Hon'ble Mr. Sudip Niyogi, President.
The instant petition of the Complainant u/s 12 of the Consumer Protection Act, 1986 reveals that he had purchased one vehicle bearing No.WB-69-8547 (Bolero Pick UP) for his livelihood with the financial assistance of Mahindra & Mahindra Financial td. (Copy of R/C Annexure ‘A’). The Complainant also got his vehicle insured with the OP on 26.12.17. The Insurance Policy (Annexure-“B”) was issued vide Policy No.313202/31/2018/3047 for the period from 26.12.17 to 25.12.18 and the value of the said package policy was Rs.5,15,000/-. On 27.03.18, the said Pick UP Van was coming back from Jaigaon after unloading vegetable there and on the way (National Highway 31) near Garum Basti, the Driver went to have his break-fast at Ganapati Dhaba after parking the said vehicle near the said Dhaba. After having breakfast, he found that the vehicle was missing and the Driver and Handiman searched nearby for the vehicle but could not find the same. He also informed the matter to the Complainant.
On that day, Complainant filed FIR before the Officer-in-Charge, Kalchini P.S. vide P.S. Case No.47/18 dated 27.03.18 u/s 379 IPC. Subsequently, the Complainant also informed the OP verbally and on 03.04.18 in writing and submitted his claim before the OP for settlement. The OP sent one Investigator, who, during enquiry, collected the original R/C Book, vehicle delivery and road challan, key etc. from the Complainant. Later, the Investigator submitted enquiry report to the OP. After a lapse of about 8 months, the OP did not settle the claim following the terms and conditions of Insurance Policy. The Complainant also filed written application before the OP on 30.01.19. Finally, the claim of the Complainant was repudiated on the ground that only one key of the vehicle was submitted by the Complainant.
So, according to the Complainant, the act of the OP is illegal and there is gross deficiency in service on their part. So, the Complainant has prayed for direction upon the OP to pay the Policy amount of Rs.5,50,000/-, Rs. 1 lakh for deficiency in service and mental pain and agony and Rs.20,000/- for cost of litigation.
The OP contested the case by filing w/v, evidence on affidavit and written argument. It was admitted on behalf of the OP that the said vehicle was duly insured with them. Despite repeated demands, the Complainant did not handover the Second Original Ignition Key to the OP. According to them, the vehicle, in question, was stolen from an open place with Original Ignition Key in order to promote the incident of theft. It is the negligence on the part of the Complainant and/or his authorized Driver, who was entrusted with the vehicle. The OP denied the allegations made against them and prayed for dismissal of the instant case.
POINTS FOR CONSIDERATION
- Is the instant case is maintainable?
2.Is the Complainant is entitled to get any relief?
3.To what other relief, if any, Complainant is entitled?
DECISION WITH REASONS
All the points are taken up together for consideration.
Both the parties are found to have filed documents as Annexures. On going through the complaint, written version of the parties, evidence, documents and also the written argument, we find that the Complainant’s vehicle, which is said to have been stolen, was duly registered in his name and the same was also duly insured with the OP.
According to the Complainant, on the alleged date of incident, the Driver and Helper on their way of returning from Jaigaon near Garam Basti parking the vehicle on the road side, went to a nearby Hotel for breakfast. But, coming back to that place after breakfast, they found that the vehicle was not there. They searched there, informed the owner of the vehicle i.e. Complainant, who made search and not getting the vehicle, lodged an FIR with Kalchini P.S. on the same day vide Kalchini P.S. No.47/18 dated 27.03.18 u/s 379 IPC.
We also find that the information of the said incident was given in writing to the OP Insurance Co. on 03.04.18. The Panel Investigator of OP was appointed, who also submitted his report on 11.01.19. Kalchini P.S. investigated the case but the Investigating Officer could not trace out the vehicle and finally submitted a report.
From the final report in connection with the said case and subsequent report of the Panel Investigator, which is clear that the vehicle was stolen on the alleged date.
On behalf of the Complainant, it was argued that as it is clear about the theft of the vehicle and that too, during the validity of the Insurance Policy, the Complainant, who had taken the Policy from the OP Insurance Co. by paying premium is unable to get his claim satisfied by OP Insurance Co. But, the OP repudiated the claim of the Complainant and thereby violated the terms and conditions of the Insurance Policy and there was deficiency of service on their part.
Accusing the Complainant of violating the terms and conditions of Insurance Policy, it was alleged on behalf of the OP Insurance Co. that, firstly, there was delay in intimating the Insurance Co. about the alleged theft of the vehicle thereby depriving the Insurance Co. of its legitimate right to inquire into the alleged incident and recovery of the vehicle.
Secondly, Complainant failed to hand over the second ignition key despite several requests in order to settle his claim and thirdly, the Complainant and/or his authorized Agent had left the vehicle in an unsafe manner leaving one ignition key with the vehicle itself. The OP also suspected about promotion of theft of that vehicle on the part of the Complainant and/or his authorized Agent.
So far as the first argument of the OP about the delay, we find that the FIR with Kalchini P.S. was lodged on the date of incident. Further, the OP Insurance Co. was informed after 7 days as claimed by the OP. But, we do not find this delay of 7 days is fatal, which can dis-entitle the Complainant to get his claim of compensation if the same is, otherwise, tenable.
From the materials on record, it is found that the vehicle was left/kept at the road side by the Driver and Helper before going for breakfast at a nearby hotel and on coming back, they found it missing. In the written complaint lodged with Kalchini P.S., it is stated that the Driving License and two other papers of the vehicle were also with the vehicle. The Driver and Helper in their statement to the Panel Investigator disclosed that the ignition key was with other papers in front side Dickey (side box) which was stolen along with the vehicle, while the other key was with the Driver. The Panel Investigator of the OP Company also came to a conclusion on the basis of his enquiry and the Police report that his vehicle was stolen from Garam Busty under Kalchini P.S., District – Alipurduar. The Police failed to recover the vehicle and submitted final report accordingly.
We have gone through the decisions referred to on behalf of the parties.
It has been held by Hon’ble Apex Court 2018(1)CPR 907 (SC) referred to by the OP that if reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. Here, in this case, we have already held that there is absolutely no delay in the matter of reporting the case of theft. In another case also referred to by OP, 2018 (1) CPR 910(SC) of Hon’ble Apex Court in connection with the theft of Tractor, awarded compensation only 75% of the entire amount.
It has been observed by Hon’ble National Commission in a number of cases that in case of violation of condition of the Policy, the claim ought to be settled on a non-standard basis. Here in this case, the OP alleged that there was violation of terms and conditions on the part of the Complainant and the second ignition key was not produced by the Complainant despite repeated demands.
So, considering the facts and circumstances of the instant case, we find that the vehicle was duly insured with the OP and the coverage of insurance policy existed on the date when the alleged theft of the vehicle took place. Therefore, we are of the opinion to pay compensation to the Complainant on non-standard basis. Here in this case, the insurance declared value is Rs.5,15,000/-. So, 75% thereof would be Rs.3,86,250/-. The Complainant is entitled to get this amount from OP as compensation. The Complainant is also entitled to get Rs.10,000/- for deficiency in service, mental pain and agony and Rs.5,000/- towards litigation cost.
With this, all the issues are disposed of.
Hence,
It is ordered,
That the instant case be and the same is allowed on contest.
The OP is directed to pay Rs.3,86,250/- (Rupees Three Lakh eighty six thousand two hundred fifty only) to the Complainant.
The OP is also directed to pay Rs.10,000/- for deficiency of service and mental pain and agony and Rs.5,000/- towards litigation cost.
The OP is directed to pay the said amount within 45 days from the date of this order. If the aforesaid amount is not paid within stipulated time, the Op is liable to pay interest @ 8% per annum on the awarded sum until realization and the Complainant shall also be at liberty to execute the same through due process of law.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action, if any.
The copy of the Final Order is also available in the official Website: www.confonet.nic.in.
Dictated and corrected by me.
