The complainant has filed this complaint u/s.12 of the Consumer Protection Act 1986 on 18.11.19.
On 31.12.2019 the O.P appeared through Ld. Advocate and on 28.01.2020 the O.P has filed W.V and Vokalat Nama.
The case of the complainant, in brief, is that the complainant is a resident of Rupahar, P.S.Raiganj, Dist. Uttar Dinajpur and he is a consumer under the O.P. That the complainant being an unemployed youth purchased a vehicle bearing No.59WB/2685 with the finance of Cholamandalam Investment and Financial Co. Ltd and it was insured under the O.P/Oriental Insurance Co. Ltd.. The insurance policy was valid from 18.05.2016 to 17.05.2017 mid night for Rs.5,00,000/-. That on 02.04.2017 when the driver namely Sushil Karmaker, s/o. Kartick Karmaker of village Kamlai, P.S. Itahar took the vehicle for rent and after the rent he had taken the vehicle and kept it in his house with lock and key condition and went to his house. On next morning on 03.04.2017 he returned and saw that the vehicle was not there and could not find it in the said place. He subsequently tried to his level best to find out the said vehicle but failed and he informed the matter to the complainant who also tried his level best to trace out the same but no fruitful result there. After the said incident the complainant lodged a written complaint to the Itahar P.S on 03.04.2017 which started Itahar P.S. case No.95/2017 dt. 03.04.2017 u/s.379 of the I.P.C and after completion of investigation the police submitted final report of the said case and accordingly the accd./driver Sushil Karmaker was discharged from the case. After the incident the complainant informed the matter to the O.P./Insurance Co. through a letter which engaged a panel investigator for investigation of the matter with report for actual fact and actual loss of the incident. The complainant submitted a claim due to loss suffered in respect of the said vehicle before the O.P and the O.P told for submitting all necessary documents for settlement of the claim. The panel investigator Mr. Arpan Roy issued a letter dt. 18.04.2017 demanding some documents within 15 days against theft incident and the complainant submitted the required documents. But the O.P on 12.02.2018 issued a letter for submitting some other documents and key of the vehicle and final report. The complainant again sent the same to the O.P, but the O.P did not give any response to the complainant. The cause of action arose on 12.02.2018.
Upon this background the complainant prayed for a direction upon the O.P to pay a sum assured amount of Rs.5,00,000/-along with 6% interest per annum from 02.04.2017 as the vehicle was stolen on that date and compensation of Rs.50,000/- for harassment and mental pain and agony along with litigation cost of Rs.10,000/-.
The O.P. appeared and contested the case by filing written version contending inter alia that the case is not maintainable in its present form and prayer and that the case is barred by limitation but admitted that the complainant is the owner of the vehicle in question and insurance policy was valid from 18.05.2016 to 17.05.17 midnight..
It is the specific case of the O.P is that the O.P engaged the investigator to investigate the matter on their part and the investigator submitted his report to the O.P. It is the fact that the theft was taken place infront of the house of the driver Mr. Sushil Karmakar at vill. and P.O Kamlai which was open place and had not been protected place. The place was in the Durgapur – Kaliaganj State High Way via Kamlai- Kunor road also passes nearer to the P.O and is connected to N.H.34 ( Durgapur Line Bazar). No security was there. That as per terms and condition the complainant did not keep the vehicle in a safe place. As per FIR the incident taken place was an open place and there is no security to protect the vehicle. So, there is no liability to pay any theft claim as the incident occurred from open place. There is no latches and negligent on the part of the O.P to settle the claim of the complainant.
Upon this back ground the O.P claims the dismissal of the case with cost.
Points for decision.
- Whether the complainant has been able to prove his case?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons
In order to prove the case the complainant has examined himself as P.W.1 and he filed the certified copy of first information report, written complaint and final report in respect of Itahar P.S. case No.95/17 dt.03.04.2017 u/s.379 of I.P.C. He also filed the Xerox copy of his information letter addressed to the O.P, Xerox copy of insurance policy, tax receipt of the vehicle, Xerox copy of letter by insurance investigator demanding various relevant papers regarding the vehicle for settlement of the claim and Xerox copy of certificate of registration of the vehicle. The O.P filed questionnaires and the complainant also filed answer to the questionnaires. The O.P also filed the Xerox copy of investigation report dt.27.03.2018.
Perused the written complaint, W/V, certified copy of the police cases mentioned above, Xerox copy of the insurance policy, evidence of p.w.1 and questionnaires submitted by the O.P and answer submitted by the complainant to the said questionnaires. We also perused the Xerox copy of investigation report submitted by the O.P. The complainant on being examination on oath as p.w.1has corroborated the complaint filed on 18.11.2019 and the O.P has denied the said evidence by his written version as well as questionnaires.
It is the case of the complainant that on 02.04.2017 his driver Sushil Karmakar took the vehicle after completion of work for rent to the place of occurrence and kept the vehicle in his house with lock and key condition and on next morning i.e on 03.04.2017 he returned to the said place and saw that the vehicle was not there and subsequently he tried his best level to find out the same, but failed. Thereafter, he informed the matter to the p.w.1/ complainant who also tried to trace out the same, but failed and the p.w.1 lodged the written complaint before the Itahar P.S and on the basis of said complaint the police started Itahar P.S. case No.95/17 dt. 03.04.2017 u/s.379 I.P.C. But after completion of investigation the police submitted final report against the accd. Sushil Karmakar who is the driver of the vehicle on the ground that there is no sufficient evidence against the arrested person Sushil Karmakar and prayed for discharge him from this case and subsequently the said driver/accd. was discharged from the case. From this it is clear that the driver Sushil Karmaker did not commit the theft of the vehicle. But the complainant (p.w.1) gave evidence that the vehicle was stolen away by miscreants. In this case the driver Sushil Karmakar has not been examined as witness by the complainant. Sushil Karkamakar may have corroborated his evidence on examination on oath as witness. From the final report it is found that the vehicle has not been recovered at all. On the other hand the O.P in his questionnaires stated that there was no security to protect the vehicle in open place and there is no also safety of the vehicle in the said open place and due to negligent act of the owner of the vehicle (p.w.1) the incident had taken place. The investigation report submitted by the O.P disclosed that during submission of claim application the p.w.1 only handed over one key of the vehicle to the O.P and stated that another key was also seized by Itahar P.S, but no S.L has been produced. The final report in its column No.11 disclosed that the details of properties/articles/documents recovered/seized during investigation and relied upon is Nil. Therefore, where is another key of the vehicle. It is palpably clear that the said another key of the vehicle has neither been seized by the police nor handed over to the O.P/Insurance Co. by P.W.1 or the complainant did not say that it has been lost supported by any G.D.E.. Therefore, it is very doubtful whether the vehicle was stolen away by the miscreant or not. Moreover, the copy of the insurance policy did not disclose that the matter of theft of vehicle was covered by the insurance policy. More so, the evidence of the O.P in questionnaires as well as investigation report to the effect that the vehicle was not protected by security and safety as it was kept in open space and the said evidence has not been shaken by the complainant.
Under the above foregoing facts , circumstances and findings it can be said that the point Nos.1 and 2 have been decided against the complainant. The case must fail.
C.F. paid is correct.
Hence, it is
ORDERED
That this case be and the same is dismissed on contest but without any cost.
Let the certified copy of this final order be given to the parties on free of cost.
