BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

========

Complaint  Case No : 1563 of 2008

Date of Institution :  31.12.2008

Date of  Decision   :  09.03.2010

Vikar Ahmad s/o Sh. Abdul Wahid, R/o H.No.708/19, Sec. 26, B.D. Complex, Chandigarh.

 ……Complainant

V E R S U S

(1)  M/s Bajaj Allianz General Insurance Co. Ltd., SCO No. 139-140 (1^st Floor), Madhya Marg, Sec.8, Chandigarh, through its Manager.

(2)  M/s Bajaj Allianz General Insurance Co. Ltd., C-31/32, (1^st & 2^nd Floor, Cannaught Place, New Delhi), through its Manager.

(3)     Aditya Jha, Authorized Agent/ Manager of M/s South City Ford Workship, A-34, Mohan Cooperative, Industrial Area, Mathura Road, New Delhi.

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          SH.ASHOK RAJ BHANDARI       MEMBER

PRESENT: Sh.G.S.Verma, Adv. for the Complainant.

         Sh.Rajesh Verma, Adv. for OP No.1 & 2.

            OP No.3 already ex-parte.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant got his Mahindra Scorpio insured from OP No. 3 (an Agent of OP No. 1 & 2) , by paying a requisite premium of Rs.24,800/-, for the period from 29.11.2007 to 28.11.2008, who issued a insurance cover note No. VD0570014896, after valuing the market price of vehicle at Rs.5.50 lacs (Annexure C-2). During the currency of the policy, on 7.4.2008, the said vehicle was stolen while it was parked in the parking area of Swastik Vihar, Delhi at about 10.45 PM and could not be found despite making best efforts. He got the F.I.R. registered with PS Preet Vihar vide F.I.R. No. 180, dated 9.4.2008 u/s 379 IPC (Annexure C-3). Thereafter, intimation was also given to the OPs, on whose asking, the Complainant also furnished all the requisite documents in support of his claim. However, OPs did nothing to pass the claim of the Complainant and were dilly-dallying the matter on one pretext or the other, which forced the Complainant to serve legal notice upon the OPs, but that too could not fetch the desired result. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to indemnify the loss of the vehicle to the tune of Rs.5.50 lacs, besides paying a sum of Rs.50,000/- on account of mental & physical agony and harassment suffered by him.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OP No. 1 & 2 in their joint written statement, while admitting the factual matrix of the case/reply, pleaded that the cover note issued to the Complainant was forged and fake and was a sham document, issued by an individual, who had no concern with the answering OPs in any manner whatsoever. Accordingly, claim of the Complainant was not maintainable either on facts or under law, as OP Nos. 1 & 2 had no liability for a document, which was forged, false and fabricated. So, the question of payment under the claim by the answering OPs was not tenable. Receipt of alleged legal notice has also been denied. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      OP No.3, did not turn up despite due service of notice, therefore, he was proceeded against exparte vide order dated 4.2.2009.

5]      Parties led evidence in support of their contentions.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / the remaining OPs (OP No.3 being ex-parte). We also heard the arguments put forth by the learned counsels for the Complainant and OP Nos. 1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having got insured his Mahindra Scorpio vehicle from OP No. 3, said to be an Agent of OP Nos. 1 & 2 by paying the requisite premium of Rs.24,800/- for the period 29.11.2007 to 28.11.2008 and that he got an insurance cover note No. VD0570014896 for Rs.5.00 lakh as IDV, have all been well established. It is also an admitted fact that during the currency of the Insurance Policy, the said vehicle was stolen on 7.4.2008 in Delhi and the same could not be found despite making efforts by the Complainant, as well as Delhi Police. The Complainant filed a claim with OP Nos. 1 & 2 for payment of Rs.5.50 lakh to indemnify his loss on account of theft of the Vehicle. But, the said claim has not been settled by the OPs so far. The stand of the OPs for not passing the insurance claim of the Complainant is that the documents produced by the Complainant in respect of his claim i.e. Cover Note No. VD0570014896, dated 28.11.2007 (Annexure C-2), in his name, as also the confirmatory letter, said to have been issued by Bajaj Allianz (Annexure C-5), are not the genuine documents issued by the OPs, as the same are forged, false and fabricated. Therefore, OP Nos. 1 & 2 had no liability to indemnify the Complainant for the loss suffered by him on account of the theft of his car.  

ii] Contrary to the above, the firm stand of the Complainant is he had gone to OP No. 3, who was an authorized agent of OP No. 1 & 2 and paid him the insurance premium of Rs.24,800/-, for insuring his Car for a period of one year i.e. from 29.11.2007 to 28.11.2008, for which OPs had issued him the Cover Note No. VD0570014896, containing full particulars of the car, the amount insured, Registration No., Make and Model and other particulars. Accordingly, the car was insured for a sum of Rs.5.00 lakh, valid from 29.11.2007 to 28.11.2008. As per the Complainant, he further sought a confirmation from the OP – Insurance Company in respect of the car insurance done by it and a confirmatory letter was once again issued to him, stating that Vehicle No. CH-03-M-2562, bearing Engine No. G46006 and Chassis No. G85082 was insured that them with the period of coverage as 29.11.2007 to 28.11.2008. Further, he had also lodged an F.I.R. with the Police at Delhi on 9.4.2008, with regard to the theft of his car. Not only that the Allied Recovery and Investigation Bureau of OP wrote to him asking for submission of certain documents (Annexure C-4) and the Complainant complied with all the requirements of the said Bureau and thereafter, the OPs had assured him that they will pay the amount of insurance after receiving untraced report of the Police. Further, the Complainant also moved an application in the office of the R.T.O., Chandigarh, requesting them not to transfer the said vehicle in the name of any other person, as the same has been lost due to theft and that the Complainant is the registered owner of Vehicle No. CH-03-M-2562.

iii]  So far as the Complainant is concerned, he has done all what he was required to do. For example, he paid the insurance premium to the Agent of the OPs, got a cover note, as also a confirmatory letter, said to have been issued by the OPs on 12.2.2008, in addition to taking up the matter with the Delhi Police for getting the vehicle traced, as well as the R.T.O., Chandigarh. It appears from the documents on record that the OPs have not so far formally repudiated the insurance claim of the Complainant. But, at the same time, the said claim has not been settled and paid by them in favour of the Complainant. It is matter of common knowledge that when a person purchases a new vehicle and gets the same insured, he is not aware about the exact format, shape and style of letter head pad or logo or any such unique identification mark of the insurance company. The Complainant has also attached affidavits of Mr. Abdul Muqtadir son of Mohd. Fazil and Mr.Chaman Khan son of Sh. Ayub Khan, stating that he had deposited Rs.24,800/- with Sh. Aditya Jha (OP No.3), Manager (Insurance), South City Ford, Mathura Road, New Delhi, on 29.11.2007, for the insurance of his vehicle. All this shows that there is absolutely no doubt about the bonafides of the Complainant and that the Complainant had paid the insurance premium of Rs.24,800/- to the OP and got his car insured accordingly. Although, the OPs have repeatedly stated that the documents produced by the Complainant are false, forged and fabricated, they have not produced any evidence or document to prove that the documents produced by the Complainant are not genuine documents. Therefore, it is very difficult to accept the version of the OPs that the documents produced by the Complainant are false, forged and fabricated. On the face of it, it might be just a clever device and maneuver on the part of the OPs to avoid the liability of the theft claim of the Complainant, by saying that the documents produced by the Complainant are not genuine. The OPs have failed to produce any document or cogent evidence in support of their case, except the written statement and affidavit produced by them, making such tall claims about the falsity of the documents produced by the Complainant. 

iv]   The learned counsel for the Complainant, in support of its case, has produced some authorities, which are as under:-

(a)    M/s Golden Forests India Limited Vs. Smt. Sumitra Devi and Another, 1997(2) CPC 85;

(b)    The New India Assurance Company Ltd. Versus M/s Steel Edge (India), 2000(1) CPC 168;

(c)    Oriental Insurance Company Limited Versus Shiv Dayal Agencies Pvt. Ltd., 2005(1) CPC 199;

(d)    Dr. Vinita Bansal Versus The Oriental Insurance Company Limited, 2000(2) CPC 162; 

v]    During the course of arguments, one of the Objections taken by the OPs was that the Complainant had paid the amount of premium in cash instead of paying the same by an account payee cheque. The OPs have failed to produce any document or any terms and conditions of the Insurance Policy/ Cover Note, showing that the insurance premium could be paid only through a cheque and not by cash. Even accepting, for the sake of argument, that the Complainant paid the insurance premium in cash against the rules of the OP for making such payment through cheque only, the authority, quoted at (a) above, clearly negates the contention of the OPs, wherein it was held that the Appellant cannot be permitted to escape its liability – the public is not bound by the said terms and conditions – Appellant is liable to refund the amount of Rs.20.00 lakh with interest @12% p.a., as directed by the District Forum, within 02 weeks. In this case also, the Insurance premium had been paid in cash by the insured.  In the authority quoted at (d), the Hon’ble State Consumer Disputes Redressal Commission, Haryana has categorically held that the claim of the Complainant, on account of the theft of the car, could not be delayed for more than 02 months after its filing and the Hon’ble Commission directed the OP to pay a sum of Rs.2.20 lakh as assessed by the Surveyor with 12% interest, excluding 02 months period as also a sum of Rs.50,000/- as compensation, after allowing the said complaint in favour of the Complainant and against the OPs.

7]      Keeping in view the detailed analysis of the entire case, it is our considered opinion that the Complainant has been able to establish his case fully, as he has produced a cover note No.VD0570014896, after paying the premium amount of Rs.24,800/- to the OPs, as also a confirmatory letter, issued by the OPs, stating that the Vehicle No. CH-03-M-2562, bearing Engine No. G46006 and Chassis No. G85082, has been insured with the OPs and that the validity of the insurance is for the period 29.11.2007 to 28.11.2008. On the contrary, the OPs have not been able to conclusively rebut the contentions and pleadings of the Complainant, except by saying that both these documents i.e. the cover note, as well as the confirmatory letter, are false, forged and fabricated. In support of its contention, the OPs have only given the affidavit, but produced no other evidence or document to prove their case beyond an iota of doubt, which shows that the OPs have a very weak case and their contention cannot be accepted at its face value.

8]      In view of the above, in our view, the present complaint has a lot of merit, weight and substance in favour of the Complainant. We, therefore, allow the complaint in favour of the Complainant and against the OPs and pass the following orders. 

9]      The OPs shall, jointly and severally, pay the following amounts to the Complainant:-

(i) a sum of Rs.5.00 lakh as the Insured Declared Value (IDV) in accordance with the Cover Note issued by the OPs (Annexure C-2) to the Complainant for the loss suffered by him on account of the theft of the car and the same remaining untraceable till date.

(ii) a sum of Rs.30,000/- as compensation for causing harassment, agony and pain to the Complainant on account of non-settlement/ payment of the insurance claim filed by him with the OPs.

(iii)    Rs.5,000/- towards cost of litigation.

10]     The aforesaid order be complied with by the OPs within a period of 30 days from the receipt of its certified copy, failing which the OPs shall, jointly and severally, pay the sum of Rs.5,30,000/-, along with interest @18% per annum from the date of filing of the present complaint i.e. 31.12.2008, till the date of realization, besides cost of litigation of Rs.5,000/-.

11]    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

09.03.2010                                     Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                          Sd/-

(ASHOK RAJ BHANDARI)

MEMBER