This is to consider an application U/s 12 of the C.P. Act, 1986 claiming to pay the price of Motor-cycle to the complainant and also for compensation of Rs.5,000/- .
Facts of the case, in brief, is that the complainant purchased a Hero Honda Motor-cycle vide Registration No.:WB62/4046 in the year 2000. The value of the said Motor-cycle was Rs.44303/-. That on 22.09.2002 at 18:30 hours an elder brother of the complainant namely Kailash Ch. Agarwala went to house of his relative Mulchand Agarwala by riding of the said Motor-cycle of the complainant and kept it in front of the house of said Mulchand Agarwala under lock and key. He returned from the house of Mulchand Agarwala at about 19:30 hours and found that the said motor-cycle has already been stolen. At that time the complainant was in Kolkata for his medical treatment. He searched everywhere but the said motor-cycle was not traced out. Thereafter on 23.09.2002 the brother of complainant lodged FIR at Hili Police Station as well as a written complaint was also lodged before the OP Insurance Co. On the basis the said written complaint the police started a criminal case vide Hili PS Case No.156 of 2002 dt. 23.09.2002 U/s 379 IPC. The said case was registered as GR No.699/02 with Balurghat SDJM Court, Dakshin Dinajpur. Thereafter police arrested some miscreants and submitted final report (FRT) vide No.1/03 instead of charge sheet and prayed for discharging those accused persons from the case.
Cont…2
At the relevant period of theft, the said motor-cycle of the complainant was duly insured with OP Insurance Co. vide Policy No.313206/603/340/31/2003/2497 for the period from 31.08.2002 to 30.08.2003. The complainant submitted all relevant documents and papers before OP Insurance Co. regarding his bonafide claim. Lastly after expiry of long period of time OP Insurance Co. sent a letter dt. 29.11.2004 repudiating the claim of the complainant as “NO CLAIM” on the vague and baseless ground alleging that the motor-cycle was stolen due to negligence of complainant as it was kept on open road without proper lock and key. The complainant also stated that his claim was very much reasonable and legitimate and there is a deficiency in service on the part of OP Insurance Co. But OP Insurance Co. repudiated the said claim. Hence the application.
OP No.3 received S/R of notice on 26.09.2005 but not appeared before the Ld. Forum. OP Insurance Co. contested this case by filing written version stating inter alia that it is very much peculiar that the Hili Police Station is about 1 km but the complainant’s elder brother did not inform the matter in writing. If he informed the matter by telephone there should be a GD entry No. on that date and it should be noted and discussed in the said FIR. That in the FIR he mentioned Engine No. and Chassis No. of the said motor-cycle, though it was not his motorcycle and all the papers which were kept inside the tool box of the said motor-cycle. So it is very much doubtful about theft of the said motor-cycle. Moreover, the claimant reported that the lock was replaced on 04.04.2002 and both the keys were submitted before the OP Insurance Co. showing that both new keys No.3012 are unused keys and completely fresh as there is no sign of using for 5 months i.e. from 04.04.2002 to 22.09.2002. OP Insurance Co. also stated that vouchers submitted by the complainant showing no memo no. It is very much peculiar that the complainant purchased the motor-cycle from Balurghat Sub-Dealer of Durga Auto Centre, Malda Division but the complainant went to purchase keys from Roy Auto Repairs from Raiganj which also creating doubt regarding purchase of keys. That after investigation the police submitted final report on 04.04.2003 but the complainant did not raise any objection against the final report. The complainant himself violated the condition of the policy of the OP Insurance Co. and the OP Insurance Co. had no alternative other than to repudiate the claim. OP Insurance Co. also communicated about repudiation of the claim on 29.11.2004. OP Insurance Co. also stated that there was a gross negligence on the part of complainant and the complainant suppressed the truth. There is no deficiency in service on the part of OP Insurance Co. as OP Insurance Co. repudiated the said claim on the basis of good ground.
In view of the contentions of the both parties following points arose for consideration:-
- Whether the complainant is entitled to get any relief as prayed for ?
- Whether there is any deficiency in service on the part of OP Ins. Co. ?
Decision with reasons:
Point Nos. (1) & (2) – Both the parties file relevant documents at the time of hearing which are kept with the record. We heard contentions of Ld. Counsels for both parties and perused all material documents produced before us with reference to relevant provisions of law.
At first turning to the point in respect of final report (FRT). We peruse the final report (FRT No.- 1/03) submitted by S.I. of police Hili P.S. dt. 29.03.2003. It is clear from the said final report that the elder brother of the complainant kept the said motor-cycle on the open road without lock and key in front of the house of Mulchand Agarwala on 22.09.2002 at 18:30 hours and entered into the house. On the same day i.e. on 22.09.2002 at about 19:30 hours he came out from the said house and found that some unknown miscreants stolen away the said motor-cycle along with all papers which were kept in the tool box of the said motor-cycle.
Cont…3
Moreover, we peruse the order dt.24.04.2003 passed by the Ld. Court of SDJM Balurghat, Dakshin Dinajpur. It is clear from the said order that S/R of notice was received by O/C Hili PS. The de facto the complainant did not appear before the Ld. Court and he did not file any ‘Naraji’ or written objection against the said final report (FRT) and at last the final report was accepted by the Ld. Court of SDJM. Ld. Counsel for the complainant argued that it is a permanent loss to the complainant. In this respect it is the view of the Ld. Forum that the de facto complainant had an ample opportunity to file written objection against the said final report but neither he appeared before the Ld. Court of SDJM nor he filed any written objection or ‘Naraji’ against the said final report (FRT) submitted by Hili PS. Moreover, the policy conditions state that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage.
From the above discussions the Ld. Forum hold and conclude that the motor-cycle was kept on the open road in front of house of Mulchand Agarwala without lock and key. Therefore there is a gross negligence on the part of complainant. So the complainant is not entitled to get any relief as prayed for.
At the time of hearing OP Insurance Co. submitted before the Ld. Forum three (3) keys bearing Nos.C063 and 3012. Apparently it is found that the key bearing No.C063 is old one and other two keys bearing no. 3012 are new. Whether the said keys bearing No.3012 are used or not – that particular explanation is not needed at present because the final report submitted by Hili PS as well as the order dt. 24.04.2003 passed by Ld. Court of SDJM Balurghat, Dakshin Dinajpur is also accepted by the Ld. Forum.
It is well settled principle recognized by the National Commission that if the repudiation of claim is made by the Insurance Company on the basis of valid and reasonable ground –- it does not amount to deficiency in service.
So it is the view of the Ld. Forum that OP Insurance Co. repudiated the claim of complainant by the letter dated 29.11.2004 is justified and therefore there is no deficiency in service on the part of OP Insurance Co. Hence.
O R D E R E D
That the Consumer Complaint No.41/2007 is dismissed on contest without cost.
That the Consumer-Complainant is not entitled to get any relief as prayed for as the motor-cycle was kept on the open road without lock and key causing gross negligence on the part of the complainant.
There is no deficiency in service on the part of OP Ins. Co. as the repudiation of claim was made on the basis of valid and reasonable ground.
The case could not be disposed of within the specified period of time as the Ld. Advocates for both sides took adjournments several times.
Let a copy of this order be supplied to the parties free of cost.
