MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the complainant against order dated 21.1.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passing in complaint case No. 433 of 2009.

2.       Brief facts of the case are that the complainant got insured his Scorpio Car bearing registration No.CH-04-9889 with the ICICI Lombard General Insurance Co. Limited (OP) for a sum of Rs.6,19,960/-vide policy No.3001/54073519/00/000 valid from 31.5.2008 to 30.5.2009. The complainant parked his car in his house and went out of station on 13.6.2008 and when he came back on 15.6.2008, he found that the vehicle was missing. The matter was reported to the police and F.I.R. No.317 dated 15.6.2008 was lodged with the Police Station, Sector 34,Chandigarh. The complainant received intimation on the same day i.e. 15.6.2008 from Police Station Mandhawar, District Bijnour (U.P.) that vehicle was found abandoned in the area of that police station and due to accident it was in damaged condition. The said car was got repaired by the complainant by spending Rs.80,000/-. It was further submitted by the complainant that claim was repudiated by the insurance company on the ground that the vehicle was used for hire and reward. The aforesaid act of OP amounts to deficiency in service. Hence, the complaint was filed.

3.       Reply was filed by the OP and admitted the factum of insurance of the vehicle assured for a sum of Rs.6,19,960/- for the period from 31.5.2008 to 30.5.2009.  It was pleaded by the OP that complainant has concealed the material facts that he had recovered the possession of the stolen vehicle in a perfect working condition and he had also made the statement on the Release Order dated 28.6.2008. It was further pleaded that the said car was driven by an unauthorized person, which is against the terms and conditions of the policy. According to the OP, the surveyor had assessed the liability to the tune of Rs.33,170/- but the said amount was not payable to the complainant as there was violation of the terms and conditions of the insurance policy. It was further averred by the OP that the claim of the complainant was rightly repudiated and there was no deficiency in service on its part and prayed for dismissal of the complaint.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum dismissed the complaint as the complainant has failed to make out a case of deficiency in service on the part of OP.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant. Sh.Sanjeev Patyal, Advocate has appeared on behalf of appellant and Sh.Sandeep Suri, Advocate has appeared on behalf of respondent.

7.       In appeal, it is submitted by the appellant/complainant that the entire approach of the learned District Forum is totally unjustified and without any basis. It is an admitted case even of the respondent that a surveyor was appointed by them who had assessed the liability to the tune of Rs.33,170/-. It is submitted by the appellant that even if the complainant had not placed on record the invoice showing the expenditure of Rs.80,000/- on the repair or had not mentioned the name of the service station from where the vehicle was got repaired then also since the factum of damage even as per the surveyor appointed by the respondent was admitted as he had assessed the damage to the tune of Rs.33,170/-. The learned District Forum had wrongly declined the claim of the appellant/complainant in toto. The learned District Forum had also failed to notice that while repudiating the claim, it was stated by the respondent that the vehicle in question was being used for hire and reward whereas while in the reply the respondent had taken entirely a different stand that the vehicle was received by the appellant/complainant in a good working condition. The different stand taken by the respondent deserves to be penalized with a heavy cost as the respondent is only working for earning profits and when it comes to the payment of the amount to which the customers are entitled to, the respondent decline the claims on flimsy grounds. It is prayed that the order passed by the learned District Forum may kindly be set aside and the appeal may kindly be allowed. 

8.         We have heard learned counsel for the parties and perused the record.

9.         It is an admitted fact that the Scorpio Car bearing registration No. CH-04-9889 of the appellant/complainant was stolen from the house of appellant/complainant, which was insured for a period from 31.5.2008 to 30.5.2009. The FIR No.317 dated 15.6.2008 was lodged with the Police Station, Sector 34, Chandigarh. It was contended by the appellant/complainant that an intimation was received on the same day from Police Station, Mandhawar, District Bijnour, UP the vehicle in question was found abandoned in the area of that Police Station and it was in damaged condition due to accident. It was further contended that after getting the possession of the damaged vehicle the appellant/complainant had spent a sum of Rs.80,000/- for the repair of the said vehicle. The insurance claim was lodged with the insurer which was repudiated on the ground that vehicle in question was used for hire and reward.

10.       On the other hand, the respondent/OP contended that there is a concealment of material facts as the complainant has falsely stated that he recovered the possession of the vehicle in a damaged condition. In fact the car was in a perfect working condition and for this, the appellant/complainant had made a statement on the Release Order dated 28.6.2008. It was contended that not only this the vehicle in question was driven by an unauthorized person which was against the terms and conditions of the policy and it was further contended by the respondent/OP that the surveyor assessed the loss to the tune of Rs.33,170/- but the same is not payable because there is violation of terms and conditions of the insurance policy. Hence, the claim of the complainant was rightly repudiated and the learned District Forum has also rightly dismissed the complaint on the ground that there is no deficiency in service as the appellant/complainant has failed to prove that he had spent Rs.80,000/- on the repair of the vehicle as there is nothing on the file (for example invoice, bill etc.) to show that he had spent Rs.80,000/- on the repair of the vehicle.

11.       The issue for consideration before us is (i) whether the appellant/complainant got the possession of the vehicle in a damaged condition (ii) whether the insurance company has repudiated the claim rightly.

12.            Although on the perusal of the Release Order dated 15.6.2008 it is apparent that the appellant/complainant has recovered the possession of the stolen vehicle in a perfect working condition. But at the same time, we cannot ignore the Seizure Memo (Annexure C-5) in which it is clearly mentioned that the said vehicle was found in a damaged condition.

13.            Therefore, after considering all the facts and circumstances of the case, we are of the view that the appellant/complainant has received the possession of the said vehicle in a damaged condition. But on the other hand, we disagree with the contention of the appellant/complainant that the cost of repair of the vehicle is for a sum of Rs.80,000/- because there is nothing on record to support his contention. It is pertinent to mention here that the respondent/OP had already admitted this fact that the surveyor had assessed the liability (loss) to the tune of Rs.33,170/-. Even in our opinion the estimate cost of repair of the damaged parts as mentioned in the Seizure Memo does not seems to be more than a sum of Rs.30,000/-. Hence, in the absence of surveyor’s report, we are of the view that a sum of Rs.30,000/- as a cost of the damaged parts of the vehicle is quite reasonable. Therefore, in the interest of justice, the respondent/OP is liable to indemnify the appellant/complainant to the tune of Rs.30,000/- as a cost of damaged parts of the above said vehicle.

14.            Regarding the second issue, in our opinion the repudiation of the claim on the ground of hire and reward is not justified and is baseless because there is nothing on the file to prove that the appellant/complainant was using this vehicle for hire and reward. The learned District Forum has also erred in observing that there is no deficiency in service. With these observations, we have come to the conclusion that there is deficiency in service on the part of respondent/OP. Therefore, we allow the appeal and set aside the order passed by the learned District Forum. We hereby direct the respondent/OP to pay Rs.30,000/- to the appellant/complainant along with Rs.5,000/- as litigation expenses. This order be complied with by the respondent/OP within one month from the date of receipt of copy of this order, failing which interest @ 9% p.a. will be charged.

15.            Copies of this order be sent to the parties, free of charge.

Pronounced.

5^th July, 2010.