ORDER

Per : Md. Shamim Akhtar, Judicial Member

Dated- 15.04.2024

1. The Appellant /Opposite-party has  filed the present appeal against the order dated 16.11.2018  passed by the Learned District  Consumer Forum,  Vaishali, Hajipur, in consumer complaint case no- 78 of 2014  whereby and where under the Appellant /O.P. has been  directed to pay the sum assured of Rs. 10,00,000/- with 06 % p. simple interest from the  date of  the filing of the  complaint within two months from the date o f the order failing which the  rate of interest will be increased by 12 % .
2.  The case of the Respondent/complainant in brief is that the   complainant used to get ply a Truck no- BR1G-7148 for his livelihood which was insured with the O.P.  vide policy no- 10003/31/13/345702 commencing  from midnight of  29.10.2012 to the midnight of 28.10.2013 and the sum assured was Rs. 10,00,000/-.Further case is that in the night on 05.07.2013 an  unknown  thief committed  theft  of the  vehicle from Abha Petrol Pump,Tinpulwe Chowk, Lalganj,Vaishali and for which Lalganj P.S. case no- 121/2013 under section 379 IPC was lodged and  after investigation   the police submitted  final report as case  true  no clue  which was   accepted by the court. Further case is that the O.P.  insurer was informed about  the theft  and to get insurance all the papers  were submitted to the  office of the O.P but the claim was  not paid and the complainant also sent a legal notice on 19.06.2014  which  was not replied  and Rs. 50,000/- was demanded which w as refused and  hence the complaint.
3. The impugned order shows that the  O.P. insurer appeared and filed  its written statement  in which it  were mainly stated that due to the  negligence  of the complainant  theft of the  insured vehicle was committed  and key of the  vehicle  was in the vehicle and there  is delay in lodging the F.I.R. and the theft was also not reported to  the O.P. within 14  days and as such in  the circumstances, no insurance amount is  payable but  inspite of this the O.P. insurer is ready to pay  the 75% of the sum assured  to the complainant and a letter to this effect was also  sent to the complainant but it  was not replied. Prayer was made to dismiss the complaint.
4.  After hearing the parties the Learned District Consumer Forum, Vaishali, Hajipur passed the impugned order.
5. Being aggrieved and dissatisfied with the impugned order Appellant/O.P.  has filed  the  appeal mainly on the grounds that the impugned order has been passed without considering  the  stand of the  appellant and  the    financer has not been made party as his vehicle is hypothecated  with  the financer and  the impugned order  is bad in law and is fit  to be set aside.
6. We have heard both the sides. Also perused the records including the written notes of argument filed by the parties.
7. Xerox copy of the letter of  the complainant  Lal Babu Sahni which is filed at page 45 of the paper book  shows that the key of the vehicle in question was in the vehicle and  the  vehicle was left unattended since 03.07.2013 and the vehicle was stolen on 05.07.2013.At page 32 and 33 of the paper book copy of  letter dated 02.12.2014 of  the insured company shows  that it appeared to settle the claim  on  non- standard basis @ 75% of IDV which  amounts to Rs. 7,50,000/- and  sought consent of  the complainant  inspite  of  the breach  of condition no-1 and conditionno-5 of the Insurance Policy, but the mentioning of the  aforesaid letter dated 02.12.2014 of the  Insurance Company has been avoided in  the petition  of complaint. Thus it is  clear that owner (complainant) of the vehicle  failed  to take  reasonable steps  for safe                                                                                                guarding the vehicle which according to  the Appellant is violation  of the terms of the policy. The Learned District Forum in the impugned order has failed to consider this fact that the complainant was himself guilty and negligent in safeguarding the vehicle which amounted to violation of the terms of the policy.
8. Further on  the  day of the hearing the  Respondent filed an email  copy of the  letter dated 09.02.2024 of the Sri  Ram  Finance Limited, Hajipur,Vaishali regarding  cancellation of hypothecation endorsement in  vehicle registration certificate. However at page- 13 of the paper book. We find a Xerox copy of the Registration Certificate of the vehicle no. BR-IG-7148 and   it shows that the said vehicle was transferred to the complainant Lal Babu Sahni on 22.10.2010 and the HPA was also terminated.

Thus, on the basis of the above discussion of the materials available on the records, we modify  the impugned order and direct  the Appellant Insurance Company to p ay the  Respondent Complainant 75%  of the sum assured on non- standard basis i.e. Rs.7,50,000/- (Rupees seven lacs and  fifty thousand) only as also admitted  by it within two months from the date of this order failing which it will carry  interest @ 6% per annum till  actual payment. The appeal is disposed of accordingly in above terms. No cost.

9.    A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act, 2019. The order be uploaded forthwith on the confonet of the State Commission.

Let the file be consigned in the record room along with copy of this order.

(Md. Shamim Akhtar)                                                                     (Gita Verma)

Jud. Member                                                                                   Jud. Member

Anita