Mr. SHANTANU KUMAR DASH, PRESIDENT

                         The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Manager, Royal Sundaram Alliance Insurance Co. Ltd., Balasore, O.P No.2 is the Manager, Motor O.D Claims, Royal Sundaram Alliance Insurance Company Ltd., Bhubaneswar, O.P No.3 is the Royal Sundaram Alliance Insurance Company Ltd., Chennai, O.P No.4 is the Branch Manager, Shriram Transport Finance Company Ltd., Nuasahi, Balasore and O.P No.5 is the Sriram Transport Finance Company Ltd., Registered Office at Angappa Naicken Street, Chennai.

                    1. Succinctly put the brief facts, which are material to the case are that the Complainant had purchased a Truck vide Registration No.OR-04M-3435, being financed by O.Ps No.4 and 5 and the above said Truck was insured for Rs.15.00 Lacs under O.Ps No.1 to 3 for the period 08.02.2012 to 07.02.2013, on payment of Rs.26,979/- by the Complainant towards premium. One Mr. Janmejaya Das, S/o. Pitabas Das was engaged by the Complainant to drive the said vehicle with valid driving license and the Complainant was always accompanying his engaged driver in this vehicle as he had no other engagement and this being his only business. But on 26.11.2012, while the driver had been to Hotel Sailaxmi for taking food after parking the Truck left side of N.H-5 and locked also, the said Truck was stolen leaving no clue from Kanhara Pokhari, Sailaxmi Dhaba, where the vehicle was parked. Accordingly, F.I.R was lodged on the next day before Bhandaripokhari Police Station, which was refused by the I.I.C, thus the Complainant was forced to institute a case before S.D.J.M, Bhadrak vide I.C.C No.759/12, which was investigated and F.F was submitted by Bhandaripokhari P.S through S.P, Bhadrak vide G.R Case No.2040/12. Accordingly, Bhandaripokhari P.S submitted F.F No.26, dt.19.03.2014 U/s.379 I.P.C that fact of theft is true but no clue (Annexure-4). The Complainant had intimated the matter of theft of the vehicle immediately to the O.Ps No.1,4 and 6 over telephone under acknowledgement. Though the Complainant had approached for settlement of claim to the O.Ps No.1 to 3 and 6 in several occasions, but all these O.Ps remained silent for a long period and the O.P No.2 sent a letter repudiating the claim of the Complainant on the ground “the keys of the vehicle were kept in the vehicle at the time of theft thereby violating Condition No.5 of the Policy and also there is delay in intimating the loss to the Insurance Company by 25 days and Police Authority by 18 days, thereby violating Condition No.1 and there is a misrepresentation of fact with regards to driver’s care”. Moreover, the Complainant has one key with him till date and the other with O.P No.4. Prayer for settlement of the claim with interest along with compensation and litigation cost.

                     2. The Advocate for Complainant has filed a memo praying to delete the O.P No.6 from the complaint and accordingly, prayer of the Complainant is allowed, thus O.P No.6 is deleted from this case.      

                     3. Written Version filed by the O.P No.4 and 5 through their Advocate, where they have denied about maintainability as well as its cause of action. They have also submitted that the relationship between the Complainant and the O.Ps is that of borrower and lender, thereby no Consumer dispute arises and these O.Ps are not at issue with the Complainant on any question of Law or of facts. Theses O.Ps hereby dispute all the averments in the complaint so long as they are not supported by documents. The vehicle in question is a heavy commercial one, so the Complainant cannot be treated to be a ‘Consumer’ as defined in Sec-2 (d) (ii) of C.P Act, 1986. Hence, the complaint is liable to be dismissed. 

                     4. And also written Version filed by the O.Ps No.1 to 3 through their Advocate, where they have denied about maintainability as well as its cause of action. They have also submitted that the Complainant is running a commercial fleet business for commercial purpose with profit and on the date of theft, the vehicle was loaded with sand and was stolen with the load. It is also submitted that transaction with profit motive does not come within the purview of the definition of “Consumer” as defined U/s.2(1)(d) of the C.P Act, 1986. The Complainant very casually intimated about theft of the vehicle on 21.12.2012 i.e. after lapse of 25 days to the O.Ps and belatedly informed to the Police about the theft on 14.12.2012 i.e. after delay of 18 days, where Policy terms strictly provide that all loss or damages shall be intimated immediately to the O.Ps, however here the Complainant breached the Policy terms by belatedly informing about the theft to the O.Ps by violating Condition No.1 of the Policy. Thus, Condition No.1 of the Insurance Policy reads as:- “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require”. The O.Ps had sought for original ignition keys of the vehicle, however the Complainant stated that both the original keys of the vehicle were lost along with the vehicle and the Complainant confirmed the same in writing vide his statement dt.07.01.2013. It is submitted that the Complainant was negligent in handling the keys of the vehicle and the same is blatant violation of terms of the Policy is making the vehicle vulnerable for theft. It is further submitted that Complainant’s omissions in protecting the vehicle from being stolen has resulted in theft of the vehicle. It is also submitted that the Complainant is contractual bound to take proper and reasonable care to obviate such risks, however the Complainant was negligent here as the ignition key was left in the vehicle’s cabin while the vehicle was left unattended, which provided room for the culprits to take away the vehicle in no time. Further, the terms issued specifically states that the Complainant shall take proper care to safeguard the vehicle from perceived perils like theft. It is submitted that the Complainant has breached the Condition No.5 by not taking the steps for safeguarding the vehicle and therefore, this O.Ps is not liable to pay any sun to the Complainant.   

                    5. In view of the above averments of both the Parties, the points for determinations of this case are as follows:-

(i) Whether the Complainant is a Consumer as per C.P Act.

(ii) Whether this Consumer case is maintainable as per Law.

(iii) Whether there is any cause of action to file this case. 

(iv) To what relief the Complainant is entitled for ? 

                    6. In order to substantiate their pleas, both the Parties have filed certain documents in their support. Perused the same. It has been argued on behalf of the Complainant that he was earning his livelihood by use of a Truck bearing No.OR-04M-3435 by engaging a driver, which was financed by O.Ps No.4 and 5 and the above said Truck was insured for Rs.15.00 Lacs under O.Ps No.1 to 3 for the period 08.02.2012 to 07.02.2013. The said Truck was stolen from the side of N.H-5, while carefully parked by the driver for eating in a Hotel on 26.11.2012. Then the Complainant tried to lodge report to the Police and when refused by the Police, he filed a complain case before SDJM, Bhadrak and on the basis of direction of SDJM, a G.R Case was registered. The Police submitted Final Form on the basis of theft is true, but no clue. It is also submitted that the material fact has already intimated to the O.Ps over Telephone, but no material documents is available in this regard. The O.P No.6 was contacted for several times seeking her intervention for the claim, but the O.P No.6 has already been deleted from this case vide Order No.21, dt.30.11.2016. But, lastly the O.Ps repudiated the claim of the Complainant on the ground of violation of the Policy Condition No.5 regarding keeping the key of the vehicle inside the vehicle at the time of theft and also there was delay in intimating the loss to the Insurance Company by 25 days and the Police Authority by 18 days, thereby violating Condition No.1 of the Policy. On the other hand, it has been argued on behalf of the O.Ps that the repudiation of the claim of the Complainant by the O.Ps for violation of Condition No.1 and 5 of the Policy is valid and genuine. Furthermore, the Complainant is not a Consumer as he was using the said vehicle for commercial purpose. Regarding keeping of key of the vehicle inside the vehicle, it is not supported by any material evidence. So it cannot be believed. Regarding maintainability of the case and arbitration clause, no such material is produced in this regard, for which it cannot be taken into consideration. But regarding lodging of report to the Police and to the Insurance Company, it is the vital factor in this case taking into consideration of Hon'ble National Commission, New Delhi reported in 2014(1) CPR-427 (NC) in the case of Ramesh Chandra, S/o. Shri Munshi Ram (Vrs.) ICICI Lombard General Insurance Co. Ltd., where it has been held that the delay obviously had prevented the Insurance Company as also the Police to start timely investigation with a view to locate and recover the Truck. But in the present case, the incident took place on 26.11.2012 and immediately the Complainant took steps to lodge report to the Police and when failed, he was compelled to institute a case before SDJM, Bhadrak on 12.12.2012. But why the Complainant is silent till yet in spite of not intimating the S.P and sending report to the concerned Police Station by Regd. Post and waited till filing of complain case, when he has failed to lodge report in the Police Station. Regarding informing the Insurance Company immediately over Telephone is also not believable at this stage for wanting of any material evidence. Regarding use of the vehicle for commercial purpose, reliance can be placed on the Authority reported in the case of M/s. Cheema Engineering Services (Vrs.) Rajan Singh disposed on 01.11.1996, where it has been held by the Hon’ble Supreme Court of India that merely earning livelihood in commercial business does not mean that it is not for commercial purpose. Self employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. In the instant case, the vehicle was used by engaging a driver as admitted by the Complainant. But, this case is related to Insurance matter only and for deficiency of service on the part of the O.Ps. Hence, from the materials available in the case record, the Complainant is a Consumer as per Section-2(d) (i) and (ii) of C.P Act, 1986.

                    7. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above authorities as discussed above, this Forum come to the conclusion that though the Complainant is a Consumer as per Section-2(d) (i) and (ii) of C.P Act, 1986, but the O.Ps have rightly repudiate the claim of the Complainant on the ground of delay in lodging report to the Police as well as the Insurance Company, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-        

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.

                         Pronounced in the open Forum on this day i.e. the 12th day of June, 2017 given under my Signature & Seal of the Forum.