State Consumer Disputes Redressal Commission
Mr. Subhas Sen vs Bajaj Allianza General Insurance Co. ... on 24 May, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/293/2010 (Arisen out of judgement dt. 11.5.10 in C.C.No. 2010/02 of Jalpaiguri DF) DATE OF FILING : 07.06.2010 DATE OF FINAL ORDER: 24.05.2012 APPELLANT Mr. Subhas Sen Vill. Saroda Palli, P.O. Bairatiguri, Dist. Jalpaiguri. RESPONDENT BAJAJ ALLIANZA GENERAL INSURANCE CO. LTD. At City Plaza (4th Floor), 2nd Mile, Sevoke Road, Siliguri-734 401 Dist. Darjeeling. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE PETITIONER / APPELLANT : Mr. B.Prasad, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. N.R.Mukherjee, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 11.05.2010 passed by the Jalpaiguri District Consumer Disputes Redressal Forum in C.C.No. 2010/02 wherein the Ld. District Forum dismissed the case on contest without any order as to cost.
The case of the complainant/Appellant before the Ld. District Forum, in brief, was that the complainant in the capacity of an owner of a motor bike obtained insurance coverage from the OP/Insurance Co. and the sum assured was Rs. 31,588/-. According to the complainants case, during the subsistence of the insurance coverage the motorcycle was put in the custody of a service centre for effecting some minor repairs. It was the further case of the complainant that due to fire in the garage of the service centre the motorcycle of the complainant got gutted. The matter was duly informed to the Insurance Co. and the complainant submitted insurance claim, which was not considered by the OP and hence, the petition of complaint for proper redressal.
The Insurance Co. contested the case by filing written version thereby denying all the material averments made in the petition of complaint contending inter alia that the petition of complaint was not maintainable for non-joinder of the necessary party, i.e. the proprietor of the garage where the motor cycle was placed by the complainant for repair. As the motorcycle was in possession of a third party and not under the possession of the insured, the OP is under no obligation to compensate and that in the absence of any deficiency in service at the instance of the OP, the petition of complaint was liable to be dismissed.
Ld. District Forum while disposing of the petition of complaint has observed that in the absence of any proof to the effect that proper care was taken in respect of the motorcycle in question when it was placed in the custody of the garage owner for effecting some repairs and that in the absence of any cogent and reliable evidence in support the complainants case so far as it relates to damage of the motorcycle due to fire and that the proprietor of the garage being not impleaded in the proceeding, the petition of complaint was not at all maintainable and accordingly, dismissed the petition of complaint.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Decision relied upon by the Appellant :-
AIR 1983 SUPREME COURT 899 Decisions relied upon by the Respondents :-
1.
AIR 1964 CALCUTTA 374
2. 2005
(1) UJ 225
3. 1997(7) Supreme 195
4. AIR 1965 SUPREME COURT 1288 DECISION WITH REASONS At the time of hearing it has been submitted on behalf of the Respondent that in this case the Ld. District Forum has really appreciated the cases of respective parties and has arrived at a just and proper decision, which is very much sustainable under the law. According to the Ld. Advocate for the Respondent, from the materials on record it has become an admitted position that the complainant did put the motorcycle in the custody of a garage owner for the purpose of some repairs and that when the motorcycle was in the custody of such garage owner, the fire broke out due to which the motorcycle got gutted. According to the Ld. Advocate for the Respondent, from these facts it can be safely presume that the transaction in between the complainant and the proprietor of the garage owner is governed by the provisions of contract of bailment. While elaborating on this point the Ld. Advocate for the Respondent has submitted before us that in such sort of transactions it is the bailee who is accountable for the goods kept under bailment by the bailor and in such cases the provisions of Law of Bailment is applicable and not the Consumer Protection Act. The Ld. Advocate for the Respondent has also discussed different clauses of the insurance policy and has submitted before us that when insurance coverage was for accident loss only, the case as made out by the Complainant/Appellant to the effect that the motorcycle was gutted due to fire in the garage also puts an embargo in the insurance claim of the complainant/Appellant. According to the Ld. Advocate for the Respondent, the impugned judgement being a very well-written and judicious one there is no scope to interfere with the same, which is liable to be confirmed.
We have duly considered the submissions so put forward on behalf of the Respondent and have also gone through the materials on record including the impugned judgement and find that in this case the complainant has put forward a case to the effect that during subsistence of the insurance coverage in respect of the motorcycle, the same got gutted when it was placed in a garage for effecting some minor repair. The complainant put forward an insurance claim, which was not considered by the Insurance Co. and hence, the petition of complaint. The Insurance Co., on the other hand, has come up with a case to the effect that the Insurance Policy conditions does not permit consideration of claim of the complainant when admittedly the motorcycle was kept in the custody of a proprietor of a garage and that in such circumstances, the principles of Law of Bailment is applicable and under no circumstances, the Insurance Co. is under any obligation to compensate the complainant as prayed for by the Appellant and that the case was also defective for non-joinder of necessary parties and that in the absence of any proof of deficiency in service at the instance of the OP/Insurance Co. the case was liable to be dismissed.
On a careful perusal of the impugned judgement we find that the Ld. District Forum has dismissed the petition of complaint mainly on the ground that the case was defective due to non-impleading the proprietor of the garage in question and that the vehicle was not taken proper care by the garage owner, due to which the motorcycle got gutted and on all these grounds the complainant was not entitled to any relief whatsoever and dismissed the petition of complaint. In this regard, we are of the opinion that when from the materials on record it has come to light that admittedly the complainant during subsistence of the insurance coverage in respect of the motorcycle in question put the same in the custody of the garage owner for effecting some repair works, it was incumbent upon the garage owner to take proper care thereof. So far as it relates to the theory of bailment, we do not think that the facts set forth in the present case do attract the provisions of theory of bailment at all and that the provisions of Section 3 of the Consumer Protection Act is very much applicable for giving relief to the complainant who is admittedly the owner of the motorcycle in question having insurance coverage in respect of the same. In this regard, we find much substance in the submissions put forward by the Ld. Advocate for the Appellant. While relying upon the decision reported in AIR 1983 Supreme Court 899 the Ld. Advocate for the Appellant has submitted that the controversy raised by the Insurance Co. has been amply set at rest by the abovementioned decision wherein the Honble Court has held that the insurer was bailee and custody of repairer was that of a sub-bailee - Burden was on them to show how they handled the car As the insurer has failed to show as to what amount of care was taken by repairer he was liable for the loss suffered by the insured. We have also considered the decisions so relied upon by the Respondent and upon consideration of the facts and circumstances of those cited decisions we find that those facts and circumstances are quite different from the instant one and accordingly, the principles laid down in those decisions are not application in this case. When admittedly the motorcycle in question got gutted when it was put under repair, we consider the incident of gutting to be an accidental one, which is very much within the terms and conditions of the insurance policy and the complainant is entitled to the reliefs as prayed for. Having considered the present Appeal in the light of above discussions we find much merit in the present Appeal, which is liable to be allowed. In the result, the Appeal succeeds and the complainant is entitled to receive Rs. 31,588/- being the sum assured value of the insurance coverage.
Hence, it is ORDERED that the Appeal stands allowed on contest in part but without any order as to cost. The impugned judgement is set aside. Consequently the petition of complaint stands allowed in part. The Appellant/complainant is entitled to receive the sum assured amount, i.e. Rs. 31,588/- (Rupees thirty one thousand five hundred eighty eight only) from the Respondent/Insurance Company and the Insurance Co. is directed the clear off the awarded amount within 45 (forth-five) days from the date of communication of this order, failing which the amount will carry interest @ 8% (eight per cent) per annum till realization in full.
MEMBER MEMBER PRESIDENT