West Bengal

Birbhum

CC/14/65

Abdul Karim, S/o Sk. Kalu, - Complainant(s)

Versus

1) Divisional Manager, Bajaj Allianz Gen. Ins. Co. - Opp.Party(s)

P. Banerjee and M. Bondopadhyay

19 Oct 2022

ORDER

Smt. Sukla Sengupta .President.

            This petition of complaint is filed by the complainant Under Section 12 of the Consumer Protection Act, 1986 against the OP members.

            The fact of the case, in brief is that the complainant is a resident of District Birbhum.

            The opposite parties are also running their business within the District Birbhum i.e. within the jurisdiction of this Forum.

            It is further stated by the complainant that being a business man and to earn his livelihood he purchased a Truck (Half Body) Eicher of Medium Goods Vehicle (year of manufacture 2004) being Registration No. WB-39 7496 dated 02/12/2014 vide Engine No. E483CD4LIII621, Chasis No. 20HC41005380 in the year 2004 on the basis of Hire Purchase Agreement being L/A No. BIRBU0103310015 through Sree Ram Transport Finance Company Limited at it’s Suri Branch. The vehicle was hypothecated to OP No. 4. The complainant then purchased an insurance policy from OP No. 3 Bajaj Allianz General Insurance Company Limited at it’s Suri Branch through the OP No. 1 on payment of Rs. 15163/- as final premium of Bajaj Allianz General Insurance Company Limited for the period on and from 29/03/2011 to Midnight of 28/03/2012 Policy No. OG-II-9995-1803-00043428 for Goods Carrying Public Carrier dated 29/03/2011 and as such the petitioner is the consumer under the OP No. 1,2 and 3 as per provision of Consumer Protection Act, 1986.

            It is further stated by the complainant that on 11/03/2012 two of his close friends hired his vehicle in question and did not return back the same to him in time. After a close search of the vehicle and without getting any information from all possible corner the complainant lodged a GD No. 191 but police did not take any further step. Ultimately the complainant compelled to file a written complainant before Ld. A.C.J.M., Bolpur U/S. 156 (3) I.P.C because prior to that Bolpur police did not accept his FIR. Then as per direction of the Ld. A.C.J.M., Bolpur Police Case No. 415/2013 dated 04/12/2013 has been started U/S. 379/420/427 I.P.C and the case has been charge sheeted against the SK. Intaz Mallick and Ansar Mallick.

            It is further stated by the complainant that there after he informed the matter of his insured vehicle to the OP members specially to the OP No. 1,2 and 3 Insurance Company and placed the claim along with all relevant documents but till dated the OP No. 1,2 and 3 did not settle the claim rather repudiated the same.

            Hence, this case has been filed by the complainant against the OP members with a prayer to give direction upon the OP No. 1,2 and 3 to pay the insurance claim of Rs. 459000/- to the complainant along with compensation of Rs. 20,000/- for harassment, mental pain and agony and litigation cost of Rs. 10,000/-.

            The complainant also prayed for direction upon the OP No. 4 and 5 not to disturb or interest his peaceful occupation of the vehicle in question along with other relief or reliefs.

            The OP members have contested the case by filing separate written versions.

            The OP No. 1 and 2 have contested the case by filing their written version denying all the material allegations levelled against them is the written petition of complaint.

            It is the case of the OP No. 1 and 2 that the case is not maintainable in it’s present form and law.

            It is stated by the OP No. 1 and 2 that the complainant has no cause of action to file this case. Because the OP No. 1 and 2 did not get the information of theft immediately after the incident rather they got the information long after 680 days of the occurrence. So, they have deprived from investigating the genuinity of the incident. It is alleged that the complainant has suppressed the material facts. The OP No. 1 can settle the policy on fulfillment of terms and conditions of the same. The complainant failed to inform the OP members in respect of alleged theft in time which is clear violation of the terms and conditions of the policy and thus the complainant cannot get the claim as per prayer for the petition of complaint and the same is liable to be dismissed with cost.

                        So, far the materials on record is concerned the OP No. 3 and 4 though appeared in this case but did not file any written version. Then the matter would be considered against them in exparte though no such specific order is there in earlier occasion.

In view of the above stated pleadings following issues are framed.

Issues

1. Is the case maintainable in its present form and law?
2. Has the complainant any cause of action to file this case?
3. Is the complainant a consumer as per CP Act 1986?
4. Is there any deficiency in service on the part of the OP members?
5. Is the complainant entitled to get the compensation as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?

   Decision with reason.

                        All these issues are taken up together for convenience of discussions and to avoid unnecessary repetitions.

                        Regarding jurisdiction of this Commission to try this case it can be held that both the parties are residing and running their business within the District of Birbhum, which is well within the territorial jurisdiction of this Commission.

                        The valuation of the subject matter is well within the permissible limit of this Forum. So, it is within the pecuniary jurisdiction of this Forum. Considering the petition of law it can safely be held by this Commission that the case is maintainable in it’s prayer form and law.

                        It is alleged in the petition of complaint that the alleged theft was committed on 11/03/2012 subsequently when the complainant placed the claim of compensation to the OP No. 1 on 07/01/2014 then it was repudiated by the OP No. 1 and 2 thereafter the complainant filed this case on 23/06/2014, which is well within the limitation period. So, the respective argument of the Ld. Advocate for OP No. 1 and 2 that the complainant has filed this case long after two years from the date of accident is not tenable and acceptable.

                 

In view of the discussion made above it is held that the case is not barred by limitation.

                        Admittedly the complainant has purchased an insurance policy from the OP No. 3 i.e. Bajaj Allianz Insurance Company Limited being policy No. OG-11-9995-1803-00043428 covering a period from 29/03/2011 to 28/03/2012.

                        From which it is established beyond reasonable doubt that the complainant is a consumer under the OP members and the OP members are the service provider.

                        The moot point of consideration in this case is that whether the complainant is entitled to get the compensation as prayed for because the OP No. 1 and 2 raised question in their written version as well as in their evidence and written argument that as per terms and conditions of the policy in question the complainant being the consumer did not inform the matter of alleged theft of the vehicle immediately after the occurrence, but he informed the matter to the Insurance company long after one year.

                        The respective case of the complainant is that on 11/03/2012 the alleged miscreant took away the vehicle in question of the complainant and they did not return the same in due time then the complainant lodged the GD at police station being GD. No. 191, but police did not take any steps to that effect and FIR was lodge.

                        Thereafter the complainant having no other alternative but to file a petition of complaint before A.C.J.M Bolpur on 30/10/2013 Under Section 156 (3) Cr.P.C and thereafter a police case was started by Bolpur P.S case No. 415/2013 dated 04/12/2013 Under Section 379/420/427 I.P.C 1860, Vide G.R No. 819/2013.

                        In this respect Ld. Advocate of the complainant argued before this Commission that initially he personally tried to recover the vehicle in question. Thereafter he lodge a GD. No. 191 but police did not take any steps then he filed petition of complaint Under Section 156 (3) Cr.P.C and ultimately the police case has been started on 04/12/2013 then he informed the insurance company. It is also the argument of the Ld. Advocate for the complainant that it would not be considered whether the consumer delayed to informed the matter to the Insurance Company about the matter of alleged theft of the vehicle, but it has to be considered whether he informed the police about the incident immediately after the occurrence and in this case the complainant informed the police immediately after the occurrence and lodged GD. No. 191. But unfortunately on a close perusal of the materials on record and evidence of the complainant, police record, and the written argument as filed by the complainant, it is found that it has not been mentioned anywhere in the complaint in anywhere in which police station he lodge G.D No. 191 and on which date. Whether it was immediately after the occurrence or not.

                      

Rather it is evident from the materials on record and it is also admitted by the complainant that the occurrence took place on the 11/03/2012 and the miscreat did not return back the vehicle to him then he lodge GD 191 but the name of the police station as well as the date of the GD has not been mentioned. Which casted cloud both in the mind of the Commission and also in the mind of the OP side. There after long after one year when he could be able to file a case Under Section 379/420/427 I.P.C 1860, Vide G.R No. 819/2013 on 04/12/2013 at Bolpur P.S. at the instance of Ld. A.C.J.M Bolpur then informed the matter to the OP No 1 and 2. From which it is palpably clear that there is/was a gross negligence on the part of the complainant to inform the matter to the P.S. or to the insurance company I.e. OP No. 1 and 2 immediately after the incident moreover from the police report it is crystal clear that though the miscreant being the accused of the case Bolpur P.S. case No. 415/13 dated 04/12/2013 was arrested initially but they were build out on the ground that the case was civil in nature and ultimately FRT was submitted because no evidence was there against the accused persons.

                        In this respect Ld. Advocate for the complainant has cited a case law passed by the Hon’ble Apex Court in Civil Appeal No. 1069 on 2022 in a case between Jaina Construction Company Limited Versus the Oriental Insource Company Limited & Anr. in support of his say that it should be considered whether “the FIR was lodge immediately on the next day of the occurrence of theft of vehicle of the complainant and police arrested the accused and also filed challan, before the concerned court.”

                        Though the facts of this case is something different from the case referred by the Ld. Advocate for the complainant inspite of the same if we relied upon the principle or sprit of the judgement till then the instant case cannot been any support of the above referred case because it is evident and also admitted from the materials and evidence on record that the complainant did not inform the matter to the police immediately after the occurrence and the GD No. 191 which has been mentioned by him in his written complain as well as evidence and written argument has no basis at all because the date and name of the police station has not been mentioned there.

                        On the basis of the discussions made above this Commission is of opinion that in the instant case the police report is the only piece of evidence from which it is proved that the complainant did not informed the matter either to the P.S. or to the OP members immediately after the occurrence. So, the case law as mentioned above referred by the complainant has no application in the instant case and the complainant has failed to prove beyond reasonable doubt that he informed the matter to the P.S. immediately after the occurrence rather it is evident that he informed the matter to the P.S. long after one year of the occurrence and violated the condition of the policy for which he is not entitled to get the compensation as prayed for.

                        In view of the discussions made above this Commission of opinion that the complainant failed to prove that he informed the incident to the P.S. immediately after the occurrence and thereafter to the OP No. 1 and 2 and also failed to prove that there was deficiency of service on the part of the OP members. Thus he is not entitled to get the relief as prayed for.

                        The case is properly stamped.

                        All this issues are this decided accordingly.

                        Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.C. Case No. 65/2014 be and the same is dismissed on contest without any cost.

Let a copy of this order be given/handed over to the parties to this case free of cost.