BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 215 of 2016.
Date of Institution: 04.10.2016.
Date of Order: 10.12.2018.
Raghuvir Singh son of Shri Jhandu Ram, resident of Dundahera, at present resident of village Kikral, Tehsil Siwani, District Bhiwani.
….Complainant.
Versus
1. Magma HDI General Insurance Co. Ltd., Magma House, 24 Park Street, Kolkata-700016 through its Manager/Authorized Person (Head office.
2. Magma HDI General Insurance Co. Ltd. Branch First, 2nd Floor, City Center, GT Road, Tikoni, near Sepal Hotel, Bathinda-151001, through its Manager/Authorized person. (Policy serving office).
…...Opposite Parties.
Complaint under Section 12 of the
Consumer Protection, Act, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Miss Renu Chaudhary, Member.
Present: Shri K. K. Malik, Advocate for the complainant.
Shri Sanjeev Kumar, Advocate for the OPs.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief facts of the complainant’s case are that he is owner of JCB, New Holland, Model 2009 bearing No. HR-55T-9280, Engine No. 92040 & Chassis No.K04726. It is further alleged that the complainant has got insured the JCB from OP No.1 vide policy No.P0015100017/ 4107/106494 dated 4.11.2014 w.e.f. 4.11.2014 to 3.11.2015 and paid an amount of Rs.14,865/- as premium. It is further alleged that on 15/16.8.2015 complainant locked his JCB and parked the same in front of his house. It is further alleged that the JCB has been stolen by some unknown person in the night of 15/16.8.2015. It is further alleged that the complainant searched the JCB, but all in vain. It is further alleged that the complainant has made a complaint to police on the same, but the police has lodged an FIR No.0184 dated 19.8.2015 under Section 379 IPC against unknown person. It is further alleged that the complainant also informed the OPs about the theft of the JCB on help line No.180030023202 and complaint was registered by the OPs at Magma Repute No.10261672. It is further alleged that the OPs have gave assurance to the complainant for the settlement of his claim after completion of six months, the JCB is not traced out. It is further alleged that the JCB could not be traced out by the police and untrace report submitted by the police on 9.6.2016 and the same was accepted by the court on the same day. It is further alleged that the complainant has supplied all the relevant documents to the OPs with the request to settle the claim, but the OPs have failed in settling the claim. It is further alleged that the complainant has served a legal notice dated 15.7.2016 upon the OPs through his counsel Shri Vikas Jakhar, Adv., but to no effect. Hence, the present complaint.
2. OPs on appearance filed the contested written statement denying the allegations of the complainant and contested the claim of the complainant on the ground that the complainant has not supplied the requisite documents i.e. both keys of the vehicle, original document of JCB, current recovery status, current loan a/c detail, reason of delay to insurer, last service record etc. despite registered letters dated 16.7.2016, 7.2.2017, 24.2.2017 & 21.4.2017. It is further alleged that the complainant has not taken reasonable care of the vehicle and the same is violation of terms & conditions of the policy condition no.5, which is reproduced as under: -
“the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.
It is further alleged that there is a delay in intimation to the insurance company and the same is also violation of condition no.1 of the policy, which reads as under: -
“Notice shall be given in writing to the company immediately upon the occurrence of any kind of loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every legger claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal injury in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or other criminal act which may be subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
It is further alleged that it is settled law that the terms of an insurance policy are to be strictly construed. It is further alleged that the complainant has not disclosed the facts of finance of vehicle, so the finance company should be impleaded as party in the present complaint and thus the present complaint is bad for mis-joinder of parties. It is further alleged that the vehicle is financed with HDFC Bank and there is Hire Purchase Agreement (HPA) from HDFC Bank. Hence, there is no deficiency in service on the part of OPs and prayed for the dismissal of complaint with costs.
3. Both the parties filed their duly sworn affidavits in their evidence to prove their respective versions alongwith the documents i.e. Ex. CW1/A affidavit of complainant, Annexure C-1 copy of RC, Annexure C-2 copy of letter dated 5.11.2014, Annexure C-3 copy of insurance policy, Annexure C-4 copy of application dated 16.8.2015, Annexure C-5 copy of FIR, Annexure C-6 certified copy of order dated 9.6.2016, Annexure C-7 certified copy of statement of complainant, Annexure C-8, certified copy of challan 173 Cr. P.C., Annexure C-9 postal receipt, Annexure C-10 copy of legal notice and Annexure RW1/A affidavit of Assistant Legal Manager of OPs, Annexure R1 copy of letter dated 24.2.2017, Annexure R2 copy of letter dated 9.2.2017, Annexure R3 copy of letter dated 7.2.2017, Annexure R4 copy of letter dated 16.7.2016, Annexure R5 copy of intimation complaint, Annexure R6 copy of letter dated 5.11.2014, Annexure R7 copy of Policy, Annexure R8 copy of terms & conditions of insurance policy.
4. We have heard learned counsel for both the parties at length and gone through the case file carefully.
5. The sole contention of learned counsel for the OPs is that the complainant has not taken reasonable care of vehicle and the same is negligence and violation of terms & conditions of the policy condition No. 5 vide which “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without property precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”. Ld. counsel for the OPs further contended that there is a delay in intimation to the OPs and the same is violation of condition No.1 of the policy and prayed for dismissal of the complaint with costs.
6. On the other hand ld. counsel for the complainant has contended that the complainant has duly locked the JCB before parking the same in front of his house, thus, there is no violation of condition No. 5 of the policy by the complainant. Ld. counsel for the complainant has further contended that the complainant has immediately informed the OPs as well as the Police and the police has lodged the FIR after 1-2 days. Ld. counsel for the complainant has further contended that this Hon’ble Forum has the Jurisdiction to try, entertain & decide the present complaint, as the vehicle has been stolen from the village of the complainant i.e. village Kikral, Tehsil Siwani, District Bhiwani.
7. We have given a considerable thought to the arguments of learned counsel for the OPs and in our view the arguments of counsel for OPs has no substance at all. The arguments of ld. counsel for the OPs that the complainant has not taken reasonable care of vehicle and the same is negligence & violation of terms and conditions of the policy condition No.5 vide which “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle insured. This plea of Ld. counsel for the OPs is not tenable, because it is clear from the copy of FIR that complainant has duly locked the JCB and he was sleeping nearby the JCB. Further the plea of the OPs is that there is delay in information to the Police as well as to the OPs. This plea of the OPs is also not tenable, because it is much clear from the documents placed on record by the complainant that he has informed the OPs as well as the Police immediately after theft of JCB and it was the police, who delayed in lodging the FIR. Moreover, the JCB has been stolen from the village of the complainant i.e. village Kikral, Tehsil Siwani, District Bhiwani, thus this Forum has the jurisdiction to try, entertain and decide the present complaint.
8. Therefore, in view of the above facts and circumstances, the complaint of the complainant is allowed with costs and the complainant is entitled to the sum insured and OPs is directed to:-
i. To pay Rs.12,00,000/- to the complainant along with interest @ 12% p.a. from the date of filing this complaint till its realization.
- pay Rs. /- as compensation on account of mental
agony, physical harassment and hardship
iii. To pay Rs. /- as litigation charges.
The OPs are directed to make the payment of the above awarded amount to the complainant, subject to furnishing of NOC from HDFC Bank (financer) by the complainant. The compliance of the order shall be made within 30 days from the date of the order. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: 10.12.2018.
(Renu Chaudhary) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani
