Complainant by filing this complaint has alleged that the complainant purchased one Mahindra Scorpio having Regd. No. WB-02-R-2145, vide Engine No.BD 34J54156, Chasis No. MAITA2BDC32J88399 with the financial help of Citi Bank vide Loan A/C No. A4K 119 – 8103867 and the said loan was subsequently repaid and Bank issued ‘No Objection Certificate’ to the complainant.

          Fact remains that the said vehicle was insured with the op vide Policy No. 100303/31/06/6100002150 against premium of Rs. 11,686/- covering the period from 20.10.2006 to 19.10.2007 for the sum insured of Rs.4,33,210/-.

          Subsequently, on 16.12.2006 Mr Gary O’brien a friend of the Director namely Mr Prabhat Kumar Srivastava took the said vehicle to take his family to City Centre, Salt Lake and parked the same in the Fee Car Parking Zone at City Centre, Salt Lake at about 8:30 PM.  The said vehicle was found stolen at about 10:15 PM from the Fee Car Parking Zone as stated by Mr O’brien in the diary lodged with the Bidhannagar P.S. on 17.12.2006 and accordingly the said P.S. drew FIR u/s 379 of the I.P.C. and seized all the relevant documents relating to the said vehicle.

          That on 18.12.2006 the complainant informed the fact to the op no.1 along with a copy of FIR, policy certificate, tax token, smart card etc requesting the op no.1 to issue a Claim Form and accordingly op issued a claim form and on the very date the incident of theft of the said vehicle was informed to the RTA, Kolkata vide letter dated 03.01.2007.

          That on 29.12.2006 the complainant submitted the Claim form along with the copy of the FIR dated 17.12.2006 that on 18.01.2007 the op no.1 appointed their Surveyor namely ‘Detection’ to inspect and submit report on the basis of the claim of the complainant.  Thereafter the op no.1 kept silent over the matter and on several occasions approached of the op no.1 to enquire about the fate of the claim lodged.

          But suddenly the op no.1 asked the complainant to produce the Final Police Report and the complainant submitted the certified copy of the same and certified copy of the FIR along with a forwarding letter dated 24.03.2007 and then again op no.1 asked the complainant to submit some documents and complainant by a letter dated 05.05.2008 regretted to the op no.1 thereby stating that the documents asked by the op no.1 are all seized by the Bidhannagar P.S. and are lying in their custody. Thereafter complainant sent an affidavit and a seizure list for proper assistance of the op no.1   

          But subsequently, by a letter dated 11.06.2008 op no.1 intimated the complainant that the claim of the complainant stands repudiated for the reasons as stated above and that only affidavit in lieu of original R.C. Book and Insurance Certificate would not served the purpose and that the policy condition no.4 was violated because the ‘ignition key’ was left in the car.

          Thereafter complainant submitted the fact of leaving the ‘ignition key’ inside the car was admitted in writing in the diary lodged with the Bidhannagar P.S. dated 17.12.2006 which was reflected in the FIR also and that fact was not suppressed before the op no.1 also from theft and op no.1 knowing the fact fully well illegally and erroneously repudiated the claim for which for negligent and deficient manner of service this complaint was lodged for redressal.

          On the other hand op by filing written version submitted that the complainant is the private limited company purchased the said vehicle for using the commercial purpose hence, the instant case is not maintainable as per C.P. Act.

          Further it was submitted that complainant failed to submit the Original R.C. Book, RTO Form No.28,29,30 signed by the insured, receipt copy (Original) of letter issued to RTA for such information, 2^nd key of the car and Original Insurance Certificate for which the instant claim case would be dismissed.  It is further submitted that without original RC Book and Insurance Certificate, the matter may not be disposed of or settled and moreover when the car was stolen from third party which was in the custody of third party which is violation of policy condition no.4 of Motor Policy.  Thereafter the instant case is liable to dismiss.  Lastly, they have submitted that in fact for non-compliance of the terms of the policy and for non-production of the valid documents as per rule practically the claim was repudiated though several chances were given to the complainant and for which the complaint should be dismissed.

                                                Decision with reasons

          On proper consideration of the entire complaint and the written version of the op it is proved that the stolen car being No. WB-02-R-2145 was stolen on the night of 16.12.2006 at about 10:15 PM and truth is that the care was taken up by Mr Gary O’brien a friend of the Director of the present company to take his family to City Centre at Salt Lake and undisputed fact is that the care was parking in the Fee Car Parking Zone at City Centre , Salt Lake at about 08:30 PM on 16.12.2006.

          Fact remains the said car was insured under the present op company.  The matter was reported to Bidhannagar P.S. on 17.12.2006 an FIR was lodged and on investigation practically an FIR was submitted as because no source was available to search out the said report.

          Op has also admitted that the complainant submitted everything but not the original RC Book and original Insurance Certificate.  But against that complainant had already submitted affidavit along with seizure list dated 17.12.2006 and from the said seizure list it is found that Bidhnnagar P.S. never started police case on 17.12.2006 under Section 371 I.P.C. and Bidhannagar P.S. seized original certificate of Insurance, original RC Book of the said vehicle.  So, it is clear that there was no scope on the part of the complainant to produce those documents.  But op may verify those documents after visiting the Bidhannagar P.S. But that had not been done by the op.

          But only fault what we have gathered that key was fixed with key board of the car and the friend of the complainant went to market of the City Centre and after return they found the car was stolen from Fee Car Parking Zone.  Then it is clear that the car was kept in a safe area of payment of fee but from there it was stolen and no doubt as per policy, there is certain technical violation and it was done by the friend of the complainant.

          But question is that complainant is a private limited company.  No where it is stated that the car was purchased for used of the same for the company’s Director/ family.  But that is not very vital.  In view of the fact it is mandatory provision of law that the insurance company is bound to pay compensation if car is found lost or it was removed by any thief and it was not ascertainable whether it is and if police failed to search out the key on the basis of the Final Police Report and FIR and also other considering document for theft or lost of vehicle the insurance company is bound to pay the compensation as per contract.

          Ld. Lawyer for the op submitted that the complainant did not follow the clause-4 of the Private Car Package Policy for which the claim was repudiated.

          In this regard we have gone through the provision – 4 wherefrom we find that it is the duty of the insurer to take reasonable step to safeguard the vehicle from loss or damage and maintain it in efficient condition and the vehicle shall not be left unattended without proper precaution being taken to prove further damage or loss.  No doubt in this case the complainant is a company as per provision of law, a company cannot be a consumer as per provision of C.P. Act 1986 as per Provision of Section 2D.

          In this regard, we have considered that provision and no doubt for the purpose of said Section-1 commercial purpose does not include used by a consumer of goods get a use by him exclusively for the purpose of earning his livelihood by means of self-employment.  But in the present complaint, there is no such aversion that the car was purchased by the complainant company for its use by any person of the company exclusively for the purpose of earning his livelihood by means self-employment and no doubt in the eye of law and considering the present position of the present company the complainant is not a consumer in the eye of law and when that is the fact then invariably the present complainant a company private limited cannot be treated as consumer as per provision of Section – 2D of the C.P. Act 1986.  But invariably complainant has his right to implement the present contract before the Civil Court when he is not a consumer as per definition of Section – 2D of the C.P. Act 1986.  On the ground that explanation of Clause – 2D has not be complied with the present complainant and there is no such averment of the complainant.

          In the result, the present complaint fails as complainant is found not a consumer and for which no relief can be granted by this Forum.  Thus the complaint fails.

          Hence, it is

                                                     ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the op.