Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the petitioner is a Registered Owner of a  HEAVY FOOSA VEHICLE Track, Vide Regd. No. WB23A 8517 and same was insured by Opp. No. 1 & 2 company, vide policy no. 3379/00637133/000/02, insurance covered period from 18/12/2013 to 17/12/2014 and this petitioner has paid Rs. 29,827.00 against the said Policy.

That the said truck was hypothecated to the Indusind Bank i.e. Opp. No. 3 and the petitioner used to repay the loan amount before Opp. 3 concern regularly.

That due to serious illness of the Petitioner, he gave his said vehicle to one Biswajit Singh, S/o- Sajsadan Singh of Kuli Road, Ambagan, Kanchrapara, P.S.- Bijpur, Dist.- North 24 Pgs. For one year on hire agreement basis but since 08/11/2014, the Petitioner had not been getting trace out of said Biswajit Singh and it was confirmed that said vehicle vide Regd. No. WB23A 8517 had been stolen by said Biswajit Singh. Thereafter on 24/11/2014 the Petitioner lodged a written complaint (i.e. F.I.R.)  against said Biswajit Singh, vide Goghat P.S. Case No. – 580/2014, dated 24/11/2014, under section -379 IPC. After proper enquiry as well as investigation the I/O A. Hazari has submitted charge sheet against the said Biswajit Singh before the Ld. A.C.J.M., Arambag Hooghly. The Ld. A.C.J.M., on 10/09/2015 has taken cognizance and issued W.A. against said Biswajit Singh and on the strength of said warrant the plice personal arrested said Biswajit Singh and produced him before the Ld. A.C.J.M., Arambagh Hooghly. On 23/11/2016 Ld. A.C.J.M., Arambagh Hooghly has granted bail infavour of said Bhsiwajit singh and said case pending before the Ld. A.C.J.M. Arambag, Hooghly for trail.

That thereafter the Petitioner 04/12/2014 intimated the said fact of theft of said vehicle to Opps. Office concern and thereafter with some relevant document the Petitioner has submitted claim of Rs. 6,54,075/- before the Opp. No. 1& 2 for getting claim as per said policy. The Petitioner has also informed to said fact to the Opp. No. 3 and prayed for condonation of said E.M.I.

That after receiving the said claim from the Petitioner, the Opp. No. 1 & 2 have registered the above claim vide no. 3379128423 and the authority concern of Opp. No. 1 & 2 also came to the spot and made enquiry. The Petitioner has submitted all relevant documents before said authority concerned but till to date Opp. No. 1 & 2 did not settled the said claim without any cause. Due to lack of said settlement claim amount, this Petitioner has been suffering from economic loss and mental agony as because said vehicle was the only livelihood of the petitioner.

That on 24/09/2016 this petitioner through his Ld. Advocate Md. Rajib sent a legal notice to the Opp. No.1 with a request to settle the claim but after  receiving the said notice, till to date the Opp. No. 1 is still silent yet now for settling the said claim which is tantamount to deficiency of service on part of the Opp. No. 1 & 2.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay a sum of Rs. 6,54,075/- and to pay a sum of Rs. 50,000/- as litigation cost, mental harassment.

Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant has taken a heavy goods carrying which is for the use of commercial vehicle only for which the petitioner is not at all a consumer as per definition of sec 2(i) (d) of the consumer protection act.

The op Insurance company have repudiated the claim as it was intimated after 26 days of the theft.  Be it mentioned here that the vehicle was lost 8.11.2014 and FIR was lodged on 24.11.2014 and the intimation was given to the op Insurance company on 04.12.14.  Insurance policy is a contract between insured and insurer and as per contract Act both the parties are bound by the workings of the contract.  As per condition 01 of Insurance policy intimation has to be given immediately to the insurer in case of any Accident. And the reason for repudiation in delayed intimations that op Insurance company have lost the opportunity to inspect the vehicle and investigate the cause of loss immediately and the vehicle is insured on the condition that in the event of any loss, immediate intimation must be given in writing to the company as well as to the police.  The relevant policy condition is reproduced herein below for the kind reference of this Hon’ble Forum.

The complainant is acting contrary to the settled principles of law of contract.  The issuance of policy is a matter of contract between the parties and each party is bound by the terms and conditions of the contract.  Each condition has to be given due importance by the parties.  The contract of insurance, which is a contract of indemnity, is signed by the parties with open eyes and upon arriving at consensus ad-idem. And that there must be strict compliance with the terms and conditions of an insurance policy, and the complainant having breached a fundamental condition of the policy, this op is not liable to pay any amount to complainant.  In support of the contention that in a contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception or relaxation can be given on any ground. For all these reason the contesting op nos. 1 and 2 have prayed for dismissing this case with costs.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party nos. 1, 2 and 3 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 1, 2 and 3 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party nos. 1, 2 and 3 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

      Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Goghat, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

      All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the petitioner is a Registered Owner of a  HEAVY FOOSA VEHICLE Track, Vide Regd. No. WB23A 8517.
2. It is also admitted fact that the said vehicle was insured under op nos. 1 and 2, insurance company vide policy no. 3379/00637133/000/02.
3. There is no controversy over the issue that the said policy was covered for the period starting from 18.12.2013 to 17.12.2014.
4. There is no dispute over the issue that the petitioner had paid Rs. 29,827.00/- in respect of the said insurance policy.
5. It is admitted fact that the said truck was hypothecated to op no. 3 and the petitioner used to repay the loan amount before op no. 3 regularly.
6. It is also admitted fact that the petitioner on account of his illness have handed over the said vehicle to Biswajit Singh, son of Saj Sadan Singh of Kuli Road, Ambagan, Kanchrapara, under P.S. Bujpur of Dist. North 24 parganas.
7. There is no controversy over the issue that the said vehicle was handed over the Biswajit Singh by virtue of one hire agreement basis.
8. There is no dispute over the issue that the said vehicle was found missing since 8.11.2014 and petitioner failed to tress out the said Biswajit Singh and the vehicle.
9. It is admitted fact that the petitioner had lodged a written complaint (F.I.R.) against Biswajit Singh at Goghat P.S. for the offence of stolen the said vehicle vide registered no. WB 23A 8517.
10. It is also admitted fact that in respect of the complaint of the petitioner Goghat P.S. case no. 580 of 2014 dt. 24.11.2014 for the offence u/s 379 IPC was started.
11. There is no controversy over the issue that in respect of the said incident of theft of vehicle, Mr. A. Hazari investigated the said incident and submitted charge sheet against said Biswajit Singh before the Court of ld. A.C.J.M. Arambagh, Hooghly.
12. There is no dispute over the issue that ld. A.C.J.M. Arambagh, Hooghly on 10.9.2015 had taken cognizance and issued warrant of arrest against Biswjit Singh.
13. It is admitted fact that on the strength of warrant of arrest police arrested the said Biswajit Singh and produced him before ld. A.C.J.M. Arambagh, Hooghly.
14. It is also admitted fact that on 23.11.2016 ld. A.C.J.M. Arambagh, Hooghly had granted bail to the said Biswajit Singh.
15. There is no controversy over the issue that the said criminal case is pending before ld. A.C.J.M. Arambagh, Hooghly for trial.
16. There is no dispute over the issue that the petitioner on 4.12.2014 intimated the fact of theft of said vehicle to the ops.         

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case that the complainant has taken the plea that inspite of submitting the information of theft of the said vehicle to the op nos. 1 and 2 and inspite of producing documents to op nos. 1 and 2 for getting the claim, the op nos. 1 and 2 registered the said claim but had not taken any steps for allowing the claim of Rs. 6,54,075/- but on the other hand the op nos. 1 and 2 had taken the defence alibi that the op nos. 1 and 2 has informed about the said theft of vehicle after 26 days and for that reason they failed to make any enquiry and also failed to tress out the vehicle and for that reason as per condition no. 1 of the agreement of insurance policy the complainant is not entitled to get any compensation and there is no deficiency of service on the part of the op nos. 1 and 2.

        For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant regarding the incident of theft of said vehicle lodged F.I.R. and the said offence was investigated and the accused person was arrested and the case is pending before the ld. A.C.J.M. Arambagh, Hooghly. It is also revealed that the complainant has intimated the incident of theft to the op nos. 1 and 2 but after some delay. It is argued by the ld. Advocate of op nos. 1 and 2 that the op is not liable to pay any amount to the complainant and over this issue the op nos. 1 and 2 relied on the judgments of Apex Court in United India Insurance Co.ltd. vs. Harchand Rai Chandan and Oriental Insurance co. Ltd. vs. Sony Cherivan. But regarding this matter it is the settled principle of law that failure of insurance company with the contractual obligation to release claim amount is deficiency of service. In this connection the definition of service which is embodied in Section 2 (o) of the Consumer Protection Act, 1986 is very important. Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). So the case laws cited/ referred by op nos. 1 and 2 are not applicable in this case and point of argument of op side cannot be accepted. Thus, it is crystal clear that the op nos. 1 and 2 have their fault, negligence and deficiency of service. So, the op nos. 1 and 2 are liable and responsible to pay the claim of Rs. 6,54,075/- to the complainant along with interest.

In the result it is accordingly

ordered

that the complaint case being no. 40 of 2017 be and the same is allowed on contest but in part against op nos. 1 and 2.

It is held that complainant is entitled to get claim of Rs. 6,54,075/- along with interest @ 9% per annum from the date of filing of this case from op nos. 1 and 2, insurance company.

Opposite party nos. 1 and 2, insurance company are directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.