1. Kalyani Mitra,

            Jadavpaly, Falakata, Dist. Jalpaiguri,

            West Bengal, Pin-735221.                                                                      _________ Complainant

____Versus____

1. Cholamandalam MS General Co. Ltd.

            Registered and Head Office: “Dare House”,

           2^nd Floor, NSC Bose Road, Chennai-600001.     

2.  Cholamandalam MS General Co. Ltd.

Branch Office: “Chhabildas Tower”, 3^rd Floor,

6A, Middleton Street, Kolkata-71,

P.S. Shakespeare Sarani.   

3. The Branch Manager,

            Cholamandalam MS General Co. Ltd.

Branch Office: “Chhabildas Tower”, 3^rd Floor,

6A, Middleton Street, Kolkata-71,

P.S. Shakespeare Sarani.                                                                                 ________ Opposite Parties

Present :           Sri Sankar Nath Das, Hon’ble President

                        Smt.  Samiksha Bhattacharya, Member

Order No.   17    Dated   27-03-2015

          The case of the complainant in short is that complainant was the owner of the vehicle being regn. no.WB 73B 4497, model no.LPT2515 being chassis no.211164 and engine no.648708. Complainant insured the said vehicle under the policy of o.ps. After returning from the delivery of assignment on 23.5.11 the driver of the said vehicle Mr. Tapan Chakraborty kept the vehicle at Jayanta Petrol Pump, P.S. Falakata and informed the owner of the petrol pump that he was feeling uneasy and therefore he was leaving the said vehicle at that petrol pump. On 28.5.11 at about 6-00 hours complainant was informed by one of the employees of the petrol pump that her vehicle was stolen by some unknown miscreants. On receiving such information complainant immediately rushed to the place of occurrence and found that the vehicle was missing from its parking place. Complainant vehemently searched for the vehicle but could not recover the same despite her sincere efforts. Finding no other alternative complainant informed the incident to the concerned police station and said Falakata P.S. registered a case being FIR no.151 of 2011 dt.31.5.11 U/S 379 of IPC. Thereafter police investigated the matter and arrested one Dubai Dey on suspicion of such theft of the vehicle and interrogated the accused and recorded his statements U/S 161 Cr.P.C. Ultimately, police authority submitted a final report on 29.12.11 U/S 173 Cr. P.C. On 19.6.11 complainant informed the o.ps  and requested them to reimburse the loss of the complainant caused due to the incident. As per o.ps’ instruction complainant submitted filled up claim form on 19.6.12 with all necessary documents required by o.ps. On 25.7.12 o.ps. sent a letter to complainant informing her that the claim has been refused. Complainant has stated in her petition that o.ps. have failed to discharge their obligation for which they are duty bound in terms of insurance policy issued by them. Therefore, complainant filed the instant case praying for Rs.13,05,000/- towards the claim along with compensation and cost.

            O.ps. appeared in this case by filing w/v and denied all the material allegations interalia stated that the incident was occurred on 23.5.11 and after a week owner of the petrol pump informed that the said vehicle was stolen. The liabilities of the o.ps. is subject to due fulfillment of the terms and conditions of the policy. The driver of the said vehicle parked the insured vehicle at the petrol pump on 23.5.11 leaving the keys in vehicle itself and the vehicle was parked at the same place for a period of seven days without taking precaution. The vehicle was found stolen on 29.5.11. O.ps. have stated that complainant was grossly negligent in leaving the vehicle unattended with the keys left in the vehicle for a period of seven days which constitutes a serious breach of condition of the policy. O.ps. repudiated the claim of the insured stating the reason thereon. So, there is no deficiency in service on the part of o.ps. and as such, the case is liable to be dismissed.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular. It is admitted fact that complainant insured the vehicle in question under the policy of o.ps. In the policy period the driver of the vehicle kept the vehicle at Jayanta Petrol Pump. On 28.5.11 complainant was informed by the staff of the petrol pump that her vehicle was stolen. Complainant informed the police station on 31.5.11. Complainant lodged her claim before o.ps. on 19.6.12. It is evident from the petition of complaint that from 23.5.11 to 29.5.11 the vehicle was unattended by complainant. It is also not at all believable why the complainant informed the police station after two days from her date of knowledge of the incident. Moreover, complainant lodged her claim after a long period i.e. on 19.6.12. For any policy both parties binding upon the policy terms and conditions. As per policy condition no.5 “In the event of any accident or break down the vehicle shall not be let unattended without proper precaution being taken to prevent further damages or loss”. In this case complainant has stated in her petition as the driver of the said vehicle felt uneasy he was leaving the said vehicle but complainant has not substantiated by any document why the vehicle was unattended for more or less five days. Complainant has cited one judgment passed in III (2014) CPJ 663 (N.C). In that case driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from the ignition. The lapse on the part of the driver cannot be treated as willful breach of condition no.5 on the part of the driver. In the instant case complainant has not substantiated that the driver of the vehicle was in hurry to answer the call of nature and therefore, the driver forgot to remove the keys from ignition switch. Here the incident occurred after more or less five days from the date when the driver left the vehicle at the premises of the petrol pump. In this connection we have relied upon the judgment passed by Hon’ble National Commission being R.P. No.3840 of 2011 decided on 2.4.12. As the terms and conditions were not followed by complainant we are in the view that o.ps. have rightly repudiated the claim and therefore, there is no deficiency in service on the part of o.ps. and as such, complainant is not entitled to relief.

            Hence, ordered,

            That the case is dismissed on contest without cost against the o.ps.

            Supply certified copy of this order to the parties free of cost.