This present Complaint case is filed on behalf of the Complainant named above, under Section 17(a)(i) of the Consumer Protection Act, 1986 for loss of vehicle JCB Excavator, Registration No. MN-01-9843, insured with the opposite parties under Policy No. 322606/31/2016/492.

2.         Brief facts of the case as per the complaint are that the complainant is the owner of one JCB Excavator being Registration No. MN-01-9843 and he insured the said vehicle with the opposite parties under Policy No. 322606/31/2016/492, being Commercial Package Policy, for one year with validity period for the insurance from 30.06.2015 till midnight of 28.06.2016 and the said commercial policy covered various legal liabilities as per the provisions of Section I of the said policy which reads as-

SECTION I -          LOSS OF DAMAGE TO THE VEHICLE INSURED;

1 -        The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon;

1. By fire, explosion, self ignition or lightning;
2. By burglary, housebreaking or theft;
3. By riot and strike;
4. By earthquake (fire and shock damage)
5. By flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost;
6. By accidental external means;
7. By malicious act;
8. By terrorist activity;
9. Whilst in transit by road, rail, inland waterway, lift, elevator or air;
10. By landslide, rockslide, etc.

It is presented as a fact of the present consumer complaint that in the intervening night of 1^st and 2^nd October, 2015, the insured JCB Vehicle was found missing from its parked place at Lilong Usoipokpi road side. On the next day, i.e. on 2^nd October, 2015, the complainant tried to search and trace out the whereabouts of his JCB Excavator but he could not find it. Evidently, the complainant lodged a written complaint report with the Officer-in-Charge of Lilong PS and an FIR case being No. 68(10)2015 Lilong PS, u/s 379 IPC was registered for investigation. Consequent upon completion of the investigation, the IO of the case submitted Final Report dated 31.05.2016 under Section 173 Cr.P.C., wherein it was noted that the case had no clue and was closed accordingly vide order dated 09.06.2016 passed by the Ld. CJM, Thoubal in Cril Misc. (FR) Case No. 11 of 2016 arising out of FIR No. 68(10)2015 LIL PS.

3.         The complainant then orally informed about the incident of  missing of the JCB Excavator to the Branch Manager Oriental Insurance Company, Imphal Branch on 04.10.2015 but he was directed by the Branch Manager to file claim for loss of the said vehicle. The complainant also reported the incident of missing of his JCB Excavator to the District Transport Officer of Imphal East, Imphal West, Thoubal, Bishnupur, Churachandpur, Ukhrul, Senapati, Chandel and Kangpokpi by registered post on 06.10.2015 and 07.10.2015.

            It is also presented as a fact of the present consumer complaint that despite intimation of the claim for loss of the JCB Excavator to the Branch Manager, Oriental Insurance Company, Imphal Branch, the complainant has not received any positive response though as per the provision of Section 1 of the Commercial Package Policy which the complainant insured his JCB Vehicle under Policy No. 322606/31/2016/492, he is entitled to be indemnified for the loss. Having left no other alternative to receive his claim, the complainant has filed the present consumer complaint before this Commission, with the prayer to pass appropriate order directing the opposite parties to compensate the amount of loss of the vehicle, JCB Excavator.

4.       The opposite parties contested the consumer complaint by filing joint written version. While admitting certain allegations, the opposite parties denied any liability in the present case stating that the consumer complaint is premature as claim of the complainant for the loss of his JCB is under consideration. The claim of the complainant has neither been rejected nor repudiated by the higher authority of the opposite parties. The opposite parties further denied that the complainant gave intimation after 2 (two) days of missing of the vehicle and that the Keys submitted by the complainant were found to be duplicate and locally made one. The opposite parties further submitted that the date of registration of the lost vehicle is 30^th April, 2015 whereas the date of loss as per FIR was 2.10.2015. With the above stated allegations, the opposite parties have prayed for dismissal of the consumer complaint.

5.         Upon hearing the learned counsel for both sides and upon examination of the allegations in the consumer complaint as well as in the joint written version along with documents filed thereto, our predecessors formulated 4(four) issues for just determination of the controversies between the parties.

6.         The complainant in support of the consumer complaint has produced and examined three witnesses including himself and they are:-

1.  Khumujam Robindro Singh (Complainant), P.W. No.1.

2. Lalgoljam Jiban Singh of Mayang  Imphal Thana Wangkhei Leikai, P.S. Mayang Imphal, Imphal West District, Manipur, P.W. No.2.

3.  Loitam Bikash Singh, serving as Grade-IV in the office of DTO, Imphal West, Manipur, P.W. No. 3.

7.         The Complainant also filed/exhibited the 15(fifteen) documents which are Ext. A/2 to Ext. A/16.

Ext. A/17 (under objection) is the computer generated official report (soft copy of R.C. book) pertaining to JCB 4DX (Excavator) as produced and exhibited by P.W. No.3 during evidence. Ext. A/17(1) is the signature of the P.W. No.3 on Ext. A/17.

The witness namely Loitam Bikash exhibited one document which is exhibit A-17.

 8.        The opposite parties, in their defence, have also produced and examined only one witness namely:-

            Mr. Nongmaithem Sanjoy Singh, then serving as the Branch Manager, Oriental Insurance Company Ltd, Imphal Branch, as D.W.No.1.     

9.         The opposite parties also filed/exhibited the document marked as X/1 dated 23.03.2017 which is the key verification report (in 8 sheets) submitted by INNOVATIVE VALUERS & ENGINEER CONSULTANCY PVT. LTD, INSURANCE SURVEYORS, LOSS ASSESSORS, VALUERS AND INVESTIGATORS, 218/1, NAHARPUR, SEC-7, ROHINI, NEW DELHI-110085.

FINDINGS

10.       Issue No. 1 is “Whether the Complainant had entered the commercial vehicles package policy being Policy No. 322606/31/2016/492 with the respondent (Oriented Insurance Company Ltd. through his agent at Imphal) for his vehicle (JCB Excavator) having Registration No. MN 01-9843 for an insured amount of Rs. 25,48,636/- (Rupees Twenty five Lakh Forty eight thousand six hundred and thirty six) only for one year having validity from 29.06.2015 to mid night of 28.06.2016 or not?”

To substantiate the allegations in the Consumer Complaint, the complainant as P.W. No.1 deposed that he purchased one JCB 4DX (Excavator) from M/S KVS Earthmovers, having its office at M. G Avenue, Imphal, Manipur for a sum of Rs. 28,63,524/- (Rupees Twenty eight lakh sixty three thousand five hundred twenty four only) on 09.04.2015, registered under no. MN-01-9843. He insured the said vehicle with O.P. No.2 under Policy No. 322606/31/2016/492, with validity from 29.06.2015 to 28.06.2016 for an insured sum of Rs. 25,48,636/- (Rupees Twenty five lakh forty eight thousand six hundred and thirty-six  only). He has deposed that in the intervening night of 1^st and 2^nd October, 2015, the complainant was informed by his driver Mr. Takhellambam Kunjakeshore @ Ibungo about the missing of his JCB 4DX (Excavator). The complainant further deposed that as soon as he was informed by his driver of the loss of his vehicle, he went to the Lilong Police Station and orally requested the Officer-in-Charge to register FIR case about the loss of his vehicle. However, the Officer-in-Charge orally directed him to first carryout search from his end. Thereafter, on 04.10.2015, the complainant went to the office of the opposite party no.2 and intimated him about the loss/theft of his vehicle, to which he was directed to bring the FIR copy and to lodge a claim which the complainant did.

With regard to the investigation report of the keys submitted by him to the insurance company for verification, he has deposed that the report of the investigator is misleading, tutored and the same is not applicable because the nature of the keys, as emphasized by the opposite parties, has no nexus with the loss or theft of his vehicle. The complainant has thus claimed a sum of Rs 28,63,524/- (Rupees Twenty-eight lakhs sixty three thousand five hundred twenty-four) only as the cost of his vehicle, along with another sum of Rs. 1,00,000/- (Rupee one lakh) only on account of deficiency in service for not settling his genuine claim and another Rs. 50,000/- (Rupees Fifty thousand only) as costs of litigation.

The complainant as P.W.I exhibited the following documents which are Ext. A/2 to A/16.

1. Ext. A/2 is the copy of Insurance Certificate-cum-policy schedule of the vehicle JCB 4DX (Excavator) by 6 sheets.
2. Ext. A/3 is the terms and conditions of the Commercial Vehicle Package Policy by 4 sheets.
3. Ext. A/4 is the letter dated 04.10.2015 submitted to the Officer-in-charge LILONG PS reporting the loss of his vehicle.
4. Ext. A/5 is the copy of FIR dated 04.10.2015.
5. Ext. A/6 is the Newspaper copy of Echel Express dated 07.10.2015.
6. Ext. A/7 is the Final Report dated 18.02.2016, under Section 173 Cr. P.C.
7. Ext. A/8 is the copy of the Order of CJM, Thoubal.
8. Ext. A/9 is the letter of intimation of Claim for the loss of his vehicle.
9. Ext. A/10 is the letter dated 06.10.2015 sent by Branch Manager, Oriental Insurance Company Ltd, Imphal Branch.
10.  Ext. A/11 is the letter dated 10.11.2016 given by DTO, Imphal West.
11.  Ext. A/12 is the letter dated 06.10.2015 addressed by the witness/complaint to the DTO, Imphal West.
12.  Ext. A/13 is the letter dated 06.10.2015 addressed by the witness/complainant to the DTO, Imphal East.
13.  Ext. A/14 is the invoice dated 09.04.2015 of KVS Earthmovers for a sum of Rs. 28,63,524/- (Rupees Twenty-three lakh sixty-three thousand five hundred twenty-four only) for the purchase of the vehicle JCB 4DX (Excavator).
14. Ext. A/15 is the RC Book of the vehicle JCB 4DX (Excavator).
15. Ext. A/16 is the copy of the legal notice dated 11.04.2018 sent to the Branch Manager, Oriental Insurance Company Ltd, Imphal Branch.

11.                   P.W. No. 2 namely Lalgoljam Jiban Singh of Mayang  Imphal Thana Wangkhei Leikai, P.S. Mayang Imphal, Imphal West District, Manipur supported the above version of P.W. No.1 deposing/stating inter alia that the complainant is the registered owner of the vehicle JCB 4DX (Excavator), bearing registration no. MN-01-9843 and that he was working under the complainant as a part-time employee, looking after the vehicle at the work places during the year 2015, w.e.f. January, 2015 to November, 2015. He has further deposed that one Mr. Takhellambam Kunjakeshore Singh was the driver of the lost vehicle of the present complainant.    

12.                   Mr. Loitam Bikash Singh, serving as Grade-IV in the office of DTO, Imphal West as a witness testified that as per the official record, the vehicle bearing registration no. MN-01-9843, being JCB 4DX (Excavator) is recorded in the name of the complainant, He testified that Ext. A/17 is the official computer generated report of the vehicle in question and Ext. A/17(1) is his signature.

13.                   On examination of the allegations in the consumer complaint and joint written version of the opposite parties and also on examination of the oral and documentary evidence on record, it is found that the complainant has proved on record that he purchased the JCB 4DX(Excavator) registered under no. MN-01-9843 on 09.04.2015 and he insured the said vehicle with the opposite party no.2 under policy no. 322606/31/2016/492 (Exhibit A/2), with validity from 29.06.2015 to 28.06.2016 for an insured sum of Rs. 25,48,636/- (Rupees Twenty five lakh forty eight thousand six hundred and thirtysix only).

Further, the complainant has proved on record that his JCB vehicle was found missing in the intervening night of 1^st and 2^nd October, 2015 from Usoipokpi road side for which the complainant lodged report to the O.C Lilong PS and FIR No. 68(10)2015 LILONG PS u/s 379 IPC was registered (Ext.-A/5). During investigation the police could not trace and recover the JCB vehicle. Accordingly, the police lodged Final Report (Exhibit-A/7) in reference to the said FIR which was exhibited as Exhibit-A/5 to the learned Chief Judicial Magistrate, Thoubal. The said Final Report (Ext.A/7) was accepted by the Ld. Chief Judicial Magistrate, Thoubal vide order date 09.06.2016 (Ext. A/8) which is reproduced as under:-

“IN THE COURT OF CHIEF JUDICIAL MAGISTRATE,

THOUBAL

Cril. Misc. (FR) Case No. 11 of 2016

Ref.:- FIR No. 68(10)2015 LIL P.S.

U/S: 379 IPC

The State of Manipur

-Versus-

Unknown

…..Accused

PRESENT

Shri. Ojesh Mutum, MJS

Chief Judicial Magistrate, Thoubal

ORDER

Placed before me for consideration is the Final Report submitted by I.O. of the above referred F.I.R. Case.

2.     Informant as well as the Ld. APP present. Heard them. The complainant is examined on oath. His deposition is on a separate deposition sheet. Perused the records at hand.

3.     Fact, in brief, is that on 05.10.2015 at 1:40 p.m., the complainant Khumujam Robindro Singh (44), S/o (L) Kh. Nilakanta Singh of Mayang Imphal Konchak Makha Leikai lodged a written report with OC/Lilong P.S. alleging that on the intervening night of 01.10.2015 and 02.10.2015, his JCB excavator bearing Regn. No. MN01/9843 having Chassis No. HAR4DXLDL01415312 and Engine No. H00089428 yellow in colour was stolen by unknown person/persons while parked under lock and key at the Lilong Ushoipokpi roadside. The same has been untraceable till date despite of his best efforts to trace out. Hence, the case.

4.     Ld. APP submits that investigation was made by the I.O. and after due investigation the matter was returned as Final Reports as “No Clue”.

5.     I have also examined the informant on oath and he stated that he has no objection in accepting the Final Report by the Court.

6.     In view of the above submissions, this Court can proceed in the following ways upon receiving the F.R. either it can direct for further investigation to the I.O., or take cognizance of the offence or to accept the F.R. and close the matter.

7.     Upon perusal of the records at hand, it seems that the I.O. had duly investigated into the case and stated that the case has no clue. As such, I am of the view that further direction for investigation is likely to entail similar consequences. Again, the materials on record are not sufficient to take cognizance of the offence. As such, this Court is of the view that it would be proper to accept the Final report. Accordingly, the Final Report is accepted and the case is closed.

8.         With the acceptance of the Final Report, sized if any be disposed according to law.

                        The present Cril. Misc. Case is accordingly, disposed of.

Announced in the open Court.

Sd/-

(Ojesh Mutum)

Chief Judicial Magistrate,

Thoubal

14.                   In view of the registration of the FIR (Ext.A/5) regarding the theft or loss of the vehicle and submission of the Final Report (Ext.A/7) by the police after the vehicle is not traced would be a pointer towards the claim of the complainant that the JCB vehicle was stolen in the intervening night of 1^st and 2^nd October, 2015 from Usoipokpi road side while the vehicle was parked under lock and key thereat. Thus, we are constrained to hold that the rival contentions of the opposite parties in regard to the delay in making insurance claim, repudiation of insurance claim on the ground of non-conclusion/pendency of investigation which rather amounts to deficiency in service and the plea of genuineness of keys of the stolen JCB vehicle have nothing to do in the case of loss/theft of vehicle when such theft/loss has been proved as is done in the present case. Due to the theft/loss of the vehicle and due to deficiency in service on the part of the opposite parties, the complainant has been rendered workless and lifeless, Consequently, we hold that the opposite parties would be liable to indemnify the complainant to the tune of insured amount under the Insurance Certificate cum policy (Ext.A/2) under the terms and conditions of Commercial Vehicle Package Policy (Ext.-A/3).

In view of the discussion above, Issue No.1 is decided in affirmative in favour of the complainant.

15.       Issue Nos.2 & 3 are reproduced hereunder:-

2.         Whether the said vehicle of the complainant’s JCB Excavator having registration No. MN01- 9843 was lost in the intervening night of 1.10.2015 and 02.10.2015 while it was parked under lock and key at a place near Lilong Usoipokpi roadside or not?

3.         Whether the respondent has to indemnify the complainant to the tune of insured amount under the said insurance policy for the lost of the said insured vehicle i.e. JCB Excavator of the complainant or not?

            In view of our findings on Issue No.1, Issue No.2 and Issue No.3 are decided in affirmative in favour of the complainant.

16.       Issue No.4 is “Whether the complainant is entitled to the relief sought for in the present complaint or not?”

            We have heard the learned counsels for both sides in regard to the reliefs to be awarded to the complainant in the present case.

            In the facts and circumstances of the case and relying on the settled laws relied on by the parties it would be justified and warranted to order that the opposite parties shall compensate the complainant (i) a sum of Rs.25,48,636 (Rupees twenty five lakh forty eight thousand six hundred and thirtysix) only being the insured sum of the JCB vehicle with interest at the rate of 6% per annum from the date of institution of the Consumer Complaint till realization. (ii) a sum of Rs. 1,00,000/- (Rupee One Lakh) for deficiency in service thereby causing mental agony and harassment to the complainant (iii) a sum of Rs. 50,000/- as costs of litigation. The opposite parties shall pay the above stated amount of compensation within one month from today failing which interest at the rate of 11% per annum shall be charged upon the compensation amount.

            Announced in the open court.

The consumer complaint is disposed of, accordingly.