This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P./ Insurance Company to pay Rs.87,598/- for compensation for his stolen vehicle No. WB-60L/7910 and Rs.20,000/- for harassment and deficiency in service also litigation cost of Rs.5,000/-.
The case of the complainant in short is that he purchased the Pulser motorcycle of above number and purchased the policy of O.P./ Insurance Company for the vehicle being No.0314033114P111830324 valid for 26.03.2015 to 25.03.2016. During the validity period in the night of 30.05.2015 the motorcycle was stolen away from his house. It was kept with indication lock and extra front wheel lock in that night. By breaking the door lock and the front wheel lock of the cycle it was stolen away. On 01.06.2015 he informed in writing at Raiganj PS and preliminary investigation report was received on 02.06.2015, Raiganj PS Case No.605/2015, dated 02.06.2015 was started, being GR Case No.1005/2015 before CJM, Raiganj and FRT was submitted. Petitioner stated that he lost one key of motorcycle at Raiganj Bazar on 20.05.2015 before such theft and reported the matter in writing to the Raiganj PS. The indication lock could not be replaced immediately, as it required a huge amount. So he purchased front wheel lock for extra protection of the motorcycle. On 01.06.2015 he informed the O.P./ Insurance Company as well as RTO and he made claim application to the O.P./ Insurance Company. O.P./ Insurance Company repudiated his claim by letter dated 17.07.2016 on the ground that the vehicle was being used without valid certificate of registration and that after loss of the key the lock was not changed so the incident of theft. That petitioner violated terms and conditions.
Petitioner stated that the vehicle was duly registered by the RTO vide Registration No.WB-60L/7910 on 06.05.2015. That petitioner personally went to the office of the O.P. for such claim and on 16.03.2016 sent advocate’s letter to that effect, but without any response from their end. He therefore filed this case before this Forum with the above mentioned prayer.
O.P./ Insurance Company appeared and contested the case by filing written version, where it challenged the petition along with other grounds and alleging that the petitioner purchased the vehicle on 23.03.2015, but submitted fee for registration by applying on 06.05.2015. No number plate was affixed prior to the occurrence. He lost his key on 20.05.2015 and travelled in public place in unsecured manner and did not inform the company. He kept motorcycle in open space without security. Thus he violated the policy conditions and is not entitled to get any relief from this O.P.
To establish the case, the complainant has relied upon an affidavit-in-chief of Petitioner No.1 who was examined and cross examined as P.W.1 and filed photocopies documents like Insurance Policy, Letter dated 27.01.2016 repudiating the claim by O.P., Letter dated 03.06.2015 informing the theft by complainant, Documents of Vehicle Particulars, Surveyor’s Letter dated 10.06.2016, Advocate’s Letter dated 16.06.2016 with A/D, Copy of FIR and Final Report in GR No.1005/2015.
O.P./ Insurance Company examined Ashoke Kumar Barman, Branch Manager, Raiganj Branch of O.P. as O.P.W.-1 and the Surveyor/ Loss Assessor, Tamal Kumar Das as O.P.W.-2 and submitted photocopies of documents like Investigation Report, License of Surveyor, Photos of the PO.
DECISIONS WITH REASONS
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -
Admittedly petitioner purchased the policy of the O.P./ Insurance Company on 26.03.2015 vide policy No.0314033114P111830324, valid from 26.03.2015 to 25.03.2016. Perused the policy papers, certificate of insurance, letter dated 27.01.2016 of O.P. repudiating the claim that also gives particulars of the vehicle registered and policy papers and the date of loss/ theft, dated 31.05.2015, repudiated on the ground that lock was not changed, loss of key not informed and negligence is the cause of theft, which allegedly, amounts to breach of policy condition. Petitioner deposed following the complaint that the motor bike was stolen away from his house in the night of 30-31.05.2015. From the report and evidence of O.P.W. the surveyor it is clear that the miscreants broke open the door and handle-lock of the motorcycle and it seems to be true to the investigator on the basis of available documents and examination of witnesses at the place of occurrence. The photographs taken of the PO is also attached shows that the motorcycle was kept inside the house under the staircase. It is also fact that the key of the motorcycle was lost on 20.05.2015. Petitioner stated that he informed the matter in the local PS and he lodged GD before IC, Raiganj. He also deposed that he had to spend a huge amount to purchase the main lock. Therefore he purchased one front wheel lock for extra protection of the motorcycle. The investigator also noted this fact that the theft was committed by breaking open the handle-lock. Therefore it cannot be held that the petitioner was negligent about the safety and security of the vehicle. Rather he used to keep the motorcycle inside his house locking the handle under lock & putting key of the door of that place. The copy of FIR of GR-1005/2015 before Ld. CJM, Raiganj and the copy of Final Report filed by the petitioner proves the fact that the motorcycle was stolen away from his house by some miscreants by breaking open the door as well as the front wheel lock of the motorcycle. It is also proved that the motorcycle was duly registered vide registration No.WB-60L/7910 on 06.05.2015 and the particulars of the registration documents are filed. Petitioner submitted his claim petition before the O.P./ Insurance Company. O.P. repudiated the claim on the ground that the vehicle was used without valid registration and that after loss of the key it was not changed. But petitioner has been able to prove that he put extra lock in the front wheel for safety of his vehicle. The surveyor in his report also admitted this fact and the fact that even after breaking the door of that place in the house and breaking the front wheel lock, the motorcycle was stolen. Complainant also informed the incident of theft immediately to the police and also to the insurance company. After loss of the key he also informed the matter to the PS. Therefore he was not negligent. So we can safely conclude that O.P. failed to rebut all these facts by sufficient cogent evidence. There is nothing in the evidence of O.P. that petitioner did not take precaution for safety of his motorcycle or that he kept the motorcycle in open place negligently without lock and key or that O.P. used the motorcycle without valid registration etc. So O.P. cannot repudiate the claim of the petitioner. Moreover in case of theft of vehicle breach of condition is not germane as reported by National Commission 2014 (4) CPR 759. The insurance company is liable to indemnify the owner of vehicle when insurer has obtained comprehensive policy for loss caused to insurer. Condition breached by petitioner cannot be said to be so fundamental as to warrant altogether rejection of claim lodged by the petitioner. Insurance Company should have settled the claim. Petitioner is entitled to get compensation for such theft of his vehicle under the policy. The sum assured under the policy is at Rs.87,598/-.
In the light of our above discussion we can safely conclude that the petitioners have been able to prove this case and they are entitled to get relief.
Fees paid is correct.
Hence, it is
ORDERED,
That the consumer complaint being No. CC-32/2016 be and the same is allowed on contest against O.P./ Insurance Company.
O.P./ Insurance Company is directed to pay Rs.87,598/- as claim amount for loss of the vehicle being No. WB-60L/7910 also directed to pay Rs.1,000/- as compensation and Rs.1,000/- as litigation cost within one month. Entire amount will be paid be paid within one month from this day, lest interest to be imposed @ 8% p.a. otherwise petitioner is at liberty to proceed with law.
Let copies of this order be supplied to the parties free of cost.
