This appeal is directed against the Final Order of Ld. D.C.D.R.F., Coochbehar dated 16.10.2020 in reference to CC No 25 of 2019. The fact of the case in nutshell is that the respondent Khairul Haque registered a Consumer Complaint on 12.03.2019 to the score that he purchased a vehicle styled as Bolero Pickup Van bearing Registration No. WB698547 for his livelihood which was insured to Oriental Insurance Company for the period from 26.12.2017 to 25.12.2018. On 27.03.2018 while the driver and khalashi was taking breakfast keep parking the said vehicle near a Dhaba of the road. The vehicle was found missing. They searched out but could not find the said vehicle, they informed the matter to Complainant and Complainant on that very day informed the Kalchini P.S about the said theft of the vehicle where Kalchini P.S Case No 47 of 2018 dated 27.03.2018 was registered under Section 379 of IPC. The Complainant submitted the claim in writing before the Insurance Company for settlement of insurance due to theft of his vehicle. The Opposite Parties sent one investigator who investigated the incident by collecting necessary documents from the Complainant and they are finally on the basis of investigator report the O.P Insurance Company has repudiated the claim on the ground that due to negligence of the driver and the khalashi of the vehicle. The alleged theft was taken place as they kept one ignition key inside the vehicle which was promoted the incident of theft.

Being aggrieved with the information of repudiation the instant Consumer Complaint was registered against the insurance company who has contested the case by filing the W.V and contended that the Complainant has violated the terms and condition of the insurance policy and the Complainant has failed to handover the second ignition key to the company which clearly indicates that one ignited key was kept inside the vehicle for which the miscreant could flee with the vehicle with the help of such ignition key and for such negligent complaint was liable to be dismissed. Ld. Forum after hearing both sides came into a conclusion that in spite of some sort of violation of insurance condition on the part of the insured then also the claim ought to be settled on a non-standard basis and for that reason the compensation was allowed in favour of the Complainant and 75% sum assured of the policy that is 3,86,250/- out of 5,15,000/- was awarded including Rs. 10,000/- for deficiency of service and Rs. 5,000/- for litigation cost.

Being aggrieved with this order this appeal follows on the ground that the order of Ld. Forum is the result of misappreciation of law and fact and the Final order was erroneous not vested with the law and liable to be set aside. The appeal was registered in due course and notice was sent to the respondent Khairul Haque who has contested the case through Ld. Advocate Mr. K. Sarkar and Roshan Ara. The Ld. Counsel of Oriental Insurance Company the appellant Mr. Ajay Chaudhury has conducted the hearing on the part of the appellant.

Decision with reasons

Having heard the Ld. Advocate of the parties of the case, it is established beyond any doubt that the said vehicle of Complainant Khairul Haque was covered with first party insurance which was stolen away by some miscreants while the vehicle was returning from Jaigaon. In the pathway the driver and the khalashi was taking breakfast in a dhaba and kept the vehicle in stationary condition outside the road and in front of the dhaba and while they were busy in taking breakfast the miscreant has stolen away the vehicle. The driver and khalashi then and then intimated the theft to the Complainant who came to the spot and registered the theft case by filing FIR before the Kalchini P.S and Kalchini P.S has registered the case and started investigation and ultimately the investigation was ended to a final report as the stolen vehicle could not be rescued or recovered. The Complainant raised the claim before insurance authority on 03.04.2018 that is after seven days of the incident. The Insurance Company deputed an Investigator to assess the claim who has visited the spot and also made contact with the Complainant and procured some related documents from him and thereafter the Investigator Mr. A. K. Roy had asked the Complainant to handover the two ignition key of the vehicle out of which the Complainant could handover only one ignition key and while it was asked about the another key then it was replied that the said another key, tax token and route permit was kept inside the vehicle and in front of the Diggy of the vehicle from where it was stolen. Ld. Advocate of the Insurance Company/Appellant at the time of argument mentioned that it was imperative duty on the part of the insured to inform about the theft of the vehicle immediately so that Insurance Company may get a chance to recover the theft vehicle. Seven days was elapsed in intimating the incident to the Insurance Company and Insurance Company has missed the chance for taking attempt to recover the vehicle. He, further argued that the vehicle was parked and left by the driver and khalashi in an unsafe condition and ignition key was left inside the vehicle which prompted the miscreants to steal away the vehicle and the act and conduct of the driver and khalashi clearly indicates that they have promoted the theft of incident. In reference to his argument Ld. Advocate of the appellant refers some judicial decisions reported in 2014 SCC Online NCDRC in the case of Reliance General Insurance Vs Binod Kumar dated 20.07.2016. The respondent/Complainant also cited the judicial decision in Hon’ble S.C.D.R.C, Haryana in first Appeal No 1550 of 2017.

After going through the decision of Hon’ble N.C.D.R.C reported in 2014 SCC Online 356 it was detected that in the driver knew that if he left the key in the ignition and the door unlocked anybody could commit theft of the vehicle, taking advantage of being away from the vehicle. Therefore, it would be difficult to dispute the allegation of the negligence on the part of the driver of the vehicle. In another decisions of Hon’ble N.C.D.R.C. in Reliance General Insurance Vs Binod Kumar dated 20.07.2016. It was held that negligence on the part of the driver or the owner of the vehicle in a good ground for the Insurance Company to repudiate the claim. Here, in this particular case the driver and khalashi had to take a breakfast on their return journey in a dhaba beside the road and left the vehicle parking in front of the dhaba and somehow the miscreant could escape by fleeing away the vehicle while the ignition key was kept inside the desk of the vehicle along with other papers. And it is fact that Complainant was not there at that point of time, he was intimated about the theft and thereafter he rushed to the spot and then and then reported the incident to the Police. There was no latches on the part of the Complainant though his agent that is the driver of this vehicle was responsible for not taking the ignition key in his pocket at the time of taking the breakfast keeping the vehicle parking on the road. But latches on the part of a driver cannot be the good ground for repudiation of claim of a genuine looser who has insured the vehicle by paying the premium. And it is a fact that the Consumer Protection Act was enacted in order to protect the interest of the insured and Insurance Company cannot repudiate the bonafide claims on technical grounds and rejection of claims on purely mechanical fashion would result in policy holder losing confidence in the insurance industry. On the other hand, in this particular case Ld. Forum has assessed the value of the vehicle and pay the compensation to the claimant on non-standard basis and 75% of the insurance value was provided as compensation of a looser who has lost the vehicle by which he used to maintain his livelihood. So, the order of Ld. Forum appears to be convincing, trustworthy and did not invite any interference in the stage of appeal. The order was passed on 16.10.2020 and the Opposite Parties/Appellants were directed to pay the decretal amount within 45 days from the date of Judgement, failing which the interest for non-compliance of the order was imposed at the rate of 8% Per-annum and the said interest has already covers huge amount as the appellant preferred the appeal and for that reason, if the appellant is asked to pay the award money within 45 days as per direction of the Hon’ble Forum, then the interest already accrued to be waived. Thus, the appeal devoids of any merit.

Hence, it’s ordered

That the appeal be and the same is dismissed on contest without any cost. However, if the appellant pays the decretal amount as awarded by the Hon’ble Forum within 45 days from day of receiving copy of Judgement of this appeal, then no further interest will be imposed upon and the interest already accrued at the rate of 8% Per-annum for non-compliance of the order will be waived.

Let a copy of this order be supplied to the parties without any cost and the same to be communicated to the Ld. D.C.D.R.F., Coochbehar for taking necessary action.