:    J U D G M E N T    :

The brief fact of the case is that the complainant purchased one motor cycle bearing registration No. WB/52B/7506.  The complainant has obtained an insurance policy bearing No. 031602/31/03/0292 covering accidental benefit, theft etc.  On 13.07.03 at about 5.15 hours the complainant discovered that there was no trace of his motor cycle kept in his residence.  The complainant made necessary search here and there, but in vein.  The said motor cycle was missing along with original documents and papers.  The complainant lodged a complaint in Kotwali P.S. and the concerned P.S. has started a P.S. case No. 224 / 2003 dtd. 13.07.03 under Section 379/461 IPC.   On 29.07.03 investigating officer submitted investigation report in final form before the Ld. CJM, Nadia and the same has been duly accepted by the Ld. CJM, Nadia on 15.11.03.   Thereafter, the complainant submitted claim form along with all relevant documents and papers in the office of OP Insurance Company immediately.   The complainant was not able to submit the original RC book as the theft of motor cycle was occurred along with all original documents.  The OP Insurance Company has failed to settle the claim and at last the OP Insurance Company repudiated the claim of the complainant by way of letter dtd. 19.03.2014.  Hence, the claim.

The OP Insurance Company contested the case by filing written version stating, inter alia, that OP issued a policy being No. 031602/31/03/00297 in respect of vehicle No. WB/52B/7506 for the period from 10.05.2003 to 09.05.04.  The IDV of the said vehicle was Rs. 32,000/-.  The OP Insurance Company further stated that on 17.07.2003 insured  Deepak Kumar Ghosh informed the OP that his motor cycle was stolen from his house and on self same date, i.e., on 17.07.2003 the complainant submitted claim form in the office of OP Insurance Company.  Thereafter, on several times OP requested the complainant to submit RC book, two sets of ignition keys, FIR and Final Police Report. But the insured failed to supply the same.  Finding no other alternative OP Insurance Company closed the file and repudiated the claim of the complainant by letter dtd. 19.03.2014.  The case is barred by limitation.  There is no negligence and deficiency in service on the part of the OP Insurance Company.  So the petition is liable to be rejected with cost. 

            Now this Forum is to consider the following points:-

Point No. 1.  Whether the complainant is to be treated as a consumer or not as         per provision of Consumer Protection Act, 1986. 

Point No. 2.  Whether there is any gross negligence or deficiency in service on the part of Ops.

Point No. 3.  Whether the complainant is entitled to get any relief as prayed for or not

DECISION WITH REASONS

            Perused all documents along with complaint, written versions, written arguments filed by the parties.

Point No. 1.

It has become settled by a catena of decision of the Hon'ble Supreme Court, Hon'ble National Commission and the Hon'ble State Commission that whenever a person approaches the jurisdiction of a Forum for the purpose of having any relief, he/she is under obligation to prove, himself / herself to be a consumer.   In the instant case it is admitted position that the complainant has obtained an insurance policy from OP in respect of his motor cycle covering accidental benefit, theft etc. and to that effect the complainant paid the premium (consideration money)  in the office of OP Insurance Company.  So as per provision of CP Act, 1986 the complainant is to be treated as consumer under Section 2(1)(d)(ii) of the Act.  So the point No. 1 is thus decided accordingly.   

            Point Nos 2 & 3

            It is fact that the motor cycle bearing No. WB/52B/7506 was stolen at about 5.15 hours morning on 13.07.2003 which is clearly revealed from FIR which was lodged at Kotwali P.S. and Kotwali P.S. investigated the matter as per FIR bearing No. 224/03 dtd. 13.07.2003 under Section 461/ 379 IPC.  Thereafter, Kotwali P.S. submitted FRT No. 114/2003 dtd. 29.07.03 under Section 461 /379 IPC with a view that the case will be reopened if any clue obtained. 

            It is crystal clear and admitted position that the OP Insurance Company issued a policy being No. 031602/31/03/00297 in favour of Dipak Kumar Ghosh / complainant in respect of vehicle No. WB 52B/7506 for the period from 10.05.2003 to 09.05.04, wherein the IDV of the said vehicle was declared at Rs. 32,000/- which is clearly admitted in written version filed by OP Insurance Company.

            It is also fact that as per terms and conditions of the policy the complainant forthwith informed the matter in the office of OP and he submitted the claim form which is also admitted in written version filed by OP.

            It is also fact that the motor cycle was stolen on 13.07.2003 which is within the policy period i.e., from 10.05.2003 to 09.05.2004.

            Now the question is whether the case is barred by limitation.  The complainant has proved that he came to know about repudiation only when annexure 4, the letter dated 09.03.2014 was given to him and his lawyer.   It could not be established by OP that the file of complainant was closed earlier and complainant was informed about the closure of file after 31.03.06.  The burden of proof lies on OP.   He is to establish that the case is barred by limitation.  That burden has not been discharged.  Moreover, in the demand notices date 30.06.2004 and 30.09.2004 ignition keys were not demanded by OP.   Ld. Advocate for complainant submits that ignition keys and all other documents were submitted to OP on 18.07.03 when Deepak Ghosh wrote to OP (Annexure – 1, dtd. 18.07.03).

            Thus, we hold that the claim is genuine and it is not hit by limitation or otherwise. 

From the above discussion it is clear that the case is not false.  When the case is genuine one, in such situation mere nonsubmission of RC book does not cause any valid ground for repudiation of valid claim of the complainant as the motor cycle was stolen along with all original documents including RC book which were kept in the tool box of the said motor cycle.  There is a fault, gross negligence and deficiency in service on the part of OP Insurance Company and the complainant is entitled to get his claim against OP.  The case succeeds.

            Point Nos. 2 & 3 are thus decided in favour of the complainant. 

Hence,

Ordered,

That the case CC/2014/81 be and the same is allowed on contest with cost of Rs. 500/-.

            That the OP Insurance Company is hereby directed to pay the following amount:-

IDV of vehicle                       Rs. 32,000/- (according to written version)

Less depreciation  @ 10%    Rs.  3,200/-

Rs. 28,800/-

Add cost of                Rs.      500/-

Totaling  Rs. 29,300/-  within 30 days from the date of order in default interest @ 10% p.a shall be charged upon the awarded amount of Rs. 29300/- till full realization. 

Let a copy of the order be supplied to the parties free of cost.