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

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Complt. Case No : 1032 of  2009

Date of Institution:    22.07.2009

Date of Decision  :    18.11.2010

Subhash Saini son of Sh. Raj Kumar, Village Panjeton, Tehsil Naraingarh, District Ambala [Haryana].

……Complainant

V E R S U S

[1]        Claim Head/ The Claim Branch Manager, (Head Office) Reliance General Insurance Co. Ltd., Indorigin Electric Ltd., 570, Rectifier House, Naigaum Cross Road, Next to Royal Industrial Estate, Wadala, Mumbai – 400031.

[2]    The Claim Branch Manager, Reliance General Insurance, Anil Dhirubhai Ambani Group, SCO No. 212-214, 1^st Floor, Sector 34-A, Chandigarh.

----- Opposite Parties

[3]        Megam Leasing Company Ltd., through its Manager, SCO No. 75, Top Floor, Phase IX, Mohali.

.…..Performa Opposite Party

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.Rajesh K. Chaudhary, Adv. for the Complainant.

Sh.Yogesh Saini, Adv. for OPs No. 1 & 2.

Sh.K.S. Cheema, Adv. for OP No.3.

PER MADHU MUTNEJA, MEMBER

                The instant complaint have been filed by Sh. Subhash Saini son of Sh. Raj Kumar under Section 12 of the Consumer Protection Act, 1986.  The Complainant has alleged deficiency in service against Reliance General Insurance Co., due to non-payment of insurance claim.

1]             The facts of the case are as under:-

                The Complainant was the owner of a Mahindra Balero Jeep which was insured with the OPs from 3.3.2008 to 2.3.2009. The assessed value of the vehicle was Rs.3,77,000/-. A premium of Rs.10,383/- was paid to OP No. 2 for the same. 

                This vehicle was stolen while parked in front of the house of the brother of the owner in Bilaspur. All original documents of the vehicle were lost along with the vehicle. An FIR No. 208 of 2008 under Section 379 of IPC was registered with the local police station by Mr. Rakesh Saini, brother of the Complainant.

                When the Complainant approached the OPs for claim of the insured price, his claim was repudiated by the OPs. The contention of the OPs for repudiation of the claim was that the Complainant was using the vehicle for commercial use, while it was registered as a private vehicle.

                The Complainant approached the OPs a number of times and even contacted the head office of the OPs at Mumbai for redressal of his grievance, but the OPs have yet not honoured their commitment.

                The Complainant then sent a legal notice to the OPs to make payment along with interest for the delayed payment of claim. Since no amount was paid by the OPs, the Complainant has filed the instant complaint, praying that the OPs be directed to pay Rs.3,77,000/-, along with interest and compensation. 

2]             After admission of the complaint, notice was sent to the OPs.

                The OPs No. 1 and 2 in their reply have submitted that after the Complainant reported the theft of the vehicle to them, a Surveyor was appointed to assess the claim. The surveyor, vide his report, confirmed the theft of the vehicle. But the report also said that the vehicle was used for commercial purposes, while it was registered as a private vehicle to be used for domestic and pleasure purposes only. It was further submitted that even though the investigator had repeatedly asked for documents from the Complainant, the Complainant had not cooperated with the investigator for the reasons best known to him. The OPs have denied all other allegations of the Complainant in their reply.

                The OPs have also stated that as per surveyor’s report, four persons, including the Sarpanch of the village had given in writing that the car in question was attached to M/s Jyoti Structure Limited, Bilaspur and was being used as a taxi, in violation of the terms and conditions of the policy of the vehicle. OPs No.1 & 2 have, therefore, prayed for dismissal of the complaint against them.

                OP No.3 in their reply have denied all the allegations made by the Complainant. They have submitted that the dispute is between the Complainant and OPs No. 1 and 2 and they are only a proforma party and nothing is due from them to the Complainant. They have, therefore, prayed for dismissal of the complaint against them, in the interest of justice.

3]             We have heard the ld.Counsel for the parties and have also perused the evidence & documents led by the parties in support of their contentions.

4]             The Complainant is genuinely aggrieved because his vehicle was stolen from the residence of his brother Sh. Rakesh Saini, Despite filing his claim with the OPs, his claim has been repudiated on the ground that the Surveyor has said that the vehicle was being plied for commercial purposes. The vehicle is still not traceable by the police.

5]             A perusal of the relevant portion of the Surveyor’s report shows the following opinion:-

                        “Opinion:-

On the basis of above said findings, we are of the opinion that date, time and place of theft seems to be genuine. But Bolero was used for commercial use in routine, where as it is registered for private use. Insurer may deal with claim as per terms and conditions of policy, keeping in view of above said findings. This report is issued without prejudice. “

6]             The OPs have relied on the above opinion for repudiating the claim. They have also relied on the statements of certain local persons of the area, including the Sarpanch and Numberdar, whose names have been mentioned in the investigation report. These people have stated that the vehicle in question was being plied for commercial use as a taxi in routine. However, none of these persons have made any statement by way of affidavit to show that the vehicle was being used for commercial purpose.

7]             The Complainant has attached a certificate of M/s Jyoti Structures Ltd., which reads as under:-

                        “TO WHOM IT MAY CONCERN

There is hereby certified that Mr. Rakesh Saini R/o Vill. Panjeto, P.O. Pattredi, Tehsil Naraingarh, District Ambala, was employed at our Bilaspur Project. He was in this project from 1.1.2007 to 17.9.2008 as a Site Supervisor. He was having his personal vehicle, Mahindra Bolero bearing Registration No. HR-04-B-0626. The vehicle kept by him was for his personal use and same was not used in the company for commercial use.

A perusal of the aforesaid certificate clearly shows that the vehicle was being used by the brother of the Complainant for his personal use only.

8]             Here is a case where the version of the Complainant is being contravened by the Surveyor and reliance is being placed on statements of certain local people to show that the vehicle was being used as a commercial vehicle. The claim is being repudiated on this ground alone.  Statements of these persons are not on affidavit and hence, need not be relied upon.

9]             The OPs have also relied on the judgment of the Hon’ble Supreme Court of India in case titled as National Insurance Co. Ltd. Versus Meena Aggarwal, reported as 2009(1)RCR (Civil) 877, to support their repudiation. It was held as under:-

“…………….. Moreover, the vehicle was insured for personal use but was being used as taxi – insurance company not liable to pay compensation – The vehicle was used against the terms of insurance policy. 2006 (2) RCR (Civil) 313 (SC) relied.

B. Motor Vehicle Act, 1988, Sections 149 and 166 – Maruti Car met accident and damaged – The car  was insured for personal use but was being used as taxi – It was against the terms of policy – Insurance Company not liable.”

10]            However, the OPs have not been able to prove the above defence and hence, the above judgment would not be applicable in the present case.  The Complainant and his brother have used the vehicle for their personal use only. Even the employer of the Complainant’s brother has given a certificate that the vehicle was being used by him for personal use only.

11]            In view of above, we deem it appropriate to take the righteous decision and allow the complaint in favour of the Complainant. The OPs have not been able to prove that the Complainant was using the vehicle for commercial purposes. Their defence does not seem to be sustainable and thus, cannot be allowed.

12]            The complaint is, therefore, allowed, with the following directions to the OPs No.1 and 2:-

I] To pay Rs.3,77,000/- to the Complainant, along with interest @9% per annum by way of compensation, from the date of filing of claim, till the date of payment.

2] To pay the complainant a sum Rs.7000/- as cost of litigation.

13]               OP No.3 seems to be a proforma party only since no case has been made out against them. So, the complaint against them is dismissed.

14]               This order be complied with by OPs No.1 & 2 within 30 days from the date of receipt of its certified copy, failing which they shall pay the aforesaid decreed amount along with interest @12% per annum from the date of order till the date of realization besides the cost of litigation.

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

Announced

18^th Nov., 2010                                                 

Sd/-  

(LAKSHMAN SHARMA)

PRESIDENT

                                                Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Dutt’