C.F. CASE No. : CC/2013/23
COMPLAINANT : Joydeb Roy,
S/o Subal Chandra Roy,
Vill & P.O. Silinda,
P.S. Chakdaha, Dist. Nadia
PIN - 741222
– Vs –
OPPOSITE PARTY / OP : Branch Manager,
The New India Assurance Co. Ltd.
Kalyani Branch,
A-9/13 (S), Kalyani
P.O. & P.S. Kalyani,
Dist. Nadia, PIN – 741235
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
: SHRI SHYAMAL KUMAR GHOSH, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 22nd January, 2014
-: JUDGMENT :-
The petitioner Joydeb Roy has filed the instant case against the Branch Manager, New India Assurance Company Ltd., Kalyani Branch, Dist. Nadia herein OP under Section 12 of the Consumer Protection Act, 1986.
Case of the petitioner in brief :-
Complainant insured his vehicle bearing No. WB 15/6283 and Chasis No. 373011FQQ114646, Engine No. 697D22FQQ119629 with New India Assurance Company Ltd. vide policy No. 512402/31/08/01/00001182 for a insured value of Rs. 4,10,000/- for the period from 10.07.2008 to 09.07.2009. The truck was stolen on 30.03.2009 and the fact was informed to Kanksa Police Station and the concerned police station started a case being No. 52/09 dtd 01.04.2009 under Section 328/379 IPC. The matter was informed to the New India Assurance Company Ltd., Kalyani Branch as well as RTO, Hooghly by the petitioner. The Insurance Company sent a claim form to the petitioner and the latter also submitted the said form duly filled in along with the relevant documents to the office of the OP. Waiting for a reasonable time the petitioner went to the OP’s office on three occasions i.e., on 16.09.2011, 24.10,11 and 18.11.2011 for settling the claim and also submitted applications on those days. The OP sent a letter dtd. 30.12.11 and from the letter it became clear to the petitioner that the claim submitted by him has been repudiated on the basis of FIR and Final Police Report and also on the ground of willful negligence on the part of the petitioner. According to the OP the willful negligence on the part of the representative of the complainant / insured was that they allowed some unknown persons in the vehicle during their journey and also accepted food and drinks offered by them which made them senseless. Taking this advantage the miscreants took the truck and fled away. So the OP submitted that the petitioner has failed to take reasonable care to protect the vehicle from theft which is the gross violation of the terms and conditions of the policy. No claim letter was sent to the petitioner. The petitioner being aggrieved has come before this Forum for redressal with the following prayers:-
- Direction upon the OP to pay claim amount / total IDV of Rs. 4,10,000/- @ 9% interest
- Direction upon the OP to pay a compensation of Rs. 1,00,000/- for the harassment and mental agony of the complainant.
- Cost of the suit.
The OP has submitted the written version and later amended the same under order 6 rule 17 read with Section 151 of CPC and inserted some points. The OP submits that the instant case is not maintainable in the present form and is barred by limitation. The OP also submits that the insured representative had not taken reasonable care to protect the vehicle from theft and it is a gross negligence on the part of the complainant and so he is no way entitled to the IDV as the incident would not have happened if the representative were careful. OP also quotes that the observation of the Hon'ble Apex Court that “Negligence is a breach of duty caused by omission to do something which are reasonable man guide by those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the persons sued the essential components of negligence are three Duty, Breach and resulting damage.” OP finally submits that this observation of the Hon'ble Apex Court matches with the acts of the complainants and hence, the instant case / petition is liable to be rejected in limini as there is no cause of action and the complaint is itself vexatious in nature.
POINTS FOR CONSIDERATION
Point No. 1) Whether the petitioner is a consumer under the OPs?
Point No. 2) Whether the OPs suffer from deficiency in service?
Point No. 3) Whether the petitioner is entitled to get the reliefs as prayed for?
DECISIONS WITH REASONS
It has become settled by Plethora of decisions of the Hon'ble Supreme Court, Hon'ble National Commission and Hon'ble State Commission that whether any person approaches the jurisdiction of the Forum for the purpose of having any relief he is under obligation to prove himself to be a consumer. In the instant case it appears from the policy certificate bearing No. 512402/31/08/01/00001182 that the complainant obtained an Insurance Policy from the OP Insurance Company for the period from 10.07.2008 to 09.07.2009 for the insurance coverage of TATA truck bearing No. WB/15/6283 on payment of premium of Rs. 11,646/-. So in view of the status of the complainant and his relationship with the opposite party, he must be found to be a consumer in terms of the provision of section to 2(1)(d) (i) of the Consumer Protection Act, 1986 for the purpose of proceedings. So the point No. 1 is thus decided.
From the final report submitted by Shri Dinesh Mondal, SI of police Kanksa Police, it is evident that during investigation of the case the inquiry officer of concerned police station adopted all possible steps of investigation but nothing could be recovered. Moreover, the complainant has failed to identify the accused in T.I. Parade. The concerned police officer prayed before the Ld. ACJM that the accused person may kindly be discharged from this case as no sufficient evidence could be collected against them. It is also pertinent that there is no single scrap of paper or evidence by which it is proved that the complainant raised or submitted any objection against the said final report submitted by the concerned police station.
So whether the truck has been stolen or not it is totally doubtful. Moreover, in the F.I.R., it has been stated that the complainant received the food and drinks offered by some miscreants. After taking the said foods they became senseless as the miscreants mixed the drugs with the said food. In this regard we are of the considered view that it should not be the proper to take the food offered by the miscreants. As per our view it is the contributory negligence on the part of the complainant and the complainant has failed to take proper and reasonable care to keep the vehicle safe. So the complainant is not entitled to get any relief as prayed for.
The repudiation of claim of the complainant for his wilful contributory negligence on the basis of FIR and other relevant document is justified. So there is no negligence or deficiency in service on the part of the Insurance Company. Thus the point Nos. 2 & 3 are decided.
Thus, considering the above facts and circumstances and in the light of discussion made herein before, the Forum is of view that the complaint must fail against the OP.
Hence,
Ordered,
that the case CC/2013/23 be and the same is dismissed against the OP, Insurance Company without any cost.
Let a copy of the order be supplied to the parties free of cost.
