DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.334/2017
IF Paper Products
Through its partner
Md Faruqe,
D-97, DDA Flats, Mata Sundari Road,
Delhi - 110002 ….Complainant
Versus
Iffco Tokio General Insurance Co. Ltd.
Through its Directors
Iffco Sadan, C-1,
District Centre, Saket,
New Delhi - 110017
….Opposite Party
Date of Institution : 18.09.2017
Date of Order : 18.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant in the present case is a partnership Firm which is being represented by one Mr. Mohammed Farooq. The copy of partnership deed is annexed as Annexure C -1. The complaint is filed to recover Rs. 8,94,524 from the OP as also for seeking direction for them to pay Rs. 1,50,000/- for harassment, mental agony suffered by the complainant on account of illegal act committed by the OP. The complainant has also prayed for Rs.25,000/- as legal expenses.
It is the case of the complainant that it had purchased a Tata 407 vehicle bearing registration no. DL VLV 5845 engine no. 604595 chasis no. 803972 for an amount of Rs.7,85,371/- for his livelihood. The complainant also purchased an insurance policy regarding this vehicle from the OP on 19.03.2015 vide insurance policy no. 91664015 with effect from 07.03.2015 to midnight of 06.03.2016. The said vehicle was stolen from the godown of the complainant situated at plot no. 641, khasra no. 207, main road, Madanpur Khadar extension, near gas plant, Delhi 110076. The insurance policy is annexed as Annexure C-4. A FIR was filed in this regard of the theft of the vehicle numbered as 000649/2016 at E police station, Crime branch against unknown and is Annexure C -9A.
The complainant then moved an application for untraced report in Saket Court and the IO filed his report stating that the vehicle is lying in the custody of the officials of P.S Dadri in some other FIR. The copy of the order dated 24.11. 2016 is annexed as Annexure C -10. The complainant then went to Dadri Court and moved an application for having the vehicle released on superdari and the same was allowed by the Hon’ble magistrate at GB Nagar. The copy of the FIR dated 24.02.2016 at PS Dadri and order dated 05.01.2017 is annexed as Annexure C-12 and C-13. The complainant, after reaching the spot where the vehicle was parked, realised that the vehicle was in a very bad and undrivable condition. They informed the OP about the stolen vehicle and as per the instructions of the OP, complainant approached the surveyor . It is the case of the complainant that the surveyor told him to take the estimate from Tata motor workshop and therefore as per the advice of the surveyor, the complainant approached Tata Motors Ltd. Patparganj Delhi -96 and they gave an estimate of Rs. 8,94,524/- and in this regard an advance of Rs.5,000/- was paid which is attached as Annexure C 14 and 15 respectively.
The complainant alleges that there after he contacted the OP many times for settling his claim however the OP has intentionally and deliberately not settled the claim of the complainant. It is the case of the complainant that the OP has denied the reimbursement of the estimate amount without any rhyme or reason.
The OP in its reply has denied the averments made by the complainant and it is stated that the claim of the complainant has not been repudiated and therefore there is no cause of action which has accrued in favour of the complainant. They say that the claim was closed due to the negligence and lethargy of the complainant as he has failed to submit requisite documents for processing the claim and in this regard references are made to letters dated 04.11.2016, 10.11.2016 14.06.2016 20.05.2016 which are annexed as Annexure no. 1 (colly).
It has further been stated that the complainant cannot be treated as a consumer as the subject vehicle was being used to increase the profitability of the business of the complainant however this objection was not raised during the course of oral arguments. Another objection that was raised by the OP is that there is a delay in filing a FIR i.e the theft apparently took place on the intervening night of 03.01.2016- 04 012016 and the FIR was filed only on 07.01.2016. The OPs have relied on the case of Trilochan Jane wherein it has been stated that in case of theft of insured vehicle, the police authorities are to be informed within 24 hours and also reliance has been placed on Gurshinder’s case wherein it is stated that theft has to be reported immediately.
It is also alleged by the OP that the stolen vehicle was found transporting animals illegally and it is strange that the complainant did not inform the District Court GB Nagar that the subject vehicle was stolen. It is also stated that the claim of the complainant was closed on 10.11.2016 and the estimate of repair to be carried on the said vehicle has been provided by the complainant only on 28.01.2017 and that too in the forum. It has also been stated that it is just an ordinary estimate provided by the Tata Motors and that it is not supported by any technical affidavit. It has also been stated that despite not getting any cooperation from the complainant, the OP got a preliminary motor survey conducted and the true copy of the survey report is attached as Annexure 2 where in the surveyor has valued the repairs at Rs.1,70 800/-. The OP has further stated that though the stolen vehicle was recovered on 24.02.2016 however it was released on superdari only on 05.01. 2017 and that the complainant has not given any reason for it.
The complainant has argued that though the insurance company came to know about the recovery of vehicle, they did not inform the complainant about it and the complainant actually got to know about the recovery of the vehicle on 24.11.2016 when they moved an application for untraced report. In response to this argument the OP has stated that it is not on 24.11.2016 that the complainant got to know about the recovery of vehicle, they knew about the recovery of vehicle since a long time as is evident from the reminders which was first sent by the surveyor to the complainant starting from 20.05.2016 14.06.2016 and thereafter the letters sent by OP dated 04.11.2016 and 10.11.2016 and therefore it cannot be said that the complainant did not know about the recovery of the vehicle.
This Commission has carefully gone through the complaint, reply, evidence affidavits and written submissions of both the parties. The claim of the OP that the complainant is not a consumer cannot be held to be valid in view of the fact that the complainant was using the truck for earning its livelihood and therefore the complainant would fall within the purview of the definition of consumer. The Hon’ble SC in Sunil Kohli vs Pure Earth 2020 (12) SCC 235 held that The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.” As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2 (1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case.
Having held that the complainant is a consumer, the other objections are now considered. The second objection raised by the OP relates to delay in providing information to the OP again does not hold much ground in view of the judgment of the Hon’ble SC in Gurshinder Singh vs Shriram General Insurance Co. Ltd. in Civil Appeal No. 653/2020 wherein it was categorically held that We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
The third objection of the OP relates to the complainant not filing the FIR in time. The theft took place on the intervening night of 03.01.2016- 04 012016 and the FIR was filed only on 07.01.2016. Th complainant has not been able to provide any cogent explanation for the delay in filing FIR and has not explained as to why the documents were not provided to the OP/ surveyor despite repeated reminders. The judgements of the Hon’ble SC passed in Trilochan Jane’s case and Gurshinder’s case are clear in this regard that the intimation to the police authorities about the theft has to be immediate. Placing reliance on the judgements passed by the Hon’ble SC, this Commission is of the view that the complaint cannot be allowed as there is delay in filing of the FIR and no cogent explanation has been forthcoming from the complainant in this regard. Hence, the complaint is dismissed without any order as to costs.
File be consigned to the record room after giving a copy of the order to the parties. Order be uploaded on the website.
