PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the relief of insured declared value Rs.6,70,000/- with interest @ 12% p.a., Rs.25,000/- compensation for mental torture and Rs.10,000/- cost of the complaint.

2)        Brief fact of the case of Complainant is as under –

          The Complainant is doing the business of transportation of goods and his office is at Civil Road, Danabunder, Mumbai-400 009.  The Complainant is the owner of the vehicle truck bearing Registration No.MH-43-E-6762. The Complainant has insured his above vehicle with the Opposite Party. Opposite Party issued to the Complainant Policy No.112000/31/10/1/00002198 and its Insured Declared Value Rs.6,70,000/- for the period of 19/09/2010 to 18/09/2011 covering all the risk such as riot, theft, accident during the period of policy.

3)        The further case of the Complainant is that, on 19/12/2010 his driver Mr. Ramjit Jaiswal was driving unloaded truck in question.  On that day he unloaded the truck at Ahmedabad and started to return to Mumbai. On 19/12/2010 at 2.10 p.m. when the truck reached at Also Hotel, Asalali, National Highway No.8, Mr. Ramjit driver and cleaner of the truck went for the lunch in Also Hotel. After taking lunch the driver and cleaner returned to the place where the truck in question was parked to proceed further to Mumbai.  Unfortunately the truck in question was not found to the driver at the place where it was parked.  The driver immediately lodged the report in the Aslali Police Station, Dist. Ahmedabad.  The said police registered the crime on the basis of said report. The police of Asalali Police Station could not trace the truck in question therefore, the Complainant lodged claim form for the value of the truck in question on 27/12/2010.  The Regional Office of Opposite Party sent letter to the Complainant and demanded certain documents by the letter dtd.05/05/2011. Accordingly, the Complainant sent the said documents by the letter dtd.09/06/2011.  The Complainant had repeatedly visited to the Opposite Party for his claim.  On 09/09/2011, Opposite Party rejected the claim of the Complainant. On 05/10/2011 the Complainant received the repudiation letter of Opposite Party. Opposite Party has adopted unfair trade practice and there is deficiency in service on the part of the Opposite Party.  Hence, this complaint for reliefs mentioned in above para no.1.

4)        Opposite Party has resisted the claim by filing written statement. The contention of the Opposite Party is that, the Complainant has not filed complaint within two years from the date of cause of action as laid down u/s. 24-A of the Consumer Protection Act, 1986.  The cause of action has been arosed on the date of alleged theft i.e. on 19/12/2010. The complaint has been filed on 20/09/2013 which is barred by limitation.  The further contention of the Opposite Party is that once an insurance claim has been fully investigated and repudiated after proper application of mind a consumer complaint is not maintainable.  It is expressly agreed that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not, within twelve calendar months form the date of such disclaimer have not been made the subject matter of a suit in a Court of Law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.  As per condition 5 of the policy, the insured shall take all reasonable stapes to safeguard the vehicle insured from loss or damage and the Complainant has breached the said condition by not safeguarding the truck in question. 

5)        The further contention of Opposite Party is that the Complainant himself was a party to the theft.  This is because the Complainant clearly asserts that, the theft occurred only because the ignition key was left inside the ignition switch and it is not his case that the vehicle was stolen by hotwiring.  Opposite Party has rightly repudiated the claim of the Complainant.  Opposite Party is not guilty of unfair trade practice and deficiency in service.  Opposite Party has denied all rival contentions of the Complainant and prayed for dismissal of the complaint with costs.

6)        From the pleadings of the parties, following points arises for determination and our findings thereon are noted against each of them for the reasons given below –

                                    Points                                                       Findings

1.   Whether the complaint is within the period of                    Affirmative.

      limitation ?                                                                                                         

2.   Whether Opposite Party is engaged in unfair trade          Negative.

      practice and deficiency in service ?                                                                        

3.   Whether Complainant is entitled to the reliefs                   Negative.

      as claimed ?      

4.   What order ?                                                                     As per final order

Reasons

7)        The Complainant has filed his affidavit of evidence.  Opposite Party has filed affidavit of evidence of Mr. Bibo Bose, Divisional Manager.  Both the parties have submitted their respective written notes of arguments.  We have gone through the documents filed by the parties. We heard oral arguments of Shri. Arun Kumar Roy, Ld.Advocate for the Complainant and Smt. Antima Dalal, Ld.Advocate for the Opposite Party. 

8)        Point No.1 :-  The contention of the Opposite Party is that, the complaint has not been filed within the period of limitation.  According to the Opposite Party, the alleged theft of truck took place on 19/12/2010, The complaint has been filed on 20/09/2013.  The complaint is filed beyond period of two years after the cause of action. The cause of action arosed to file the complaint on 19/12/2010.  Admittedly Opposite Party has repudiated the claim of the Complainant by letter dtd.09/09/2011. The Complainant has produced copy of said letter alongwith the complaint at page no.17. On bare perusal of said letter it is clear that the Complainant received repudiation letter on 23/09/2011 at 3.30 p.m.  Opposite Party has not produced any record to show that the letter of repudiation of claim has been received to the Complainant prior to 23/09/2011.  From the above evidence it is clear that the cause of action arosed to file the complaint on the date on which Complainant received letter of repudiation of claim i.e. on 23/09/2011.  The complaint is filed within two year from 23/09/2011 and therefore, it is within limitation as laid down under Sec.24-A of the Consumer Protection Act, 1986.  Hence, Point No.1 answered in the affirmative.

9)        Point No.2 :-  Admittedly the Complainant is the owner of truck bearing registration no.MH-43-E-6762.  Opposite Party issued insurance policy of said vehicle to the Complainant Policy bearing No.112000/31/10/01/00002198 for Insured Declared Value Rs.6,70,000/- for the period 19/09/2010 to 18/09/2011.  The theft of truck in question took place on 19/12/2010.  The case of the Complainant is that on 19/12/2010 Mr. Ramjit Jaiswal, driver was driving the truck in question. When the said truck reached near Also Hotel, Asalali on the National Highway No.8 the driver and cleaner went for taking lunch in the Also Hotel at 2.10 p.m.  After taking lunch the driver and cleaner went on the place where the truck was parked but they did not find the truck at the said place. The above facts have not been disputed by the Opposite Party. 

10)      Opposite Party has raised disputed about breach of condition No.5 of the policy.  The condition no.5 of the policy runs as under –

           Condition No.5 “The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof  or any driver or employee in the event of any accident or breakdown the vehicle insured shall not be left unattended without proper precaution taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall entirely at the insured’s own risk.”           

            Opposite Party comes with the case that driver of the Complainant had not taken proper precaution to prevent loss of the truck. Therefore, the question arises whether driver of the Complainant had taken proper precaution to prevent the loss of truck or not.  The Complainant has filed index (list of documents) alongwith the complaint.  As per said index copy of FIR, Spot Panchanama, R.C. Book, T.C. Book, etc. are filed at Sr. Nos.1, 2, 3 & 5 respectively.  All those documents are in Gujarathi.  The Complainant has not produced English translation of those documents.  Opposite Party has submitted alongwith written statement copies of FIR, Spot Panchanama, Final Report under Sec.173 of the Code of Criminal Procedure in Gujarathi and it’s translation in English.  The case of Complainant is not that English translation of the above Gujarathi documents is not correct. The Complainant has not denied the correctness of translation of Gujarathi documents in English hence, we have to read the English translation of Gujarathi documents.  On perusal of copy of FIR (English translation page No.11 & 12) its Gujarathi copy is at page No.9/10. The said document shows that Mr. Ramjit Jaiswal, driver of the Complainant lodged report of incident of theft with police station on 19/12/2010.  The said report bears the signature of Mr. Ramjit Jaiswal, driver of the truck in question.  As per said FIR on 19/12/2010 one Om Prakash Sitarama Jaiswal conductor was with the driver Mr. Ramjit Jaiswal.  It has been contended in the said FIR that “on 19/12/2010 after unloading the material in Lalji Mulji Transport, we kept our vehicle near Also Hotel for taking the lunch but forgot to take the keys from the ignition, so while we are taking our food, some unknown person came, started the vehicle and took away our vehicle.  We being new persons for the area we went hear and there and chased the vehicle up to some distance but that was all ‘in vain’.  From the above contention of FIR it appears Mr. Ramjit Jaiswal had forgotten to take the keys from the ignition when he went for taking meal in the Alsa Hotel.

11)      Shri. Arun Kumar Roy Ld.Advocate for the Complainant has argued that Mr. Ramjit Jiswal driver of the Complainant was not acquainted with the local language of Asalali, District Ahmedabad therefore, he could not understand what was written in the FIR by the police.  The Complainant has not submitted affidavit of evidence of Ramjit Jaiswal to prove the fact that he did not state to the police that he had forgotten to take the key from the ignition. In the absence of above such evidence of Mr. Ramjit Jaiswal the argument of the advocate for Complainant cannot be accepted.   

12)      Mr. Ramjit Jaiswal might have forgotten the key of truck in the said truck as contended in the FIR. Under these circumstances it was necessary to brought on record by the Complainant that though the key was in the ignition of truck the driver or conductor of the said truck had taken proper precaution to prevent loss of the said truck by locking the doors of the truck.  The Complainant has not submitted affidavit of evidence of Mr. Ramjit Jaiswal driver or Omprakash Jaiswal, conductor of the truck in question to prove that they had locked the doors of the truck while they were going to lunch in Also Hotel.  The Spot Panchanama prepared by the police shows that the driver had parked the truck in the parking place of hotel.  However, the four bounders of panchanama shows there is National Highway No.8 to the South & North and godown to the West of the spot of incident.  It appears there is parking place of the hotel but truck in question was parked on the National Highway No.8 therefore, National Highway has been shown to the South and North of the place of incident.  It is not the case of the Complainant that the truck in question was parked at such place form where Mr. Ramjit Jaiswal and Omprakash Jaiswal were in a position to see the said truck form the hotel.  In the absence of above such evidence it cannot be said that the Complainant had taken proper precaution to prevent the loss of the insured truck .

13)      It has been specifically mentioned in condition no.5 that, in the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precaution being taken to prevent further damage or loss. It is true there was no accident or breakdown of the truck in question. However, there was break to the movement of the truck. The insured truck in question was parked on the National Highway No.8.  The proper precaution had not been taken by locking the doors of the insured truck when the driver and conductor left the truck and went to lunch in the hotel.  The above evidence clearly goes to show that the Complainant has breached condition no.5 of the policy. 

14)      Opposite Party has produced alongwith written statement at page no.24 a letter dtd.11/07/2011. The said letter shows that on 11/07/2011 the Complainant surrendered to Opposite Party one key of the insured truck by stating that he had purchased the said truck second hand condition therefore, he got only one key and he is surrendering it and also submitting form no.35 and NOC of the said truck. From the above contention of letter, Opposite Party is saying that the Complainant himself is party to the said theft and the Complainant is saying the driver did not forget the key in the ignition and the Complainant surrendered second key to the Opposite Party on 11/07/2011.  In this complaint it is not material whether there was one key or two with the Complainant when he purchased the truck in question.  It is material whether the driver had locked the doors of insured truck when he had gone for lunch in the hotel and the Complainant failed to prove it.

15)      Smt. Antima Dalal Ld.Advocate for the Opposite Party has argued that as per condition no.7 of the policy the claim of Complainant has been abandoned.  The condition no.7 say that “If the Company disclaim the liability of the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have not been made the subject matter of a suit in a Court of Law, then the claim shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”

16)      Smt. Antima Dalal, Ld.Advocate for the Opposite Party in support of her argument relied on the judgments delivered by the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. V/s. Sujir Ganesh Nayak, decided on 21/03/1997 and the judgment reported in III (2009) CPJ 81 SC.  Vekanteshwar Syndicate V/s. General Insurance Co. Ltd. & Ors. The facts of above cited cases are different hence, those citation are not applicable to the present case.

17)      Shri. Arun Kumar Roy, Ld.Advocate for Complainant has relied on the judgment delivered by the Hon’ble High Court in Civil Revision Application No.252/2000 Narayan Bawane V/s. Motor Accidents Claim Tribunal decided on 08/04/2004. The said case was filed for the compensation under the provisions of Motor Vehicle Act, 1988 and rules framed there under.  The facts of the said case is different hence, said citation is not helpful to the Complainant.  In view of the above discussion we hold that Complainant failed to prove that, Opposite Party engaged in unfair trade practice and there is deficiency in service on the part of the Opposite Party.  Hence, we answer point no.2 in the negative.

18)      Point No.3 :-   In view of our findings to point no.2 Complainant failed to prove that Opposite Party adopted unfair trade practice and deficiency in service therefore, he is not entitled to reliefs claimed by him.  Hence, point no.3 answered in the negative. 

           In the result complaint deserves to be dismissed.  Considering the nature of the complaint both parties have to bear their cost.  Hence, we proceeds to pass following order –

O R D E R

               i.         Complaint No.241/2013 is dismissed.

                            ii.        Both parties shall bear their own cost.  

                           iii.        Certified copies of this order be furnished to the parties.