(Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member)
(1) This appeal takes an exception to an order dated 20/12/2011 in Consumer Complaint No.169/2011, Sou.Aruna Ashok Joshi Vs. ICICI Lombard General Insurance Co.Ltd., passed by District Forum, Nasik (‘Forum’ in short).
(2) The alleged deficiency on the part of the respondent/original opponent, ICICI Lombard General Insurance Co.Ltd. (‘insurance company’ in short) for arbitrary repudiation of the insurance claim in respect of vehicle belonging to the appellant/complainant (hereinafter referred to as ‘complainant’) The forum dismissed the complaint and feeling aggrieved thereby, the complainant preferred this appeal.
(3) At the time of hearing of appeal, the insurance company remained absent in spite of due service (as per postal acknowledgement dated 12/06/2012). Therefore, we proceed to hear the learned counsel for the appellant in absence of the insurance company.
(4) In the instant case, the insurance company relied upon the report of the investigator and particularly a statement given before the investigator by the complainant and police statement by her husband dated 06/01/2011. The affidavit of investigator is not on record. Therefore, whatever information he had collected, cannot be relied upon. The insurance company denies to refer to a previous statement of the complainant but the complainant was never confronted with it and hence such previous statement cannot be used in evidence or taken into consideration. Besides that, the complainant has stated in the complaint that at the time of incident, the driver momentarily/short duration left the vehicle after locking it just to fetch some papers from inside the home and returning within 20 minutes, the vehicle was not found at the place. Thereafter, the complainant filed FIR, the copy of which is placed on record. Under the circumstances, we find no reason to disbelieve in the evidence of the complainant. The fact of the theft of the vehicle as well as resultant of total loss, thus, is well established.
(5) As far as breach of the condition of the policy is concerned, the insurance company failed to establish it. Therefore, action of the insurance company to repudiate the claim is rendered arbitrary.
(6) The forum did not appreciate the evidence on record judiciously and arrived at wrong conclusion. We hold accordingly and pass the following order.
ORDER
(1) The appeal is partly allowed.
(2) Respondent insurance company is directed to pay to the appellant compensation of `4,52,159/- which is insured declared value (IDV) of the vehicle along with interest @9% p.a. with effect from the date of filing the complaint i.e.19/07/2011 till its realization.
(3) Respondent to bear its own costs and pay `25,000/- as costs to the appellant.
Pronounced on 16th August, 2012.
