The complainant Prabha Pandey has filed this complaint petition against Branch Manager, Magma, H.D.I. General Insurance Company Ltd., Aghoriya Bajar Chowk, Muzaffarpur and two others (o.ps) for realization of Rs. 4,21,920/- as sum assured of tractor,  Rs. 50,000/- as physical and mental harassment with 12 %  p.a. interest from the date of theft and Rs. 20,000/- as litigation cost.

The brief, facts of the case is that   the tractor bearing No.-BR06GA-6270 of complainant was taken away by Tarkeshwar Singh (o.p No.-3) at his house lease  agreement  for agriculture work. The further case is that in the  nigh of  10-07-2015, tractor was parked at the door of Tarkeshwar Singh which was stolen away by unknown  theives for which Paru P.S. Case No- 207/2015 u/s- 379 IPC was registered. The further  case is that on the next date of the occurrence, the information regarding the theft of tractor was given to o.p no.-1 & 2. The further case is that after investigation I.O submitted final form no.- 21/2016 showing the case ‘true’ but no clue and the same was accepted by the  court on 02-04-2016. The further case is that the complainant  filed claim petition before o.p no.-1 & 2 for compensation but the same  was repudiated by the o.ps on the ground that there was inordinate  delay in the  intimation of  claim, these denying the Com. The opportunity to check the veracity of the claim.

The complainant has filed the following documents with the complaint petition - photocopy of  Insurance Certificate annexure-1, photocopy of  order dated 02-04-2016 annexure-2, photocopy of FIR of Paru P.S. Case No.- 207/2015 annexure-3, photocopy of final form annexure-4, photocopy of  show cause notice by o.p to the complainant annexure-5, photocopy of  repudiation letter annexure-6, photocopy of lease agreement annexure -7

On Issuance of summons,    o.p. no. 1 &2  appeared  and filed their w.s. on 14-06-2018 with prayer to dismiss the complaint petition with compensation  to Insurance Company for filing  such type of frivolous  case. It has been mentioned in the w.s. that the complaint  petition is not maintainable either in law or on facts, So, the same is liable to be dismissed. It has been further mentioned that there is no deficiency of service on the part of o.p no.-1 and 2. The o.p nos.- 1 & 2 has admitted about the Insurance policy of tractor bearing No.- BR06GA-6270 in his w.s. with certain terms and conditions  of the insurance policy. It has been further mentioned that vehicle was insured  on the condition that in the event of any theft, complaint  must be lodged  with police immediately besides intimation to the o.p. It has been further mentioned that the tractor was stolen away on 10-07-2015 but  FIR was lodged on 23-08-2015 vide case no.- 207/2015 after delay of 43 days, which is violation of terms and conditions  of insurance policy.   It has been further mentioned that the insurance policy was filed on  26-08-2015, that is after 46 of the  theft which is complet violation of terms and condition and insurance policy. It has been further mentioned that the policy required that insured most take reasonable step to safeguard the vehicle  from loss or damage. It has been further mentioned  that Arun kumar was driver of afore said tractor and he mis  placed the key of the said tractor when he was  in drunken  position  and after that tractor was started directly by wire and  lock was not changed , as such reasonable step was not taken to safeguard the tractor. It has been further mentioned  that aforesaid tractor was given on lease to Mr. Tarkeshwar Singh (o.p no.3)  which was not informed to the insurance company which is violation of terms  and condition of the policy.

O.P No.-3 also appeared and filed his w.s. on 08-12-2016. It has been mentioned in the w.s. that he had taken tractor No.-BR06GA-6270 from the registered owner on agreement for agriculture work he has  corroborated  the occurrence  of theft. It has also been mentioned that Prabhat Pandey had lodged Paru P.S. Case No.- 207/2015 for the occurrence of theft. He has also  supported the claimant’s version in his w.s.

The First question is to be decided by this  forum as to whether the complainant  is Consumer as define u/s – 2 (1) (d) of Consumer Protection Act 1986. Or not? The case of the complainant is that he had entrusted the tractor to Tarkeshwar Singh o.p no.-3 on lease agreement for agriculture work.  The complainant has filed the photocopy of lease agreement as annexure-7. On perusal of the same it transpires that the tractor was interested  to Tarkeshwar Singh on lease agreement for Rs. 1,80,000/- O.P. No.-3 Tarkeshwar Singh in his also appeared the above fact has also  w.s. So, it transpires that the complainant was using the aforesaid tractor for earning  i.e  for commercial purpose and as such he does not come under the definition  of  section 2 (1) d of Consumer Protection Act 1986.

Accordingly, this case is not maintainable  on the above ground.

The o.p no.-1 & 2 has repudiated the claim of the complainant  on the ground that there was inordinate  intimation of claim, thus denied company  the opportunity to check the veracity of the case made by him. Another ground of repudiation of the claim is that as per investigator report and insured statement, insured has no ignition key and he used to start tractor  with support of electric wire only and unable to take  proper safeguard of his vehicle, Which violate the policy condition. On perusal of annexure-3, it transpires that occurrence is said  to be committed on 10-07-2015 and the information of the same was given in the P.S. on 23-08-2015 after delay of 43 days. Learned  lawyer for the claimant  is unable to explain the delay. No evidence has  also been adduced on behalf of complainant to explain above delay. The vehicle (tractor) was stolen away from the  house of Tarkeshwar Singh and the same was ignited by electric wire but the complainant  has not adduced any evidence on this point and as such he  was negligent  to take proper safeguard of the vehicle.  So, there is deficiency on the part of the complainant , not on the part of the o.ps. The complainant himself has violated  to terms and conditions of the insurance policy.

In the circumstances, we are of considered opinion  that this complaint is not maintainable and liable to dismiss.

Accordingly, the complaint petition is dismissed.