Haryana

StateCommission

A/1129/2015

ORIENTAL INSURANCE CO. - Complainant(s)

Versus

GAURAV PREMI - Opp.Party(s)

J.P.NAHAR

14 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1129 of 2015

Date of Institution:        30.12.2015

Date of Decision :         14.07.2016

 

1.     The Oriental Insurance Company Limited, Regional Office, LIC Building, 2^nd Floor, Jagadhri Road, Ambala Cantt. 

2.     The Oriental Insurance Company Limited, through the Branch Manager, The Oriental Insurance Company Limited, Bhiwani, Branch Office, Rohtak Road, Fountain Chowk, Charkhi Dadri, District Bhiwani.

         Both through their authorised signatory, Manager, LIC Building, Jagadhri Road, Ambala Cantt. 

                                      Appellants/Opposite Parties No.1&2

Versus

1.      Gaurav Premi s/o Sh. Jai Ram, Resident of Puri, Rohtak Road, Charkhi Dadri, District Bhiwani.

Respondent/Complainant

2.      Mahindra & Mahindra Finance Service Limited, Financer of the insured vehicle bearing registration No.HR-61T/4767, Opposite House of Shri B.D. Gupta, Ex-Chief Minister, Hansi Road, Bhiwani. 

                                      Respondent/Opposite Party No.3

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri J.P. Nahar, Advocate for appellants.

Shri Sumit Sangwan, Advocate for respondent No.1.

Shri Nitin Thatai, Advocate for respondent No.2.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

The Oriental Insurance Company Limited (for short ‘the Insurance Company)-Opposite Parties No.1 and 2, are in appeal against the order dated August 11^th, 2015 passed by District Consumer Disputes Redressal Forum, Bhiwani (for short ‘the District Forum’) whereby Complaint No.176 of 2009, filed by Gaurav Premi-complainant/respondent No.1, was allowed.

2.      Car (Tavera) bearing registration No.HR-61-4767, owned by Gaurav Premi-complainant, was insured with the Insurance Company for the period June 13^th, 2007 to June 13^th, 2008, vide Insurance Policy Exhibit P-6, for Rs.5,50,000/-. The car was snatched from its driver on November 19^th, 2007 in the area of Dadri. First Information Report bearing No.240 dated 26.11.2007 (Annexure P-2) was lodged in Police Station City Dadri, under Section 382/34 of the Indian Penal Code. The Insurance Company was also informed. During investigation, the Police recovered the car on 26.11.2007, which in fact was only a body as engine, gear box, other major parts and music system etcetera had been stolen. However, the accused could not be arrested. The Investigator of the Insurance Company inspected the car and submitted report Annexure R-5. The Police also submitted untraced report Annexure P-1. The complainant filed claim with the Insurance Company. The amount not being paid, the complainant served notice (Annexure P-3) upon the Insurance Company through his counsel but to no avail. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

3.      The Insurance Company/Opposite Parties No.1 and 2 contested complaint raising plea that on receipt of information regarding snatching of the vehicle, Maj.Mehar Singh (Retd.) Surveyor and Loss Assessor, was appointed. Later, Shri S.K. Aggarwal, was appointed surveyor & Investigator for sport survey. Thereafter, Shri Kirpal Singh Hans, was deputed by the Divisional office for final survey. It was submitted that despite letters to the complainant by Maj.Mehar Singh, the complainant did not furnish the requisite information and documents. It was also submitted that though the vehicle was insured as a private vehicle but was being used as a taxi for hire and reward. The Fitness of the car had also expired and driver was not holding valid and effective driving license. It was stated that final survey could not be done as the complainant had not furnished the Recovery Memo vide which the Police recovered the car. Thus, claim was repudiated as ‘No Claim’ vide letter dated 21.07.2009 (Annexure R-18). It was prayed that the complaint be dismissed.

4.      On appraisal of the pleadings and evidence of the parties, the District Forum allowed complaint and directed the Insurance Company/opposite parties No.1 and 2/appellants, as under:-

“…we partly allow the complaint of the complainant and direct the Ops No.1 and 2 to pay 75% of the insured amount of Rs.5,50,000/- to the complainant/OP No.3 financer of the vehicle and also to pay interest @ 8% p.a. from the date of complaint till the date of payment. The compliance of the order shall be made by Ops No.1 & 2 within 45 days from the date of passing of this order, otherwise Ops No.1 & 2 shall be liable to pay the enhanced interest @ 9% p.a. from the date of passing of this order till payment.”

5.      Learned counsel for the appellants has raised three fold arguments. Firstly, that the car was insured as a private vehicle, however, it was being used as taxi. Secondly, the driver was holding driving licence to drive scooter, motorcycle, car and jeep, and he was not authorised to drive a taxi which is a Light Transport Vehicle; and that the complainant did not get the car released on Sapurdari and thus no opportunity was allowed to the Insurance Company to carry out the final survey.

6.      So far as the argument regarding final survey is concerned, the appellants/opposite parties have themselves placed on the file the report of the surveyor (Annexure R-12). In Annexure R-12, the surveyor has mentioned the missing parts of the car viz both head lights, corner lights, LH tail light, radiator A.C. Condenser, engine, gear box, battery and front Grill etcetera. This demolishes the contention of the learned counsel for the appellants that no opportunity was given to the Insurance Company to assess the loss. The appellants admits in written reply that Shri S.K. Aggarwal, was appointed as Loss Assessor and surveyor and his report (Annexure R-12) is on the file. In his report, he has specifically mentioned about the missing parts. Taking out the parts mentioned in his report what remains in the car, is body shell only and therefore, it was of no use to the complainant to have applied for Sapurdari of the vehicle. Even report of Maj. Mehar Singh also mentions about the missing parts of the car. The fact that Shri S.K. Aggarwal, inspected the car and submitted the report, shows that proper opportunity was available and availed by the Insurance Company for final survey.

7.      The second contention raised was that the vehicle was being used as a taxi. The appellants/opposite parties have tried to raise this contention by raising assumption referring document Annexure R-9. Annexure R-9 is illegible photo copy of a paper, it is without beginning and end of the document. The only legible portion after using high lighter is upto 13.06.2007. To whom the car belonged, has not been proved. No evidence has been led by the appellants that to whom the car pertained. The Registration Certificate of the car is on the file as Annexure R-8. It does not find any endorsement it being used as a taxi. There is no other evidence on the file in support of the contention of learned counsel for the appellants that it was being used as a taxi. The report of the surveyor is not sufficient to prove that it was being used as a taxi.

8.      The next limb of arguments is with respect to the driving licence of Satish Kumar-driver who was driving the car at the time of occurrence. As per Annexure R-8, the vehicle was registered as LMV. As per the report of the licensing authority (Annexure R-10) D.L. No.4793/DL/CKD was issued in the name of Satish Kumar son of Sadhu Ram, authorizing him to drive scooter/motorcycle/car/jeep, which covers the vehicle in question. The copy of the D.L. is Annexure R-11.  Report under Section 173 Cr.P.C. is Annexure P-1 wherein details of the vehicle (case property) finds mention including the missing parts of the car.

9.      Learned counsel for the appellants referred to the judgment rendered by Hon’ble National Commission in United Insurance Company Ltd. versus B. Ugandar, III(2010) CPJ 253 (NC) that the car was without any fitness certificate on the date of occurrence. This judgment is not applicable to the instant case because there is no cogent and convincing evidence to prove that the car was being used as a taxi for which Fitness Certificate was required.

10.    Reference was also made to the judgment of Hon’ble National Commission in United India Insurance Company Limited versus Naresh Bedi, IV(2015) CPJ 701 (NC) that the car was not taken on Sapurdari by the complainant.  This judgment is also not applicable because in this case in the report under Section 173 Cr.P.C. and report of the surveyor, missing parts have been mentioned. Therefore, the surveyor could have assessed the loss suffered by the complainant.

11.    As a sequel to the foregoing discussions, it is held that the Insurance Company wrongly repudiated complainant’s claim to avoid its liability. Thus, no case for interference is made out.  Hence, the appeal is dismissed being devoid of merits.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 14.07.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL