Heard the learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The unfolded story of the complainant, is that the complainant has purchased truck bearing No.OR-19C-9547 on 28.05.2005 having incurred loan from Dhenkanal Gramya Bank. It is alleged inter-alia that she had purchased policy for the truck with IDV of Rs.5,27,660/- from the OP. The policy was valid till midnight of 31.05.2008. It is alleged that on 27.05.2008 the truck was stolen away at Manguli Chhak,Cuttack from the custody of the driver and helper. On getting information the complainant lodged FIR on 29.05,.2008 and also informed the OP-Insurer who deputed one surveyor namely Harihar Sahoo. Inspite of survey of the matter the claim was not settled. The complainant also requested the OP to settle the claim but the OP did not accede to his request. So, the complaint was filed.
4. The OP filed joint written version stating that the case is neither maintainable nor any cause of action arose to file the case. They admitted that the complainant had insured the vehicle with them. But after receiving the claim they have deputed the surveyor. It is averred that the complainant did not co-operate the surveyor. Moreover, they found that on the date of theft the complainant was not the owner of the vehicle as it was in favour of Pradyumna Kumar Nanda. They also submit that the driver and helper were engaged by the P.K.Nanda but not by the complainant. It is alleged that since the owner of the truck does not safeguard the vehicle, it was stolen away and thus there was violation of the policy condition no.5. They have also took the plea that there is only one day delay in lodging the FIR. Therefore, they submit to dismiss the appeal.
5. After hearing both the parties, learned District Forum passed the following order:-
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“Under the above facts and circumstances of the case, we come to the conclusion that the complaint petition merits consideration and accordingly it is allowed on contest with cost.
The opp.parties are hereby directed to pay the entire insurance claim to the complainant with interest @ 9 % p.a from the date of application till realization. The opp.parties are further directed to pay compensation of Rs.50,000.00(Rupees Fifty thousand) to the complainant for causing mental agony and harassment alongwith litigation expenses of Rs.3,000.00 (Three thousand) within a period of one month from the date of this order,failing which law shall take its own course.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him the vehicle was insured but on the date of occurrence the driver of the vehicle has left the key and went to other work. Learned District Forum ought to have considered the facts and circumstances of the case. Further he submitted that on the date of theft there was no insurable interest with the present complainant because he has disposed of the vehicle by the time of occurrence of theft. He also took plea that there is delay of lodging FIR. Learned District Forum ought to have considered all these facts and law involved in this case. Since, the impugned order is illegal and improper, the same should be set-aside by allowing the appeal.
7. Learned counsel for the respondent submitted that the vehicle was stolen away three years after purchase of the vehicle. On the date of occurrence the vehicle was guarded by the helper. He further submitted that police investigated the matter and filed final form showing fact true but no clue. He further submitted that there is no any violation of the policy condition. Moreover the FIR has been lodged within 48 hours from the date of occurrence. Therefore, he submitted that there is no any fault on the side of the complainant. So, he supports the impugned order.
8. Considered the submission of learned counsel for the respective counsels, perused the DFR and impugned order.
9. It is admitted fact that during currency of the policy the vehicle in question was stolen away. It is not in dispute that the complainant lodged the FIR on 29.05.2008 when the occurrence took place in the evening of 27.05.2008. The policy condition states that the report must be lodged immediately to the police or the insurer. It is reported in the decision of Hon’ble Supreme Court of India in Gurshinder Singh-Vrs- Shriram General Insurance Co.Ltd. & another ,vide Civil Appeal No.653(Arising out of S.L.P.(C) No.24370/2015 decided on 24.01.2020 where Their Lordship observed that the FIR should be lodged immediately with police or to inform insurer immediately as the case may be to show the compliance of the policy condition. In this case since there is immediate report given one day after occurrence, it is found that there is no any deviation of the policy condition.
10. Learned counsel for the appellant submitted that the security of the vehicle has not been guarded by the complainant. He relied on the decision of the Hon’ble Supreme Court of India passed in2022( 2)377(S.C.) Kanwarjit Singh Kang-Vrs- ICICI Lombard General Insurance Co.ltd. and another where Their Lordship observed at para-10 that there must be reasonable care to be taken by the complainant to safeguard the vehicle in question. In the case of Hon’ble Supreme Court of India driver had left the key in the vehicle for which the policy condition is found to have been violated. Now adverting to the case in hand, we have gone through the FIR and other copies of police papers and found that the helper was guarding the vehicle while the driver has gone to other work. The helper was sleeping, at that time three culprits entered vehicle and took away the vehicle . He opposed them but the culprit threatened by showing the knife and then vehicle was forcibly taken away by them. The facts of this case are clear to show that the complainant or his driver had taken sufficient care to guard the vehicle but it was stolen away by the miscreants by intimidating the helper. So, the facts of the decision referred to by the learned counsel for the appellant are not the similar facts of the case in hand. With due regard to the said decision we are of the view that decision relied on by appellant is applicable to this case. Rather the material as discussed proved that the complainant has taken proper care of the vehicle to guard it. Thus, the policy condition no.5 has not been violated. OP has not proved by evidence that complainant was not owner of vehicle by the time it was stolen away.
11. In view of aforesaid discussion, we are of the view that the complainant is entitled for the settlement of the claim but the claim has not been settled by the OP. Therefore, the complainant has proved the deficiency in service on the part of the OP.
12. Learned District Forum has directed to pay the entire IDV to the complainant but we found that the vehicle was purchased in 2005 and stolen in 2008. The IDV value should be reduced because for three years the vehicle has been lying. So, while confirming the finding of the learned District Forum, we hereby modified the impugned order by directing the OP to pay Rs.5,00,000/- to the complainant within a period of 45 days from the date of the order, failing which the entire impugned order will revived. The entire operative portion or impugned order is modified as stated above.
Appeal is disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
