IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/122/2017.
Date of Filing: Date of Admission: Date of Disposal:
02.08.17 09.08.17 02.04.19
Complainant: Subhas Das
S/o Indrajit Das
Vill-Ahiron Petrol Pump,
PO-Ahiron, PS-Suti, Dist-Murshidabad,
Pin-742223
-Vs-
Opposite Party: The Manager, ICICI Lombard General Insurance
Company Limited, Dream World Apartment,
26/3, Sahid Surya Sen Road,
PO&PS-Berhampore
Dist-Murshidabad,
Pin-742101.
Agent/Advocate for the Complainant : Sri. Sambarta Mukherjee.
Agent/Advocate for the Opposite Party : Sri. Nilabja Datta.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Subhas Das (here in after referred to as the Complainant) filed the case against The Manager, ICICI Lombard General Insurance Company Limited (here in after referred to as the OP) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows
The Complainant being the owner of Super Splender DRSCCR, BS (III) of Hero Motocrop Ltd. having registration No. WB949223 , insured his vehicle for a period from 20.04.1 to 19.04.17 under the OP. That on 13.06.16 at about 10.30 a.m. the vehicle was stolen and the Complainant could not trace out the vehicle in spite of search. The Complainant lodged complaint before the local PS and also before the S.P., Murshidabad but no response was found for which he filed an application before the ACJM, Jangipur under section 156 (3) of Cr.P.C. and the application was treated as FIR vide case No. 1074/2016. The Complainant also informed the matter to the insurer. Ultimately, the OP issued a notice dated 12.06.17 repudiating the claim on the ground of delay in lodging the complaint. The delay cannot be the ground of rejection of claim. So it is clearly a deficiency in service on the part of the OP. The Complainant prays for a direction upon the OP to pay a sum of Rs.36,933/- towards the value of the said vehicle and also to pay compensation of Rs.43,000/- for harassment cost and Rs.20,000/- for mental pain and agony.
The OP contested the case by filing written version on 16.01.18, contending that the case is not maintainable and the case is barred by law on limitation. It is the specific case of the OP that the loss of the vehicle is due to gross negligence on the part of the Complainant and sufficient care was not taken by the Complainant for keeping his vehicle in safe custody . Moreover the Complainant lodged an FIR on 16.10.16 i.e. after 125 days from the date of incident and it was intimated to the OP after 162 days from the date of theft. Hence, the OP has rightly repudiated the claim on the ground of delay in lodging the claim.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as she hired services of the OP for consideration.
On going through the complaint, written version and other materials on record and on a careful consideration over the submission of both sides, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P.Act, 1986 as she hired services of the OP for consideration.
Point No.2
The Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of.
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Complainant hired the service of the OP and the vehicle was insured for the period from 20.04.16 to 19.04.17 and the theft was occurred on 13.06.16. It is contended that the Complainant lodged the complaint before the local PS and also before the S.P., Murshidabad but no response was taken from their ends for which the Complainant was compelled to lodge complaint under section 156 (3) of the Cr.P.C. before the Ld. ACJM, Jangipur. It is argued that the OP cannot ignore the claim of the Complainant on the ground of delay. He draws our attention to a decision of the Hon’ble Apex Court passed in civil appeal No. 15611 of 2017 dated 04.10.17 where in it is held that “the National Commission, therefore, is not justified in rejecting the claim of the appeal without considering the explanation for the delay. Hence, the appeal is allowed and the orders of the National Commission, State Commission and the District Forum are set aside and the claim petition filed by the appeal is allowed.”
In reply, the Ld. Advocate for the OP submits that the OP has no deficiency in service. It is contended that the insured is duty bound to lodge claim immediately
after theft of insured vehicle but in the present case, the alleged theft was occurred on 13.06.16 and the Complainant filed a complaint under section 156(3) CRPC before the Ld. ACJM, Jangipur on 20.08.16. It is argued that the Complainant has not explained why he lodged the claim before the OP after 162 days from the date of theft. It is further contended that the ground taken by the Complainant that delay in lodging the claim was due to non-entertainment of his complaint by the local PS and the SP, Murshidabad. He argues that the Complainant has not filed any scrap of paper to establish that he lodged any complaint before the local PS or before the SP, Murshidabad after the alleged theft on 13.06.16. It is submitted that the decision referred by the Ld. Advocate for the Complainant is not at all applicable in the present case as the Hon’ble Apex Court has condoned delay of only 8 days for sufficient reasons but in the present case, the Complainant has not shown any ground to condone his delay of 162 days or filing his claim before the OP. He submits that the repudiation of claim by the OP is justified and there is no deficiency in service.
Perused the written complaint, written version, xerox copies of documents, evidence adduced by the Complainant, written argument and the decision referred by the Ld. Advocate for the Complainant. The Complainant has alleged that his vehicle was stolen on 13.06.16. Admittedly, his vehicle was insured under the OP for the period from 20.04.16 to19.04.17. It is the version of the Complainant that he lodged the complaint with the local PS and the SP, Murshidabad but no response was taken, causing delay in lodging FIR but no scrap of paper has been filed to establish that the Complainant lodged complaint with the local PS or the SP, Murshidabad after the alleged theft of his vehicle.
The Complainant filed the application under section 156(3) CRPC dated 20.08.16 before the Ld. ACJM, Jangipur and FIR was lodged being No.835/2016 dated 16.10.16 U/s 379 IPC by Suti PS. The Complainant has not filed any document to show that he lodged claim before the OP immediately after the alleged theft but the letter of repudiation dated 12.06.17, it appears that the Complainant filed his claim to the OP after 162 days of alleged theft of his vehicle and the Complainant has not denied the said fact.
We have gone through the decision referred by the Ld. Advocate for the Complainant. With due regard to the decision passed by the Hon’ble Apex Court as referred by the Ld. Advocate for the Complainant. We find that the said decision is not at all applicable in the present case. In the present case, the delay of 162 days for intimating the claim to the OP is not at all justified. We find that the delay in lodging claim by the Complainant has not been properly explained and the OP has rightly repudiated the claim of the Complainant on the ground of delay in filing the claim. We think that there is no deficiency in service on the part of the OP. Therefore, the Complainant is not entitled to get any relief in this case.
Reasons for delay
The Case was filed on 02.08.17 and admitted on 09.08.17 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No.CC/122/2017 be and the same is hereby dismissed on contest against the OP without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
