JUDGMENT 3.11.2010 Justice Pritam Pal, President 1. The aforementioned three appeals arise out of one and the same order dated 19.2.2010 passed by District Consumer Forum- I, U.T. Chandigarh whereby complaint bearing No.1265 of 2009 filed by Sh.Lalit Singla , complainant was allowed in the following terms ; “OP-1 is directed to pay Rs.1,15,000/- to the complainant and OP- 2 to pay Rs.25,000/- along with Rs. 5,000/- towards costs of litigation within 30 days from the receipt of the copy of the order. If any of the OPs does not pay the aforesaid amount within the aforesaid period, it/he would be liable to pay the same alongwith penal interest @12% p.a. since the date of filing of the present complaint i.e. 01.09.2009, till the amount is actually paid to the complainant.” 2. In fact Appeal No.130/2010 has been filed by National Insurance Company(OP No.1) and Appeal No.150/2010 has been filed by the Parking Contractor Jaswinderpal Singh (OP No.2) both for setting aside the impugned order whereas appeal No.201/2010 has been filed by Sh. Lalit Singla , complainant for enhancement of compensation. Since, in all these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 3. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 4. In nutshell, the facts culminating to the commencement of these three appeals may be recapitulated thus ; The Maruti Car of the complainant bearing Registration No.CH-03-R-5988 was insured with National Insurance Company vide Annexure C-1 for the period from 11.3.2009 to 10.3.2010. It was stolen in the evening of 24.4.2009 when it was parked in front of Hotel Monarch, Sector 35-B, Chandigarh after obtaining a Parking Chit Annexure C-3 from OP No.2 i.e. Contractor of said parking lot. The matter was reported to police by the complainant and FIR No.101, dated 25.4.2009 under Section 406 IPC was registered at Police Station Sector 36, Chandigarh. OP Insurance Company was also informed about the theft and a Surveyor was appointed who verified the facts and submitted his report. As required by OP Insurance Company vide letter dated 30.7.2009, the key of the car was handed over to them by the complainant and thereafter insurance company was required to obtain Untraced Report under Section 173 Cr.P.C. from the Police Station at its own level as there was no obligation of the complainant to obtain and supply such a report. It was alleged that complainant made repeated visits to the office of OP Insurance Company for settlement of claim but to no effect. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint before the District Forum. 5. On the other hand, OP insurance company contested the complaint by filing reply inter-alia stating therein that the complaint was not maintainable as no cause of action had accrued to the complainant to file present complaint. It was submitted that the Company was still ready & willing to process the claim of the complainant on completing necessary documents & formalities by the complainant which had not yet been done by him. Sh.S.S.Bedi, Surveyor appointed by the insurance company reported that the case was under investigation and no untraced report had been sent to the Court for closure of the case. It was pleaded that the untraced report was required to process the claim as it was a document approved by the Court giving authenticity to the fact that the stolen vehicle had not been traced and the claim be proceeded further. It was further pleaded that the untraced report under Section 173 Cr.P.C. could not be obtained by the surveyor or the OP Company as the same was to be forwarded by the police official to the Magistrate after completion of the investigation and then the untraced report could be obtained by the owner of the car i.e. the complainant from the concerned court or the certified copy could be obtained from the concerned police station as it is not given to the third party . 6. However, OP No.2 filed reply inter-alia stating therein that a false FIR was registered against him under Section 406 of IPC as the car was never entrusted to him, nor there was any allegation that the car was misappropriated. It was pleaded that OP No.2 had the responsibility to take care of the vehicles in the parking lot only upto the time mentioned on the parking chit. The complainant did not come to take his car before the time as mentioned on the parking chit and then in connivance with the Police, got FIR registered against OP No.2. It was pleaded that there was no deficiency on his part and a prayer was made for dismissal of the complaint. 7. The District Consumer Forum after going through the evidence and hearing the counsel for parties, allowed the complaint as indicated in the opening part of this judgment. Aggrieved against the said order, Opposite parties as well as complainant have come up in their respective appeals. 8. We have heard learned counsel for the parties and gone through the file carefully. In the first appeal filed by the National Insurance Company (OP No.1), its learned counsel contended that as per the investigation conducted by the surveyor it was revealed that the theft case was under investigation and had not been closed as the police had not yet recommended for the case as untraced. Further, after the report of surveyor, letter dated 30.7.2009 was written by the insurance company to the complainant to supply the untraceable report and keys of the vehicle etc.. Moreover, registration certificate of the vehicle requires to be transferred by the insured in the name of Insurance company besides execution of other documents like affidavit, indemnity bond, letter of subrogation in favour of the company etc. ; whereas in the second appeal filed by the Parking contractor (OP No. 2), it was contended by its learned counsel that the complaint was bad due to non-joinder of necessary party as the Municipal Corporation which was the principal of OP No.2 had not been made a party to whom a huge amount of money had been given for taking contract of the parking lot. It was also argued that OP No.2 had always suggested measures to be adopted to prevent the theft of vehicles but no action was taken by the Municipal Corporation, so he was wrongly burdened by awarding Rs.25,000/- and Rs.5000/- by the learned District Forum. In the third appeal filed by the complainant, it was contended that the District Forum had awarded only a sum of Rs.1,15,000/- against the claimed amount of Rs.2,70,000/- so the same be enhanced and he be awarded interest from the date of claim made with the insurance company. 9. We have given our thoughtful consideration to the above submissions put forth on behalf of the parties. Before we proceed further, it would be pertinent to mention here that the factual matrix of this case pertaining to the vehicle in question being insured with OP insurance company for a sum of Rs.1,15,000/- and its theft on 24.4.2009 when it was parked in the parking lot of Sector-35, Chandigarh are admitted. Not only that, it is also established that FIR was lodged with the concerned Police Station about the theft of vehicle but it could not be recovered. The Insurance company did not disburse the claim amount on the ground that the complainant could not produce untraced report. OP insurance company could not show any law or terms and conditions of the policy about the requirement of untraced report before indemnification of loss to the insured. Annexure C-4 is copy of the writing of the police Station,Sector-36 vide which untraced report was sent to the court. The learned District Forum elaborately dealt with this issue and rightly observed that insurance company was withholding the claim amount under such a false presumption and excuse causing loss to the complainant. However, as regards fulfillment of formalities with regard to the transfer of ownership of vehicle in the name of insurance company, there is no hitch in getting the documents signed from the complainant and he would certainly execute the same before receiving the claim amount. 10. As regards the contention of Jaswinderpal Singh,OP NO.2, Municipal Corporation was not a necessary party to be impleaded in the array of opposite parties for proper adjudication of the matter in issue as it was the Parking Contractor who was managing the affairs of the parking lot according to his own arrangement. Moreover, no terms and conditions of the contract showing the Municipal Corporation, Chandigarh to be liable in any manner has been placed on file by the contractor, therefore, we feel that Municipal Corporation was not a necessary party. The contractor being service provider proved to be negligent in safeguarding the vehicle which was entrusted to him as he was supposed to ensure that no vehicle is taken out from the parking lot without receiving back the parking coupon issued to the particular vehicle. Due to negligence of OP No.2, the car in question parked in his parking lot stood stolen as a result of which complainant was put to unnecessary mental and physical harassment as he had to rush to the police station for lodging FIR and for lodging insurance claim and had to remain without the vehicle for no fault of his, so the learned District Forum rightly ordered OP No.2 to pay Rs.25,000/- as compensation and Rs.5000/- as litigation costs. 11. The Memorandum of Appeal filed by the complainant for enhancement of the compensation is neither signed by the appellant, nor by his counsel. There was delay of 91 days in filing the appeal for enhancement of compensation which is condoned in view of the grounds taken in the application for condonation of delay. The learned District Forum awarded Rs.1,15,000/- being the insured value of the vehicle and further awarded Rs.25,000/- as compensation to be paid by OP No.2 besides costs of Rs.5000/-. The amount of compensation would also take care of the interest part. However, penal interest has already been awarded @ 12% p.a. from the date of complaint i.e. 1.9.2009 in the default of making payment of decretal amount by OPs within the stipulated period. In the given facts and circumstances of the case, we find no justification in enhancing the compensation already awarded by the learned District Forum. 12. In the result, impugned order dated 19.2.2010 passed by the District Forum is affirmed and all the aforesaid three appeals are dismissed , leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
