State Consumer Disputes Redressal Commission
The Divisional Manager, National ... vs Shib Shankar Mukherjee on 18 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/287/2014 (Arisen out of Order Dated 01/10/2013 in Case No. Complaint Case No. CC/41/2013 of District Purba Midnapur) 1. The Divisional Manager, National Insurance Co. Ltd. Haldia Divisional Office, 1st Floor, DNAA Building,New Market, Super Block, Durgachak, Dist. Purba Medinipur, West Bengal, Pin-721 602. ...........Appellant(s) Versus 1. Shib Shankar Mukherjee S/o Late Paresh Chandra Mukherjee, Azadhind Nagar, Hatiberia, Haldia, Dist. Purba Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Ms. Tanushree Dasgupta , Advocate For the Respondent: In-Person., Advocate ORDER 18.09.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 01.10.13, passed by the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur, in Consumer Case No. 41 of 2013, whereby by the complaint was allowed on contest with compensation and cost.
The complaint case, in brief, was as follows:
The Complainant's private car, bearing the registration mark WB-30F/4214, was covered by an insurance policy obtained from the OP Insurance Company. The insurance policy was valid from 04.11.2011 to 03.11.2012. On 08.11.2011 at about noon the driver of the car, namely, Biplab Karan proceeded with the vehicle towards Nachinda Mandir for worship . Four unknown persons forcefully entered the car, while it was on slow motion near Ranichak Railway crossing. They forced the driver at gunpoint to proceed to a lonely place where they tied the driver with a rope. The car was taken away by the miscreants. The Complainant learned about the incident on 09.11.2011 from an unknown phone call. The driver was rescued from within Narayangarh P.S. FIR was lodged with Haldia P.S under No. 139/2011 dated 09.11.2011. GR Case No. 1339 / 2011, dated 11.11.12011 was started by the Ld. ACJM, Haldia, District Purba Medinipur. After investigation, four persons were arrested. Charge sheet was submitted under No. 71/12 against the accused under Section 382/411 IPC . The OP Insurance Company was informed of the incident. Insurance claim was filed along with necessary documents. After exchange of several letters the OP repudiated the claimby their letter dated 18.10. 2012 citing breach of terms and conditions of the insurance policy, against which the complaint was filed before the Ld. Forum below with prayer for direction upon the OPs to pay compensation of Rs. 6,12,000/- with interest and cost.
The OP contested the complaint by filing W.V., wherein all material allegations as made out in the petition of complaint were denied. Relying upon the report submitted by the investigator, the OP stated that the Complainant used to ply the vehicle on hire in gross violation of the specific terms and conditions of the policy . Moreover, OP also pointed out that there were several inconsistencies in the statement of the Complainant and that of his driver. Accordingly, the complaint was repudiated.
OP adduced evidence and additional notes of argument before the Ld. Forum below in course of the complaint proceedings.
Ld. Forum below after having heard both parties and upon perusal of the materials on record including the report of the investigator and the FIR lodged with the Police Station and after scrutiny of the statements made by the driver before the investigator, observed that the grounds of repudiation as stated by the OP in their letter dated 18.10.12 were not substantiated. Deficiency in service on the part of the OP was considered to be established and as a result , the complaint was allowed with direction upon the OP to pay a sum of Rs. 4,00,000/- towards settlement of insurance claim together with compensation of Rs. 20,000/- and litigation cost of Rs. 2000/-.
Being aggrieved by and dissatisfied with the impugned order, the OP-turned-Appellant has come up before this Commission with prayer for setting aside the order.
The memorandum of appeal has been filed together copies of the impugned order, the petition of complaint, the Written Version filed by the OP, the investigation report and other documents.
Ld. Advocate appearing for the Appellant submitted that the claim of the Complainant was repudiated as there was a gross violation of policy condition in so far as the vehicle was being used on hire basis as revealed from the report of the investigator appointed by the Insurance Company . It was also stated by the investigator in his report that the statement of the driver that the vehicle was used on hire basis is very crucial which the Ld. Forum did not consider. The unknown persons removing the driver from the steering of the vehicle were none else than hirers of the vehicle. The vehicle was actually given on hire to some unknown persons contrary to the policy condition. Ld. Forum below failed to appreciate the findings of the investigator in that regard and passed the order in a biased manner which deserves to be set aside.
The Respondent/Complainant in person stated that the investigator's report was not at all reliable in so far as the vehicle was being driven by the driver on his way to Nachinda temple for worship and some unknown persons forcefully entered into the vehicle and over powered the driver. The vehicle was stealingly taken away by the miscreants and there was no question of using the vehicle on hire . No policy condition was violated . The vehicle being stolen, the insurance company is bound to compensate for theft of the vehicle as a case of total loss. Ld. Forum below rightly adjudicated the complaint taking into consideration all relevant facts. Hence, the impugned order deserves to be upheld.
Decision with Reasons:
The point for consideration before us is whether the impugned order suffers from material irregularity or jurisdictional error.
There is no dispute that the vehicle in question was insured with the OP Insurance Company and the insurance policy was valid when the vehicle was taken away by some miscreants as made out in the petition of complaint. The police report vis-a-vis the report of the investigator appointed by the Insurance Company do not have any contradiction in that regard. Ld. Forum below observed in their order as follows:
"... we find complete parity in the statement made by the Complainant in his FIR lodged with the police station vis-à-vis petition of complaint . It is worth mentioning that based on the version of FIR , Haldia Police investigated the matter, arrested 4 persons and submitted charge sheet u/S 382 /411 against the accused persons before the Court of Ld. ACJM , Haldia . It clearly establishes the fact of occurrence of theft. Therefore, we do not find any resilient ground to disbelieve the statement of complainant as made out in his petition of complaint".
Ld. Advocate appearing for the Appellant cited the order of the Hon'ble State Consumer Disputes Redressal Commission, Maharastra in FA 1179/2008 to impress the negligence on the part of the driver in leaving the ignition key with the vehicle caused breach of policy condition, but the facts in the said appeal case and those in the present case are different.
The moot point of repudiation of the claim by the Insurance Company is that the Respondent/Complainant used the vehicle in violation of the policy condition.
It appears that there is no definite and convincing proof in support of the alleged fact of hiring of the vehicle by the unknown passengers . What the private investigator , rather than any IRDA appointed Surveyor, tried to impress is that the statement of the owner of the vehicle /Complainant that the vehicle was sent by him to Maa Nachinda Devi Temple for the purpose of booking a final date of Pooja of the said vehicle could not be accepted as true. Again, the investigator did not accept the alleged fact of forceful entry of some unknown persons into the car. But such presumption on the part of the investigator does not establish or does not conclusively prove that the vehicle was hired by the miscreants on the material day. Accordingly, the investigator's report does not stand as a cogent evidence in support of the fact that the vehicle at the material point of time was hired in contravention of the policy condition.
The settled principle of law is that the breach of policy condition in case of theft of a vehicle is not germane . In that view of the matter we are of the considered view that the Ld. Forum below rightly passed the order and there is no need to interfere with the same.
Hence, Ordered That the appeal be and the same is dismissed on contest. The impugned order is confirmed. There shall be no order as to cost.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER