The appeal is directed against the final order passed by the Ld. D.C.D.R.F, Dakshin Dinajpur in CC/14/2018 dated 12/06/2018. Here the appellant is the Branch Manager of National Insurance Company and the respondent is Smt. Santoshi Saha who happens to be the consumer complainant in CC/14/2018. The factum martix of this case is that the complainant/respondent S. Saha has purchased a vehicle that is commercial truck bearing no. WB73D0552 which was stolen in the mid night of 30/09/2015-01/10/2015 which was insured through National Insurance Company, Gangarampore Branch vide policy no. 150704/31/15/6300001754 on 03/07/2015 and the policy coverage was up to 03/07/2016. The theft of the said truck was reported to the police station where Gangarampore P.S started the case bearing no. 336 of 2015 dated 04/10/2015. The value as per said policy of the vehicle Rs. 4,00,000. The complainant/respondent submitted a claim before the insurance company due to the theft of truck and claimed face value of the truck to the tune of Rs. 4,00,000. The claim was repudiated on the part of the National Insurance Company on 23/11/2017 on the ground that policy condition no. 1 and 5 was violated. So, she came before the Ld. Forum for realization coverage amount of insurance policy to the tune of Rs. 4,00,000, compensation with litigation cost. The consumer complaint was contested by the National Insurance Co. that is the appellant by filing written version and mentioned in the W.V that the said vehicle was kept in a open road without care or without lock and key for such a long time in the night and the matter of theft was informed to the nearest P.S after four days since the date of incident and the missing of the vehicle was also not reported to the Insurance Co. immediately since the time of theft and for that reason, the Insurance Co. rightly repudiated the claim of the complaint as per conditions no. per 1 and 5 of the policy was violated. Ld. Forum has adjudicated the dispute in favour of the respondent/complainant and directed the OP insurance co. to pay Rs. 4,00,000 along with compensation amount Rs. 8,000 and litigation cost Rs. 2,000/-.

            Being aggrieved with the said order, this appeal follows on the grounds: -

That the Hon’ble Forum has erred both law and fact and did not appreciate the law properly and the Ld. Forum has specifically did not mention in the order whether the consumer was bona fide consumer or not as because the complainant has purchased the said truck for commercial purpose. The memo of appeal also covers the ground that Ld. Forum has failed to consider the evidences and the documents in an appropriate manner and the order dated 12/06/2018 is baseless and bad in law and liable to be set aside in appeal. The respondent/complainant has contested the appeal by appointing Ld. Advocate Sandip Das. On behalf of the appellant the Ld. Advocate Mr. B. Maitra has conducted the case. The appeal was heard in presence of Ld. Advocate of both sides.

D E C I S I O N S  W I T H  R E A S O N S

                It is not disputed on the part of the appellant that the respondent had the valid insurance policy for the truck no. WB73D0552 for the period between 4/07/2015 and 03/07/2016. It is also not disputed that the said vehicle was stolen from the street in the night between 30/09/2015 and 01/10/2015. The main dispute in this case is that as per allegations of the appellant appropriate care was not taken on the part of the truck owner to keep the vehicle in safe condition. At the time of argument Ld. Advocate mentions that as per averment of the complainant and in her FIR it is clearly mentioned that the driver of the truck one S. Roy kept the truck on the road side of highway in the night and went to his house and did not look after the truck in the night which is nothing but violation of thepolicy condition where it was clearly stipulated in the terms and conditions of the policy that “Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition.” The theft of the vehicle was detected in the morning on 01/10/2015. This conduct and attitude on the part of the driver and the owner clearly established the fact that the vehicle was kept in careless condition and for that reason, the owner is not entitled to get any relief from the insurance co. as the violation of the terms and conditions of the policy was there on her own part.

                It is further mentioned that at the time of argument that the theft was detected on 01/10/20155 while the matter was brought to the knowledge of police by a FIR which was recorded on 04/10/2015 that is after four days. And the delay is not explained in anywhere as the why the police was informed about the theft after four days of the incident. He further submits that in this case Ld. Forum has failed to consider thus the complainant was running her business purely commercial basis having more than 10 vehicles in their names and for that reason, the complainant was not the consumer as per provisions of Consumer Protection Act. The Ld. Forum has failed to appreciate the same provision of law. He further submits that the alleged incident of theft took place in the night of 30/09/2015 while the insurance co. was intimated about the theft on 05/10/2015 and there was no valid reason for such delay in intimating the appellant company. So, the insurance company had no liability to protect the interest of the complainant arises in the insurance policy. Ld. Advocate of the respondent at the time of argument contradicted the arguments of the Ld. Advocate of the appellant to the score that the matter was diarized by GD entry on the part of the complainant on 01/10/2015. The complainant has approached the police authority to take proper initiative to search out the vehicle at the earliest occasion but the police has intentionally did not record the case till 04/10/2015 and the complainant has nothing to do in this regard. He further submits that as soon the FIR was recorded on 04/10/2015, the complainant collected the copy of the FIR on 05/10/2015 and on that very date the matter of theft was intimated to the insurance co. The complainant is a fellow citizen who knows that without having a copy of FIR the insurance co. would not entertain the claim of the insured. He further submits that the vehicle is a commercial truck and the driver was the custodian who has kept the vehicle in the road by proper lock and key and in this fashion, the other truck also were lying there but unfortunately it was stolen in the night and complainant had no fault in this regard as it is a truck which cannot be roomed in a safe position.

                  After going through the written version submitted by the insurance co. before the Forum it is found that the appellant company did not dispute before the Ld. Forum that the complainant was not a consumer as per provision of Consumer Protection Act as she has purchased the vehicle for commercial purpose. And for that reason, Ld. Forum has not discussed in the body of judgement to hold whether the complainant was a bona fide consumer or not. On the other hand, the complainant being a woman in her consumer complaint categorically mentioned that she is dependent upon the income of the vehicle for the livelihood of her family which is nothing but the earning from the vehicle is self-employment. Therefore, the complainant is a bona fide consumer under the provisions of Consumer Protection Act and it cannot be challenged against such bona fide at this stage of appeal. The complainant in consumer complaint mentions that she lodges a written complaint before the Gangarampore P.S on 01/10/2015. Police sat on the FIR and did not set it in motion till 04/10/2015. The FIR recorded by the Gangarampore P.S bearing no. 336 of 2015 dated 04/10/2015 under section 379 IPC speaks that the complainant submitted this written complaint on 01/10/2015 and there is no doubt that it is the fault of the concerned P.S not to record the case on that very date. Therefore, she had to await till the recording of FIR and thereafter she procured the copy of FIR and registered the insurance claim on 05/10/2015. So, some fairness is reflected on the part of the complainant. We know very well that Consumer Protection Act is based on the doctrine of justice, equity, good conscience and law of equity. Prime consideration for protecting the interest of a bona fide consumer, claiming of compensation arising out of an insurance policy is the concept of law of equity and we know very well if one wants to get relief, he or she must have to come with clean hands. Here in this case, the complainant used to run her livelihood by the income of the vehicle which was run by a driver and at the time of theft it was kept under the custody of the driver who get the vehicle on the road and went to his house in the night and kept the vehicle under lock and key. The seizure list clearly speaks that the two keys of the vehicle was handed over to the police. Ld. Advocate of the appellant by citing of judicial decisions reported in part iv (2017) CPJ 446 where the Hon’ble National Commission has decided that the intimation of damage or theft in the subject matter of the policy should not be delayed in any way and reason of delay should be properly explained. Otherwise the Insurance Co. has no liability to settle the claim. He further relied upon the decisions of Hon’ble Supreme Court reported in 2017 CPJ 10 where delay intimation is also a violation of condition of Insurance Policy. After going through the judicial pronouncements cited by the Ld. Advocate of the appellant there is no hesitation to hold that the owner has the responsibility to intimate the insurer immediately after the theft of the vehicle. However, this condition should not be barred settlement of genuine claims particularly to the delay in intimation or submission of documents is due to unavoidable circumstances. Here, in this case, the general perception of commoners is that the insurance company would not entertain any claim unless the theft of the subject matter is reported by a FIR before the police. The complainant/respondent, clearly explained that she reported the incident at the earliest and the police recorded the case after four days that is on 04/10/2015 and after obtaining the copy of FIR she raised claim before the appellant company for settlement on 05/10/2015. The delay has clearly explained and for that reason, such claim cannot be rejected on the ground of delay. Ld. D.C.D.R.F also relied upon the decisions of Hon’ble National Commission reported in 2017 (ii) CPR 210 where it was upheld the claim of the insured on the ground that insurance company could not reject otherwise genuine claims on technical ground of delay in intimation of theft if delay is properly explained. No infirmity is found in the adjudication of Ld. Forum and for that reason, this State Commission do not want to go against the judgement and final order of the Ld. Forum. Thus, the appeal devoids any merit.

Hence it is ordered: -

                That the appeal be and the same under section 15 of CP Act is hereby dismissed on contest without any cost. The final order and judgement passed by Ld. D.C.D.R.F, Dakshin Dinajpur dated 12/06/2018 in reference to CC/14/2018 is hereby confirmed. Let a certified copy of this order be supplied to the parties free of cost and let a copy of this order be communicated to the Ld. D.C.D.R.F, Dakshin Dinajpur through e-mail.