A brief facts of the case, is that, the complainant purchased one Glamour Scooter manufactured by Hero Motocrop Ltd. for exclusively personal use after getting financial assistance from O.P No. 3 for which easy monthly installments have been settled in the instant complaint the said finance company has been incorporated as O.P No. 3. The complainant took loan from the O.P No. 3 for purchasing the said Glamour Scooter bearing Registration No. WB-70-N7004, Engine No. JA07ACLGG11875, Chassis No. MBLJAW158LGG11827 from Dutta Auto emporium, New Town, Durgabari Road, Alipurduar on 27/07/2022 and the price of the vehicle was Rs. 71,057/- only and as per terms and condition the vehicle was hypothecated to O.P No. 3. After purchasing the said vehicle the complainant insured the same with  the O.P Nos. 1 and 2 under valid certificate cum policy bearing Policy No. 3005/202851902/00/000  with effect from 27/07/2020 to 26/07/2025 midnight. The policy certificate was issued by the O.P Nos. 1 and 2 after receiving the requisite premium and observing all documents and formalities in respect of the said vehicle as well as installments have been paid by the complainant in favour of the O.P No. 3. Thereafter, on 20/01/2021 at about 10:30 P.M. the complainant parked his motorcycle/scooter outside his house and entered inside his house. That after a few minutes when the complainant came out of his house, the complainant found that his parked scooter was missing. The complainant tried his level best to search out the said vehicle but in vain. On 20/01/2021 the complainant lodged a written complaint before Falakata Police Station along with all details relating to the above numbered vehicle but the Falakata Police concerned did not give the complaint received copy of the said complaint rather they assured the complainant that they would first investigate the matter and thereafter they would register any specific case but despite of the lapse of several days the complainant did not receive any information with regard to the said vehicle from the concerned police station.

In the meantime immediately after the incident the complainant informed the matter to the O.Ps in due time and the O.Ps engaged their own surveyor and the complainant submitted all the relevant documents but unfortunately O.Ps did not provide any claim to and also did not co-operate with the complainant. When the complainant again approached the concerned police station, the authority informed the complainant that the FIR which he had lodged earlier occasion had been misplaced and also asked the complainant to lodge a fresh FIR. Accordingly on 17/02/2021 he had lodged the second FIR before the police station and Inspector-in-Charge, Falakata started specific case Vide Falakata PS Case No. 45/2021 dated - 21/02/2021 u/s. 379 I.P.C. and also get the received copy of the same.

After that the complainant submitted representation before the O.P Nos. 1 and 2 and their agents seeking claim vide claim No. MOTO 10807116 in respect of the theft of his vehicle stating inter-alia all the facts. On 18/05/2021, O.P No. 1 issued a notice in writing to the complainant asking about the reasons for delay in lodging the FIR as well as informing the insurer.

After that the complainant on 25/08/2021 replied to the notice dated – 18/05/2021 sent by the O.P No. 1 and stated the reasons therein.  

In order to proof this case complainant has filed some documents. These documents are given below –

1. Annexure – A (Photocopy of certificate of Registration dated – 17/08/2020 issued by Regional Transport Authority, Alipurduar).
2. Annexure – B (Photocopy of Insurance Policy).
3. Annexure – C (Photocopy of F.I.R. dated – 17/02/2021).
4. Annexure D (Photocopy of letter dated – 18/05/2021 vide reference No. MOT 10807116).
5. Annexure – E (Photocopy of letter dated – 25/08/2021 along with postal receipt).  

The complainant filing this case on 02/12/2021 u/s. 35 of the Consumer Protection Act, 2019. O.P Nos. 1, 2 and 3 appear before this Commission and filed written version, evidence-on-affidavit, written argument to contest the case. O.P No. 4 as a pro-forma O.P appeared before this commission on 09/09/2022 but did not turn up to contest the case nor filing any papers or documents.

O.P Nos. 1 and 2 denied the entire allegation made by the complainant and they respectively submits that as soon as the incident was intimated to the opponent the answering O.Ps have appointed IRDA approved independent investigator for assessing the exact cause and extent of loss.  

The surveyor surveyed and after scrutiny of all documents the O.Ps repudiate the claim. The O.Ps also submits that on verification of documents it reveals that the said vehicle bearing No. WB-70-N-7004 belongs to complainant. The F.I.R. was lodged on 21/02/2021 after 32 days regarding the theft of the said vehicle and the date of the theft was 20/01/2021 i.e. 32 days delay in lodging intimation to the insurer.

The O.P Nos. 1 and 2 in his lea stated that the complainant failed to comply with the ‘General Condition’ clause of the policy warding. It is evidence that the incident occurred on 20^th January, 2021 but intimated to the O.Ps after 37 days. The complainant failed to give any plausible explanation for the delay. Thus the O.ps stated that the entire allegation made against the O.P Nos. 1 and 2 are false, fabricated and the complainant is not entitled to get any relief as prayed.

O.P No. 3 in his plea stated that the instant complainant all the allegations are O.P Nos. 1 and 2 and it is specifically submitted that the O.P No. 3 is not aware what is the actual facts, the complainant has any claim does arise it is born upon the O.P Nos. 1 and 2. Answering O.P No. 3 is not responsible for any act of Commission or Omission on the part of the O.P Nos. 1 and 2. O.P No. 3 further submits that the petition of the petitioner is not maintainable in the eye of law as per terms and condition of the agreement as well as the petitioner is borrower of the O.P No. 3. O.P No. 3 also denied that the other O.Ps are inter related in the matter of selling vehicle / motorcycle. that the O.P No. 3 has no connection with the above case all the O.Ps are independent identities and the complainant has no right to get any relief from the O.P No. 3.

O.P No. 3 further stated that the complaint of the complainant against the O.P No. 3 is motivated and it is not tenable in the eye of law as the O.P No. 3 only financier and the complainant is the borrower of the O.P No. 3. So as per terms and conditions complainant shall be bound to paid installment per month to the O.P No. 3.

We are gone through the materials on record very carefully and also perused the documents which are lying on case record the following issues are necessarily come out to consideration to reach just decision of the case.   

                                                  POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019?
2. Has this Commission jurisdiction to entertain the instant case?
3. Have the O.Ps any deficiency in service as alleged by the complainant?
4. Is the complainant entitled to get any relief/reliefs as he prayed for?

    DECISION WITH REASON

           Considering the nature and character of the case all the points are taken up together for consideration for the sake of brevity and convenience.

Point Nos. 1 & 2:- The complainant purchased one Glamour Scooter manufactured Hero Motocorp Ltd. for exclusively personal use after financial assistance from O.P No. 3 for which easy monthly installments have been settled. The complainant  took loan from the O.P No. 3 for purchasing the said scooter bearing Registration No. WB-70-N7004, Engine No. JA07ACLGG11875, Chassis No. MBLJAW158LGG11827 from Dutta Auto emporium, New Town, Durgabari Road, Alipurduar on 27/07/2022 and the price of the vehicle was Rs. 71,057/- only and insured the same with the O.P Nos. 1 and 2 under valid certificate.  Admittedly the complainant is the insured of the vehicle to the O.Ps and the said insurance was still in active at the time of cause action and the policy was issued in favour of the complainant. The allegation is that the O.P Nos. 1 and 2 did not settle the claim of the theft of the vehicle and there is negligence and deficiency in service. So, according to the provision of the C. P. Act the complainant is the consumer and the cause of action arose within the jurisdiction of this Commission.  Further it is seen from this case record as well as the evidence of the complainant that the complainant resides within the territorial jurisdiction of this District Commission. Therefore, this Commission has territorial jurisdiction to try this case as per section 34(d) of Consumer Protection Act, 2019.

Point Nos. 3 and 4:- These two points are taken up together for discussion for the sake of convenience and brevity. Now in order to ascertain whether the O.P Nos. 1 and 2 were negligent and it is there any deficiency in service on the part of the O.Ps and also is there any unfair trade practice on the part of the O.P No. 1 and 2? It is evident and also admitted that the complainant purchased the scooter bearing Registration  No. WB-70-N7004 from the O.P No. 3 which is duly insured by the O.P Nos. 1 and 2 vide Policy No. 3005/202851902/00/000  valid from 27/07/2020 to 26/07/2025 midnight.

It is seen from the case record that the petitioner purchased the scooter manufactured by Hero Motocorp Ltd. for exclusively for personal use after getting financial assistance from O.P No. 3 for which easy monthly installments have been settled, accordingly, in the instant complaint the said finance company has been incorporated as O.P No. 3 was issued by the O.P Nos. 1 and 2 after receiving the requisite premium and observing all documentation and formalities in respect of the said vehicle, as well as installments have been paid by the complainant in favour of the O.P No. 3.

It is also seen from the case record that on 20/01/2021 at about 10:30 P.M. the complainant parked his motorcycle / scooter outside his house and entered his house. That after a few minutes he came out his hose and found his scooter was missing. After that on 20/01/2021 the complainant lodged written complaint before Falakata Police Station but the Falakata Police Station concerned did not give the complainant received copy of the said complaint. The complainant awaited a considerable period with a hope that the police concern of Falakata Police Station would take initiative to search his said missing vehicle but despite of the lapse of several days, the complainant did not receive any information with regard to the said vehicle. Again when the complainant approached before the police concerned, the authority informed the complainant that the F.I.R. which he had lodged in earlier occasion had been misplaced and also asked the complainant to lodge a fresh F.I.R. Accordingly on 17/02/2021 the complainant had lodged a second F.I.R. before Falakata Police concern and the Falakata Police Station started specific case vide Falakata PS case No. 45/2021 dated – 21/02/2021 u/s. 379 I.P.C.

 We have also seen from the case record that immediately after lodging the F.I.R. the complainant submitted representation before the O.P Nos. 1 and 2 seeking claim vide No. MOT10807116 in respect of theft of his vehicle on 18/05/2021 O.P No. 1 issued a notice in writing to the complainant asking about the reason for delay in lodging the F.I.R. as well as informing the insurer. On 25/08/2021 the complainant replied the said notice of 18/05/2021 sent by the O.P No. 1 and stated the reason therein.

As we looked above we have seen that the O.P Nos. 1 and 2 admitted that the complainant purchased the said vehicle and after purchasing the said vehicle the complainant insured the same with O.P Nos. 1 and 2 under valid certificate cum policy bearing Policy No. 3005/202851902/00/000 with effect from 27/07/2020 to 26/07/2025 midnight.

We also seen that complainant stated in his petition that on 20/01/2021 he lodged a written complaint before the Inspector-in-Charge, Falakata Police Station but no copy was handed over the to the complainant and ultimately he came to know that his F.I.R was misplaced and then again after 32 days he has file a written F.I.R on 17/02/2021. We find that the complainant filed a written complaint at first to the police station on 20/01/2021 but he did not file any copy of the said complaint before this Commission if we accept the contention of the complainant that PS did not issue any complaint copy to him we find that his own copy has not been filed. It also appears that in Annexure – C complainant has filed the complaint lodged by him to the PS on 17/02/2021 which was duly received by the police station on that date but nowhere in the said complaint is it mentioned that he has filed the written complaint earlier occasion on 20/01/2021. The complainant stated in his complaint that immediately after the incident of theft he informed the matter to the O.P Nos. 1 and 2 but from Annexure – E we find that he informed O.P Nos. 1 and 2 after 37 days of the incident. So the case of the complainant and the Annexure - E is self contradictory. It also appears from Annexure - D that on 18/05/2021 the O.P Nos. 1 and 2 informed the complainant asking him to ascertain the reasons why he did not informed the matter immediately after the incident or it was informed after 37 days of the incident. But from Annexure - E it appears that the complainant replied the said letter after three months i.e. on 25/08/2021. The explanation as stated as Para - 12 of the complaint as well as in Annexure - E we find that he raised the reasons of Covid – 19 but we find that he purchased the vehicle in the year 2020 in the month of August and the occurrence took place on 20/01/2021 when the pandemic of Covid - 19 was over. The explanation and the act of the complainant is not at all satisfactory one his lazy and negligent act proves that he has violated the general condition of IRDA i.e. the insurance company.  In this regard the complainant has filed a case law of Reliance General Insurance Company Vs M/s Kalinga Trade Linkers being FA No. 1018 of 2014 on 6^th March, 2023 passed by the Hon’ble State Commission wherein the Hon’ble State Commission relied the decision reported in 2018 (1) CPR 907 (SC) in which the Hon’ble Supreme Court has held “It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid ground. Rejection of the clams on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry.” The Hon’ble State Commission stated if the reasons for delay in making a claim is satisfactory explanation such a claim can not be rejected on the ground of delay but here in this case we find that the explanation given by the complainant regarding delay of filing F.I.R as well as intimation to the O.P Nos. 1 and 2 is not at all satisfactory one actually no explanation was given by the complainant for his delay. Rather we find that he is very much lazy to act his case which reveals that he replied the letter of the O.P Nos. 1 and 2 after three months from it’s of issuance. The complainant has violated the general condition of the insurance without any satisfactory explanation and as such he is not entitled to get any benefit from this Commission.

Thus all the points are disposed of accordingly.

            Hence, for ends of justice; it is;-

   ORDERED

that the instant case be and the same is dismissed on contest without costs against the O.Ps.

Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me