Haryana

Ambala

CC/91/2017

kiranpal - Complainant(s)

Versus

Magma HDI Gen Inss Co. - Opp.Party(s)

12 Apr 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                        Complaint No.91 of 2017.

                                        Date of institution:- 20.03.2017.

                                        Date of decision: - 12.04.2018.

Kiranpal aged 42 years son of Shri Rajpal village Natwal PO Toda, Tehsil & District Panchkula.

                                                           ...Complainant.

 

Versus

1.  Magma HDI General Insurance Company Limited- Magma House 9, Sant Nagar, East of Kailash, New Delhi-110065 through its Managing Director/Authorized signatory.

2.  Magma General Insurance/Finecorp Company Limited, Office at 167/18 2^nd Floor, Sadar Bazar, Vijay Rattan Chowk Ambala Cantt, District Ambala through its Branch Manager.

3.  Magma Fincorp Limited, Registered office at Magma House 24, Park Street, Kolkata- 700016 through its Managing Director.

                                                            …Opposite parties.

Complaint under section 12 of

 

Before:     Sh. Dina Nath Arora, President.       

                Sh. Pushpender Kumar, Member.      

                   Ms. Anamika Gupta, Member.               

               

Present: -  Sh.Lovish Arora, Advocate for complainant.

                Sh.V.P.Gupta, Advocate for OP Nos. 1 & 2.

                Complaint against Op No.3 withdrawn on                                Dt.28.07.2017

Order

                In nutshell, the facts of the complaint are that the complainant purchased a tractor model 555 DL Arjun Ultra Mahindra & Mahindra  bearing engine No.NNAJ03201 chasis No.NNAJ03201 Model 2015 on 31.01.2015 bearing registration No.HR03-T-5035 for Rs.6,40,000/- and got the same financed for Rs.5 lac from Op No.3. At the time of finance the representative of Op No.3 obtained his signatures on blank papers and documents.  The Op Nos. 1 & 2 got insured the vehicle vide policy No.P0015400002 /4107/218362 at the premises of Shree Ram Agro Agency, Naraingarh District Ambala and the same was having validity from 31.01.2015 to 30.01.2016. The cousin brother of the complainant Amar Deep son of Nathi Ram approached the complainant and the complainant handedover his tractor to him for agriculture work but the said tractor was stolen on 22.01.2016 when it was parked in the fields at Bataur District Panchkula. Said Amardeep got recorded the FIR No.13 dated 22.01.2016 under Section 379 IPC. The complainant immediately intimated the OPs about stealing of the tractor and further completed all the necessary formalities but the claim was kept pending for compensation on the ground to get untraced report. Police had submitted untraced report which was duly accepted by the court. The complainant visited the OP Nos. 1 & 2 to settle the claim and also sent legal notice but they repudiated the claim wrongly and illegally on 17.02.2017 on the ground that said vehicle was sold to Amardeep. The vehicle had not been sold to said Amardeep rather he was only provided with the same for agriculture purposes. The registration certificate is still in the name of the complainant and complainant has applied for the compensation for the same. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavits Annexure CW1, Annexure CW2 and documents Annexure A1 to Annexure C19.

2.             On notice OP Nos. 1 & 2 appeared and filed their joint reply wherein several preliminary objections such as maintainability, locus standi, territorial jurisdiction and concealment of material facts etc. have been taken. It has been submitted that FIR dated 22.01.2016 was got lodged by Amardeep wherein he had disclosed that the vehicle had already been sold prior to theft and the complainant do not have any insurable interest in the vehicle, therefore, the OP/insurance company rightly repudiated the claim and it was intimated to the complainant vide letter dated 17.02.2017. The vehicle in question was hypothecated with Op Nos. 2 & 3 against loan of Rs.5,00,000/- and was registered with registration No.HR-03-T5035 in the name of Kiran Pal s/o Raj Pal. The vehicle in question was got stolen by unknown persons in the intervening night of 21/22.01.2016 and intimation was received in the office on 22.01.2016. During investigation, the investigator had sent letter dated 02.02.2016 to complainant to provide requisite documents when no reply was received with seven days a reminder dated 03.03.2016 was sent and finally last reminder dated 21.04.2016 was sent to him. During investigation, it came to the notice of surveyor that the vehicle had already been sold before theft. Since the complainant was not having insurable interest, therefore, the claim was rightly repudiated. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OP Nos. 2 & 3 have tendered affidavit Annexure RA and documents Annexure R1 to Annexure R9.

3.             We have heard learned counsel for the parties and gone through the case file very carefully.

4.             The complainant has come with the plea that the OPs have wrongly and illegally repudiated the claim lodged on account of theft of the tractor in question despite the fact that the alleged theft occurred during the subsistence of the policy. The complainant is the owner of the tractor in question and he had also lodged the claim with the inurbane company but the insurance company has repudiated his genuine claim on account of flimsy ground that Amar Deep is the owner of the tractor as the complainant had sold the same to him prior to theft.  The repudiation on the ground that FIR qua theft of the vehicle had been lodged by said Amar Deep wherein he had claimed himself as owner is no ground and does not disentitle to complainant for settlement of claim in his favour. In support of his contentions he placed reliance of case law titled as United India Insurance Company Limited Vs. C.M.Ibrahim Kutti 2011 (2) CPJ 480  wherein Hon’ble Kerla State Consumer Disputes Commission has held that Motor Vehicles- Theft of- Claim- Repudiation of- Insurable interest- Complainant not owner of vehicle- Deficiency in service- Allegation of- Complaint- Allowed by District Forum- Hence, this appeal- Vehicle is registered in the name of complainant and insurance in given in name of complainant- There is no contra evidence to reveal that vehicle sold- Mere fact that FIR is lodged by another person stating vehicle belongs to him will not entitle insurer to repudiate claim when RC book and insurance are in the name of the complainant. Learned counsel for the complainant has further argued that FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 Evidence Act and it cannot be used as evidence against the mater at the trial.  In support of his contentions he placed reliance of case laws titled as Nisar Ali Vs. State of U.P.1957 AIR (SC) 366 & George Vs. State of Kerla 1998 (2) RCR (Criminal) 199.

5.             On the other hand learned counsel for OPs has argued that the claim has been denied on account of violation of terms and conditions of the policy because prior to theft the complainant had already sold the vehicle to one Amar Deep and he got registered the FIR regarding theft wherein he has claimed himself as owner of the vehicle. The claim has rightly been repudiated and there is no deficiency in service on the part of insurance company. In support of his contentions he placed reliance of case laws titled as Complete Insulations (P) Ltd. Vs. New India  II (1996) ACC 536 (SC), Bharti Axa General insurance Vs. Karni Paints & Hardware Store II (2016) CPJ 174 (UT Chd.), National Insurance Company Limited Vs.  Bhagwan Singh II (2016) CPJ 454 (NC) and United India Insurance Co.Ltd. Vs. Sharda Devi & Ors. II (2016) CPJ 33 (NC).

6.                          It is clear that the vehicle bearing No.HR-03T-5035 is in the name of complainant and the insurance Annexure C4 also stands in the name of the complainant. The sole ground of the insurance company that the vehicle had already been sold to one Amar Deep prior to theft does not prevail because mere registration of FIR by said Amar Deep does not create any right or title in his favour qua ownership of the tractor in question. Learned counsel for the complainant has rightly argued that the FIR is a substantive piece of evidence and it cannot be used as a tool to reject the genuine claim of the complainant. Moreover, the insurance company has not produced any evidence such as affidavit qua selling/purchasing of tractor by the complainant to said Amar Deep and any other evidence to show that such tractor has ever take place.  The present case is squarely covered by the case law titled as United India Insurance Company Limited Vs. C.M.Ibrahim Kutti 2011 (2) CPJ 480 (supra). In the present case the RC and insurance stand in the name of the complainant and even he had also lodged claim with the insurance company qua theft of his tractor and the insurance company had also made correspondence with complainant, therefore, at this stage the ground for repudiation does not sustain. Moreover, the tractor in question was not traceable and the police had also submitted untraced report which was duly accepted by the court vide order dated 15.12.2016 (Annexure A-15). The case laws relied upon by learned counsel for the Ops are not applicable to the case in hand and are being distinguished.

7.                     Keeping in view the above said discussion as well as the verdict made by Hon’ble Kerla State Commission in case titled as United India Insurance Company Limited Vs. C.M.Ibrahim Kutti 2011 (2) CPJ 480 (supra) we have not hitch to reach at a conclusion that the insurance company has wrongly and illegally repudiated the claim of the complainant and the impugned repudiation letter dated 17.02.2017 Annexure R8 is hereby quashed. The present complaint is allowed with cost which is assessed as Rs.5,000/-. The OP Nos.1 & 2 are further directed to comply with the following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs. 6,08,000/- (being IDV of the vehicle Annexure A4) to the complainant alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realization.

 

 Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on: 12.04.2018

 

                                                               

PUSHPENDER KUMAR          ANAMIKA GUPTA        D.N. ARORA     MEMBER                                MEMBER                        PRESIDENT