Order No. 13 Dt. 27.04.2015
This is an application under section 12 of the C.P. Act, filed by the petitioner Shri Alok Das, S/o Mr. Mantu Das, Resident of Vill & P.O. Budhia P.S. English Bazar, Dist. – Malda against the National Insurance Co. Ltd. praying for an order to pay Rs. 35000/- for his stolen motor cycle, compensation of Rs. 20000/- for harassment and mental agony and litigation cost amounting to Rs.10000/- and any other reliefs.
The fact of the case in short is that the petitioner purchased a motor cycle and the said motor cycle being No. WB-66H /1287 was insured by Insurance Policy No. 150700/31/12/620006521 and it was valid from 18.12.2012 to 17.12.2013. The said vehicle was stolen on 19.12.2012. All the papers of the said motor cycle was within the said motor cycle. The petitioner kept the said motorcycle by the side of the road and went to the nearby shop and after returning within a few minutes, he found that the motor cycle is not there. He searched nearby area. Thereafter, he rushed to the English Bazar Police Station and lodged a written complaint on 20.12.2012 stating his fact of theft.
He also informed the fact of theft and the other relevant papers to the Insurance Company but the Insurance Company repudiated the claim. He sent a Lawyer’s notice to the Insurance Company and thereafter he filed this case in this Forum.
The Insurance Company appeared in this case and filed written statement denying the material allegations contending inter alia that the petitioner not being able to send the papers for a long time and they enquired through their agent and came to know that proper care has not been taken and files a false police case of theft. The handle of the motorcycle was not locked and as per the provisions of insurance policy coverage the claim was repudiated.
Following issues are framed:
- Whether D.F.C. Case No. 67/2014 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 or unfair trade practice on the part of the O.Ps ?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Issue Nos.1 2 3 & 4
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration.
The petitioner examined himself as P.W.-1 and he filed some documents i.e. Insurance Policy of National Insurance Company, Certificate of Registration of Vehicle No. WB-66H/1287, Life Time Tax of the said motorcycle, Copy of FIR, Application before the RTO for taking the Driving License in Duplicate and relevant papers, Letter received by the petitioner from the Insurance Company dt. 03.07.2013, another letter received by the petitioner from the Insurance Company dt. 17.06.2014, Letter sent to Insurance Company by the petitioner through his Lawyer, postal receipts dt. 30.07.2014 addressed to National Insurance Company, Malda Branch and Kolkata Branch.
No D.W. adduced by the O.Ps but the documents marked Exts. A, A1, Ext.-B and Ext.- C.
The P.W. -1 stated in his evidence that the Vehicle No. WB-66H/1287 was insured by the Insurance Company and was valid from 18.12.2012 to 17.12.2013. He further stated that the said motor cycle was kept near the shop of Adhir Mondal by the side of the road and there are many other shops. In the evening time on 19.12.2012 he and his son went to nearby shop of the opposite side of the road without locking the handle and he returned back within 10 to 15 minutes and found that the motor cycle was not there.
He and his father, as their house situated nearby they raised hue and cry as they did not found their motor cycle. The people of their locality and the other persons also began to search but in vain. The occurrence took place on 19.12.2012 at 05-30 P.M. It was winter season as per the calendar month and the place is Malda and there is no doubt that the etching cold was running at that time.
This witness is cross-examined by the Insurance and from the cross-examination part it is crystal clear along with the Ext. A, A1, B, and Ext. –C that the said motor cycle was kept as the petitioner stated in his evidence and this statement of the witnesses which the Insurance Company filed established the fact of theft of the said Hero Honda Super Splender being No. WB-66H/1287 which has taken away or stolen. The Insurance Company sent their person for enquiry and it is established that the theft took place and the person searched the surroundings and thereafter they lodged the written complaint in the police station with a very reasonable time which is only 22 hrs. or like that. Ld. Advocate for the Insurance Company at the time of argument submits that there is no theft but sending his person and the document filed by the Insurance established that the said motor cycle was insured by the said Insurance Company and the papers were lost with the motor cycle. The application for getting duplicate driving license and the relevant papers applied to the RTO of Malda by the said petitioner on the very date of filing of FIR in the Police Station and this document established that the relevant papers were not lying with them when the Insurance Company demanded all those papers.
Ld.advocate tried to draw our attention regarding the delay of filing FIR of 24 hrs. The incident took place in a winter season i.e. on 19th December 2012 at about 06-00 P.M. and the etching cold is felt by everyone of the locality. We are getting from the evidence on record along with the exhibited documents of the other side established that they hurriedly searched the nearby areas and thereafter when they failed to find out their motorcycle they with the reasonable time came to the Police Station, English Bazar and lodged the FIR. Therefore, the fact of theft of the said motor cycle is established. Now the locking of the handle is how far acceptable for not allowing claim. He kept the motor cycle by the side of the road and went to the other side of the road and within a very short span returned to that place and found motor cycle is not there. The house of the petitioner is also by the side of the road. Therefore, after going through the documents we are of the opinion that there is no negligence on the part of the complainant when the vehicle was detached from the person for a couple of minutes and the insurance policy not specifically stated that if you did not lock the handle of the motor cycle you are not entitled to get insurance claim.
In view of the above discussions and findings all the issues are decided in favour of the petitioner.
In the result, the case succeeds.
Court fee, paid on the petition is correct.
Hence, ordered
that Malda D.F.C. Case No. 67/2014 be and same is allowed on contest against the O.P. Nos. 1 and 2 but with cost.
The petitioner is entitled, to receive a sum of Rs.35000/-. He is not entitled to get any other relief as prayed for. O.P. Nos. 1 and 2 jointly and severally liable who are directed to pay the above amount to the petitioner within 60 days from the date of this order failing which the amount will carry interest @ 9% p.a. from the date of filing of this case failing the petitioner would be at liberty to put the final order in execution.
A copy of this order be given to each of the parties free of cost.
