Order No. 18 Dt. 09.09.2015
This case has been filed by the Petitioner Hazirul Sk. S/o. Late Belal Sk., Resident of Guduagram, P.O. Jote Param P.S. Kaliachak, Dist. Malda. praying for an order against the O.Ps for compensation of Rs.66052/- for the value of the stolen motor cycle being No.WB-66P/0674, Rs.33000/- for mental agony and harassment and cost of litigation.
The fact of the case in short that the petitioner is a resident of Guduagram of Kaliachak, Malda. He purchased one motor cycle and the registration number of the motor cycle is WB-66P/0674 and the said vehicle was insured with the National Insurance Co. Ltd. at Malda Division. The vehicle was of Bajaj Pulstar 150 and the Policy Number of the said Policy is 15070031136265000211 and it was valid from 25.04.13 to 24.04.14.
The Engine No. of the said vehicle was DHZCCG70764 and the Chassis No. was MD2A11CZ4CCG73276.
In the night of 21.12/22.12.2013 the said motor cycle was stolen away
from his house and he lodged written complaint stating the fact to the nearer Police Station, Kaliachak on the same date i.e. 22.12.2013 and he informed the fact of stolen away of motor cycle to the Insurance Authority in writing on 27.12.2013. He also informed the matter in writing to the RTA, Malda on 10.02.2014 and also informed the Detective Department, Dy. Commissioner of Police, Kolkata.
The police personnel pen through the date 22.12.2013 and rewrite 01.01.2014. The Police Station also started the complained case on 03.01.2014 u/s 448/379 IPC.
The further case of the petitioner is that in spite of sending all papers the Insurance Company repudiated the claim on 02.07.2014. So he filed this case before this Forum to get relief.
The O.P. filed W/S denying all the material allegation contending inter alia that the petitioner did not comply the terms and conditions of the contact. The alleged theft of the said motorcycle of the petitioner informed to the Insurance Company not in time and the delay is not properly explained as per the terms and conditions.
On the basis of the same following issues are framed:-
- Whether the case is maintainable in its present form.
- Whether there is any cause of action to file this case?
- Whether there has been any deficiency in service on the part of the ops?
- Whether the complainant is entitled to get the relieves as prayed for?
:DECISION WITH REASONS:
Issue Nos. 1,2,3 and 4
To prove the case the petitioner examined himself as P.W.-1. Besides the oral evidence the petitioner filed some documents by Firisty which are marked Exts. 1 to 14 as follows:
- Certified copy of the Order Sheet (Ext.-1)
- Certified copy of FIR (Ext.-2)
- Certified copy of Final Report (Ext.-3)
- Original Copy of Receipts for Payments to Government (Ext.-4)
- Original Copy of Life Time Tax of Motor Cycle (Ext-5)
- Xerox copy of Original policy of Motor Cycle(Ext-6)
- Original copy of Letter dt. 10.02.14 to RTA (Ext-7)
- Original Letter dt. 11.02.2014to Deputy Commissioner of Police with Postal Receipt (Ext.-8)
- Original Information Letter dt. 27.12.13 to Divisional Manager National Ins. Co. Ltd. (Ext.-9)
- Original Letter dt. 08.01.14 from Divisional Manager National Ins. Co. Ltd. (Ext.-10)
- Original Letter dt. 17.01.14 from Divisional Manager National Ins. Co. Ltd. (Ext.-11)
- Original Letter dt.11.06.14 to Divisional Manager National Ins. Co. Ltd. (Ext.-12)
- Original Letter dt.02.07.14 from Divisional Manager National Ins. Co. Ltd. (Ext.-13)
- Original Letter dt.24.07.14 from Divisional Manager National Ins. Co. Ltd. (Ext.-14)
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration.
Petitioner, P.W.-1 stated in his evidence that the petitioner is a resident of Guduagram of Kaliachak, Malda. He purchased one motor cycle and the registration number of the motor cycle is WB-66P/0674 and the said vehicle was insured with the National Insurance Co. Ltd. at Malda Division. The vehicle was of Bajaj Pulstar 150 and the Policy Number of the said Policy is 15070031136265000211 and it was valid from 25.04.13 to 24.04.14.
The Engine No. of the said vehicle was DHZCCG70764 and the Chassis No. was MD2A11CZ4CCG73276.
In the night of 21.12/22.12.2013 the said motor cycle was stolen away
from his house and he lodged written complaint stating the fact to the nearer Police Station, Kaliachak on the same date i.e. 22.12.2013 and he informed the fact of stolen away of motor cycle to the Insurance Authority in writing on 27.12.2013. He also informed the matter in writing to the RTA, Malda on 10.02.2014 and also informed the Detective Department, Dy. Commissioner of Police, Kolkata.
The police personnel pen through the date 22.12.2013 and rewrite 01.01.2014. The Police Station also started the complained case on 03.01.2014 u/s 448/379 IPC.
The further case of the petitioner in spite of sending all papers the Insurance Company repudiated on 02.07.2014. So he filed this case before this Forum to get relief.
The documents i.e. Ext. 9 speaks that Insurance Authority of Malda Branch received the copy of intimation of theft of the said motor cycle of the petitioner. The petitioner admits in cross-examination that there is a delay of five days to inform the Insurance Authority. Ld. Advocate for the petitioner tried to draw our attention with the Ext.-1, Certified Copy of the Order Sheet along with the written complaint i.e. the FIR Ext.-2 where it reveals at the top of the said exhibit dt.22.12.2013 pen through and date has been written 01.01.2014. He tried to convince us that the date was deleted by the police personnel and the FIR started by Kaliachak P.S. stating that the FIR received on 01.03.2014. Whatever it may be, the Insurance Company sent a letter to the petitioner which is marked Ext.10 speaks that they received a complaint along with the documents for which they came to know the delay of FIR and cause of delay of intimation to them vide Letter dt. 08.01.2014. Therefore, it is crystal clear that the Insurance Company was aware of the delay of filing of the FIR and the petitioner must have send the copy of FIR. From the document it reveals that the Ld. CJM, Malda received the said GR Case No. 35 of 2014 on 05.01.2014. We are not concerned with these anomalies as per the law and the contact of the Insurance Co. but the petitioner must inform the fact of theft to the Insurance Co. and the police personnel immediately after the incidence.
We are also getting from the evidence and also from the documents that Insurance Company sent a letter dt.17.01.2014 i.e. Ext.-11 directing the petitioner to submit the cause of delay of intimation not only to the Insurance Company but also to the RTA and the anomaly of the date of theft which speaks in the FIR. We are getting from the evidence i.e. Ext.-8 dt. 11.02.2014 the petitioner sent letter to the Dy. Commissioner of Police Detective Department, Lalbazar, Kolkata stating the date of theft mentioning 22.12.2013 but he did not make any complaint regarding the starting of case by the Kaliachak P.S. on 03.01.2014. The Ext.-7 speaks that the petitioner sent registered letter to the registering authority RTA, Malda dt.10.02.2014 regarding the facts of stolen away of the said motorcycle.
All these acts were done by the petitioner long after the theft of the said motorcycle. It is true that the certificate of insurance was valid at the time of alleged incidence. Ld. Advocate for the Insurance Co. drew our attention that as per the terms and condition of the Insurance Policy, petitioner is duty bound to intimate the fact of theft immediately and in this regard he submits that legal position settled that immediately after the incidence of the vehicle theft the Insurance Co. should be intimated and the first information should be registered, but the complainant violated the policy condition by not doing so and he is not entitled to claim any compensation.
The National Commission in it’s order dt. 09/12/2009 in New India Assurance Company Vs. Trilochan Jane, in Appeal No. 321 of 2005 held that not giving intimation within 9 days to the Insurance Company after the theft is fatal, in this time period the vehicle may be taken to far distance means it may be sold out to scrap dealer and such delay is fatal for investigation. In this case the neighbouring country Bangladesh is adjacent to the place and there the delay of 5 days is much more time to establish the facts and the ruling. The petitioner in this case categorically in his cross-examination said that he informed the Insurance Company after five days of the theft of the said motor cycle. Ld. Advocate for the petitioner submits he sent letter to the Insurance Company on 11.06.2014 i.e. Ext.-12 and stated the cause of delay. We have gone through the Ext.-12 but no where the cause of delay had been explained by the petitioner for these five days.
We have considered the rival contention. Supreme Court in the matter of Oriental Insurance Co. Ltd. Vs. Pravesh Chandra Chada dismissed the complaint holding that the terms of policy issued by the Insurance Policy, the insured is duty bound to inform about the theft of the vehicle immediately after the incident. The delay in intimation deprived the Insurance Co. of its legitimate right to get enquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same. It was further held that the Insurance Co. could not be saddled with the liability to pay compensation to the insured despite the fact that he did not comply with the terms of the policy.
The Insurance Co. rightly repudiated the claim and the petitioner is not entitled to get the relief as the delay is not properly explained.
Hence, it is ordered
that Malda D.F.C. Case No.72/2014 be and the same hereby dismissed without cost.
A copy of this order be given to the parties free of cost.
