BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 80

Date of Institution : 26.3.2010

Date of Decision : 21.10.2010

Balwant Singh son of Sudagar Singh, resident of Sadiq, Tehsil and District Faridkot.

...Complainant Versus

1. Bajaj Allianz General Insurance Company Ltd., SCO-147, Feroz Gandhi Market, Ludhiana-141001.

2. Bajaj Allianz General Insurance Company Limited, Reg. & H.O. GE Plaza, Airport Road, Yerwada, Pune-411006, through its Chairman/MD/Director.

3. Bajaj Allianz General Insurance Company Ltd., B.O. Ferozepur Road, Faridkot through its Manager.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. G.S. Sandhu counsel for the complainant.

Sh. S.K. Jain counsel for the opposite parties.

ORDER

Complainant has filed the present complaint against the opposite parties for not paying the claim relating to Truck No. RJ-13-G-3521 Model 1996 Chassis No. 733788 Engine No. 009009 owned by the complainant stolen on 21.5.2009 and for directing the opposite parties to make the payment regarding the above mentioned truck and to pay Rs. 2,00,000/- as compensation for deficiency in service besides litigation expenses of Rs. 15,000/-.

2. Briefly stated, the case of the complainant is that he is owner of the truck mentioned above which was insured with the opposite parties vide policy No. CG-09-9995-1803-00140386 issued on 4.12.2008 by paying a premium of Rs. 10,489/- for a total sum assured Rs. 2,00,000/-. The said truck was stolen on 21.5.2009 at about 12.00 midnight from Aman Rice Mills, Sadiq Road, Faridkot as the truck was loaded with wheat from Grain Market but the same could not be unloaded due to some dispute in the Union. The complainant immediately informed Mr. Neeraj Jain on telephone as per the directions of the opposite party in the policy. He started searching his truck and made inquiries for about a month but the whereabouts of the truck never came to his knowledge and as such he lodged an FIR No. 180 dated 1.7.2009 with Police Station City, Faridkot under Section 379 IPC. Thereafter, the complainant has submitted a claim with the opposite parties by submitting all the required documents but the opposite parties vide letter dated 16.12.2009 informed the complainant that the claim of the complainant has considered as No Claim on the false ground that there is a delay in informing about the incident to the opposite parties. After that, he approached the opposite party No. 1 at Ludhiana so many times with the request to make the claim good but the opposite parties paid no heed to his request and flatly refused to pay any claim. The truck was hypothecated with Shri Ram Transport Finance Co. Ltd., Moga and due to non payment of the claim the complainant also suffered a great loss as he has to pay unnecessary penalties and interest levied by the Finance Company. So, this act of the opposite parties amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 2,00,000/- and litigation expenses of Rs. 15,000/-. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 29.3.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite parties filed written statement in which they submitted that the finance company is a necessary party in this complaint so the complaint is bad for non joinder of necessary parties. It is further submitted that in case of theft of the vehicle any liability of the opposite party is subject to the terms and conditions of the policy. It is denied if the truck loaded with wheat was stolen on 21.5.2009. Statement of Bawa Singh was recorded in which he stated that he remained on truck during day time and came back to his house in the night and in the morning on 21.5.2009 Bawa Singh reached the place where the truck was standing but the driver was not reached there. Then he go to the house of the driver and when they returned back at 2.00 PM, the truck was not at the place where it was parked. Statement of Jinder Singh Sarpanch was also recorded who stated that on 21.5.2009 in the afternoon the unknown persons had taken away the truck and he was informed on telephone and got lodged the report with the police. No information was ever given to Mr. Neeraj Jain on telephone. The intimation of the claim was given to the insurance company on 22.10.2009 and there is inordinate delay of five months in intimating the loss to the insurance company which is without any reasonable cause. So, the complainant was violated the terms and conditions of the policy that notice shall be given immediately to the police and co-operate with the company in securing the conviction of the offender. So, keeping in view the above facts the claim stands No Claim vide letter dated 16.12.2009. The FIR was lodged on 1.7.2009 i.e after a delay of about 47 days which itself is a violation of the policy terms and conditions and claim has been rightly rejected. The truck in question has not been stolen and the same act was intentional one. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of insurance policy Ex.C-2, letter dated 16.12.2009 Ex.C-3, copy of FIR No. 180 Ex.C-4, copy of RC Ex.C-5, copy of untraceable report Ex.C-6 and closed his evidence.

6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Sunil Kaul Ex.R-1, copy of application Ex.R-2, copy of certificate Ex.R-3 and closed their evidence.

7. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file. Our observations & findings are as under.-

8. The main contention raised by the learned counsel for the complainant in the present case is that the truck in question insured with the opposite parties was stolen on 21.5.2009 from Aman Rice Mills, Sadiq Road, Faridkot during the validity period of insurance policy w.e.f. 4.12.2008 to 3.12.2009. Information in this regard was given to the opposite parties and FIR was got registered copy whereof is Ex.C-4. However, opposite party repudiated the claim of the complainant as No Claim vide letter Ex.C-3. He further argued that complainant had left no stone unturned to get the FIR of the theft of truck registered by visiting police station concerned but he remained unsuccessful in this respect earlier and it was only on 1.7.2009 that he was successful in getting the FIR registered in this connection. However, he had given information as to the theft of truck to Sh. Neeraj Jain immediately as per instructions of the opposite parties in the policy.

9. Learned counsel for the opposite parties however challenged the aforesaid contentions on the ground that by not getting FIR registered immediately after the alleged theft of truck complainant violated condition No. 1 of the policy whereunder insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. Further, no material in support of theft of truck in the form of bilty document of the material allegedly loaded in the truck etc. were brought or proved on record. Evidence of the complainant as to alleged theft of the truck is cryptic and insufficient. Therefore, complaint filed by him is liable to be dismissed.

10. Learned counsel for the complainant however relied upon judgment of Hon'ble Rajasthan State Commission, Jaipur New India Assurance Co. Ltd. & Ors. Versus Jagdish Saini IV (2005) CPJ-290 in support of the fact that delay in lodging the report to the police is not fatal to the claim.

11. We have keenly considered the rival stands taken by both the sides in the light of evidence on record. The claim of the complainant was considered as no claim due to delay in lodging FIR as to the theft of truck in question which as per the opposite parties is in violation of the terms and conditions of the policy. It is noticed that theft qua truck in question allegedly took place on 21.5.2009 however the FIR was got registered on 1.7.2009 as is evident from copy of FIR Ex.C-2. It is not uncommon that invariably police is reluctant to register FIR in such cases and as such mere delay in lodging report to the police is not fatal to the claim of the complainant. The opposite parties have not been able to show what prejudice or loss was caused merely by delayed FIR got registered by the complainant. Otherwise also, position of aggrieved in such circumstances can well be imagined where he would like to have resort to police station only after making personal efforts to trace out his vehicle. It is clear from the record produced by the complainant that truck remained untraceable and even the police had attempted untraced report in this respect as is clear from their certificate Ex.C-6. Therefore, in our considered opinion mere delay of registration of FIR for the truck in question cannot be made a ground for treating the genuine claim of the complainant as No Claim. For our this view we seeks support from the principle laid down in Jagdish Saini case supra relied upon by the learned counsel for the complainant.

12. In this view of the matter, the complaint filed by the complainant is accepted with a direction to the opposite parties to pay the insurance claim in respect of the vehicle in question to the tune of Rs. 2,00,000/- and Rs. 2,000/- on account of mental tension, harassment and litigation expenses totaling Rs. 2,02,000/- to the complainant, within the period of one month from the date of the receipt of the copy of this order, failing the opposite parties shall pay the above mentioned amount of Rs. 2,02,000/- alongwith interest at the rate of 9% per annum from the date of the decision of this complaint till realization of the amount. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 21.10.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)