- (1.) THIS appeal is directed against order dated 30.4.2010, passed by District Consumer Disputes Redressal Forum, Bastar at Jagdalpur "District Forum" for short) in complaint case No. 73/03 (3/08), whereby the complaint of the appellant herein, filed under Section 12 of the Consumer Protection Act, 1986, seeking compensation of Rs.5,00,000 on account of theft of insured vehicle, has been dismissed on the ground that the complainant has not taken steps for securing the insured vehicle against loss or damage.
(2.) BRIEF history of the case is that the complainant/appellant herein filed complaint case No. 73/03, before the District Forum with the assertion that truck No.MP -25 -B -1310 was insured by the respondent which was of registered ownership of the appellant/complainant. Said vehicle was parked in the campus of the complainant, behind old telephone exchange, Rajendra Nagar Ward, Jagdalpur, during the intervening night of 31.12.2001 and 1.1.2002. Next day morning, the truck was found missing from the place where it was parked. Then report was lodged with the police. Insurer was also intimated. Police could not trace the culprit or the stolen vehicle and accordingly final report in the criminal matter was submitted. Claim for compensation on account of theft of the insured vehicle was filed before the insurance company, which was not settled for a period of two years, then complaint was filed before the District Forum under Section 12 of the Consumer Protection Act, 1986. Later on by way of amendment in the complaint, these facts have also been incorporated in reply to the averments of the OP/insurance company that the vehicle went to Andhra Pradesh for delivery of some forest produce and therefore its entry was made at the forest check post, but when it came back from the destination to Jagdalpur, then it was empty and therefore no entry was made at the check post. It has also been asserted that appropriate measures of safety of the vehicle were taken and the starter key of the vehicle was kept in a locked tool box and the key of that tool box was taken by the driver of the vehicle. The vehicle was parked in the campus of the owner of the vehicle itself and these all facts were stated by the driver to the investigator appointed by the insurance company and so the defence of the insurance company was denied that proper action for security of the vehicle was not taken.
(3.) THE insurance company in the written version has initially asserted that no incident of theft of the vehicle happenned during intervening night between 31.12.2001 and 1.1.2002 and in fact the vehicle was earlier seized by Forest Department which was later on obtained on supardari by the complainant and then was sent to Andhra Pradesh, from where it never returned back and then a false report of theft of the truck was lodged by the complainant with the police. It has also been asserted that there were entries of passing of that truck containing forest produce, at forest check post on 25.12.2001, but no entry was found for return, of the vehicle from Andhra Pradesh, either at the forest check post or at RTO barriers and so it was alleged that the vehicle had never returned from the Andhra Pradesh and a false story of its theft has been cooked by the complainant. Later on by way of amendment it has also been pleaded that the vehicle was seized by the State Government and Forest Department and it was handed over only on supurdnama and it was the property of Government and just to avoid seizure of the vehicle by the Government, false report has been lodged by the complainant. Lastly, this amendment was also incorporated in the written version that the incident of theft had never happened. In alternative it was also pleaded that if it is found that the vehicle was stolen, then the complainant himself was guilty for this incident, as the key of the vehicle was left in the tool box of the vehicle and door of the vehicle was also not properly locked and thus conditions of the policy were violated. The case was decided earlier by the District Forum, vide order dated 9.1.07 and the complaint was dismissed on the ground that the vehicle had not been stolen, as there was no report of its return from Andhra Pradesh. That order was challenged by the complainant before this Commission and the matter was remitted back to the District Forum, vide order dated 16.8.07, passed in appeal No. 139/07, with the direction for rehearing and to consider the objections raised by the insurer. Thereafter, the District Forum again vide order dated 5.5.08, dismissed the complaint holding that the truck was not stolen and the complainant himself sent the truck to Andhra Pradesh. That order was again challenged before this Commission by way of appeal No.336/08, by the complainant and that appeal was decided vide order dated 5.11.09. During the course of that appeal, some new material was produced before us by both parties and on the basis of the certificate issued by the Forest Department, it was observed that prima facie we are satisfied that the truck had come back from Andhra Pradesh and was stolen from Jagdalpur. It was also observed that questions, regarding proper precautions, not taken for safety of the truck, have been raised during the course of appeal and affidavit of father of the complainant was also filed in original before us, affidavit of one Vijay Singh was also filed and therefore considering these new evidences, regarding locking of truck, the matter was again remanded back to the District Forum with the direction to afford opportunity to both parties for amending their pleadings suitably and for providing opportunity of cross -examinations of Jagtar Singh and other witnesses, if prayed and then to decide the matter afresh on merits. After that remand, the District Forum vide the impugned order has again dismissed the complaint, but this time this finding has been recorded that the truck had come back from Andhra Pradesh and was in fact stolen in the intervening night between 31.12.01 and 1.1.02, but then it was observed that the complainant has not taken suitable steps for securing the truck in question from theft or loss and thus violated the terms of the policy and on this finding, the complaint has been dismissed. This finding is under challenge before us by way of this appeal.;