Case Record is placed before us for passing Final order.
This is a complaint u/s 12 read with sec.2(1)C of the C.P.Act 1986.
Complainant’s case in short is that he purchased a motor Bike having registration no.WB-72-H/1908 for his own use. He also took a comprehensive policy no. 31320/31/2013/2173 on 17/07/2012 from O.P. no.1 i.e the Oriental Insurance Co. Ltd. for safety and security of the motor bike which was valid on and from 16/07/2012 to 15/07/2013 having insured value of Rs.1,09,358/- . That motor bike was stolen away by unknown miscreant on 08/03/2013 in between 22.00hrs to 5 am from his house premises by breaking open the lock of the gate. Complainant informed this matter to the O.C., Kalimpong P.S. in writing which was registered as Kalimpong P.S. Case no.40/13 dt. 09/03/2012 u/s 379/461 L.P.C. The complainant also informed that matter to R.T.A. Jalpaiguri on 08/05/2013. The police took up investigation of the case but failed to trace out the motorbike and the miscreant and submitted F.R.T on 12/03/2013. The complainant intimated the said incident to O.P.1 over phone and in writing with prayer for settlement of his claim. On 31/03/2014 i.e. after lapse of one year the O.P. Insurance Company has repudiated his just and bonafide claim arbitrary manner on some flimsy and baseless grounds having no nexus with the theft of his Motor Bike.
Hence this case. The complainant has prayed for some reliefs specifically mentioned in the prayer portion of the complaint.
The O.P. Oriental Insurance Co. Ltd. has contested this case by filing written version denying and disputing the claims and contention of the complainant. Their specific stand is that, Bhusan Auto Finance India Pvt. Ltd, Siliguri, i.e. the Hypothecator of the Motor Bike Company has not made party, to this case so this case is not maintainable and that the complainant lodged a GDE no 2394 at Kalimpong P.S. on 17/02/2013 for loss of one ignition key of his motor Bike which was stolen away on 08/03/2013, therefor there was fair scope to replace the lock before theft of the Motor Bike and that the Motor bike was parked in an open place.
Under this backdrop the O.P. Insurance Company has prayed for dismissal of this case with cost.
POINTS FOR CONSIDERATION.
- Is the case maintainable for not impleading Bhusan Auto Finance India Pvt. Ltd to this case as alleged ?
- Is the complainant a consumer as per provision of Consumer Protection Act.1986?
- Is the O.P.1 (Oriental Insurance Co. Ltd.) guilty for deficiency in service as alleged?
- Is the complainant entitled to the reliefs as prayed for?
DECISION WITH REASONS
All points are taken up together for consideration and decision for the sake of convenience.
Seen and perused the pleadings of the parties which are supported by affidavits and documents/ papers filed by the parties.
Ld. Lawyer for the O.P. alleged that this case is not maintainable as the Hypothecator Bhusan Auto Finance India Ltd. has not made party in this case. Ld. Lawyer for the complainant vemently opposed such claim of the Ld. Lawyer for the O.P. submitting that the loan taken by the complainant from the hypothecator, Bhusan Auto Finance India Ltd. to purchase the vehicle in question has been liquidated in March 2014 and he also filed copy of the NOC showing liquidation of the said loan and copy of intimation in Form No 35 to RTA, Jalpaiguri. Seen and perused the aforesaid documents/papers filed by the complainant on 30/12/2014. It is clear from the said documents/papers that the loan taken by the complainant Bhusan Auto Finance India Pvt. Ltd. to purchase his vehicle in question was liquidated in March 2014 i.e. about 1 and half months before filing of this case. So in our considered opinion the Financer Bhusan Auto Finance India Ltd. is not necessary parts in this case and as such the contention of the Ld. Lawyer for O.P.has no leg to stand upon. Therefore we find and hold that this case is well maintainable.
Admittedly the complainant purchased insurance policy no. 313201/31/2073/2173 from the O.p.and the coverage period was from 16/07/2012 to 15/07/2013, insured value is Rs.1,09,358/- for safety and security of his Motor Bike having registration no.WB 72-H/1908. That motor bike was stolen away by unknown miscreant on 08/03/2013 in between 22.00 hrs. to 5.00 p.m. from his house premises. Therefore we have no doubt that the complainant is a consumer of the O.P.
The main allegation of the Complainant is that the O.P. Oriental Insurance Co. Ltd. has repudiated his bonafide just and valid claim on some flimsy, ill-founded and baseless grounds vide their Letter dated. 31/03/2014 in a most arbitrary manner and the grounds taken by the O.P. have no nexus with the theft of his motor bike. The O.P. in its W/V has stated that the claim of the complainant has been repudiated as there was fair scope to replace the lock of the complainant’s motor bike stolen on 08/03/2013 due to loss of one ignition key of that motor bike on 17/02/2013 for GDE no.2394 dt.17/02/2013 was lodged with Kalimpong P.S. and that the motor bike was parked in an open place. In the W.A. the complainant has stated that loss of ignition key of the motor bike was not the proximate cause of theft of the motor bike as one ignition key was lost while the complainant was then returning home from Kalimpong and the motor bike was stolen away from his house premises which is about 60 kms. away from Kalimpomg, so it cannot be presumed or inferred on any stretch of imagination that the said lost ignition key was used at the time of theft of his motor bike and he also diarised the matter with Kalimpong P.S. and was in regular touch with the P.S. over this matter and his motor bike was stolen from his residence which is well covered by walls affixed by iron gate under lock and key where he used to park his bike at night regularly. Now after going through the documents filed by the complainant marked as Annexure A2 and Annexure I, we find that the ignition key of the motor bike of the complainant was lost in the midway while he was returning home from Kalimpong and this matter was reported to Kalimpong P.S. by the complainant on 17/02/2013 vide GDE No.119/13 dt.17/02/2013 (Annexure H). From Annexure D, E and G we find that complainant has reported about the theft of his motor bike at Kalimpong P.S. through Riyang Petrol Post on 09/03/2013 we further find that the motor bike was stolen away from the residence of the complainant on 08/03/2013 at 22.00 hrs to 05.30 hrs. breaking open the lock of the gate and that on the basis of written complaint lodged by the complainant on 09./03/2013 Kalimpong P.S. Started P.S. Case no. 40/13 dt.09/03/2013 u/s 379/461 IPC and took up the investigation of the case which was ended in FRT no.34/13 dt. 30/06/2013. Considering the aforesaid factors the written arguments filed by the parties, the oral arguments advanced bt the Ld. Lawyers of the parties and the materials on record we are very much agree with the argument advanced by the side of the complainant, as we find much substance in the argument advanced by the side of the complainant. Thus we find and hold that the fact of loss of one ignition key of the complainant’s motor bike, before 22 days of the theft of the motor bike when the matter was diarised with the P.S. and the complainant was keeping in touch with the P.S. over this matter, cannot be the proximate cause of theft of complainant’s motor bike and that the motor bike was stolen away by unknown miscreant from the residence of the complainant, which was covered by wall and affixed with iron gate, by breaking open the lock of the iron gate. As such it cannot be presumed or said that the complainant kept his newly purchased motor bike valued more than Rs.1,00,000/- in an open place as alleged buy the O.P. In view of our discussions made herein before we find sufficient reasons to hold that the repudiation made b y O.P. Against his claim as per terms and condition of the Insurance Policy (Annexure D) was not just and proper. Such act of repudiation of the legitimate and just claim of the complainant by the O.P. Insurance Co. certainly comes under the puview of Deficiency in service. Therefore we find and hold that the O.P., theOriental Insurance Co. Ltd.is guilty for deficiency in service as alleged, so the complainant is entitled to the reliefs specified below.
All points are disposed of.
In the result the case/application succeeds.
Hence, it is
O R D E R E D
that the case /application is allowed on contest with cost of Rs.2000/-. The complainant do get an award of Rs.1,09,358/- against the O.P. Oriental Insurance Co. Ltd.The Complainant do get further award of Rs.4000/- from the O.P. in the head of pain and agony suffered by him due to improper repudiation of his claim(Deficiency in service) by the O.P.. The O.P. Oriental Insurance Co. Ltd. Is hereby directed to pay to the complainant the afore said cost of Rs. 2000/- and the awarded sum of Rs. 1,13,358/- within 30 days from the date hereof failing which it will carry interest @ 8% p.a. till realization of the entire amount and the complainant shall be at liberty to realize the same by putting this order into execution in accordance with law.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Rule.5(10) of West Bengal Consumer Protection Rules 1987.
