The complainant Sri Sunil Kumar has filed this complaint petition against IFCO TOKIO General Insurance Company Ltd.  through  Mahnidra Insurance Company limited  Muzaffarpur and two others (o.ps)  for realization of Rs. 3,62,014,/- as sum assured with 9 % p.a interest from the date of theft till realization, Rs. 1 lacs for mental, physical and economical harassment and Rs. 10,000/- as litigation cost.

 The brief, facts of the case is that  the complainant  is an educated unenployeed person he purchased a Mahindra 265 DI Tractor from  Mahindra & Mahindra  company Registration No.- BR06G6569 Chasis No.- NGH-40750, for his livelihood. The further case is that  the complainant got insured his vehicle from o.p. No.1 IFCO TOKIO General Insurance Company. The risk coverage of the insurance was since 05-05-2011 till midnight on 04-05-2012. The further case is that during insured period the vehicle of the complainant was stolen away by knowing  thieves  in the night of 28-02-2012 at about 3:AM. The complainant informed about the occurrence in the local P.S. Mithanpura. On the same day Mithanpura P.S. registered FIR as Mithanpura P.S.Case No.- 53/2012. The further case is that the complainant also informed to Insurance Company and Insurance Company Registered complaint No.-1-1515MPI. The complainant also informed about occurrence to the D.T.O. The further case is that o.ps sent  Sri Vinit Kr surveyor for enquiry about occurrence who enquired  the matter and found the case true. The further case is that after investigation police submitted final form showing the case true but no clue and the same was accepted by  Learned C.J.M Muzaffarpur vide his order dated 12-12-2012. The further case is that the complainant sent all the original documents  to o.ps company and also sent the same to DTO on 12-01-2013 and same document on 22-02-2012. The further case is that o.ps accepted the document of the complainant and asked  him  to submit stamps of Rs. 100/- and also assured that claim will be payable  after signing  the agreement. The further case is that o.p also took  attested signature  on cheque, so the complainant become assured that his claim will be paid  to o.p  but didn’t  pay the claim amount. So, the complainant  filed the complaint petition.

The complainant has filed the following documents with the complaint petition - photocopy of written petition  filed by complainant to O.C. Mithanpura P.S about theft of the vehicle annexure-1, photocopy of  money receipt annexure-2,3 & 4,  photocopy of  application filed by complainant to O.C. Mithanpura P.S. regarding theft of tractor -annexure-5, photocopy of   petition filed by complainant to B.M. IFCO TOKIO Patna annexure-6 &7 , photocopy of   final form No.152/12- submitted in Mithanpura P.S. Case No.53/2012.  Annexure-8, photocopy of  Memo No. 2222/CR Sr.S.P.  Muzaffarpur -annexure-9, photocopy of   order sheet dated 12-12-2012 annexure - 10 photocopy of    D.L. of Narain Pandit annexure-11, photocopy of  PAN CARD & Voter ID Card annexure-12, photocopy of  receipt from DTO office annexure-13, photocopy of  letter of Mahindra & Mahindra  about no objection in  removing the HP/leased/hypothecation claimed from registration certificate insurance policy   NOC is valid for the above said annexure-14, photocopy of acknowledgement receipt granted by Mahindra annexure-15, photocopy of  Indeminity  bond by sunil Kuamr to take delivery  of the vehicle as and when same  traced annexure-16 photocopy of retail invoice annexure-17, photocopy of  Registration Certificate annexure-18, photocopy of  policy note of IFFCO-TOKIO -annexure 19, photocopy of  crossed cheuqe annexure- 20, photocopy of letter sent by Mahindra & Mahindra Financial services to the Manager regarding verification of bank signature of Sunil Kr annexure-21.

On issuance of notice o.p  no. 2 & 3   appeared on 08-08-2013  bu the didn’t file their w.s. so they were bebarred from w.s. vide order dated 18-02-2015. O.P no.-1 didn’t appear, so forum proceeded Ex. Party against him vide the same order dated 18-02-2015.

After hearing both the parties, this forum passed order dated 09-04-2015 and allowed the complaint of the claimant with following orders-“

“ Accordingly, the case and the same is allowed. The opposite parties is directed to pay Rs. 3,62,014 /- with 9 % interest from the date of theft  and he is directed to pay Rs. 1 lac for mental, physical and financial damages  caused  to the complainant  in the said period and further Rs. 10,000/- for the cost suit within one month of the order otherwise the complainant is entitled to get it recover from the process of law.

Being aggrieved by above order, the o.ps preferred  appeal before Hon’ble State Consumer Dispute Redressal Commission,  Bihar Patna vide appeal No.- 138/2015. After hearing both the parties,  Hon’ble Commission has been pleased to set a side the order of this forum and observed as follows” As the applicant – o.p insurance company has not been heard before the District Forum, the financer Mahindra and Mahindra has not been  made necessary party in complaint. Whether  loan amount has been repaid or not, to the  financer, surveyor  has submitted any report or not before the  District Forum these points are to be considered before passing the order. So, in this case the matter needs rehearing before the District Forum. Hence, District Forum order is seaside and  the appeal is allowed and remanded to the  District Forum, Muzaffarpur for fresh hearing of the parties, for taking evidence  if any and for passing a reasoned order within 3 months from the date of receipt of this order.”

After passing of the order by the Hon’ble State Commission,  o.p no.1, 2 and 3 filed a w.s on 02-06-2018 but the same has not neither been accepted nor order of debarring o.ps No. 1 & 2 and Ex. Party against o.p no.-1 has been recalled So, above w.s. is meaningless and has no effect. No evidence has been adduced on their behalf.

 On behalf of complainant two witness that is AW-1 Sunil Kumar and AW-2  Prem Chandra  Singh have been examined on  affidavit.

Both parties have filed  their written arguments on 20-07-2019. The complainant has filed some documents with written argument which is as follows.- One receipt photocopy of receipt of the office of D.T.O. Muzaffarpur. Statement of account report of account No.- 1201545

          It has been mentioned  in the written argument on behalf of complainant that he has not made party to Mahindra and Mahindra financial General Insurance Company Ltd. because he had paid all the  dues to finance company and obtained NOC from him before filing of the complaint petition. It has also been mentioned that after obtaining NOC he also obtained from-35 from DTO office, So, there was no dues of Financer on the vehicle  and no claim was required from Mahindra and Mahindra financed company he has also mentioned in his written argument that there is no role of surveyor report in the  case of theft because there is no question to access the  loss. It has been further mentioned that police found the case true but no clue and filed his final form in the court which has been accepted by the court.

On the other hand written argument  on behalf of o.p has also been filed. It has been mentioned that the complainant has no prima facie cause of action nor deficiency in service against o.ps. It has also been mentioned that the delaying  adjudication of claim is solely attributably  against the claimant  itself as the claimant fail to supply the necessary documents in support of claim i.e. (1) NOC accorded by finance  company (II). No  objection certificate from the financer and form-35.

 AW-1 Sunil Kumar (complainant) has fully supported his case in his examination in chief and the same has been carroborated by AW-2 Prem chandra Singh. On perusal of annexure-14 photocopy of  letter of Mahindra finance it transpires that he issued no objection certificate in removing  the H.P/loss/hypothecation clause from the registration certificate/insurance policy NOC was valid for the   above said vehicle in question. Above NOC was issued on 30-04-2011. The complainant has also annexed photocopy of form-35 as  per annexure-14 it shows that financer had issued from-35 to the registering  authority to terminate the agreement of hypothecation. The complaint has been  filed on 13-03-2013 that is after issuance of NOC certificate by the Mahindra and Mahindra financer company, so argument advanced on behalf of complainant that he had received “No dues certificate” from the financer  and as such he has not made party to the financer appears tenable and plausible. As regards,  the second observation of the Hon’ble State Commission that the surveyor has submitted any report or not before D.C.F, is also to be considered. In this respect the Learned Lawyer for the complainant has submitted that the surveyor had submitted its report to the company (o.p) but company had not furnished any copy of the same to him, so he has not filed the same before the forum. The copy of surveyor report has also not been filed by any party. The o.p was under obligation to file the surveyor report but he has not filed the same nor any evidence adduced on this point on his behalf. So, this point also goes infavour of complainant and against the o.p.

The complainant and AW-2 has fully supported  his case in their deposition on affidavit. The complainant has filed the receipt 15, photocopy  of moter vehicle insurance cover note, part of annexure-15 and  photocopy of certificate of registration  BR06G6569 to show that the tractor in question was insured by the o.p company and registered  in the D.T.O office Muzaffarpur. He has also filed the certificate of insurance as part of annexure-15. On perusal of the  insurance certificate it  transpires that the vehicle in question was insured with o.p company IFCO TOKIO and the insurance was from 05-05-2011 to midnight on 04-05-2012 and the sum assured was Rs. 3,62,014/- The complainant  has also filed the photocopy of petition sent to officer In charge of  Mithanpura P.S. to lodge an FIR as annexure-1 and he had also filed photocopy of  FIR of Mithanpura P.S. Case No.-53/2012. He has also filed annexures-6 to show that he has also informed B.M. of IFCO TOKIO about theft of the vehicle.  The complainant  has also filed the photocopy  of final form as annexure-8 and photocopy of order dated 12-12-2012 to show that the final form has been accepted by the C.J.M. Muzaffarpur. Police found, Case true but not clue.  The above documents goes  to support the case of the complainant. The only plea of the o.p in his written argument that the complainant failed to supply NOC and no objection certificate form-35. The complainant  has filed this case in 2013 an filed photocopy of all documents with complaint petition but the o.p has not taken any interest to pay  claim amount and as such there is deficiency of his part.

In the circumstances the claim petition is allowed and o.p are directed to pay Rs. 3,62,014 sum assured with7 % interest p.a from the date of theft ,  Rs. 20,000/- as physical and mental harassment and Rs. 10,000/-  as litigation cost within two months from the date of  order /, on failure to pay the aforesaid amount, the o.p shall be liable to pay the same with 9 %  p.a. interest till realization. Let a copy of this order be furnished to both the parties as per rule.