The facts of the case as per the complainant is that his Honda Motor Cycle Number WB56H-3492 was stolen at about 3.05 p.m. of 28/07/2014 from the out side of the State Bank of India, Purulia Branch premises by some unknown person for which an FIR No. 113/14 had been lodged with Police Station Purulia. The police submitted a final untraced report of the said vehicle.
The complainant intimated the Insurance Company regarding the theft of the above said vehicle on 30/07/2014 immediately after receiving the copy of FIR from the Police Station. On submission of Motor Claim Form along with relevant documents and double set of keys of the said vehicle the O.P. Insurance Company repudiated the claim of the complainant by stating that claim preferred by the complainant is not coming within the policy terms.
The above act on the part of the opposite party amounts to grave deficiency in service and he has been harassed and suffered mental agony.
The complainant has prayed that insurance company be directed to award the following amount to him.
- IDV amount of Rs. 38,909.00 in respect of Motor Cycle of the complainant along with interest @ 10% p.a. from 28/7/14 to till payment of the IDV amount.
- Award compensation of Rs. 10,000/- for harassment and mental pain.
- Award Rs. 5,000/- as litigation expanses.
The Opposite Party- Insurance Company in the written statements has stated that the complaint is not maintainable because there is gross negligence on the part of the complainant and the story of the theft as stated by the complainant is not true as it reveals from the FRT that the vehicle was in unlocked condition at the time of alleged incident. Therefore the complaint is liable to be dismissed.
Now the question is whether the complainant is entitled to relief as prayed for?
Decision with reason
After perusal of the documents and considering the argument advanced by the Ld counsel for the respective parties it is undisputed that the complainant is the owner of the Honda Motorcycle bearing Registration No. WB 56H-3492 (vide Annex 1) and the said Motorcycle was insured by the O.P.- Insurance Company through Policy Certificate No. 0318023114P102691294 for a coverage period from 17/7/2014 to 16/7/2015 (vide Annex 3). It is also undisputed that the aforesaid vehicle was stolen away by some miscreant from the outside of the premises of the State Bank of India, Purulia Branch at about 3.05 p.m. and the complainant lodged FIR and immediately after getting the copy of the FIR he gave written information to the O.P.- Insurance Company (Vide Annex 7).
It is admitted that the complainant submitted Motor Claim Form to the O.P.- Insurance Company along with relevant documents and double set of keys of the Motorcycle for settlement of claim.
The relevant issue is whether the Motorcycle was under lock and key or not and the impact thereof on the merit of the case.
The Ld counsel for the O.P. draws our attention to the FRT submitted by Tapan Kumar Majumder, ASI of Police where it is stated that ‘Motorcycle Honda Dream Neo being Registration No. WB 56H-3492 was kept without locking the handle’, in front State Bank of India, Purulia.
Though copy of FRT has been produced before us yet the O.P. had not produced said ASI of police as witness who has investigated the matter and the complainant had not got an opportunity to cross examine him in this matter to ascertain the evidence on which the IO had written the FRT that the motorcycle was not under handle lock specially when it is not in FIR.
The FIR is the statement containing allegation of crime at the earliest opportunity and there is hardly any scope for it being established. We do not find anything from the FIR whether the Motorcycle was unlocked.
It is the fact that both the keys were with the complainant. If we consider that the handle of the Motorcycle was without lock then the ignition lock bears no value because in that case it is easy to shift the Motorcycle. If for the sake of argument we consider that in hurry the complainant forgot to lock the handle, whether it can be termed as so serious negligence, so as to disentitle the insured from seeking claim under Insurance Policy where the motorcycle was admittedly under ignition lock.
As the complainant carried the key with him, so it can be easily presumed that the complainant had not left the said motorcycle in unlocked condition. Therefore, the burden was on the O.P. to prove that the handle was not locked by the complainant. But the O.P. fails to do so for the reason mentioned above.
The main defence of the OP is the alleged non-locking of the Motorcycle which is attributed to the Complaint touching his negligence.
The alleged non-locking of Motorcycle is available from the copy of charge sheet which is the gist of investigation based on statement of witnesses and other materials available during investigation. It has been stated in the charge sheet that Complainant stated before I.O that the motorcycle was not locked. But such statement even if true, made to a police officer, is not a piece of evidence unless stated on oath and verified on cross examination. But the OP did not avail of this legal procedure to convince the mind of the Bench to accept it true that the Complainant really made such statement. So, mere endorsement in the charge sheet that the Complainant admitted that the motorcycle was not properly locked, is unacceptable.
More over, the keys(including the duplicate) were with the complainant which he deposited to the OP. So it is sure that the motorcycle was at least under ignition lock. The Complainant’s unchallenged statement is that he returned from the bank premises within 5 mints. So it can be easily inferred that the complainant could never think that within such short span of time, his motorcycle could be stolen away.
Regard being had to the absence of complainant from the spot for a very little time, it can be safely and surely be assumed that theft of motorcycle within such time was a “remote possibility”. That being so, the negligence even if there was some on the part of the complainant, can never be accepted to be of that degree which can disentitle him from getting the IDV amount because of the fact that the insurance policy was in force at the time of undisputed fact of theft of complainant’s motorcycle.
Considering the facts and circumstances and the documents produced before us we are of the opinion that there is deficiency of service on the part of the O.P. as the said O.P. repudiated the claim of the complainant without showing any reason but only stating that ‘the claim preferred by you against your above policy is not coming within the policy’. Therefore, mere such statement is not sufficient for the O.P.- Insurance Company to escape from its liability, more so when OP failed to discharge his onus of proof that the motorcycle was not properly lock.
In view of the above observation and findings the petition of complaint is liable to be allowed. But we are not inclined to award interest on the IDV amount for the sole reason of making the complainant cautious so that he does not leave his motorcycle, if acquired, further for it being stolen away again. Hence,
ORDERED
That the petition of complaint be and the same is allowed on contest.
The O.P. is directed to pay IDV amount of Rs, 38,909/- (Thirty eight thousand nine hundred nine) only in respect of the Motorcycle of the complainant and O.P. is further directed to pay compensation of Rs. 5,000/- (Five thousand) only for causing mental agony to the complainant and further Rs. 5,000/- (Five thousand) only as litigation cost within two months from the date of this order.
All such payments have to be made within two months from the date of this order by means of an A/c payee Cheque in favour of the complainant, failing which the O.P shall be liable to pay punitive damage @ Rs. 200/- (Two hundred) per day till payment. If such punitive damage accrues and realized would be deposited in the Consumer Welfare Fund bearing Account no. 009300010031026.
Let a copy of this judgement be supplied to the parties free of charge.
