Punjab

StateCommission

FA/12/1608

Suman - Complainant(s)

Versus

ICICI Lombard General Insurance Company Ltd. - Opp.Party(s)

D.K.Gupta

24 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.1608 of 2012                                                  

             Date of institution  :    06.12.2012

Date of decision     :    24.02.2015

 

Suman D/o Sukkar Masih, R/o H.No.6, Mohalla Issa Nagar, Pathankot, Tehsil & District Pathankot (Punjab).

…….Appellant/Complainant

Versus

ICICI Lombard General Insurance Company Limited, SCO No.501, Sector-70, Mohali, District SAS Nagar (Punjab), through its Manager.

 

                                                          …Respondent/Opposite Party

First Appeal against the order dated 29.03.2012 of the District Consumer Disputes Redressal Forum, Gurdaspur.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

 

Present:-

 

          For the appellant            : Shri D.K. Gupta, Advocate.

          For the respondent        : Shri Puneet Tuli, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The appellant/complainant, Suman, has preferred this appeal against the order dated 29.03.2012 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, “District Forum”), vide which the complaint filed by her, under Section 12 of the Consumer Protection Act, 1986, for directing the respondent/ opposite party to pay the insurance claim of Rs.3,20,000/-, along with interest @ 18% per annum from the date of the theft till the actual realization of that amount; Rs.10,000/- for the accessories fitted in the car; Rs.50,000/-, as compensation for the mental torture and agony suffered by her; and Rs.15,000/-, as pleader’s fee, was dismissed.

2. As per the allegations, made in the complaint, the complainant purchased one car bearing No.PB-35L-7123 and got the same insured with the opposite party for the period 18.01.2010 to 17.01.2011, after payment of the full premium. On the night intervening 13/14.08.2010, the car was stolen when the same was lying parked near her house and in respect of the theft, she lodged the FIR under Section 379 IPC in Police Station Division No.1, Pathankot. She also informed the opposite party about the theft of the car. The claim submitted by her for obtaining the insurance amount was repudiated by the opposite party on the flimsy ground that the car was lying unlocked and the key thereof was left inside the same. She had properly locked the car and never left the key inside the same. Therefore, the claim was repudiated by the opposite party illegally. It amounts to deficiency in service on its part.
3. The complaint was contested by the opposite party, by filing written reply before the District Forum. In the written reply, it did not dispute that the car was insured with it by the complainant after payment of the full premium and that after the alleged theft, the information was given to it and the claim was also lodged, which was repudiated, on the ground mentioned in the complaint. While denying the other allegations made in the complaint, it pleaded that the theft of the car took place due to carelessness and negligence of the complainant herself, as she failed to take the proper precautions before parking the same. During the investigation, it was revealed that she left the car unlocked and also left the key along with the center lock of the car inside the same. She, thus, acted against the terms and conditions of the insurance policy. Her claim was legally and validly repudiated and, as such, it cannot be said that there was deficiency in service on its part. No cause of action has accrued to the complainant to file the complaint. She concealed material facts and the complaint is liable to be dismissed on that score also. As per the terms and conditions of the policy, she was required to take all reasonable steps to safeguard the vehicle from loss or damage and to maintain the same in efficient condition, but failed to do so. When her claim was validly repudiated, there is no ground for the payment of the insurance amount or the compensation.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the District Forum committed illegality, while recording the findings against the complainant, without properly appreciating the evidence produced on the record. It placed reliance on the investigation report Ex.R-9 and the statement of the complainant Ex.R-7, without going into the fact that those documents were never validly proved on the record. Both these documents could have been proved only by way of the affidavit of the investigator, who made the report and recorded the statement of the complainant. In fact, the complainant produced categorical evidence in the form of her affidavit Ex.C-1 that before parking the car, she had duly locked the same and the key thereof was never left inside. She had taken all the precautions to safeguard the car from loss and, as such, it cannot be said that there was breach of any term or condition of the insurance policy. In these circumstances, the findings recorded by the District Forum are liable to be set aside and the directions, as prayed in the complaint, are to be issued to the opposite party.
7. On the other hand, it was submitted by the learned counsel for the opposite party that correct findings were recorded by the District Forum, after going into the pros and cons of the evidence produced by both the sides. Cogent and convincing evidence was produced by the opposite party for proving that there was breach of the terms and conditions of the policy, as the complainant failed to take the precautions for safeguarding the car from loss, as she left the car unlocked and even the key thereof was left inside. In these circumstances, her claim was validly repudiated and there is no ground for upsetting the well reasoned findings of the District Forum.
8. While returning the findings in favour of the opposite party, the District Forum did not, at all, take into consideration the evidence produced by the complainant in the form of her affidavit, and also relied upon the report of the investigator without going into the aspect that the report was not admissible in evidence on account of the non-proving thereof by that investigator by means of his affidavit. Before placing reliance upon the statement of the complainant, proved on the record as Ex.R-7, it never cared to look into the aspect of the case, as to who had recorded her statement and whether the same was validly proved or not? It is now well settled that the investigation report can only be proved by the investigator, who should either appear as a witness before the Consumer Fora, or his affidavit regarding the correctness of the report is proved on the record. No such affidavit of the investigator was proved, nor he was examined before the District Forum for proving the report Ex.R-9. Still the District Forum relied upon that report. Thus, it committed an illegality by taking into consideration that report. Similar is the position with respect to the alleged statement of the complainant Ex.R-7.
9. The complainant, in her affidavit Ex.C-1, made a categorical deposition that the car was locked and key was not left inside the same. It is an admitted fact that she had lodged the FIR also regarding the theft. It was not disputed before us by the counsel for the opposite party that even in that FIR, she had narrated that the car was duly locked by her. The opposite party was required to rebut this deposition of the complainant by some reliable evidence, but no such evidence was produced. The evidence, so produced, could not have been relied, for the reasons recorded in the preceding paras. This deposition of the complainant has remained unrebutted and it stands proved therefrom that she had duly locked the car while parking the same near her house and never left the key inside the same. In these circumstances, the opposite party was not justified in repudiating her claim on the grounds, mentioned in the repudiation letter dated 11.05.2011 Ex.R-3. From the evidence produced by the complainant, it stands proved that she had taken all the reasonable steps to safeguard the car from loss or damage. In these circumstances, the findings recorded by the District Forum are reversed.
10. The insurance policy was proved by the complainant heself, as Ex.C-2. As per this insurance policy, the car was insured for the IDV of Rs.3,21,100/-. On account of the loss of the car during the period of the subsistence of this policy, the opposite party is required to pay that insurance amount to the complainant.
11. The repudiation of the claim of the complainant on non-existing ground by the opposite party amounts to deficiency in service on its part. Had the insurance amount been paid to the complainant, after she made the claim, she could have made use thereof. This deficiency in service on the part of the opposite party caused mental agony and harassment to the complainant, for which she is entitled to suitable compensation. In our considered view, the allowing of interest on the insurance amount @ 9% per annum from the date of filing of the claim till the payment of that amount will be suitable compensation to the complainant.
12. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is allowed. The opposite party is directed to pay Rs.3,21,100/- to the complainant, along with interest @ 9% per annum from the date of submitting of the claim till the date of the realization of that amount. It is also directed to pay Rs.5,500/- as cost of litigation to the complainant. These amounts are to be paid to her by the opposite party within 30 days of the receipt of copy of the order.
13. The arguments in this case were heard on 18.02.2015 and the order was reserved.Now, the order be communicated to the parties.
14.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

1.  

    

    

                                                           (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT  

                                                            

    

    

                                                           (BALDEV SINGH SEKHON)

                                                                            MEMBER

                                                            

    

    

                                                         (MRS. SURINDER PAL KAUR)

   February 24, 2015                                       MEMBER

   (Gurmeet S)