IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/53/2015.
Date of Filing: 27.04.2015. Date of Final Order: 16.02.2017.
Complainant: 1.Debki Debi, W/O Umesh Patel 2.Umesh Patel, S/O Late Janki Patel,
Nalhati Pathal Kalpara, Ward No.4, Near Railways Station, P.O.& P.S. Nalhati,
Dist. Birbhim, Pin 731220.
-Vs-
Opposite Party: 1. The Branch Manager, Mahindra & Mahindra Finance Service Ltd,
Jalangi Road, Near Keshabnagar, P.O.&P.S. Berhampore, Dist. Murshidabad.
Pin 742101.
2. The Branch Manager, National Insurance Company Limited,
26/23/1, S. S. Sen Road, P.O.& P.S. Berhampore, Dist. Murshidabad. Pin 742101.
Present: Sri Anupam Bhattacharyya …………………. President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for direction upon the OP No.1 to supply the duplicate key to the complainant and upon Op No.2 to pay Rs.3 lakh along with interest @ 12% p.a from the date of theft of vehicle and Rs.1 lakh towards harassment cost of Rs.50,000/- and Rs.50,000/- for mental pain and agony.
The complainant’s case, in brief, is that the complainant purchased a Bolero GLX 7 car manufactured by Mahindra & Mahindra where registration No. WB58K/4807 with the financial assistance of Op No.1 and insured with OP No.2 for the period from 19.11.12 to 18.11.13 for a sum of Rs.3, 00,000/- . On 29.10.13 night said car was in the garage of the complainant. On 30.10.13 morning when Dhruba Patel son of the complainant came to the garage found that the said car was not in the garage, immediately informed his father, the complainant over phone about such theft of car as his father was in Bihar at that time for matrimonial negotiation of his daughter. The complianant came back on 4.11.13 and lodged FIR with Nalhati P.S on that day and the same was informed to OP No.2 verbally and informed in writing on 25.11.14 to OP No.1. The complainant paid all the installments for the loan of the car till theft of the same. The Op No.2 Insurance Co. did not pay any amount for the theft of the insured car inspite of submission of claim with relevant documents whose assured sum is Rs.3 lakh and the OP No.1 did not return the duplicate key lying in their custody and the same is deficiency in service on the part of OP nos. 1&2 . Then, the complainant has filed the instant complaint. Hence, the instant complaint case.
The written version filed by OP No.2, in brief, is that the OP No.2-Insurrance Company has categorically denied the entire case of the complainant categorically. The alleged car of the complainant was never stolen. The entire case of theft of insured Bolero car is false. As per condition of the policy, the Duplicate key must be surrendered to the Insurance Co at the time of claim. But as the entire case of theft is false, till to date no duplicate key of the Bolero Car was produced to the OP No.2. Moreover when the allegation of theft is in the tune, that the Bolero Car was theft from the Garrage, then the original key must be in possession of the complainant. The FIR being lodged after a long delay and intimation of alleged theft being not given, the OP no.2 has no liability to pay claim of the policy for alleged theft of vehicle and for that there is no deficiency in service on behalf of Op No.2 and for that the complaint is liable to be dismissed. Hence, the instant written version filed by the OP No.2 Insurance Company.
The written version filed by the OP No.1, in brief, is that they have never received any duplicate key of the vehicle financed by them from the complainant and for that the question of return of duplicate key by OP No.1 does not arise. The OP No.1 gave loan of Rs.2.20lakh to be repaid Rs.297770/- by 41 installments as per agreement for purchasing a Bolero Car which was allegedly stolen on 30.10.13 and as on 30.10.13 the complainant was supposed to pay 28 installment where complainant paid only 24 installments. The complaint never handed over any duplicate key of that vehicle to the OP No.1. The instant loan is a refinance loan and in such loan the OP no.1 have no practice of taking duplicate key of the vehicle from the complainant-borrower. The allegation of the complainant is totally false and for that the complaint is liable to be dismissed. Hence, the instant written version by OP No.1.
Considering the pleadings of both sides the following points have been arranged for the disposal of the case.
Point for Consideration
- Whether the case is maintainable in its present form and in law?
- Whether the complainants have locus standi to initiate the present case?
- Whether the present case is barred by law of Limitation?
- Whether the complainants are entitled to get relief as prayed for?
- To what other relief/relief the complainants are entitled to get?
Decision with Reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convenience.
The instant complaint is for direction upon the OP No.1 to supply the duplicate key to the complainant and upon Op No.2 to pay Rs.3 lakh along with interest @ 12% p.a from the date of theft of vehicle and compensation of Rs.1 lakh towards harassment cost of Rs.50,000/- and Rs.50,000/- for mental pain and agony.
The complainant’s case, in brief, is that the complainant purchased Bolero Car taking loan from the OP No.1 Financer which was insured with OP no.2 was stolen on 29.10.13. The duplicate key of the car was in the custody of OP No.1 who has not yet returned the said duplicate key. Also, the OP No.2 has refused to pay the assured sum of Rs.3 lakhs for theft of insured Bolero Car along with interest.
On the other hand the OP No.1 Financier’s case is that they have never received any duplicate key of the vehicle financed by them from the complainant and for that the question of return of duplicate key by OP No.1 does not arise. The OP No.1 gave loan of Rs.2.20lakh to be repaid Rs.297770/- by 41 installments as per agreement for purchasing a Bolero Car which was allegedly stolen on 30.10.13 and as on 30.10.13 the complainant was supposed to pay 28 installment where complainant paid only 24 installments. The complaint never handed over any duplicate key of that vehicle to the OP No.1. The instant loan is a refinance loan and in such loan the OP no.1 have no practice of taking duplicate key of the vehicle from the complainant-borrower. The allegation of the complaint is totally false.
Also, the OP No.2-Insurance Company’s case is that the alleged the alleged car of the complainant was never stolen. The entire case of theft of insured Bolero car is false. As per condition of the policy, the Duplicate key must be surrendered to the Insurance Co at the time of claim. But as the entire case of theft is false, till to date no duplicate key of the Bolero Car was produced to the OP No.2. Moreover when the allegation of theft is in the tune, that the Bolero Car was theft from the Garrage, then the original key must be in possession of the complainant. The FIR being lodged after a long delay and intimation of alleged theft being not given the OP no.2 has no liability to pay claim of the policy for alleged theft of vehicle and for that there is no deficiency in service on behalf of Op No.2 and for that the complainant is liable to be dismissed.
In this case both the complainants together have filed evidence on affidavit and have filed relevant documents in support of their case.
On the other hand the OP No.2 Insurance Co. has filed relevant documents in support of their case including standard form for private care package policy and three same letters dt. 9.1.15, 28.1.15 and 13.2.15 with the final request to the OP No.1 to send five items including second key of the alleged insured vehicle of the complainant within seven days in default they shall be compelled to close the file as “No claim “.
According to para (vii) of the evidence –on-affidavit of both the complainants together the said car was kept in their Garage at night on dt. 29.10.13 of their house. On the next morning on 30.10.13, when their son Dhrub Patel came to the garage, found that the said car was not in the garage. That means the said car had been stolen and immediately their son informed to them about the incident over telephone as they were out of station.
From the above evidence it is clear that on the date of alleged incident of theft both the complaints were not present in their house, they were out of station and their son-Dhruba Patel first saw on 30.10.13 that the alleged stolen car was not in the garage which was kept on 29.10.13 and he informed the said incident to his father complainant No.2 over phone but he did not lodge FIR with the P.S. on the same day.
The complainant No.2, Umesh Patel returned home on 4.11.13 after getting the telephone call on 30.10.13 from his son Dhruba Patel about the alleged theft of their Bolero Car on 30.10.13 and lodged FIR on that day i.e 4.11.13..
The alleged theft of the car has been challenged by both the OPs-Insurance Co and OP No.1 Financer Co.
But, Dhruba Patel has not been examined by the complainant.
Also, there is no evidence adduced by the complainant as to handing over the second key to OP No.1.
Mere, statement of the complainants together in evidence by affidavit that the second key is in the custody of the OP No.1 which has been categorically denied by the OP No.1 in their written version is not sufficient.
Wherefrom it appears that the complainant never handed over any duplicate key of that vehicle to OP No.1. The instant loan is a refinance loan and in such loan the OP no.1 have no practice of taking duplicate key of the vehicle from the complainant-borrower. The allegation of the complainant is totally false.
Mere submission of FRT by the police against the alleged FIR is not enough to discharge the onus of the complainant to prove their case of theft of car.
Where, it is clear from the three letters dt. 9.1.15, 28.1.15 and 13.2.15 address to OP no.1 by the OP No.2 –Insurance Co requesting to send the second key of the alleged stolen car that the duplicate key of that car was not supplied to the OP no.2 Insurance Co which is essential to settle the claim of the insurer policy for theft of Insured hypothecated car.
Regarding delayed intimation the ld. lawyer for the OP no.2 has advanced argument referring the reported decisions in 2013(I)CPJ(NC)-69 Joginder Singh Vs. New India Assurance Co. Ltd and in I(2013) CPJ-71 (NC) Virender Kumar Vs. New India Assurance Co. Ltd that for delayed intimation they could not take steps for recovery and investigation of the alleged stolen car and such delay in giving intimation is a breach of policy conditions which is mandatory.
The complainants’ case is that the complainant returned back on 4.11.13 and lodged FIR with the P.S. and thereafter the said matter was informed to Op no.2 verbally and also informed the said matter to OP No.1 by a letter dt. 25.11.14.
But, there is no letter informing the said incident to OP No.2 which is vital.
Even, informed verbally but there is no categorical averment mentioning date of such verbal information and by whom. Also there is no cogent evidence to that effect.
In the reported decision in 2013(1) CPJ(NC) 69 regarding delay in intimation as to theft of vehicle which is breach of policy condition and claim was repudiated and there is no evidence that telephonic information was passed on date of itself to insurer and it has been held that Fora below was justified in holding that there was delay in giving intimation.
In this case there is no cogent evidence as to verbal intimation about the incident of theft of vehicle to OP No.2.
The complainant’s case is that Dhruba Patel son of the complainant first saw on 30.10.13 that the care which was kept on 29.10.13 in the garage was not available, the same was stolen and he informed his father the complainant No.2 over phone but there is no averment that he informed the same to OP No 2 . Insurance Co.
It is clear from evidence that on 4.11.13 returning back the complainant-Umesh Patel lodged FIR.
There is no categorical averment or any evidence mentioning particular date and the person who informed verbally to OP no.2.
Admittedly, he informed the incident to Op No.1, the Financer by letter dt. 25.11.14 after about one year.
There is no such letter addressing to Op No.2 which was quite usual.
In another reported decision in I(2013) CPJ 71 (NC) where delay in lodging FIR and giving intimation to the Insurance Co was about 10 days and 15 days respectively and it has been held that repudiation is justified.
In a decision of Hon’ble National Commission obtained from Net in a case in between New India Assurance Co. Vs-Trilochan Jane passed on 9.12.2009 regarding repudiation for 9 days delay in reporting the theft , it has been held that the State Commission erred in holding that the respondent/complaint had reported the theft to the appellant-Insurance Co. within a reasonable time.
Considering the above discussions as a whole we can safely conclude that the complainant has failed to prove handing over the duplicate key of the alleged stolen car to OP No.1 which is vital to prove theft of vehicle because mere FRT by police against the FIR for theft of vehicle is not enough and duplicate key is very much essential to settle the claim from the side of Op No.2-Insurance Co and also violated the essential conditions for sufficient delay in giving intimation of theft to OP no.2 Insurance Co. and as such the complainant is not entitled to get any relief. Accordingly, the complaint be dismissed.
Hence,
Ordered
that the Consumer Complaint no. 53/2015 be and the same is hereby dismissed on contest.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
