Bishnu Kumar Sharma…………………………….. Complainant 

                                    Vs

Manager, Royal Sundaram Alliance Company Limited, Jamshedpur Branch and other

14.10.2015                                                      ORDER

By filing this complaint, under the provision of The consumer Protection Act 1986, the complainant has claimed to issue an order to direct the Ops to pay a sum of Rs.534195/ with 12% interest on account of theft of vehicle insured by the Ops together with compensation of Rs100000/ and litigation cost.

 Case of the complainant is that he is the owner of the vehicle No.JH04E/1119 which he got insured with OP.1 through its agent OP.2 under a car package Policy no. VPC0408656000100 covering the risk including theft for a period  commencing from24.12.2012 to 23.12.2013. It is said that on06.12.12 he provided the vehicle to his neighbor to meet the medical emergency as friendship gesture. His neighbor reached to Ruban Hospital Patna on the same at night about 12.30. It was parked there safely and the driver entered into the Hospital. After staying inside about half an hour when the driver came out to the parking place he could not find the vehicle. It was stolen away by some of the miscreants. Information was immediately given by the driver to the nearest Gandhimaidan Police Station, Patna wherewith the FIR No. 397/12 dated 07.07.12 was registered u/s379 IPC. The OP.1, the Insurer  was also informed on the same day i.e 07.12.12. The Police investigated the case and submitted final report to the Court of CJM, Patna who accepted it. The complainant then lodged claim to the OP1 (Insurance Company) and as required by the Company vide its letter dated 26.06.13 all the relevant papers. But the Company (OP1) through its letter dated04.09.13 repudiated the claim of the complainant on the flimsy ground by saying : “ The vehicle was used for commercial purpose thereby violated the Limitation as to use”. The complainant protested the repudiation by addressing a letter which was replied in the same words by the ( OP1) Insurance  Company. Hence this consumer complaint.

The OP1 and OP2 both entered their appearance and filed their versions separately.The OP2 has although denied the allegations formally, he has admitted the fact that he is an appointed agent of the OP1 to do the business of the company (OP1) at Dumka and its adjacent area. He used to collect the insurance premium on behalf of the company from the respective consumers and send the same to the company and accordingly the company used to issue the respective Insurance Policy. It is submitted further that he received a cheque no.125860 dated 16.02.12 drawn at Oriental Bank of Commerce, Dumka worth Rs.18600/ (18929) from the complainant on the same date on account of insurance premium for the vehicle Mahendra Bolero having registration no.JH04E/1119 and sent the same to the nearest branch of the company at Jamshedpur and the company in its turn issued the Policy Certificate No.VPC040865000100 covering entire risk in respect of the vehicle  commencing period from24.01.12 to 23.0113. So far the settlement of claim or its repudiation is concerned, it is in the domain of the company (OP1) and there is no cause of action against this OP2 is thus pleaded .

            The PO1 in its written version has, however, seriously contested the pleadings of the complainant protecting its ground of repudiation of the complainant’s claim. Besides taking plea of lack of jurisdiction of this Forum and denying any relation with OP2 such as agent, it is submitted that the vehicle in question was being used for commercial purpose for transporting the passengers on contract basis on the date of accident as also admitted by the complainant. It is said that the OP(1) has got investigated the matter through M/s Debajit Chakraborty whose investigation revealed that the complainant was using the private vehicle for commercial purpose as on the date of theft it was hired by one Mr. Bijoy Kumar MOdi as his son was  fallen  ill due to fever. The company’s investigator had recorded the statement of said person Mr. Modi who has supported the fact of hiring the vehicle for one day from the complainant to take his son for medical treatment. Copy of the investigation report is annexed as 3&4. It is said that the police records also reveal the use of the  vehicle on hire and reward basis. It is accordingly said that the OP1 has rightly repudiated the claim of the complainant on the basis of violation as to use and terms and conditions of the policy by proper application of mind. On these versions the complaint is prayed to be dismissed.

We have heard the parties and have gone through the record.

Three affidavit evidences of (1) Bijay kumar Modi (2) Jitendra kumar dubey (3) Bishnu kumar Sharma are filed on behalf of the complainant. OP2 sanjiv Ranjan has also filed his affidavited evidence.

            However, no evidence is filed on behalf of OP1 Royal Sunderam Alliance Insurance Co. Ltd.

It is admitted fact that the insurance policy was taken by the complainant as private car package policy from the OP1 insuring the vehicle in question and the theft of the vehicle was committed within the covering period. Then the facts disputed only are to be considered by us.

From the rival contentions of the parties the following issues are framed for determination.

 (i)Whether this Forum has territorial jurisdiction to entertain the complaint ?

 (ii)Whether the repudiation of the claim by OP1 in toto is  justified or not ?

(iii)what relief or reliefs the complainant is entitle to if the repudiation is not justified ?

Issue no (i) is taken first for consideration. There is no dispute that the insured vehicle was stolen away from Patna while parked near Ruban Emergency Hospital. The FIR No 397/2012 dtd.7/12/2012  was lodged with Gandhi maiden police station without delay. The information to the OP1 was also given in time.

Learned lawyer for OP1 contended that the cause of action arose at patna . Besides OP1 has no branch office of Dumka, rather the complainant has taken the policy from Jamsedpur office and the claim was made to its Head office, Chennai, all beyond the jurisdiction of this Forum

On the other hand the Ld. Layer for the complainant contended that the contract was performed at Dumka through OP2  the agent of OP no 1 who even resides at Dumka. It was also contended that the breach of contract by unjustified repudiation of the claim was also communicated to the complainant at Dumka.

Commission of theft is, no doubt occurred at Patna giving rise to take criminal  action against the miscreants within the jurisdictional Police station. But so for arising of cause of action for civil remedy is concerned, it is well known, that it is a bundle of facts which be taken with the law applicable to them giving the plaintiff a right to relief against the defendant. Here the version and statement of OP2, Sanjeev Ranjan supported the fact that he is one of the associates of the intermediary Habibur Rahman the appointed agent of OP1 as per Insurances Development  Regulatory Authority Government of India for doing insurance business. The name of intermediary Habibur Rahman is figured over the Policy Certificate. He has stated that   the Royal sunderam Alliance Insurance Co. Ltd.  has provided the code no 0A501791 to one Habilaur Rahman under whom he is collecting the business for the insurance company at Dumka. He has further deposed that he negotiated with the complainant in that capacity for getting the vehiele insured and received the insurance Premium,  Rs. 18929 through cheque no 125860 drawn at Oriental Bank of Commerce, Dumka and the policy no VPCO 408656000100 was issued by the insurance company(OP1). He has stated that he is still working as associate of the company at Dumka. The repudiation letters dtd 04.09.13 and 01.10.13 are communicated to the complainant at Dumka. No evidence is adduced on  behalf of the OP1to rebut or to impeach the    credibility of OP2 that he is associate of the company through intermediary/ agent of the company which finds place over the policy certificate bearing inter mediary code No .  0A501791. Considering all   these facts we find that the contract of insurance Policy was performed at Dumka through   OP2 being sub agent of OP1.

Thus we fird that part of cause of action arose at Dumka and one of the OP namely Sanjiv Ranjan carrying on business  of  OP1 resides at Dumka. This issue is decided accordingly and is answered in affirmative.

The claim of the complainant in repudiated by OP1 solely on the ground that the vehicle was used for commercial purpose violating the limitation as to use. No doubt the vehicle was used to take the son of one Bijay Kumar Modi who has deposed that the it was taken friendly  to Patna by paying the cost of petrol  consumed. There is indication that the son of said vijay Kumar Modi was needed better medical treatment on the date 06/12/12.  Then the question is that whether it was a private carriage by the owner of the vehicle or it is violation of limitation clause. it is  admitted fact that the car was not driven to Patna for personal use by the complainant . Rather the fuel charge was realized from the user. Then to our opinion if it was given for friendly use, it does not mean to be used private. Then    the relative question is whether repudiation of the  claim in toto by OP1 is    justified or not. We are brought to notice that there did exist a policy based on the guidelines of settling

certain claims, which are not strictly. falling within the limitation as to  use  clause in the Policy, as non-standard claim and provided that such claims could be settled up to  maximum of 75%. Reference may be made  II(2001)CPJ 60 (NC). Such guidelines are contained in the Procedural Manual of Motor claims.

In view of the existence of this procedure and practice ,  we are of the view that the repudiation of the claim of the complainant in toto is not justified. This issue is decided              .is decided accordingly in favour of the complainant and against the OP1.

Issue No(III).  So for this issue is concerned, it is easy for us to say in the fact and circumstances of the case and our findings that the complainant is entitled to get  75% of the insured value Rs. 534195/- it is answered accordingly.

We therefore direct the OP1  (, Royal Sundaram Alliance Company Limited) to pay 75% of the sum assured which comes to Rs,400646/(four lac six hundred and forty six) . We also allowed a sum of Rs. 2000/ (two thousand)as litigation cost. No order is passed against the OP2.             

       The order shall be complied within one month from receiving the copy of this order or from the date of producing a copy to the OP1 by the complainant failing which the complainant will be at liberty to take action u/s25 and 27 of the consumer Protection Act, 1986.

   Let free copy of the order be supplied to the parties.                     .