The case of the complainant, in brief, is that the complainant has purchased one vehicle Maruti Suzuki Model SWIFT DZIRE from Pooder Car World i.e. O.P No. 4 for a consideration of Rs. 7,18,413/- by issuing  cheques. The complainant insured his vehicle with the O.Ps. The said vehicle Bearing No. WB-70H-4041 was insured for the period 13/04/2017 till 12/04/2018. The said vehicle was generated being policy no. 98000031170305237020 covering the risk of the policy period by receiving appropriate policy premium by the O.P from the complainant. Thereafter, on 28/07/2017 two persons came to the driver and requested him to lift them in Jaigaon in the said vehicle and the driver proceeded towards Jaigaon with the said two persons. But the driver did not return on that day and when he came back after three days he disclosed the complainant that the said persons has hijacked the said vehicle from him. The complainant searched the vehicle but in vain and the vehicle is untraced till date and the complainant lodged F.I.R. on 29/07/2017 being Alipurduar P.S. case no. 398/2017 u/s. 365, 379 IPC. The complaianant communicated the matter with the O.Ps and made issrance claim against the insured vehicle. The complainant also made several correspondences with the O.Ps and the complainant also filled up “Claim Form” provided by CoochBehar office as well as Siliguri office. The complainant also visited Siliguri office of “Claim Form” with all papers but all are in vain. The O.Ps did not pay the insurance claim to the complainant. It is pertinent to mention further by the complaint that in “Certificate of Registration / Form No. 23/State Transport Department APD RTO/Govt. of West Bengal, it is written in a column that vehicle is private and in “Motor Claim Form” issued from O.Ps it is further written that “For that purpose was the vehicle be used at the time of theft – persona use.”

           Further that on 27/07/2018 the insured got a letter from O.P No. 2 Vide Claim No. 9800003117039001071/131 stating that “Policy does not cover the use for hire ….. we are extremely sorry for the convenience caused to you.” Finally the complainant got a letter from O.P No. 2 vide no. 512300/Theft/Legal dated 14/08/2018 specifying that the instant matter/”file has been closed on 27/07/32018 and the rejection letter already sent to the insured. The complainant made several attempts but the O.Ps did not pay the insured claim which is deficiency in service on the part of O.Ps.

           Hence, the case has been filed by the complainant against the O.Ps with a prayer to direct the O.Ps to pay Rs. 7,90,673/- with interest @ 18% per annum and also prays to direct the O.Ps to pay Rs. 1,00,000/- for mental agony and sufferings and also to direct the O.Ps to pay Rs. 50,000/- for deficiency in their service and also the O.P may direct to pay Rs. 20,000/- towards cost of litigation.

           In the instant case all the four O.Ps have appeared before this Forum to contest the case by filing separate written version denying all the materials allegation leveled by the complainant against them and prayed for dismissal of the case.           

           The complainant and the O.Ps have filed evidence-in-affidavit as well as written argument in support of their respective cases. Both the parties also filed documents. We have carefully perused the materials on record and heard argument from both the parties.

In this context, the following issues are necessarily come up for consideration to reach just decision of the case.

                                                POINTS FOR CONSIDERATION

           Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?

           Has this Forum jurisdiction to try the instant case?

           Is there any deficiency in service on the part of the O.P?

           To what other relief/reliefs the complainant is entitled?

         DECISION WITH REASONS

                       In this case the complainant purchased a car and wherein he has paid the amount for insurance policy of the said car. During the period of validity of insurance the allegation is that his car was hijacked and he lodged the complaint before the police station and also applied for claim for insurance company but the insurance company did not pay the said amount. According to the Consumer Protection Act the complainant is a consumer and there is a deficiency in service from the side of the insurance company. So, this case is well within the provision of u/s.2 (1)(d)(i)(ii) of Consumer Protection Act as the complainant is the consumer.

                         In this case Ld. Advocate for the O.P raised strong objection against the jurisdiction for filing the case. According to him The New India Assurance Company Ltd. has no branch or business at Alipurduar. It runs business from Cooch Behar and his jurisdiction of this case is at Cooch Behar. Against this argument Ld. Advocate for the complainant submits that at the time of purchase he paid the insurance amount to the dealer and who received the same as an amount of insurance policy so, the jurisdiction is very much within this Commission. After considering all these facts we find that the O.P has no business or branch at Alipurduar. There is no doubt about it. The complainant has purchased the car from Poddar Car World (P) Ltd. Authorized Maruti Suzuki Dealer, Showroom & Workshop at Birpara, Cooch-Behar Road, P.O., P.S. & Dist. – Alipurduar which is situated within the jurisdiction of this Commission. It also appears from the document that at the time of purchase of the said car the said dealer of the car received the insurance policy amount of Rs. 22,328/- and thereafter, the policy was created and handed over to the complainant here. The said dealer of Maruti Company acted as an agent of New Indian Assurance Company Ltd. by receiving the amount of the policy from the complainant and deposited the said amount to the insurance company for which the policy was issued in the name of the complainant. So, when the dealer has acted as the agent of the insurance company for receiving the policy amount we find that the business of insurance company was done from this jurisdiction through the dealer of the vehicle. The arguments adduced by the O.Ps are not at all tenable. This Commission has the jurisdiction to try the same.

                        In this case the allegation is that the vehicle of the complainant was hijacked after that the complainant lodged the complaint to the local police station. The driver was recovered but the car was not. The complainant claim the compensation from the insurance company, the insurance company raised the objection and stating that it was a private care but the driver of the car used the same for commercial purpose and he took some passengers for this purpose and then the vehicle was theft and the driver was kidnapped. In this regard Ld. Advocate for the complainant stated that there is no breach of contract in between the insurance and the complainant he refer a decision Civil Appeal No. 3409 of 2008 of the National Insurance Company Ltd. -Vs- Nithin Khandanwala passed by the Hon’ble Supreme Court wherein the Hon’ble Court opined that the insurance company can not refuse the claim when the vehicle was theft or hijacked only on the ground of breach of condition.

                        In this regard it is a settle principle of law that by given lift in a car can not be treated as it was used for commercial purpose.  The Hon’ble Court opines in a case of Lakhmi Chand -Vs- Reliance General Insurance (2016) 3 SCC 100 that as per law violation of carrying passenger is concern this has constantly help not to be a fundamental breach. So, according to the provision of law as well as the observation of the Hon’ble Courts we find that it is not the fundamental breach by carrying passenger and the insurance company can not refuse the claim only on that ground. The car was duly insured with this O.Ps and insurance was valid when the car was theft. Police information was done. But the insurance company has not paid any insurance claim to this complainant although the complainant is entitled to get the compensation as prayed for. We find that the insurance company has harassed the complainant by refusing his claim so the complainant is entitled to get the compensation as prayed for.

           Hence, for ends of justice, it is,

                                                                       ORDERED

                        that the instant case be and same is allowed on contest against the O.P Nos. 1, 2 and 3 with costs and dismissed against O.P No. 4.  

                        The complainant is entitled to get Rs. 7,90,673/-  as insurance amount along with interest of 8% per annum till realization of the same. The complainant is entitled to get Rs. 50,000/- for his mental agony and sufferings and Rs. 10,000/- for his litigation costs. All the O.Ps except O.P No. 4 is hereby directed to pay the decreetal amount to the complainant within 30 days from this day, failing which legal action will be taken against them for realization of the amount.

 Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.           

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Dictated & Corrected by me