Order No. 10 Dt. 06.02.2015
This case has been filed by Taimur Sk. U/S. 12 of the Consumer Protection Act, 1986 praying for an award of Rs. 54520/- as cost of Motor Cycle, Rs. 20000/- for mental agony and Rs. 20000/- for Litigation Cost by O.P.s for their deficiency in service for repudiating his claim for theft of his vehicle.
The fact of the case is that Petitioner is a resident of Gabgachi, Jadupur, Kamlabari P.O. E.B.P.S. of Dist. Malda and his motorcycle WB/66N/5117 was stolen from his house on the midnight of 27.10.2013 for which he lodged an FIR No. 959 of 2013 on 05.11.2013 with English Bazar Police Station, Malda. Thereafter, he went to Insurance Company and gave verbal intimation regarding the theft to the Insurance Company. The Insurance Company repudiated the claim of the petitioner for 9 days’ delay in lodging the FIR. Thereafter, the petitioner sent lawyer’s notice on 09.07.2014 and getting no response from the Insurance Company he filed this case. The insurance policy was valid at the time of theft.
The opposite party Insurance Co. contested the case by submitting written version denying the allegations and informing that the complainant is not entitled to any compensation. The O.P. stated that though the vehicle was stolen on 26 – 27/10/2013 the complainant’s claim is repudiated for 9 days delay in lodging FIR and 10 days delay in giving notice to the Company which is clear violation of condition -1 of policy wordings as per terms and conditions governing the Insurance Policy which is a contract between the policy holder and the company and failing which complainant is not entitled to the relief(s) claimed and also as there is absolutely no material to substantiate his claim and thus the claim is repudiated.
On the basis of the same the following issues are framed:
- Is the D.F.C Case No. 49/2014 is maintainable in its present form?
- Whether the petitioner has any cause of action to file the case?
- Whether there is any deficiency in service on behalf of the O.Ps?
- Whether the petitioner is entitled to get the relief as prayed for?
- To what other reliefs is the petitioner entitled?
::DECISION WITH REASONS::
Issue Nos. 1,2,3,4 and 5
All the issues are taken up together for the convenience and brevity of discussion and to skip of reiteration.
In support of his case, petitioner filed 5 documents marked as Ext.-1 to Ext.-5. Ext. 1 was related to investigation report of police. Ext. -2 being certificate of registration of the two wheeler, Ext.-4 being legal notice to O.P. and Ext. 5 as certificate of Insurance Policy. Ext. 1 is a bundle of 6 pages is of date 30th May, 2014 wherein information of theft- date recorded as 05.11.2013 vide FIR in aFinal Form / Report. Ext. -3 is a delivery challan which shows that the vehicle was purchased on 09.01.13. Ext.-5 is a xerox copy of one page.
Besides, complainant himself examined as PW-1 and was cross-examined by O.P. In his evidence he stated that he did not lodge FIR on the next day of theft. He also stated that he contacted Insurance Company over telephone but did not submit any written information or he did not mention the telephone number of the Insurance Company or in which telephone he contacted the Insurance Company. He also mentioned that he is not aware of the written materials as he does not know English.
The Forum heard the Ld.Counsels of both parties. The Complainant’s counsel argued that the reasons of 9 days delay in giving information is for the act of searching the theft vehicle but thereafter reported to police and also to Insurance Company. Ld. Counsel mentioned two cases here wherein the vehicle is lost by the complainant and also mentioned that in case of theft the policy conditions are not pertinent and submitted two rulings in this regard. Complainant though provided three rulings. The first one is related to theft of vehicle along with substance of transfer of the vehicle and the second one is related to Limitation Act, u/s. 5 and both these rulings are not applicable in this case.The third ruling is also not applicable here as the fact of the case is otherwise and the delay for filing theft report is in no manner hammered.
O.P’s Counsel argued that they have no deficiency in service and complainant’s complaint of deficiency in service on our part does not arise. The complainant in his evidence confirmed the delay of 9 days regarding reporting to police for FIR but also said he informed the occurrence of theft to Insurance Co. over telephone. He stated in his evidence-in-chief that he informed the fact over telephone but no corroboration of telephone number of O.P. Insurance Co. is not mentioned.He had the knowledge of contract norms for communicating to Insurance Company in case of theft of his vehicle. Still he did not file FIR just after theft and not inform to Insurance Co. on immediate basis.
It is noted “in Case No. 321/ 2005, New India Insurance Co. Ltd. Vs. Trilochan Jane IV (2012) CPJ 441 (NC), decided on 09.12.2009 dismissed complaint as FIR lodged after two days of theft and intimation to Insurance Co. was given after nine days. On account of delayed FIR and delayed intimation to opposite party claim was rightly repudiated.National Commission held that not giving intimation to Insurance Company for 9 days after theft is fatal, in this time period the vehicle may be taken to far distance, it may be sold out to scrap dealer and such delay is fatal for investigation. The Counsel for the complainant failed to explain how the above authority is not applicable to the present case. ”
Hon’ble Supreme Court in the matter of Oriental Insurance Company Ltd. Vs. Parvesh Chander Chadha (Supra),Civil Appeal No. 6739 of 2010 dismissed the complaint holding that in terms of the policy issued by the Insurance Compnay the insured was duly bound to inform about the theft of the vehicle immediately after the accident. Delay in intimation deprives the Insurance Co. of its legitimate right to get enquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same.
From the hearing of the Counsels of both parties, evidence given by the complainant and perusing the documents and the Rulings of Hon’ble NCDRC and Hon’ble Supreme Court we are of the view that the complainant miserably failed to file FIR in time though he mentioned breakage of his collapsible gate for the occurrence of the theft by the miscreants and also fully knowing well that intimation to Insurance is a norm as per the Insurance Agreement and also did not adduce iota of evidence. He informed the fact over telephone, he did not follow proper guidelines both for FIR filing and theft informing to ICICI and thus the complainant miserably failed in complying the terms and conditions of the agreement with the ICICI and the ICICI rightly repudiated the claim of the petitioner.
In the result, the consumer claim case fails.
Court fees, paid on the petition, is correct.
Hence, ordered
that the Consumer Case No. 49/2014 be and the same is hereby dismissed on contest against the O.Ps but without cost.
Let a copy of the order be given to each of the parties free of cost.
