SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The complainant has filed this complaint petition, U/s-12 of C.P.A.-1986, (here-in- after called as the “Act”) alleging a “deficiency-in-service” against the Opp. Parties, who are Authorities of National Insurance Company Limited located at different places.

2.         The factual matrix of this case is that the complainant is the owner of one TATA Indica car bearing Registration No.OR-01L-3511 and for the said vehicle he has availed loan from TATA Motors Finance Limited, Branch Office at Balasore and for the purpose an agreement was executed between both the parties. Thereafter, the complainant insured the vehicle with the OP-Insurance Company bearing policy No.163005/31/08/6100002970 covering the period from 26.10.2008 to 25.10.2009 and 26.10.2009 to 25.10.2010. The complainant has been using the said car as Private Car and engaged one Anil Dehuri as his driver. It is further stated that on 25.10.2009 driver Anil Dehuri had been to one Petrol pump situated at Jaleswar for filling diesel, but did not return till 6.00 PM for which the complainant contacted said driver in his mobile phone bearing No.9040418289. But he did not attend the call, rather, another person received the call and without any information suddenly switched off the mobile. The complainant searched for his vehicle and lastly lodged an FIR on 27.10.2009 before Jaleswar PS about the theft of his vehicle which was registered as Jaleswar PS Case No.307 dated 27.10.2009 corresponds to C.T. No.695 of 2009 in the Court of J.M.F.C., Jaleswar. Said driver Anil Dehuri is missing since the date of theft of the aforesaid vehicle and the police did not arrest him yet.

            It is the further case of the complainant that he informed the matter to the OP No.2 so also to the office TATA Motors Finance. As per the advice of OP No.2, the complainant filed motor claim in proper form on 23.11.2009 before the OP No.2. In the meantime, police seized the vehicle in question from Sampad Mallick & Umesh Behera of Cuttack and forwarded them to Court and left the seized vehicle in his zima. The vehicle was completely damaged to the tune of Rs.1,50,000/- and was not in a running condition. The complainant requested OP No.2 for verification of the recovered vehicle and also filed estimate report issued by one garage service center namely Modern Car Services, Januganj Golei, Balasore. Further, he had also submitted one affidavit before the OP No.2 declaring about the absconding/missing of the driver.

            It is also averred that OP No.2 assured the complainant for settlement of the claim, but did not take any action for the purpose in spite of repeated visit made by him. On 3.6.2010, OP No.2 sent a letter vide No.449/2010 to the complainant stating that his claim does not fall within the purview of consideration for settlement as the theft vehicle was used for hire purpose as per police report and the news published in the newspaper. In refuting the allegation, the complainant submitted his reply to OP No.2 vide letter dated 3.6.2010 stating that he has never used the said car for hire purpose at the time of theft and thereby he has not violated the terms and conditions of the agreement. Again, the OP No.2 has sent a letter on 28.6.2010 to the complainant stating that the car was used for hire purpose at the time of theft and omitted the newspaper report. The Ops have changing their words from time to time and did not settle his claim with an ulterior motive. It is further stated that not a single witness stated before the police that the alleged vehicle was used for hire and reward purpose. Further, the reports published by different Newspapers are contradicting to each other. The Ops did not settle the claim of the complainant on false pretext for which he suffered mental agony and harassment for deficiency of service committed by the Ops.

            The cause of action for filing of this case arose on 3.6.2010, when the Ops denied not to settle the claim of the complainant and after 15 days of legal notice i.e. on 15.7.2010. Hence, this case.  

            To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of legal notice.
2. Photocopy of policy bond.  
3. Photocopy of letter of the complainant to TATA Motors.
4.  Photocopy of letter of OP No.2 dated 28.6.10 issued to complainant.  
5. Photocopy of application of the complainant submitted to OP No.2.
6. Photocopy of affidavit executed by the complainant.  
7. Photocopy of motor claim form.
8. Photocopy of paper cutting news.
9. Photocopy of letter of complainant to OP No.2 about missing of driver.
10. Photocopy of letter of OP No.2 dated 3.6.10 issued to complainant.
11. Photocopy of police papers.
12. Photocopy of letter of complainant dated 11.6.10 issued to OP No.2.
13. Photocopy of tax invoices.

3.         In the present case, Ops were made their appearance and filed their joint written version. In their written version, the Ops have not only challenged the cause of action to file the present case but also emphatically stated that the case is not maintainable. They have denied the allegations made in the complaint petition. The Ops have stated, inter alia, that the complainant had obtained a private car policy ‘B’ package covering the period from 26.10.2008 to 25.10.2009 against his vehicle bearing Regd. No.OR-01L-3511. On 23.11.2009 the complainant intimated the OP No.2 about the stolen of his vehicle in question on 25.10.2009 at about 5.00 PM. The complainant was supplied with a set of claim form with a request to submit the same along with required documents along with copy of FIR, who submitted the same on 24.11.2009. On 28.12.2009, the complainant intimated that the stolen vehicle was recovered by the police along with an intimation letter for assessment of loss for which OP No.2 provided another set of claim form to him, which was also submitted by the complainant on the same day. On 31.12.2009, the complainant intimated that he has shifted his vehicle to Modern Car Services, Januganj Golei, Balasore for its repairing and for assessment of loss for which OP No.2 appointed one Rakhal Ch. Behera to survey the insured vehicle and to assess the loss caused. Accordingly, Surveyor visited  the premises of Modern Car Services, Januganj, Balasore on the same day and carried out survey of the insured vehicle, took the photographs of damage and loss parts of the vehicle in presence of the complainant and assessed the loss. On 13.1.2010, the complainant requested for further inspection of the insured vehicle as he has completed the repairing work. Accordingly, Surveyor S.K.Behera was appointed for the purpose. On 2.2.2010, Surveyor R.C.Behera submitted the final survey report assessing the loss of Rs.43,000/- and on 16.2.2010, Surveyor S.K.Behera submitted his inspection report. Thereafter, OP No.2 submitted the claim form along with all required documents for settlement of the claim of the complainant to the Regional Manager. The Regional Manager, after careful examination of the documents of the vehicle, police papers submitted in C.T. No.655/2009 and daily newspapers, came to a conclusion that on the very day of theft of the alleged vehicle, at about 4.30 PM it was parked at Jaleswar Taxi Stand for hire and the accused persons availed the vehicle from Jaleswar to Balasore on hire being driven by driver Anil Dehury and on the way the accused persons intoxicated the driver by liquor and while the driver went to urinate, the accused persons kicked him and took away the vehicle. When the car in question was used for hire purpose, the Regional Manager, had repudiated the claim of the complainant as per the terms and conditions of the policy and returned back the matter without any consideration. Therefore, the question of deficiency in service on the part of Ops does not arise at all. Hence, it is prayed to dismiss the case with cost.

            To substantiate their case, the Ops have relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of policy bond.
2. Photocopy of intimation letter dated 28.12.2009.
3. Photocopy of original claim form.
4. Photocopy of letter dated 31.12.2009 of the complainant.
5. Photocopy of RC Book of the vehicle in question.
6.  Photocopy of final survey report. 
7. Photocopy of reinspection report.
8. Photocopy of letter dated 28.6.2010 issued by OP No.2.
9. Photocopy of certified copy of police papers & charge sheet.
10. Photocopy of Newspaper cutting.
11. Photocopy of letter dated 3.6.2010 issued by OP No.2.

4.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the complainant is a consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

5.         First of all it is to be determined as to whether the complainant is a consumer or not. From the averments made in the pleadings of both the parties so also from the documents produced by the parties, it is clear that the complainant is the owner of vehicle bearing Registration No.OR-01L-3511 which was insured under the Ops. From the above, it is clear that the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act.     

6.         Before delve into the merits of the case, it is required to be decided how far the complainant is able to prove his case with regard to the cause of action and maintainability of the case.

7.         On perusal of the documents filed on behalf of both the parties, it is found that the alleged car of the complainant bearing Registration No.OR-01L-3511 was insured with the Ops vide Policy No.163005/31/08/6100002970 covering the period from 26.10.2008 to 25.10.2009, as reflected vide Annexure-A. The vehicle in question was insured as a private car policy ‘B’ package. It is further found that the policy covers use of the vehicle for any purpose other than hire or reward purpose.   

8.         It is the claim of the complainant that on 25.10.2009 the driver took the vehicle for filling diesel to Jaleswar and did not return till 6.00 PM, he contacted the driver over mobile phone bearing No.9040418289, but he did not attend the call and another person received the call and without any information suddenly switched off the mobile. Thereafter, complainant searched for his vehicle and lastly lodged an FIR on 27.10.2009 before Jaleswar PS about the theft of his vehicle which was registered as Jaleswar PS Case No.307 dated 27.10.2009 corresponds to C.T. No.695 of 2009 in the Court of J.M.F.C., Jaleswar. The certified copy of the police papers relating to Jaleswar PS Case No.307 of 2009 corresponding to C.T. No.695 of 2009 is marked as Annexure-I series on behalf of the Ops. In the above premises, on perusal of the forwarding report, seizure lists and statement of the accused persons so also independent witnesses, it clearly established that on the relevant date and time the car in question was engaged in transporting passengers from Jaleswar to Balasore on hire purpose. Then theft was committed and on that basis the complainant made his claim before the Ops. On the other hand, the complainant has not established that the car in question was not engaged for hire purpose. The complainant has not come to this forum in clean hand and omission and suppression of material facts is fatal to the case of the complainant. Here in the present case, when it is established that alleged vehicle of the complainant was insured under the Ops vide policy No.163005/31/08/6100002970 under private car policy ‘B’ package, but the car in question was  engaged in carrying passengers on 25.10.2009. First of all, when the complainant is violated the terms and conditions of the agreement executed with the Ops, his subsequent act claiming policy benefit from the Ops cannot be taken into consideration. Therefore, this Commission is of the considered opinion that the car in question of the complainant was stolen on the way to petrol pump is totally a concocted and imaginary story, rather, on the date of incident the car was used for hire purpose. Hence, deficiency in service does not attributed against the Ops.

9.         From the above analysis made in the foregoing paragraphs, this Commission is of the considered view that the complainant has no cause of action to file the case and the case is not maintainable. Consequently, the complainant is not entitled to get the reliefs, as sought for, in the complaint petition.

            Hence, it is ordered -

O   R   D   E   R

            The case of the complainant be and the same is dismissed on contest against the O.Ps. In the facts and circumstances, no order as to costs.

            Pronounced in the open court of this Commission, this the 18^th day of March, 2024 under my signature & seal of the commission.