Debasis Bhattacharya, Member:
Being aggrieved by the judgment dated 29.08.2012, delivered by the Ld. District Forum, Siliguri, in Case No. 64/S/2011, the Complainant thereof has preferred this appeal. By the impugned judgment, the Ld. District Forum has dismissed the case on contest, but without cost.
The case of the Complainant is that he purchased one Chevrolet Travera Motor Vehicle on 08.09.2005, which was insured with the OP no.2 for a sum assured of Rs.6,10,000/- (Rupees six lakhs ten thousand) for the period from 31.12.2006 to 30.12.2007, vide Policy No. 313207/31/2007/3831 and the vehicle was hypothecated to the OP No.3. While the Complainant was on tour in the North East with his said vehicle and Driver, and returning from Senaparti, Manipur after visiting his friend, they reached a Petrol Pump, namely, Faithful Services, 5th Mile, Dimapur, Nagaland, at about 1.40 A.M. on 06.04.2007 for taking petrol. At that time, three unknown persons came there on a Scooter and suddenly started beating them mercilessly and they forcibly snatched the key of the vehicle from the Driver and ran away with the vehicle along with the relevant papers of the vehicle and cash of Rs.10,000/- (Rupees ten thousand) in a handbag, for which he lodged an F.I.R., being No. 31/07, u/s 392/34, I.P.C., under G.D.E. No. 76/07 dated 06.04.2007, which ultimately ended in a Final Report, being No. 22/07, which was accepted by the Ld. Judicial Magistrate (1st Class), Dimapur, Nagaland. On return to Siliguri, he immediately informed the matter to the OP No.2 by a letter dated 10.04.2007 with copy to the A.R.T.O., Siliguri, and also the OP No.3 by a letter dated 16.04.2007. But, finally, to his utter surprise, he received a letter dated 04.02.2010 from the OP No.2 informing that his claim is repudiated on the ground of his vehicle being used for commercial purposes. Being aggrieved, he served legal notice to the OP No.2 through his Lawyer, Mr. Ratan Banik. Such denial of the insurance claim by the OP No.2 amounts to unfair trade practice or deficiency in service of OP Nos. 1 and2. As such, the case.
On the other hand, the case of the OP Nos. 1 and 2 is that the OP No.2 appointed an independent I.R.D.A. approved and licenced Surveyor, Mr. Arabinda Prasad Maitra of Siliguri, who collected the information that the vehicle was being used for carrying passengers from the vehicle parking place near Hotel Manila, Hill Cart Road, Pradhan Nagar, Siliguri. He called for suitable clarification and submission of relevant records from the Complainant by a letter dated 28.04.2007, and also requested separately to disclose the proper address of the persons who were conveyed to Senapati, Manipur prior to the incident. But, he did not comply the same. It was gathered by the said Surveyor/Investigator that one Mr. Hegin Kipgen and his associate member of Krishi Vigyan Kendra, Senapati, Manipur came on official works in Darjeeling District and arrived at Siliguri from Kalimpong and stayed in Hotel Manila, Siliguri and they hired the concerned vehicle from the parking place near Hotel Manila and left for Manipur with a load of huge nursery seedling and after unloading the same, the Complainant collected scheduled fare of Rs.15,000/- (Rupees fifteen thousand) and left for Siliguri on the same night. As the concerned vehicle was engaged and used for hire and reward purpose, the concerned vehicle was œbeing used otherwise than in accordance with the limitation as to use?, under general exception no. 3 (a) of the Private Car Package Policy, and condition no. 4 of the said Policy also specifically speaks that œthe insured shall take all reasonable steps to safeguard the motor car from loss?, for which the OP Nos. 1 and 2 are not legally liable to pay any compensation to the Complainant. Accordingly, they prayed for dismissal of the complaint.
It is to be considered if the impugned judgment suffers from any kind of anomaly so as to reverse the same.
Decision with reasons.
Ld. Advocate for the Appellant has submitted that the claim has been repudiated by the Insurance Company arbitrarily and illegally, which being not binding on the Complainant, which has been challenged before the Ld. District Forum. Further, the vehicle was purchased on taking Auto Loan from the OP No.3, which is still outstanding. There has been an inordinate delay in the report by the Surveyor, though the Complainant rendered all sorts of co-operation to him, and so also the repudiation by the Insurance Company, for which compensation is entitled to the Complainant and has referred to a decision of this Commission, as reported in 2002 WBLR (CPSC) 803. Repudiation has been caused by a letter dated 04.02.2001, on the basis of the Investigation Report of the Surveyor, regarding user of the vehicle in hire and reward work at the material time, and the same is mainly based upon a Certificate of the Secretary, Foundation for Environment and Eco. Dev. Services, Manipur in the letterhead of Krishi Vigyan Kendra-Sylvan, Senapati, Manipur, but no copy of the order book, nor copy of report of Mr. Hegin Kipgen was obtained, and its Cashier was not examined by the Surveyor. He also did not collect the statement of the staff and management of Hotel Manila, Siliguri. So, the hire is not proved, and so the reward. It is not a case that the complaint is bogus, vexatious and frivolous. Nor the F.I.R. is said to be a frivolous and vexatious, in which F.R.T. was made. It is valid case of theft which has been proved.
Ld. Advocate for the Respondent Nos. 1 and 2 has submitted that the impugned judgment is vivid in nature, which should be upheld.
Ld. Advocate for the Respondent No.3 has not contended anything in or against the appeal.
There is ample proof, as also finding of the Ld. District Forum to the extent there is in fact a hire and reward function done by the Complainant by the user of the insured vehicle which is meant for private use. This is a clear violation of the terms and conditions of the Insurance Policy. Otherwise, there was no occasion for the Krishi Vigyan Kendra, Senaparti to issue a Certificate in this regard. The said vehicle, admittedly, went to Senapati, Manipur, though stated by the Complainant to visit his friend there, but his name was withheld. Materials on record very much bear the truth of the findings by the Surveyor/Investigator that the said vehicle was hired from the parking place near Hotel Manila, Siliguri and taken to Manipur with load of huge nursery seedling. The purpose for taking the vehicle as mentioned in the Certificate of the said Krishi Vigyan Kendra also made out taking of a load of seedling. Accordingly, there is no wrong in the matter of repudiation by the Insurance Company, so also upholding the same by the Ld. District Forum. Also, the Police case was started under Section 392/34, I.P.C. and ended also in F.R.T. under Section 392/34, I.P.C., which is separate and distinct from theft, being robbery, and the two decisions cited in this behalf by the Ld. Advocate for the Appellant, as reported in I (2010) CPJ 167 (NC) and 2012 (4) CPR 196 (NC), do not go to help the Appellant in any manner
Accordingly, the appeal fails, and the impugned judgment sustains.
Hence,
ORDERED
that the appeal be and same is dismissed on contest against the Respondents, but without cost. The impugned judgment is hereby affirmed.