This is a case U/s 12 of the Consumer Protection Act, 1986 filed by the complainant with the prayer directing the O.Ps. to pay insured amount of Rs.7,03,738/- including interest @ 9% from the date of incident, to pay compensation of Rs.50,000/- and to pay Rs.7,000/- as litigation cost.

The case of the complainant in brief is that the complainant was the owner of vehicle bearing No.BR-37D/4777, make Mahindra & Mahindra and the said vehicle was insured with the O.Ps. where value of the vehicle was mentioned Rs.7,03,748/- and policy was valid up to 30.01.2013. On 08.07.2012 while the driver was proceeding with the said vehicle towards Islampur, on the way, two unknown miscreants by showing hand with intent to stop the vehicle and when the driver stopped the vehicle they requested the driver to lift them at Islampur as an ill person is with them. The driver was proceeding with the vehicle with the unknown miscreants and after proceeding some distance the said persons requested the driver to stop the vehicle for fetching water from the nearby shop. When the driver went to bring water from some distance then the miscreants fled away with the vehicle. On that night at about 08:30 p.m. the driver informed the complainant about the incident, thereafter the complainant lodged FIR at Islampur PS and case was started as Islampur PS Case No. 453/2012 U/s 379 I.P.C. and police was also submitted final report being No. 204/2013, dated 28.02.2013. The complainant informed the incident to the O.P. along with documents and also sent several reminders but the O.Ps. did not pay heed. Finding no way the complainant reached before this Forum with his claim.

O.P. No.2 contested the case by filing W.V. denying the allegations of the complaint stating inter alia that the instant case is not maintainable in law, that the vehicle in question was private vehicle and it cannot carry passengers but the driver of the vehicle carried unknown persons (miscreants) and was left the vehicle unattended and also left the ignition key of the vehicle which was violated the condition of insurance policy, delayed F.I.R. and also delayed intimation to the company, the O.Ps. are not liable to make any payment as per terms of policy condition and the claim petition is fictitious and devoid of any merit.

O.P. No.1 did not contest the case neither by filing W.V. nor appearing on the date of hearing. So, this case is heard ex-parte against O.P. No.1.

To establish his case the complainant filed memo of evidence, answer of questionnaires, some photocopies of documents in respect of vehicle, FIR, Final Report, letter for correspondences etc.

O.P. No.2 to prove its case has submitted W.V., questionnaires, oral evidence copy of Insurance Policy Conditions etc.

DECISIONS WITH REASONS

We carefully perused the complaint, W.V., questionnaires and answer of questionnaires, photocopies of documents and considered the argument advanced by the contesting parties.

On perusal of complaint it appears that on 08.07..2012 the vehicle in question mentioned above while proceeding towards Islampur and on the way two persons (i.e. miscreants) by showing hand-signal stopped the vehicle and requested the driver to reach them Islampur as very serious patient was with them, then the driver allowed them for boarding the car. Thereafter going some distance these unknown persons (miscreants) requested driver to bring water from some distance, in the mean time the miscreants fled away with the vehicle. Then the driver informed the matter to the complainant about 08:30 p.m. The complainant lodged FIR at Islampur Police Station on 10.07.2012 and informed O.Ps. on 11.07.2012 regarding the incident. Islampur PS after completion of investigation submitted Final Report on 28.02.2013. The complainant made several correspondences knocking the door of the O.Ps. for getting compensation for theft of his vehicle but the O.P. did not pay heed rather repudiated the claim. O.P. No.2 by filing W.V. and oral evidence stated that the driver of the vehicle was plying the vehicle as a hired vehicle by carrying unknown persons as vehicle in question was private vehicle, moreover the driver did not take due care of the vehicle as he left the vehicle unattended with the ignition key of the vehicle. The O.P. also stated that the intimation to the PS as well as to the O.P. was delayed. The driver as well as owner of the vehicle violated the terms and condition of the insurance policy as such the complainant is not entitled to get compensation.

From the contents of the FIR and complaint it reveals that at the time of incident three miscreants persons who boarded journey of the vehicle in question and from the story framed by the complainant in the FIR and in the complaint petition is very doubtful, unbelievable and unreasonable rather it can be assumed that the FIR is prepared with a concocted story for getting undue gain from the O.P. It is fact that the driver of the vehicle in question must have knowledge, the vehicle was a private vehicle and that vehicle cannot ply with the miscreants or unknown persons or hired persons. But on the date of occurrence the conduct of the driver it can be presumed that the driver either permitted the miscreants to board on hired basis or indirectly the driver also involved in the occurrence. The O.Ps. have placed some questionnaires to the complainant in this case regarding mode and manner of theft and terms and condition of policy, where in reply most of the questions the complainant answered with such comment “do not know” or “do not understand the question”, which shows that the complainant deliberately answered the questions this way as he knew if answered properly, true will picture comes out. It is very doubtful that why the complainant being owner of a valuable car, after hearing of incident of theft from his driver on the same night, lodged complaint to the Islampur PS after two days and informed the matter to the O.P. after three days without any explanation of delay, why the complainant did not advised his driver to lodge complaint immediately to the concerned PS and also why not the complainant himself lodged complaint immediately to the PS, who also resides at that time under Islampur PS jurisdiction. For such delayed FIR and intimation to the O.P., both sides have to take immediate action regarding theft, but due to deliberate negligence by the complainant to inform the concerned PS and O.P. have lost their opportunity or last attempt to trace the vehicle.

It reveals from the insurance policy condition that the condition No.1 noted as “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim” and condition No.4 denoted that “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition…………… in the event of any accident or breakdown the vehicle shall not be left without proper precautions being taken to prevent further damage or loss”. But in the instant case that the driver deliberately unattended the vehicle with the ignition key in the vehicle in presence of so called miscreants i.e. unknown persons, which shows clear negligence on the part of the driver of the vehicle.

O.P. No.2 has referred some decisions passed by the Hon’ble National Commission in Revision Petition No.2444/2013, Kamaljit Kaur vs. United India Insurance Company Limited, Revision Petition No.650/2014, Karanjit Kaur vs. M/s Oriental Insurance Company Limited, F.A. No.321/2005, New India Assurance Company Limited vs. Trilochon Jane, etc. In those referred decisions Hon’ble National Commission made observations regarding incase of theft of vehicle which are similar to the instant case and passed their valuable opinion that incase of theft of vehicle, to lodge FIR immediately and also to inform the Insurance Company. So that Police and Insurance Company can get opportunity to trace the theft vehicle but in case of delayed information could be violation of condition of policy as it deprives the insures of a valuable right to investigate to the commission of theft and Hon’ble Superior Courts also observed their view that the word ‘immediately’ as per dictionary meaning is without interval of time, without delay or lapse of time etc. The above referred decisions Hon’ble Superior Commission also observed that if the driver left the vehicle unattended with the ignition key in presence of unknown person without proper precaution and thus violated insurance policy condition.

In view of the discussions hereinbefore we find that the complainant has failed to establish his case by adducing cogent evidence. On the other hand O.P. No.2 is efficiently proved its case by submitting documentary evidence and O.P. has rightly repudiated the claim of the complainant as the driver as well as owner of the car in question violated the terms and condition of the policy as such the complainant is not entitled to get any compensation from the O.Ps. The O.Ps. have no negligence or deficiency in service.

We are of opinion that the complainant is not successful to prove his case.

Fees paid is correct.

Hence, it is

ORDERED,

That the complaint case fails.

Thus the complaint being No.72/2014 be and the same is dismissed on contest against the O.P. No.2 and ex-parte against the O.P. No.1 without cost.

Copy of this order be supplied to each parties free of cost.