This appeal is directed against the Final order of Ld. D.C.D.R.F., Malda in CC No 20 of 2018 dated 23.02.2021. The fact of the case in nutshell is that one Dipankar Chowdhury the respondent of this appeal case has registered a Consumer Complaint before the Ld. D.C.D.R.F., Malda to the effect that he was the owner of one Bolero Pickup Van model B3 of Mahindra Finance Company which was purchased by him after obtaining financial assistance from Mahindra Finance Ltd. And the vehicle was registered in due manner before the RTO Malda and he purchased car insurance policy by paying the annual subscription for the period from 03.01.2017 to 02.012018. The vehicle was stolen away on 22.04.2017 and subsequently a case under Section 379 IPC was registered. The police investigated the theft case and ultimately could not trace out the vehicle and submitted the final report. He raised claim for compensation for the stolen vehicle which was repudiated on the part of the Insurance Company by a reply letter dated 03.07.2017. So, the instant consumer case was registered and the Insurance Company Cholamandalam M/S General Insurance Company has contested the said consumer dispute by filing the W.V and claimed that the company had a genuine cause for such repudiation of claim on the ground that the company was not informed within a reasonable period on the part of the Complainant about the said theft and the said vehicle was kept in open space without taking any proper care for its safety and security and has deliberately attributed to cause the alleged incident of theft. The further case of the Insurance Company is that as per condition of the alleged insurance policy the claimant had the duty in writing to the company to intimate the incident within a short span of time. The further case is that the Mahindra & Mahindra Finance has got interest in the vehicle as the loan was sanctioned in favour of the Complainant for purchasing the same and for that reason Mahindra Finance was a necessary party and for that reason the case has become defective due to want of implead of a necessary party. The Ld. Forum after recording the evidences and completing the process of cross-examination and after hearing the verbal arguments and in consulting with the Written Notes of Arguments has adjudicated the dispute and awarded in favour of the respondent by which Rs. 3,75,000/- as compensation that is 70% value of the vehicle Rs. 15,000/- for mental pain and agony and Rs. 10,000/- as litigation cost was awarded. Being aggrieved with this order this appeal follows on the ground that the order of Ld. Forum is not appreciable in law and Ld. Forum has committed errors at the time of adjudication of the case and Ld. Forum also has failed to consider the violation of terms and conditions of the policy on the part of the Complainant/Respondent and as such the instant Final order should be dismissed. The appeal was registered on 16.09.2021 it was admitted in due course and notice was sent to the respondents through Dipankar Chowdhury that is the Complainant of the original case and to Mahindra Finance Service Ltd. Both respondent Dipankar Chowdhury & Mahindra Finance have contested the appeal through Ld. Advocate Mr. J.P. Pawa whereas the respondent No. 1 Dipankar Chowdhury was represented in this case through Ld. Advocate Mr. J.N. Chowdhury and Mahindra Finance Ltd. Has contested the case through Ld. Advocate Mr. M. Paul & Others. The appeal was heard in presence of all Ld. Advocates engaged by the contesting parties of this appeal.
Decision with reasons
Admitted position is that Mr. Dipankar Chowdhury has purchased the Bolero vehicle from a distributor Mahindra & Mahindra showroom and Mahindra Finance has rendered financial assistance to the respondent Dipankar Chowdhury for purchasing the said vehicle and it is also admitted that Dipankar Chowdhury registered a Written Complaint in the shape of FIR before the Umsing Police Station under the State of Meghalaya on 24.04.2017 while the alleged theft took place in the midnight of 21/22/4/2017 and the theft was intimated to the Insurance Company on the part of the Respondent/Complainant on 11.05.2017. Ld. Advocate at the time of hearing the appeal mentioned that the vehicle in question was purchased by the respondent No. 1 with the financial assistance of the respondent No. 2 that is Mahindra Finance Service Ltd. And Mahindra Finance Company was a necessary party as their interest was involved and they would not made party to the case in the original Consumer Complaint and that matter was raised before the Ld. Forum but the said issue was not disposed of on the part of the Ld. Forum. He further argued that the alleged theft took place at about 3 AM on 21.2.2007 while the FIR was lodged after laps of two days that is on 24.04.2017 and the delay of lodging the FIR was not well explained on the part of the Complainant and Ld. Forum also had no focus in the point of a dilatory FIR. He, further argued that in the FIR the Complainant has mentioned that the driver of the vehicle has kept one key of the vehicle inside the vehicle under back side of the driver seat in the cabin but the Complainant did not submit another key to the concerned Police Station and even did not disclose the fact where about another key. He, further argued that as a matter of fact the driver while parking the vehicle on 21.04.2017 he left the vehicle unlocked leaving the ignition key inside the door and also left the cabin door unlocked and it was supposed if the door was locked at the time of parking, then either the Complainant or the driver must have possessed another second key with them. He, further argued that if the Complainant had lodged FIR immediately after he found the vehicle was missing then there was every possibility on the part of the Police to trace out the vehicle. So, he further pointed out that intimation to the Insurance Company was held also after five days from the alleged date of incident. So, it is found that the Insurance Company had no liability to entertain such claim where the insured has violated various clauses and conditions of the policy itself. In support of his argument he furnished list of rulings as below-
- Revision Petition No 3222 of 2015(NC)
- Revision Petition No 3251 of 2013(NC)
After going through the observation of the Ld. Hon’ble National Commission in RP No 3222 of 2015 we find that Hon’ble Commission has observed that if the driver had left the ignition key of in dash board of vehicle and also left cabin door lock is not fitted in the vehicle and if he left the vehicle in unlocked and unattended condition then the act of the driver has violated the terms and conditions of the policy which clearly states that the insured shall take all responsible steps to safeguard the vehicle from loss and damage and to maintain it in efficient condition. Ld. Advocate of the respondent No. 1 mentioned that the Complainant stays at Malda while the vehicle was going to Meghalaya for transportation purposes where the theft took place and the Complainant had to rush from Malda to Meghalaya and for that reason, delay was there in two days in registering the FIR. He, further submits that the intimation to the Insurance Company was delayed for five days as the Complainant had to procure all the relevant documents before raising the claim and intimating the Insurance Company and for that reason fixe days delay was there and which was not unreasonable one. Ld. Advocate of the Mahindra Finance Ltd. says that the vehicle was financed by the Mahindra Finance and this finance company has got every interest in connection to this incident and for that reason they had something to say before the Ld. Fora for safeguarding their interest and for that reason Mahindra Finance was the necessary party to this case while the Complainant has failed to implead Mahindra Finance Ltd. in the said case as necessary party and the Final Order of said case should be set aside. After, consulting the relevant documents in this case very carefully and after going through the pleading of both sides and after hearing the valuable arguments canvassed by the Ld. Counsels of each side of this appeal case, we found that Mahindra Finance Ltd. was a necessary party to this case and without impleading them in this case no factual order should have to be passed and for that reason the order of Ld. Forum suffers from defect as because this issue of necessary party was pointed out before the Ld. For a by the appellant company. Secondly, the delay of FIR and delay of intimation of the Insurance Company was not well explained on the part of the Complainant/Respondent No. 1 and Ld. Forum also has no observation in this regard in the body of Judgement. So, in our view, the matter should be remanded back to the Ld. Fora for a fresh disposal after giving opportunity to Mahindra Finance Ltd. to contest the said case. Thus, the appeal has got some merit.
Hence, it’s ordered
That the appeal be and the same is hereby allowed on contest without any cost. The Final Order of Ld. D.C.D.R.F., Malda in CC No 20 of 2018 dated 23.02.2021 is hereby set aside. The Ld. D.C.D.R.F., Malda is requested to reopen the case after giving the opportunity of Mahindra Finance Ltd. to submit the W.V within 45 days from this day and also if requires may record further evidences from all sides and after hearing all the contesting parties shall dispose of the case in terms of the provisions of the Consumer Protection Act, 1986 within a short span of time. All the contesting parties of this appeal are hereby directed to appear before the Ld. D.C.D.R.F., Malda on 28.02.2022 for a schedule to be fixed by the Ld. Forum.
Let a copy of this order be supplied to the parties and the copy of the same to be communicated to the Ld. D.C.D.R.F., Malda for doing necessary action.
