Haryana

StateCommission

A/790/2015

IFFCO TOKIO GEN.INSURANCE CO. - Complainant(s)

Versus

KAILASH - Opp.Party(s)

YOGESH GUPTA

06 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      790 of 2015

Date of Institution:      18.09.2015

Date of Decision :       06.01.2016

 

IFFCO TOKIO General Insurance Company Limited through its Manager, IFFCO Sadan C1, District Centre, Saket, New Delhi.

                                      Appellant/Opposite Party

Versus

 

Kailash s/o Sh. Chand Singh, Resident of House No.887, Village and Post Office Gandhra, District Rohtak.

                                      Respondent/Complainant

 

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

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Yogesh Gupta, Advocate for appellant.

                             Shri N.K. Malahotra, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal of opposite party is directed against the order dated 6^th August, 2015, passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.251 of 2014.

2.      Truck bearing registration No.HR-63A-5026 of the complainant/respondent, was insured with OFFICO TOKIO General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party/appellant, for the period December 17^th, 2012 to December 16^th, 2013 for Rs.12.00 lacs, vide Insurance Policy Annexure C-2. During the intervening night of September 30^th/October 1^st, 2013, the truck was stolen in the area of Village Rohna, District Sonipat.  F.I.R. No.304 (Annexure C-3) under Section  379 of the Indian Penal Code was lodged in Police Station Kharkhoda. The Insurance Company was also informed. The Police submitted untraced report and the same was accepted by Judicial Magistrate Ist Class, Sonipat vide order Annexure C-4. The claim being filed, the Insurance Company repudiated it vide letter dated 9^th April 2014 (Annexure C-5) on the ground that the truck was left unattended, unlocked by leaving the ignition key therein. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

3.      The Insurance Company in its reply reiterated the fact stated in the repudiation letter and prayed for dismissal of the complaint.

4.      On appraisal of the pleadings and evidence of the parties, the District Forum accepted complaint directing the Insurance Company as under:-

“..we hereby direct the respondent to make the payment of Rs.12 Lacs (Rs.twelve lacs)within a period of one month failing which the above said amount shall fetch interest at the rate of 09% per annum from the date of this order till realization and further to compensate the complainant to the tune of Rs.2000/- (Rs.two thousands) for rendering deficient services, harassment and under the head of litigation expenses. The complainant is also directed to get transfer the RC of the vehicle in the name of the respondent insurance company.”

5.      The only contention raised by the learned counsel for the Insurance Company is that since the truck was left unlocked and unattended during night and that too by leaving the ignition key in the truck, the complainant violated condition No.5 of the Insurance Policy, therefore, the Insurance Company was not liable to pay the benefits of insurance. In support, reference was made to the statement of complainant Annexure A-4, alleged to have been recorded by the surveyor.

6.      To rebut the contention raised above, learned counsel for the complainant urged that the truck was properly locked and the Insurance Company is trying to escape from its liability to compensate the complainant.

7.      Having considered the rival contentions of learned counsel for the parties, this Commission is of the view that Insurance Company is liable to indemnify the complainant with respect to the theft of insured truck, which was stolen during the subsistence of the Insurance Policy.  Except the report of the surveyor and statement Annexure A-4 purported to be of complainant, allegedly recorded by the surveyor, no other cogent evidence has been produced. The Insurance Company has not examined the surveyor to establish that the statement Annexure A-4 was recorded by him. In absence of any evidence to prove Annexure A-4, it has little value. No presumption can be raised that it was statement of complainant.

8.      In Manikant vs. New India Assurance Co. Ltd., 2012(2)CLT 621, Hon’ble National Commission held as under:-

“…Producing a document in Court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the Surveyor’s Report in the absence of which the Surveyor’s Report has little evidentiary value. In view of these facts, we are unable to accept the contention of the Respondent that he has been able to show substantial and credible evidence that the tractor was being used for transporting goods and thus violating the terms and conditions of the insurance policy and the driving licence. The State Commission by solely relying on this document erroneously concluded that there is violation of terms and conditions of the policy and that the claim was rightly repudiated.”

9.      Annexure A-4 nowhere suggests that who recorded this statement. No evidence has been led by the Insurance Company in this regard. Thus, Annexure A-4 is not enough to prove that the truck was left unlocked by leaving the ignition key in the truck. Therefore, the contention raised on behalf of the Insurance Company is repelled. 

10.    As a sequel to the aforesaid discussion, the appeal is dismissed being devoid of any merits.

11.    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 06.01.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL