State Consumer Disputes Redressal Commission
The Director, The New India Assurance ... vs Swapan Dutta on 19 February, 2010
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/400/2009 DATE OF FILING: 13.10.2009 DATE OF FINAL ORDER: 19.02.2010 PETITIONERS 1) The Director The New India Assurance Co. Ltd. 87, Mahatma Gandhi Road Fort Mumbai 400 001 2) The Branch Manager The New India Assurance Co. Ltd. 70, B.C. Road, Kalitala Barabazar, Dist. Burdwan RESPONDENT Swapan Dutta Tikarhat, B.T. College P.O. Lakurdi, P.S. & Dist. Burdwan BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE PETITIONER/APPELLANT : Mr. N.R. Mukherjee, Advocate FOR THE RESPONDENT : Mr. S. Ghosh, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 23.6.09 passed by District Consumer Disputes Redressal Forum, Burdwan in D.F. Case No.52/2007 whereby the complaint was allowed and the OP was directed to pay Rs.4,75,000/- to the complainant with cost of Rs.500/-.
The case of the complainant, in brief, is that the complainant purchased a vehicle Bolero-XLX, XDB with Registration No.WB 42G-7373 for private use availing loan from the Magma Leasing Ltd., Durgapur Branch. The vehicle was under insurance coverage in Private Car Policy for period between 29.6.04 and 28.6.05 issued by OP1. The complainant on being requested by his acquaintance Shri Dilip Rajat allowed him to take the said vehicle for bringing home one of his friends from DumDum Airport, Kolkata without taking any fare on 17.9.04 and the vehicle was driven by Sk. Alo, the driver employed by the complainant. On 18.9.04 the said driver informed the complainant that the vehicle had been stolen from the Ashoka Hotel premises in Howrah where the said car was parked in the night as the said Shri Dilip Rajat and his friend stayed there. The complainant lodged FIR with Golabari Police Station on 18.9.04 whereupon P.S. Case No.271/2004 dated 18.9.04 under Section 379 of IPC was started. The OP appointed Secret Investigation Bureau as Investigator with whom the complainant cooperated in the matter of investigation. But the OP repudiated the claim on ground of violation of condition no.4 of the said private car package policy holding that the complainant had given the vehicle on hire. Being aggrieved the present complaint was filed.
After the OP filed written version the complainant filed evidence of two witnesses on affidavit one by himself and the other by the driver of the vehicle. The OP also filed evidence of two witnesses on affidavit one by the Branch Manager and the other by the Divisional Manager of the OP. After the matter was argued the complaint was decided as stated hereinabove.
Heard Mr. N.R. Mukherjee, the Ld. Advocate for the Appellant and Mr. S. Ghosh, the Ld. Advocate for the Respondent. I have considered the contentions of the respective parties and also perused the records including the records of the Forum.
The first contention of the OP/Appellant is that the parties were not granted opportunity to file questionnaire and reply in respect of the evidence filed by the witnesses on behalf of the contesting parties. On perusal of the order-sheets of the Forum it appears that the OP obtained number of adjournments by filing petitions one after another before filing the written version on 04.12.07. Subsequent thereto parties have again obtained adjournments filing applications.
Complainant filed his evidence on affidavit on 28.3.08 whereupon the OP filed application praying for adjournment stating that due to financial year ending the OP was not in a position to supply any documents. Thereafter also the OP continued to take adjournments on various grounds till evidence on affidavit was filed on behalf of OP on 02.4.08 and on 21.11.08. At a very late stage complaint was amended at the instance of the complainant for making a typographical correction. Therefore, it is apparent that the Forum was extending all cooperation to the parties to contest the matter properly and non-filing of questionnaires and replies were the fault of the parties as they did not ask for the same. It is apparent that though the date was being fixed for argument still at that stage whatsoever steps the parties took, were permitted.
The next contention of the appellant is that from records of the police case it was apparent that the vehicle was given on hire by the complainant on 17.9.04 and reference was made to the police report where it was written that the vehicle was given on hire. In this respect Mr. Ghosh, the Ld. Advocate for the Complainant/Respondent contended that police report is merely a piece of evidence as has been decided in the case of Jaigiri Goswami-Vs-Oriental Insurance Co. Ltd. reported in 2006(3) CPJ 306 and, therefore, instead of relying on that one piece of evidence, the totality of the evidence is to be considered wherefrom it can be found that there is no proof that the vehicle was given on hire by the complainant to the said D. Rajat against payment of charges.
The second contention of the Respondent is that in case of theft the violation of condition of policy is not important and Insurance Company has to make payment under the policy on non-standard basis and it is contended that though in the said case payment was made at 75% of the total coverage but there is no reason of restricting such payment to a lesser percentage.
It appears that in paragraph 2 of the complaint the complainant stated categorically that the vehicle was given to Shri D. Rajat without taking any fare from him. The complainant in his evidence on affidavit also stated in paragraph 9 of the evidence that the vehicle was given to Shri D. Rajat a friend of the complainant, without taking any fare from him. The driver of the vehicle also stated to the same effect in paragraph 6 of his evidence. On behalf of the OPs neither the Divisional Manager nor the Branch Manager in their respective evidence even have made statement as regards any payment of charges for the said vehicle by Shri Rajat to the complainant. Though allegations have been made of using the said vehicle on hire, no payment of any hiring charge has been even stated by the OPs.
In the circumstances there being no evidence as regards payment of any hiring charge mere user of an expression hire in the police report without disclosing any material regarding hiring charges, the Insurer could not proceed to hold that the vehicle was given on hire violating the condition of the policy. The expression hire means - n wages for service; the price paid for the use of anything; an arrangement by which use or service is granted for payment. vt to procure the use or service of, at a price; to engage for wages; to grant temporary use of for payment (often with out) as appears from the Chambers Dictionary (Reprint 1995) and, therefore, without proving payment of hiring charges allegation of the Insurer cannot be accepted as proved.
Therefore, I do not find any ground for interference with the impugned order and the appeal is, therefore, dismissed. The impugned order is affirmed. There will be no order as to costs.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT