: J U D G M E N T :
The brief fact of the case is that the complainant purchased a Honda Shine 125 motor cycle from the OP No. 1 and paid Rs. 63,700/-. OP No. 1 took Rs. 63,700/- from the complainant and delivered the Honda Shine to the complainant. Thereafter, he obtained an insurance being policy No. 154302/31/12/6200006079 for the said vehicle from the OP No. 2. On several occasions he demanded for registration certificate for the said vehicle but OP No. 1 has failed to supply the same though the OP No. 1 took the consideration money for the same. In the mean time the vehicle has been stolen from the complainant’s house by breaking collapsible gate on 01.12.2012. Complainant lodged a complaint in Chakdaha P.S. being case No. 815 / 2012 dtd. 01.12.2012. Thereafter, investigation was done by Mr. A. Dutta Roy, investigator. The relevant documents were supplied in the office of OP No. 2. But OP No. 2 has denied to pay the insured amount of the said vehicle. OP No. 1 also refused to supply the blue book (Registration Certificate), Tax Token etc. to the complainant after several request. There is a gross negligence and deficiency in service on the part of OP No 1 and 2. Hence, the complainant prayed for the relief before the Forum.
As per order No. 7, dtd. 09.09.15 the case has been fixed for exparte against OP No. 1.
OP No. 2 contested this case by filing written version stating, inter alia, that the non-registered vehicle does not come within the purview of policy schedule. In this respect OP No. 2 cited the case laws i.e., Narinder Singh Vs. New India Assurance Co. Ltd. and Kushalendra Kr. Misra Vs. Oriental Insurance Co. Ltd. OP No. 2 also stated that there is considerable delay in intimating the case of theft to Insurance Company. The insured has failed to produce both original ignition keys of the motor cycle. The insured has claimed Rs. 63,700/-, but the sum insured of the vehicle was Rs. 51,406/- The complainant has failed to prove the insurable interest. OP No. 2 also cited the case law relating to Din Dayal vs. NIC & another, wherein, Hon'ble National Commission, Delhi held that the requirement of law is that the report with police must be lodged immediately without any delay so that the police be able to investigate the matter for recovery of the stolen porperty so the case is liable to be dismissed with cost on the ground of non-registration of vehicle, limitation, violation of terms & condition of Policy etc.
Now the Forum is to consider the following points:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act 1986.
- Whether there is any gross negligence or deficiency in service on the part of OPs or not,
- Whether the complainant is entitled to get any relief as prayed for.
DECISION WITH REASONS
Point No. 1.
We have carefully perused the complaint, written version, evidence on affidavit, written arguments filed by the parties alongwith all relevant documents and case laws. From the money receipts ( Annexure – A, A1, A2, A3) it is clearly understood that the complainant paid & 10,000/- + Rs. 44,000/- + Rs. 6000/- + Rs. 3,700/- i.e., total of Rs. Rs. 63,700/- to the OP No. 1, Balia Auto Mobile. The OP No. 1 delivered the vehicle to the complainant on 06.10.2012. It is also fact that the vehicle was insured under OP No. 2 / Insurance Company, which is clearly revealed from the certificate of insurance being No. 154302/31/12/6200006079 issued by N.I.C. So as per status of the compliant & OPs, the complainant is to be treated as consumer & both OPs are to be treated as service providers as per Consumer Protection Act, 1986. Thus the point No. 1 is decided.
Point Nos. 2 & 3:
Policy is admitted. The total IDV has been fixed for Rs. 51,406/- as per policy certificate. The vehicle was brand new at the time of theft. The vehicle i.e., Honda Shine 125 has been stolen by breaking the collapsible gate of the house of complainant on 01.12.12 & I. C., Chakdaha P.S., Nadia started P.S. case No. 815/12 dtd. 01.12.12 U/S 379 I.P.C. which is clearly revealed from FIR dtd. 01.12.12. So the theft is admitted. The theft occurred within the policy period which is also admitted as the insurance covers the period on and from 30.10.2012 to 29.10.2013. From the fact, it is clear that there is no such delay regarding intimation given to the police authority. The intimation to the police / insurance authority without any delay is very much essential for the purpose of searching or recovery of the vehicle / property in question. It is also fact that the event of theft has been informed to the insurance authority on 04.12.2012 (Annexure – F). So the criteria regarding intimation has been fulfilled clearly from the end of complainant. Regarding this matter there is no such fault on the part of the complainant.
The complainant stated in the complaint by way of affidavit that on several occasions he went to OP No. 1 for collecting the registration certificate of the vehicle in question but the OP No. 1 was killing the time with lame excuse. In this regard the OP No. 1 has ample opportunity to file written version or contest the case, but in vein. Under such circumstances the said allegation has not been challenged by OP No. 1. So the allegation contained in plaint remains unchallenged which proves the case as against OP No. 1.
In Kaushalendra kr. Mishra vs. The Oriental Insurance Company Ltd. in revision petition No. 4043 of 2008 dtd. 16.02.2012, II (2012) CPJ 189 (NC), it was found that the motor cycle was used by the complainant for dropping his uncle to the railway station Satna & that the incident had happened on its return journey. In this situation Hon'ble N.C.D.R.C., New Delhi held that the vehicle was being driven without registration which is prohibited U/S 39 of MV Act, 1988 and is also offence U/S 192 of the said Act. The same view has been taken in Narinder Singh Vs. New India Assurance Co. Ltd. and Ors. So from this discussion it is clear that the use of vehicle on the road without registration is prohibited u/S 39 of the MV Act as well as offence u/S 192 of the said Act.
But in the instant case the theft occurred in the house of the complainant at night and not on the road or outside the house of complainant. From the four corners of the record it is not proved that the vehicle was plying on the road without registration rather it is our view that the vehicle in the instant case was lying in the house of the complainant in unused condition due to non-supply of registration certificate of the vehicle from the end of OP No. 1.
The Insurance Company is bound to indemnify the loss of vehicle in question as the insurance is an agreement between the parties based upon the principle utmost good faith i.e., the principle of uberima fide.
Both the OPs are jointly liable for their ill activities. The complainant is entitled to get relief against both OPs. Point Nos. 2 & 3 are thus decided. The case succeeds.
Hence,
Ordered,
That the case CC/2015/74 be and the same is allowed on contest against both OPs with cost of Rs. 1,000/-.
That the OP No. 1, Prabir Kumar Das, proprietor of Balia Automobiles is hereby directed to pay 20% of IDV i.e., 20% of Rs. 51,406/- = 10281/- plus 50 % of cost i.e., Rs.500/- in total Rs. 10,781/- and OP No. 2, Insurance Company is hereby directed to pay Rs. 80% of IDV, i.e., 80% of Rs. 51,406/- = 41,125/- plus 50% of cost, i.e., Rs. 500/- in total Rs.41,625/- within 30 days from the date of order, in default, the decretal amount shall carry interest @ 10% p.a. till full realization.
Let the copy of this order be supplied to the parties free of cost.
