Orissa

Cuttak

CC/101/2018

Sk Khalil - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

K Sahoo & associates

03 Aug 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.101/2018

Sk. Khalil,

S/O:Sk. Momim,

At/PO:Dhamnagar,Dakhinbad,

Dist:Bhadrak.                                                                                 ... Complainant.

        

                                                Vrs.

1.        The New India Assurance Co. Ltd.,

New Assurance Building,87 M.G.Road,

Fort,Mumbai-400001.

 

2.        Branch Manager,

The New India Assurance Co. Ltd.,

Bhadrak Branch Office,Bhadrak,

Pin-756100.                                                                            ...Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    05.09.2018

Date of Order:  03.08.2022

 

For the complainant:            Mr. Krupasindhu Sahoo,Adv. & Associates.

For the O.Ps               :           Mr. R.Pati,Adv. & Associates.

 

Sri Debasish Nayak,President.                                     

            Case of the complainant in short is that he owns a Mahindra Bolero Pick Up Van bearing Regd. No.OD-22J-2544.  The said vehicle was insured with the O.Ps of this case for a value of Rs.6,31,123/- and the premium therein was paid of Rs.26,501/-.  The said policy bearing No.55080131170300002400 was valid from 9.7.17 to 8.8.18.  The said Bolero Pick- Up Van had met with an accident on 12.12.17 by dashing against the Manguli Toll Plaza thereby causing damage to the front side of the vehicle.  It is further stated by the complainant in the complaint petition that during the said accident, his vehicle was not carrying any cattle but the police while investigating into this case had seized four number of animals from a field nearby a hotel of that locality, which, according to the complainant were arranged by the local people only to cause trouble to the complainant.  The complainant had sent legal notice to the O.Ps through registered post on 4.6.18 with a request to settle his claim as regards to the damage of his vehicle when his claim was refused.  Thus, by filing this case the complainant had claimed a sum of Rs.2,00,000/- with 18% interest per annum thereon from the O.Ps. 

            The complainant has filed xerox copies of a series of documents in order to prove his case.

2.         On the other hand, both the O.Ps have contested this case and have filed their written version jointly.  According to the written version of the O.Ps, the case of the complainant is not maintainable which is liable to be dismissed.  The O.Ps have admitted about the policy undertaken towards the vehicle of the complainant, they also admit about the accident at Manguli Toll plaza on the relevant night but according to the O.Ps, the said vehicle of the complainant was carrying cows while the accident took place for which the police had filed final report with offence U/S-279 of IPC besides Offence U/S-11(a) of Prevention of Cruelty to Animals Act,1960.  Thus, it is alleged by the O.Ps that since because the vehicle of the complainant was carrying prohibited goods which was in violation to the terms of the insurance policy, the claim when made was refused on that score only after giving several opportunities to the complainant to clarify the same.  Thus, it is prayed by the O.Ps to dismiss the complaint as filed.

            The O.Ps together with their written version have filed a series of documents in order to establish their stand.

3.         Keeping in mind the averments as made out in the complaint petition and that in the written version, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion here in this case.

            i.          Whether the case of the complainant is maintainable?

ii.         Whether by repudiating the claim of the complainant, the O.Ps were deficient in their service?

            iii.        Whether the complainant is entitled to the reliefs as claimed?

Issues no.1 & 2.

            For the sake of convenience issues no.1 & 2 are taken up together first for consideration here in this case.

            It is admitted fact that the complainant owns a Mahindra Bolero Pick Up Van bearing Regd.  No.OD-22J-2544 which was insured under policy bearing no. 55080131170300002400 to the tune of Rs.7,50,000/-.  It is also not disputed that the said vehicle had met with an accident in the night of 12.12.17 at Manguli Toll Plaza but the plea of the O.Ps for denying the claim is that during the relevant time, the vehicle in question was carrying prohibited goods like cattle and the permit of the said vehicle which was a commercial vehicle was only to carry non-prohibited goods.  The police Havildar bearing no.1164 namely Dhruba Charan Biswal has submitted FIR that on getting information about the said Bolero Pick Up Van in question which met with an accident in the night of 12.12.17 at about 5.30 O’Clock near the Manguli Toll Plaza was carrying cattle, he had gone to the spot but by the time he reached there, the driver was found to be absent and there was no cattle in the said van but at the nearby vicinity there was a hotel called Hotel Pabitra where there was a field and in that field there were two bullocks, a cow and a calf.  The police had submitted final form in this case to the court of learned JMFC,Rural,Cuttack wherein the police has mentioned about the offence U/S-279 of IPC besides Offence U/S-11(a) of Prevention of Cruelty to Animals Act,1960.  The police had also seized two number of bullock, a cow and a calf along with damaged Bolero Pick Up Van of the complainant and its documents.  While perusing the survey report of the surveyor namely Er. Debadutta Mohapatra at page no.3, it is noticed that he had mentioned with heading “remarks” at sl.no.5 that the permit of the said vehicle to carry goods but not non-prohibited goods,  but the insured was transporting cows in the vehicle in a cruelty manner.  This remark of the surveyor in his report has not been questioned by the complainant in any manner and it has remained unchallenged and unshaken.  Accordingly, this Commission is of a view that by carrying cattle which was not permissible to be carried in the alleged vehicle in question belonging to the complainant, the terms of the insurance policy has definitely been violated and as such, the policy which is undoubtedly a contract wherein the insured O.Ps and the insurer complainant had entered into an agreement; cannot be said to be enforceable due to the breach of the terms and conditions of the contract.  So by repudiating or denying the claim of the complainant can never be said here that the O.Ps were deficient in their service and accordingly it can never be said that the case of the complainant is maintainable.   Accordingly, these two issues are answered against the complainant.

Issue No.3.

            From the above discussions, it is presumed that the complainant is not entitled to any of the reliefs as claimed.  Hence it is so ordered;

 

                                                            ORDER

            The case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without cost.

Order pronounced in the open court on the 3^rd day of August,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                           Sri Sibananda Mohanty

                                                                                                                                Member