F I N A L O R D E R
This is a case U/S 12 of the Consumer Protection Act, 1986.
The complainant case in short is that the complainant was the registered owner of the vehicle being No. WB-59/6519 (Mahindra Bolero) having Engine No. AC41H437485 and Chassis No. MATXA2ACA42H38619 and the vehicle was validly insured with the O.Ps. Insurance Co. vide Insurance Policy No. 1507372340100059 valid from 14.11.2007 to 13.11.2008. On 07.08.2008 night the driver kept the said vehicle on the out yard of his rented house at Deshbandhupur West, Word No. 5, within P.S. Karandighi, Dist. Uttar Dinajpur owned by one Jamiruddin Master, but in the morning of 08.08.2008 the driver did not find said vehicle on such out yard of the rented house. The driver immediately informed the matter to the local P.S. alleging the theft of such vehicle and afterwards the incident was informed to O.Ps. with the claim for compensation. The complainant submitted copies of FIR, final police report and other relevant documents as asked for by the O.Ps for the purpose of processing for legitimate compensation but the O.Ps. did not take any initiative to give relief to the complainant. Finding no other alternative the complainant came before this Forum for an award directing the O.Ps. to pay Rs.2,21,000/- as value of the vehicle as assessed at the time of issue of the policy with interest at the rate of 9% p.a., Rs.35,000/- as compensation for harassment & deficiency in service on the part of the O.Ps. and Rs. 5,000/- as litigation cost.
O.P. No.1 appeared through his Ld. Lawyer but taking several adjournments did not file W.V. and O.P. No.2 did not appear in this case and also they did not contest this case appearing on the date of hearing as such this case was heard ex-parte against them on 14.03.14. O.Ps were directed to pay 2,21,000/- as valued of the vehicle assessed in the Policy, Rs,10,000/- as compensation for harassment and 1000/- as litigation costs.
Against the final order of this Forum O.Ps preferred an appeal No. FA/661 of 2014. On 22.05.15 Hon’ble State Commission set aside the order passed ex party by this Forum and directed for fresh adjudication after giving opportunities of hearing of both sides on the findings of Hon’ble State Commission in that appeal . The case was heard afresh on remand. Petitioner was again examined and cross examined as p.w.1. Ld. Lawyers of both sides also argued in full.
DECISIONS WITH REASONS
As per provision of Consumer Protection Act, 1986, we have to see first whether the complainant is a consumer and whether the O.Ps. are service providers. The evidences adduced by the complainant clearly show that the complainant was holding an Insurance Policy being No. 1507372340100059 valid from 14.11.2007 to 13.11.2008 under the O.Ps. for his vehicle No. WB-59/6519 covering risk First Party Liability including theft also. As such we hold that the complainant is no doubt a consumer and O.Ps. are his service providers.
In support of his case, the complainant has submitted photo copies of FIR, Final Police Report, R. C. Book, and relevant Insurance Policy Certificate. From the evidence adduced, it appears that the Police started a Case U/S 379 IPC on the basis of the complaint lodged from the side of the complainant but during investigation the vehicle and the offender were not traced out. From the evidence on record it further appears that the complainant discharged his duties by lodging immediate FIR. Complainant stated in the petition that cause of action arose on 13.09.11 when he made last correspondence with O.P.
But O.P. did not file any copy of the letter dated 13.09.2011.This complaint being filed on 25.09.13 while the vehicle was allegedly stolen in the night of 07.08.2008. Therefore, complainant came before this Forum for redressal after two years of maximum permissible limit u/s. 24A of C.P. Act. In his evidence as p.w.1 adduced on 23.06.16 he did not mention anything about explaining the delay in making the application after statutory period. Albeit to say that no petition for condoning delay in filing this case before the Forum was ever filed by the petitioner. Petitioner has to show sufficient cause for condoning the delay by giving day to day explanation but in this case the complaint is filed on 25.09.13 while the incident of theft took place on 07.08.2008. Complainant has to give sufficient reasons to explain such inordinate delay properly to the satisfaction of this Forum to convince. We can refer judgement of Hon’ble National Commission as reported in CPR 2016(1) page 19 and CPR III 2016(1) page 772(NC). Therefore, this case is barred by limitation.
Moreover, in his evidence in cross examination petitioner admits that he allowed the vehicle in the custody of his driver. The vehicle was kept in rented house of driver. Admittedly there was no garage in that rented house and even no gate. Therefore, the vehicle was kept in an open space without proper safety and security of the vehicle. As a result, the vehicle was found missing in the morning of 7/8.08.2008. Hon’ble National Commission also viewed that negligence in safe guarding insured vehicle may vitiate insurance cover as reported in CPR III 2016 page 606 (NC).
From the police report of F.I.R in G.R.826/08 arising out of the theft of the vehicle it is clear that the F.I.R was lodged on 10.08.08 i.e. after three days of the alleged occurrence. Therefore, the O.P./ Company and the police was not given the best opportunities to trace out the missing vehicle. It is also violation of policy condition by not informing the theft to the police or to the Ins. Company ‘immediately’ after the theft. It also appears from that police case that F.R.T was submitted by the Karandighi P.S. with a finding that police made several attempts but it was a clueless case and efforts were in vain to trace out the vehicle. No concrete evidence could be collected by the police. Moreover, insured is duty bound to inform theft immediately as viewed by Hon’ble National Commission and was reported in 2014 CPR page 328.
In view of the above discussions the complainant fails to prove that he take proper care in keeping the vehicle in safe places and he violated the Policy condition accordingly. He filed this case before this Forum after the statutory period of two years of the incident of theft or cause of action. Therefore, this petition is also barred by limitation. In the light of our above discussions, after hearing arguments of both sides and on perusal of evidence on record and documents relied upon by the parties this Forum finds that petitioner is not entitled to get any relief as prayed for.
Fees paid is correct.
Hence, it is
ORDERED,
that the complaint case No. CC-74/2013 and the same is dismissed on contest but without cost.
Let a true copy of this final order be handed over to the partied free of cost.
