J U D G M E N T

1. Complainant’s case:- The complainant filed this complaint Under Section 12 of the Consumer Protection Act, 1986 claiming amount of Rs. 10,27,164/- (Rupees Ten Lakhs Twenty Seven Thousand One Hundred & Sixty Four) only against the policy No. 322800/31/2017/6159 from the opposite party i.e. the Oriental Insurance Company Ltd. The complainant has also prayed for compensation from the Opposite Party on the ground of deficiency in service U/S- 14 (1) (d) of the Consumer Protection Act, 1986.

2. The complainant stated that she had purchased one Mahindra TUV 300 from the Iconic Automobile, near ISBT Lekhi Village, NH-52 Naharlagun, Arunachal Pradesh on 30.11.2016 and the same was insured under the company of the Respondent, i.e. the Oriental Insurance Company Ltd. bearing the Policy No. 322800/31/2017/6159. The term of insurance was effected from 18:30 Hrs of 30/11/2016 to mid night 29/11/2017.

3. That the complainant stated that her car was registered under the District Transport Office, Capital Complex, Itanagar, Papum Pare District on 09/12/2016 vide registration No. AR-01J-3468 in her name. And she had engaged one driver Sri Gopal Baroi, who took her car to Hollongi on dated 12.06.2017 on her direction. However, on the same day her vehicle was robbed by 4 (four) unidentified miscreants after causing physical assault and injury to the driver. The complainant found her driver at RKM hospital Itanagar in an unconscious state, as a result on the same day she could not ascertain the facts what had happened to her driver and circumstances thereof. On regaining the conscious of the driver, the complainant came to know that her vehicle was taken away by the unidentified miscreants and as such driver lodged an FIR on 14-06-2017, wherein he stated the facts that the car was robbed by unidentified miscreants on the way to Hollongi after crossing the Chimpu gate by injuring the driver as well as robbing away all his belonging like money purse, mobile etc. Accordingly the case registered as Itanagar PS case No. 01/17, U/S 392/34 IPC.

4. That on the basis of the FIR investigation was conducted by the concern IO, however the Investigating Officer failed to trace out the person involved in the robbery and as such the charge sheet was submitted on 27/09/2017. That on the basis of the charge sheet/final report the Hon’ble Chief Judicial Magistrate, Yupia had summoned the informant Sri Gopal Baroi (the driver of the complainant) on 04-01-2018. Since the Final Report (FIR) was not objected by the informant, the proceeding of the case was closed on the same day. Therefore, the hope of the complainant for arresting the accused involving in the robbery of her vehicle was also closed with the Court order.

5. That the complainant informed the Sr. Divisional Manager of the Oriental Insurance Company Ltd. on 16-06-2017 that her vehicle Mahindra TUV 300 bearing registration No. AR-01J-3468 was robbed by the four (4) miscreants from her driver Sri Gopal Baroi on 12-06-2017, and accordingly on 16-06-2017 the said Manager requested her to submit the required documents for further attention on the matter. The documents were duly submitted as required by the Senior Divisional Manager, OIC. The original purchase cash memo and original Insurance Policy were submitted on 17-11-2017.

6. That after receipt of all the documents the Insurance Company appointed Sri Kanchan Das (Investigating Officer) for verification of the RC and relevant documents in connection with claim no. 322800/31/2018/000073, whereby he certified that RC Book and the officer record were true and genuine. An original copy of screen report issued by DTO, Capital Complex was also enclosed in his report.
7. That the complainant was informed on 02.01.2018 by the Senior Divisional Manager OIC, that as per the report of the Investigator, the driver could not be contacted by the Investigator of the Company and as such the company wanted the statement from the driver to know under what circumstance he could not be present before the Investigator. So the complainant explained the reason about absence of the driver during the time of the investigation on 05-01-2018. She also submitted the affidavit of declaration of the driver stating the circumstances under which the vehicle was robbed by the miscreants.

8. That the complainant re-approached the Opposite party on 24-01-2018 reminding the Company for early settlement of the claim. In response the Sr. Divisional Manager OIC, Nlg, intimated the complainant on 02-02-2018 that the claim of the complainant may be repudiated. However, before taking the final decision of repudiation one opportunity was given to the complainant to place her opinion in support her claim. So, the complainant on 12-02-2017 stated the reasons for not repudiating her claim and once more requested the Respondent to reconsider her claim. In pursuant to the response of the complainant, the Respondent sought the legal opinion from the Advocate who gave his opinion on 24-01-2018 and opined that the company should repudiate the claim of the insured on the ground that the informant had made fabricated and manufactured statement to get monetary gain from the insured company.

9. That the Divisional Manager, Naharlagun intimated the complainant on 06-03-2018 giving the final decision that the claim of the complainant cannot be considered and the same is repudiated on the ground that allowing the unknown person to travel in the car is the violation of general exception 3 (a) (being used otherwise than in accordance with the “limitation as to use”) of the policy and there was a sufficient delay in lodging an FIR which means no interest to safeguard the vehicle, hence the file is closed.

10. However, the complainant filed a fresh application on 21-03-2018 praying for the review of the decision. Thus the claim file was re-put up in the Regional Office, Guwahati. But the Chief Regional Manager, OIC Guwahati was adamant with the earlier decision of the repudiation and thereby did not entertain the fresh application of the complainant.

11. That the complainant had fulfilled all the documents sought by the respondent whichever was necessary for the final settlement of the case. That the decision of the Chief Regional Manager, OIC for repudiation of the claim of complainant causing loss to the complainant is not sustainable, rather amount to the deficiency of service by the Insurance Company.

12. That the action of repudiation of claim on the mere ground of delaying of FIR is only the pretext to cover the negligence/deficiencies of service by the company. That in view of her claim, inspection was conducted by the Investigator Officer (OIC) who had submitted the report before the company showing the authentic documents which establishes the loss caused to the complainant was beyond the reasonable doubt.

13. That the issues involved in the present case between the complainant and the respondent /opposite party was that whether the lost vehicle was fully insured before the company or not for settlement of the claim. The documents available in the records are “ipsa loquitor” that insured of the loss vehicle was unquestionable. But the respondent had not tried their effort for perusal of the documents supporting the claim.

14. That the complainant begs to submit that despite of the prima facie case of lost of the vehicle, the Chief Regional Manager, OIC had sought legal opinion from the counsel who submitted his opinion in a bias manner. That the respondent company had blindly assumed that the loss vehicle was lifting the unknown person on hire basis, which is mere pretext to escape from the liability. Picking up of a person on humanitarian ground is not within the specified reason of limitation as to use, rather it comes under any purpose. The second pretext taken by the company is that delay of lodging the FIR. However, as required by the company sufficient reason was explained for little delay in filing of the FIR.

15.  That complainant has fulfilled all the procedure and submitted all original require documents relating to claim. Therefore, this Hon’ble Forum is prayed to direct the respondent authority to immediate make payment of the claim amount as made by the complainant as provided U/S 14 (1) (d) of Consumer Protection Act, 1986.

16. On 21.12.19, Sri M. Tunar, the learned counsel for the OP, i.e. the Insurance Company filed the written statement and admitted that on verifying the document the stolen vehicle is found to have been insured. That after the receipt of report of the missing of vehicle, the company has directed the complainant to submit all the required documents, so that the claim of the complainant could be analyzed. As per the company rule the company had deputed the Officer for ascertaining the facts with regard to the missing of the vehicle. The report was submitted by Inspecting Officer before the Company. The missing report was intimated to the Branch Manager, SBI Itanagar and the same was also confirmed that the vehicle was loaned from the SBI Itanagar.

17. That there was no malafide intention on the part of Company to not consider the case of the complainant, rather the same was thoroughly discussed and the company found that there was inordinate delay in lodging FIR against the missing of the vehicle as a result the miscreant involved in robbing the vehicle could not be arrested on time. Therefore, blaming the company of absolute negligence is not correct.

18. That since the matter had become complicated, the Chief Regional Manager, OIC sought legal opinion from the counsel and after going through the records the learned counsel opined that due to delay in the FIR the matter could not be settled for recovery of the vehicle and at the same time the vehicle was suspected to have been used on a hire basis which amounts to violating the terms and condition of the Insurance Policy. Hence, the claim of the complainant was repudiated.

19. That it is the duty of the policy Holder/complainant to establish the case that there was a negligent on the part of the Company. The company never took undue advantage and tried to cheat any of the customers. Hence, allegation is denied. That the company cannot take the contradicted view once the matter is referred to the legal advice, so the Company is bound with the advice since the opinion of advocate was sought. That the claim petition in the present form is not maintainable in the eye of law for which the same is liable to be dismissed.

20. Points for determination: After going through the plaints this Forum felt the following points to be determined for proper adjudication of the case. They are:

1. Whether the suit is maintainable in its present form?
2. Whether the opposite party caused deficiency of service as provided U/S 2 (1) (g) of the Consumer Protection Act, 1986?
3. Whether the opposite party is liable to pay compensation to the complainant on the ground of deficiency in service U/S- 14 (1) (d) of the Consumer Protection Act, 1986?

21. Argument and submission by the learned counsels: Both the parties made their final hearing on 25^th day of Jan, 2019. The learned counsel appearing for the Complainant has submitted that there are sufficient evidences in support of the case against the opposite party. The complainant reiterated the stand taken in the plaint and claimed compensation for deficiency in service U/S 14 (1) (d) of the Consumer Protection Act, 1986. The complainant stated that within 7 (seven) months of buying the vehicle and after insuring the case, the vehicle was taken away by the unknown people, who sought for lift from the driver of the vehicle.

22. On the other hand, the learned Advocate for the opposite party Sri U. Deka reiterated that since the driver of the claimant had delayed in the lodging of the FIR and has violated the terms and conditions of the Insurance Policy by giving lift to unknown persons, leading to robbing of the vehicle, so the complainant is not entitled for any compensation. That even the learned counsel of the Company while giving his legal opinion after going through the facts of the case has suggested that the complainant is not entitled for any compensation, as there is delay in filing of FIR leading to the suspicion on the case and malicious intention of the complaint for gaining false monetary benefits.

23. Findings and reasons for decisions: This Forum has given sincere consideration on the entire evidences on record both oral and documentary and other materials as well.  Now, let us see, how far the complainant has been able to prove her case against the opposite party on the basis of material available on record.

24. Now the section 2 (1) (g) of the Consumer Protection Act, 1986, gives the definition of the word Deficiency, which says, “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

25. On the basis of the above definition, the word deficiency has following ingredients:

1. Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force;
2. The person should have failed of the undertaken to be performed in pursuance of a contract or otherwise in relation to any service.

26. After having carefully gone through the available materials on record and hearing both the learned counsels, it is observed that the driver of the vehicle is giving contradictory statements. In his FIR lodged on 14.06.2017 the driver stated that on 12.06.2017 at about 9 am four persons from Hotel Drodel, Ganga requested him to go to Holongi market for emergency work. And that the miscreants used mobile no. 7630917798 for communicating him from Hotel Dodel, Ganga. And in his affidavital declaration made before Executive Magistrate, Yupia, he deposed that on 12.06.2017 at about 9 am his employer (Owner of the vehicle) instructed him to collect some document from Holongi and accordingly he proceeded for Holongi from resident of his employer. As he reached at Ganga market, Itanagar, some unknown persons four in numbers signalled him to stop his vehicle and asked his destination. And as he told them that he was going to Holongi, they requested him to give them lift upto Holongi as it was very urgent to reach there for their business purpose.

27. It is also noted that the driver avoided meeting the Investigating Officer of the Insurance Company, who was to enquire him about the detail of the incident. In the FIR also the driver has not stated the reason of the delay in lodging the FIR. And the owner of the vehicle also did not bother to go to Police Station to lodge any complaint of losing her vehicle.

28. In his affidavit, the driver has stated that the assailants forcefully threw him out of the vehicle and assaulted him physically. And somehow he managed to come back to Itanagar and informed the incident to his employer over phone. But in the complaint, the complainant has stated in para 5 interalia that she found her driver at RKM hospital Itanagar in unconscious state as a result on the same day she could not ascertain the facts what had happed to her driver and circumstances thereof. On regaining of the consciousness the complainant came to know the facts. 

29. Further on perusal of the annexures, this Forum found that the complainant has annexed the medical prescription of the driver, which shows that the driver consulted the doctor at Pay Clinic at RK Mission hospital, Itanagar on 14.06.17. But there is no reflection of any injury on his body. The statement of the driver that he was assaulted badly and the statement of the owner/complainant that the driver was unconscious on the day of incident is not tallied and supported by the medical prescription.

30. Moreover the driver of the vehicle is also seen to have violated the terms and conditions of the Insurance Policy. Clause 3 & 4 of the insurance policy prohibits the owner to use the private vehicle for other purpose other than for personal use. Whereas the driver himself took the risk of giving lift to the unknown people, who later allegedly took away the vehicle.

31. Decision: Therefore for the contradictory statements of both the driver and owner of the missing vehicle and having violated the terms and conditions of the Insurance Policy, all the points for determination are answered in negative and found that the present suit is not maintainable as the opposite party is not found to have caused any deficiency of service as provided U/S 2 (1) (g) of the Consumer Protection Act, 1986. Nor the complainant is entitled to get any compensation as per section 14 (1) (d) of the CPA, 1986.

ORDER

This Forum after hearing the learned counsels of the complainant and the OPs, perusing the documents and annexures submitted by the party, is of the opinion that the complainant could not prove the deficiency of service on the part of the opposite party. Therefore, this complaint stands rejected without any cost.

          With this order, the case is disposed of on contest.

                     Given under our hand and seal of this Forum on 29^th day of March’ 2019.