West Bengal

Siliguri

CC/2014/05

1. ABHIJIT CHHETRI, - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE CO. - Opp.Party(s)

27 May 2016

ORDER

 

J U D G E M E N T

 

Sri Biswanath De, Ld. President.

 

The complainant’s case in brief is that he had purchased one motor cycle for his personal use, and it was duly insured with the OP No.1, and OP No.2 is the branch office of OP No.1 at Siliguri.  On 06.07.2011, the father of the complainant came to his house, where he was staying at the relevant time, and found that the bike was missing, and as it could not be traced out, the father of the complainant lodged FIR on 07.07.2011 at Bhaktinagar P.S. about the matter.  The complainant intimated the matter of theft to the ARTO, Siliguri.  The complainant came to Siliguri on 11.07.2011 from his place of work, and

 

Contd......P/2

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informed the insurer about the theft.  The OPs had asked to the complainant to clarify about the delay in intimation, and the complainant duly replied to the said letter.  Through letter dated 21.09.2011, the OPs repudiated the insurance claim of the complainant.  The complainant claims that the said letter of repudiation dated 21.09.2011 is not binding upon him.  Bhaktinagar P.S. submitted FRT in connection with the Criminal case, which showed that the motor cycle had actually been stolen, and the said FRT was duly accepted by the Ld. C.J.M., Jalpaiguri.  After obtaining certified copy of the FRT, and the order of acceptance of the FRT, the complainant submitted this to the insurer with a request to reconsider his insurance claim, but the OPs did not respond.  The complainant thus filed this case praying for realization of his insurance claim from the insurer, and he prays for some other reliefs. 

So, it appears from the complainant’s case is that the complainant lives in his working place at Gangtok.  He left his motor cycle at Block – A, Flat No.2, of Baishnab Apartment, Jyotinagar, P.O. & P.S.- Bhaktinagar, Dist.- Jalpaiguri.  There is no whisper who lived at that flat No.2.  There is no whisper who looked after the Flat No.2.  Father of the owner of the vehicle i.e., father of the complainant came from his house i.e., from Malbazar to stay at the residence of complainant at Block A.  So, it could not be ascertained what was the position of the said motor cycle before 06.07.2011.  Only the father of the complainant came to know the alleged so called missing on 06.07.2011.  the Night Guard of the said apartment was asked after searching and enquiry the father of the complainant was unable to find the same and on 07.07.2011 the father of the complainant lodged FIR.  The complainant i.e., owner of the vehicle came to the spot on 11.07.2011 and he informed OP No.1 and OP No.2 regarding the alleged stolen motor cycle.

So, from the complainant’s own case it percolates that actual fact was unearth.       

The OP No.1 has contested the case denying inter-alia all the material allegations as raised by the complainant.  OP states that the positive version of the OP is that the complainant lodged FIR after many days.  The vehicle was stolen on 23.06.2011.  Complainant intimated the OP insurance company on 11.07.2011 i.e., after 18 days.  The FIR was lodged on 07.07.2011 i.e., after 14 days (vide para 20 of W.V.).  The insurance policy could not get opportunity to recover the stolen motor cycle by way of engaging recovery investigating agency for not informing the OP.  The OP did not get opportunity for proper

 

Contd......P/3

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investigation.  The policy condition no.4 speaks that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition.  For this reason, the OP has repudiated the claim of the complainant.  The police as well as agency of the OP did not get opportunity to recover the stolen motor cycle for abnormal delay.  Hence, it is prayed that the case should be dismissed and the complainant is not liable to get any compensation.      

 

Complainant has filed the following documents:-

 

1.       Original copy of Certificate of Registration of vehicle No.WB 74 M 4780, standing in the name of the complainant. 

2.       Original Copy of Insurance Policy Certificate being No.OG-12-2404-1802-00000083, standing in the name of the complainant issued by OP No.1, valid from 5^th April, 2011 to 4^th April, 2012.

3.       Original copy of letter dated 20.09.2011.

4.       Original copy of letter dated 23.08.2011.

5.       Original copy of Repudiation letter dated 21.09.2011, issued by the OP No.2.

6.       Original Copy of FRT submitted by the S.I., Bhaktinagar Police in connection with Bhaktinagar P.S. case No.772/2011 dated 07.07.2011 under Section 379 of I.P.C.

 

          OP Nos.1 & 2 have filed the following documents :-

1.       Certificate cum policy schedule bearing No.OG-13-2404-1812-00000083 in the name of Abhijit Chhetri in respect of his Bajaj Pulsar Motor Cycle bearing No.WB-74-M/4780 valid from 05.04.2011 to 04.04.2012 along with Two Wheeler Package Policy containing the terms and conditions etc. 

2.       Claim intimation.

3.       Motor Insurance Claim Form dated 11.07.2011 submitted by the complainant to the OP insurance company.

4.       BJAZ Motor Claims theft-Declaration form submitted by the complainant to the OP Insurance company.    

5.       FIR lodged/submitted by Dipak Kr. Chettri. 

6.       Letter dated 12.07.2011 issued by the OP insurance company to the complainant. 

7.       Spot investigation report dated 11.08.11 submitted by Mr. Abhijit Saha, Malda.

Contd......P/4

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8.       Letter issued by the complainant to the investigation In-charge, Bajaj General Insurance.

9.       Letter dated 12.09.2011 issued by the OIP Insurance company to the complainant. 

10.     Repudiation Letter dated 21.09.2011 issued by the OP insurance company to the complainant. 

 

          Complainant has filed affidavit of examination-in-chief and written notes of argument.

OPs have also filed examination-in-chief supported by affidavit and written notes of argument.

 

Points for decision

 

1.       Whether there is deficiency in service on the part of the OPs ?

2.       Whether the complainant is entitled to get any relief as prayed for ? 

 

Decision with reason

 

It is crystal clear from the genesis of this case that complainant was residing elsewhere.  In the written complaint he did not mention how much day he was absent from his residence.  In is not clear from his evidence where he kept his motor cycle and who resided that flat as stated by him in para 1 of written complaint.  It is not mentioned who resided in the nearest flat.  It is not mentioned who was the guard.  There is no description of the place of occurrence wherefrom the alleged incident took place.  It is stated his father came to sleep in that flat on that day and found no motor cycle.  It is expected that any person before leaving any room or flat must lock the room under key or give the charge of the room or flat to any person.  The case in our hand does not signify such general events which is common expectation for such type of allegation of theft.  There is no whisper when, how and in what time the said incident took place.  The genesis of this case i.e., the source of this case creates doubt in our mind regarding the allegation embodied in the first para of the written complaint.  Secondly, it is stated that after 15 or 18 days the FIR was lodged to the Police and to the insurance company.  The complainant has filed police report not as a whole, but only the FRT filed by the police.  The complainant there is nothing in record to show that the complainant challenged the police report.  It is matter of surprise how this complainant

 

Contd......P/5

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under discussion adopted the police report in negative.  The mischief point is that police did not seize the vehicle’s key.  There is no mention in the record as well as police report regarding seizure of those articles including keys.  There was no mention what was the condition of the flat, whether the flat was open, or whether the vehicle was kept under sunrays or kept in an open place.  The complainant is anxious for compensation only and that too after filing a long delayed information to the OPs. 

The evidence of both sides is nothing but evidence and counter evidence on same facts and document and counter document on same facts.  But the preponderance of the probabilities of complainant’s case is still to be proved and is a mixture of false and truth. 

At the time of argument, the ld advocate of the complainant avoiding the genesis of this case which has been lighted before realizing on some case laws mainly principles of law in Haryana State Consumer Disputes Redressal Commission, Panchkula, III (2015) CPJ 99 (Har.), Delhi State Consumer Disputes Redressal Commission, New Delhi, III (2008) CPJ 459, Rajasthan State Consumer Disputes Redressal Commission, Jaipur, III (2015) CPJ 104 (Raj.) and National Consumer Disputes Redressal Commission, New Delhi, IV (2014) CPJ 62 (NC).

The Ld advocate of the OP has filed Written Notes of Argument.  At page 10 & 11 ld. Advocate has cited six principles of law.  These are :-

1)       VOL IV (2014) CPJ 637 NATIONAL COMMISSION;

2)       VOL III (2013) CPJ 497 NATIONAL COMMISSION;

3.       VOL II (2013) CPJ 481 NATIONAL COMMISSION;

4.       VOL II (2013) CPJ 726 NATIONAL COMMISSION; 

5.       VOL II (2013) CPJ 406 NATIONAL COMMISSION;     

6.       VOL IV (2010) CPJ 38 SUPREME COURT OF INDIA.

 

          The ratio Decedendi of those cases speaks of immediate information to police after occurrence.  In this case, no such information was given to the OP insurance at once.  The story of theft and keeping of the vehicle in a state of uncared by the complainant is not believable to us.  There is no whisper in the starting of this story when the father of the complainant or the owner of the vehicle last seen the vehicle and where. 

So, all the materials on record fails to inspire confidence in the mind of this Forum that there had been at all any incident took place for which the complainant can claim compensation.

Contd......P/6

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The complainant has wrongly instructed to file this case against the OPs.

Accordingly, the case fails.                   

Hence, it is

                   O R D E R E D

that the Consumer Case No.5/S/2014 is dismissed on contest against the OPs but without cost.   

 

 

   -Member-                       -Member-                           -President-