Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 468.
Instituted on : 16.08.2017.
Decided on : 01.07.2019.
Sanjay Kumar s/o Sh. Jai Kishan R/o Ward No.12, Matindu Road, Khakhoda, Distt. Sonipat at present working as A.C.Mechanic, Central Workshop, PGIMS, Rohtak.
………..Complainant.
Vs.
- Bharti AXA General Insurance co. Ltd., Big Jo’s Tower, 2nd Floor, A-8, Netaji Subhash Palace, Pitampura, New Delhi-110034 through its Divisional Manager. Also at : Bharti Axa General Insurance Co. Ltd., 7th Floor, Prakash Deep Building, Tolstoy Marg New Delhi, through its Divisional Manager.
- New Tandoori Night Hotel & Restaurant, Model Town, Near D-Park, Delhi Road, Rohtak through its Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER
Present: Sh.M.K.Munjal, Advocate for the complainant.
Sh.Gulshan Chawla, Advocate for the opposite party No.1.
Sh.Pardeep Mittal Advocate for opposite party No.2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant has obtained an Insurance policy of his vehicle Make Royal Enfield-classic-350CC, bearing Temporary Regn. No.HR-99XB(T)-4365 from respondent No.1 vide policy noS4497649 for the period 10.03.2016 to 09.03.2017. That the above said motorcycle was stolen on the night of 26.05.2016 in front from New Tandoori Night Hotel & Restaurant i.e. respondent No.2. That at the time of taking the room on rent for one night in the hotel of respondent no.2, the complainant had asked the respondent no.2 for parking place of his vehicle and the respondent no.2 had replied that the complainant can park his motorcycle outside the Hotel as it is a quite safe place for parking and that one watchmen of the Hotel used to remain outside the Hotel. That the complainant’s check in date was 26.05.2016 and check out date was 27.05.2016. That in the morning of 27.05.2016, the complainant found his motorcycle missing and on enquiry from the Hotel Staff, it was revealed that his motorcycle had been stolen by someone in the intervening night of 26.05.201/27.05.2016 from outside the hotel. That since the complainant had to go to Chandigarh for an urgent work on 27.05.2016 so he could not lodge the FIR on the same date and he has lodged the FIR on 29.05.2016. That untraced report was filed by the police on 13.02.2017. That intimation was also given to the respondent no.1 and the complainant lodged his claim after completing the same in all respect but the same was rejected vide letter dated 29.08.2016 on the ground that the said vehicle was plying on the road without any valid R.C. That the complainant had submitted all the papers with the Registering Authority(MV) Kharkhoda for the purpose of registration of vehicle on 10.04.2016, but the fee was not received by the officials due to factum of system failure and it continued till 14.06.2016 and the complainant deposited the fee on 14.06.2016 and the vehicle was got registered. That there is no fault on the part of complainant. That the act of opposite party is illegal and amounts to deficiency in service. As such, it is prayed that opposite party may kindly be directed to pay Rs.128700/- alongwith interest, compensation and cost of litigation as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No.1 in its reply has submitted that the theft had taken place on 27.05.2016 whereas intimation was given on 29.05.2016 and there is unexplained delay of 2 days in intimating the company as well as in lodging FIR. That the date of applying for permanent registration number is 14.07.2016 i.e. after the theft of vehicle and on the date of accident, the vehicle was plied on the road without Registration certificate. That the complainant was well within his right to register complaint at police no.100, as alleged about the theft of vehicle. That the complainant was negligent in taking care of the vehicle, which bothers not to intimate the police for 2 days, knowing that the vehicle has been stolen. There the claim of the complainant has been rightly repudiated by the opposite party. It is prayed that complaint may kindly be dismissed with costs.
3. Opposite party No.2 in its reply has submitted that stay of the complainant is a matter of record. That it is denied that any official, owner and Manager of answering opposite party had allowed the complainant to park the vehicle in question at any place outside the hotel of answering respondent. The vehicle was parked by the complainant at his own risk and the answering respondent is nothing to do with the theft of vehicle. That the basic dispute is between the complainant and respondent no.1 and no relief has been sought against the answering respondent. That there is no deficiency in service and dismissal of complaint has been sought.
4. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C20 and closed his evidence on dated 31.10.2018. On the other hand, ld. counsel for opposite party No.1 has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R8 and closed his evidence on dated 24.01.2019. Ld. counsel for opposite party No.2 has tendered affidavit Ex.RW2/A, documents Ex.R2/2 to Ex.R2/4 and closed his evidence on dated 19.03.2019.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. Initially, the averments made in the complaint are against the opposite party no.1 but in the prayer para, complainant has sought relief against both the parties. However, at the time of arguments, complainant has made arguments also against the opposite party No.2 and has prayed for passing the claim against both the parties at length.
7. It is well proved from the document Ex.C7 that the complainant had taken one room on rent in the restaurant of opposite party No.2 on dated 26.05.2016 and the check out date was 27.05.2016. Ex.C6 is the bill of dinner taken by the complainant at that restaurant. Ex.C8 is the copy of complaint written on the letter head of New Tandoori Night, Model Town, Near D-Park, Rohtak regarding the theft of vehicle of the complainant on 26/27.05.2016. As per this letter/complaint, it is submitted that the complainant had parked his vehicle bearing no.HR-99XB(T) 4365 outside the hotel as per consent of the owner of restaurant and the same was not found in the morning. This application was also countersigned by the Hotel authorities on dated 27.05.2016. Meaning thereby, regarding the parking of vehicle, outside the hotel, there is a consent of the owner/authorities of the Hotel. Whereas, as per the written reply filed by the respondent no.2, it is submitted that the vehicle was parked by the complainant at his own risk and they have affixed a ‘No Parking’ board outside the hotel. To prove this fact, opposite party No.2 has placed on record three photographs Ex.R2/2 to Ex.R2/4. The perusal of theses photographs shows that this fact has not been mentioned anywhere in the front portion of the hotel that there is no parking outside the hotel. Moreover, a sign board regarding no parking is affixed on an electricity pole and on this board also, the name of the hotel is not mentioned. Meaning thereby, this board was not prepared or installed by the hotel authorities. Moreover, at the time of arguments, the complainant has placed on record a document ‘Annexure CA’, a photocopy of Goibibo.com, and on this website, the Tandoori Nights Restaurant is registered and as per description given on the same, they show that they have Room Service, Restaurant, Parking facilities available on the site. Meaning thereby, they have parking facility available at the site. However, they have denied this fact in their reply.
8. It is well established through the documents that complainant had purchased the vehicle in question on 10.03.2016 and insured the same through respondent no.1 for one year i.e. from 10.03.2016 to 09.03.2017 and the theft had taken place during the period of insurance. But perusal of the documents shows that the date of applying for permanent registration number is 14.06.2016 i.e. after the theft of vehicle which shows that on the date of accident, the vehicle was plied on the road without Registration certificate. As such opposite party No.1 cannot be held liable to pay the insurance claim. On the other hand, the theft of vehicle had taken place due to deficiency in service on the part of opposite party no.2. As such, opposite party No.2 is liable to pay the claim amount to the complainant as per IDV of the vehicle and as per policy Ex.R1, IDV is Rs.128700/-.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite parties No.2 to pay the amount of Rs.128700/-(Rupees one lac twenty eight thousand seven hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 16.08.2017 till its actual realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation and litigation expenses to the complainant maximum within one month from the date of decision.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
01.07.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
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Renu Chaudhary, Member
