
Upon hearing of arguments submitted by both parties and after perusal of all material facts and evidence on record we are of the considered view that the Complainant/ Appellant gave her private car to Mr. Unnikrishnan Nair for no emergency purpose of the latter , such emergency purpose not being specifically mentioned in clear terms . However, that the car has been stolen is established by the enquiry report of the Police , but that the car was not used for hire is not so established by any convincing proof adduced by the Complainant / Appellant or by any facts or circumstances put forwarded by the Inspector of Police in his report . Honble Apex Courts observation that In the case of theft of vehicle , breach of condition is not germane is of utmost significance and the OP/Respondent Insurance Company can not repudiate the claim in toto. Ld. Forum below has allowed 75% of the sum insured of Rs. 45,0000/- on nonstandard basis with interest along with compensation of Rs. 10,000/- and litigation cost of Rs. 5000/- which appear to be without any material irregularity and illegality . In the result, the appeal does not succeed . Hence ordered that The appeal be and the same is dismissed on contest without, however, any cost . The impugned order is set aside .
MR. J.BAG MR. D.BHATTACHARYA MEMBER MEMBER