This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon the O.P./ insurer to reimburse the complainant the claim amount, total sum assured Rs.17,00,000/- with interest and for a compensation of Rs.3,00,000/- for harassment, mental pain and litigation cost.

The case of the complainant in short is that the complainant is owner of TATA LPI 3118/IC/52/BS-III truck vide registration No. WB-59A/6736. He purchased the policy through agent of O.P./ Insurance Company being No.OG12-2414-1803-00000564, period of insurance 30.08.2012 to 29.08.2013. On 09.05.2013 the said truck was stolen away when it was in the custody of his driver namely Fajal Sekh, in front Hotel Bablu at 18 Mile on NH-34 under PS Baishnab Nagar, District – Malda. The complainant failed to trace out the vehicle and lodged FIR at Baishnab Nagar PS on 11.05.2014 and Baishnab Nagar PS case No. 120/2013 U/s 379 IPC was started. He lodged claim before O.P./ Insurance Company vide claim No.OC-14-2404-1803-00000066 with all documents. Thereafter, he visited to O.P.’s office to settle the claim but with no result. Lastly, he sent legal notice dated 27.07.2014 and O.P. also sent letters making unnecessary demand explanation and lastly on 12.11.2013 asked the complainant to provide some unnecessary information/ explanation within 7 days otherwise to repudiate the claim. As the O.P. fails to settle the claim amount under the policy, petitioner therefore filed this case before this Forum with the above mentioned prayer.

O.P. appeared and contested the case by filing written version where they categorically denied the allegation made by complainant in the petition. O.P. admitted the policy in favour of petitioner over the said vehicle, but denies the fact of theft of the said vehicle by driver, Fajal Sekh near the Hotel Bablu on NH-34. O.P. stated specifically that, the alleged theft took place on 09.05.2013 but FIR was lodged after 2 days and intimation to the O.P./ Insurance Company was made after 4 days on 13.05.2013. By giving delayed information petitioner violated the policy condition and deprived the insurer and police authority the opportunity to recover the vehicle which also a violation of policy. No details of the driver, driving license, authorization in favour of Fajal Sekh was ever produced by the complainant. Lastly, the complainant failed to take minimum reasonable care upon the vehicle and violated terms and conditions of policy by keeping both the ignition keys inside the vehicle at the material time of theft. The petitioner/ owner failed to produce any document like Challan copy to prove which items of good was loaded or unloaded in the truck at the relevant time. He did not submit any document at the PS for the purpose of proper investigation by the police and insurance company and did not cooperate with the investigation agency. After theft the matter was informed to the company on 14.05.2013 stating the fact that the truck loaded with stone chips went to Bangladesh to deliver goods, but he failed to submit any permit required for such delivery to other country. Therefore the O.P. submits that for the gross negligence on the part of the petitioner and for violation of terms and condition of the policy, petitioner is not entitled to any relief from the O.P. and prays for dismissal of this case.

To establish the case of the complainant has relied upon affidavit-in-chief sworn in by him as P.W.-1 and relied upon some documents. O.P. also adduced evidence as O.P.W.-1. Complainant files questionnaires and O.P. also files answer to questionnaires.

DECISIONS WITH REASONS

Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, arguments advanced by the lawyers of both sides, the Ld Forum has come to the findings as follows: -

Complainant was the owner of the vehicle, bearing No. WB-59A/6736 and the vehicle was insured by the O.P. for Rs.17,00,000/- under covering the period 30.08.2012 to 29.08.2013. He lodged FIR at Baishnab Nagar PS, district Malda on 11.05.2014 against his driver, Fajal Sekh. These are admitted facts. Complainant as P.W.-1 also deposed accordingly.

In the FIR he stated that at about 04:00 a.m. on 09.05.2013 he was informed by his driver that the truck is found missing from the front of the Bablu’s hotel at 18 Mile on NH-34, Malda. Again he alleges in the FIR that he believes that Fajal Sekh committed theft. He also stated that the original document of the vehicle was in the possession of the driver. P.W.-1 also deposed these facts.

In his letter dated 14.05.2013 to the insurance company informing the theft that the said truck loading stone from Kotalpukur went to Bangladesh and returned to India through Mohadipur border on 6th (06.05.2013) at 04:00 a.m. Then he contacted with his driver over telephone. Driver suddenly informed him for further loading in the truck in that morning at 18 Mile, Kaliachak and that the truck was stolen away while kept standing in front of Bablu’s hotel. That, he immediately went to the place of the occurrence and came to know that, the vehicle along with both the ignition keys and relevant documents was stolen away by the driver. He informed Baishnab Nagar PS and after two days lodged written complaint at the PS and he admits that he has no documents with him in connection with that driver and he did not give any authorization in writing to the driver. However, P.W.-1 also deposed these facts in his evidence.

In cross examination P.W.-1 stated that he did not receive any Voter Card, Driving License of the driver nor he authorized him in writing to drive the vehicle and admits that both the ignition keys of the truck were inside the vehicle at the time theft. He claims that Challan showing travel to Bangladesh of the said truck with stone chips are kept inside the vehicle and he did not try to collect the duplicate of Challans. He failed to submit documents like Challans, Permit, DL and other particulars of driver and also the keys of the vehicle to the Insurance Company. He also admits that he did not make any specific explanation of delay of making FIR.

On the other hand Dipak Kumar Sharma as O.P.W.-1 deposed that FIR was lodged after two days of the occurrence, a gross violation of condition of policy by not informing the same ‘immediately’. No authorization letter, driving license etc. were handed over to the Company for investigation. Keeping both the ignition keys inside the vehicle at the time of theft, the insured failed to take reasonable steps to safeguard the vehicle against loss or damage. No permit for delivery of goods or any authenticate paper of loading unloading to Bangladesh was ever produced. Nor those documents were produced before the police. O.P.W.-1 deposed that petitioner himself was careless and negligent and it may be presume that there was conspiracy of both owner and driver in such ‘theft’.  

We have gone through the complaint petition, written version, documents filed by the complainant, policy papers and heard arguments of Ld. Advocates of both the parties. Complainant has been able to prove that his vehicle was found missing on 09.05.2013 at about 04:00 a.m. Complainant admitted in the FIR and intimated the theft to the O.P. that the vehicle was handed over with keys and all original documents to the driver before the occurrence. Complainant therefore is negligent not keeping the vehicle in his safe custody with full security as admittedly he also handed over both the ignition keys left in the vehicle.

Secondly, complainant failed to inform the incident of theft to the company and also to the police ‘immediately’ after the theft. He came to know about the theft on 09.05.2013 at about 04:00 a.m. but lodged complaint on 11.05.2013 at 17:35 hrs. before the police and intimated the same to the company on 14.05.2013. Such delay in intimation deprives insurance company of its legitimate right to get enquiry conducted into alleged theft of vehicle and make endeavor to recover the same. Intimation of theft was given to the O.P./ Insurance Company after about 05 days of such theft, which is fatal. In this period the vehicle may be taken to far distance, may be sold out and fatal for investigation. It was the paramount duty of insured to inform police and insurance company immediately after the incident. We can refer here the judgment of Hon’ble National Commission as reported in 2015 (1) CPR 145. In the said judgment the decision of National Commission, dated 09.12.2009 in New India Assurance Company versus Trilochan Jane, Appeal No.-321/2005 was mentioned wherein Hon’ble National Commission held that not giving intimation to Insurance Company for 9 days after theft is fatal and disentitled the insured to get compensation or claim money. In United India Insurance Company Limited versus Harchand Rai Chandan Lal, Hon’ble Supreme Court held that terms and conditions has to be construed as it is nothing can be added or subtracted from the same as the policy provides that ‘immediate’ reporting construed strictly. Hon’ble National Commission in Revision Petition No. 4521/2013 Oriental Insurance Company versus K. K. Valsalan, viewed that insured shall take all reasonable steps to safeguard the vehicle from loss or damage. The driver was under obligation to take ignition key with him while going to nearest hotel to take tea. Leaving both the keys and the vehicle being unattended is also a violation of insurance policy. Moreover normally both ignition keys are never kept together in unattended vehicle and theory of theft of vehicle become suspicious. Therefore insurance company committed no deficiency in repudiating the claim. The Judgment of Hon’ble National Commission in Sukhwinder Singh versus Cholamandalam and Another has been also cited in this context.  Thirdly, the complainant failed to produce the authorization letter and driving license of the driver to the Insurance Company. Therefore the O.P. has no other option but to close the claim file of the complainant.

In light of the above discussion this Forum finds that the complainant has not been able to establish his case. O.P. is neither negligent nor deficient to settle the claim but for delayed information and insufficient documents could not settle the claim. We do not find any unfair trade practice and deficiency in service on the part of the O.P./ Insurance Company. As a result the case fails.

Fees paid is correct.

Hence, it is

ORDERED,

That the case being No.CC - 107/2014 is dismissed on contest.

Copies of this order be supplied to the parties free of cost.