BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.486 of 2017

      Date of Instt.21.12.2017

      Date of Decision:09.02.2021

Kewal son of Shri Parkash resident of Village AmbiaTohfa, Tehsil Kartarpur, District Jalandhar.

..........Complainant

Versus

1.       M/s Bajaj Allianz General Insurance Company, 2^nd Floor Satnam      Complex, Near BMC Chowk, Jalandhar through its Branch          Manager/Authorized Person/Official Head.

2.       M/s Bajaj Allianz General Insurance Company, Registered Head        Office G. E. Plaza Airport Road, Yerawada, Pune-411006       through its Managing Director.

….….. Opposite Parties

3.       M/s Aujla Finance Corp [Regd] New Hira Complex, Nehru     Garden Road, Jalandhar City through its Partner.

….….. Performa Opposite Party.

Complaint Under the Consumer Protection Act.

Before:        Sh. Kuljit Singh             (President)

Smt. Jyotsna                   (Member)

Present:       Sh.Vikas Sharma, Adv. Counsel for the Complainant.

                   Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 & 2.

                   Sh. Jaswant Singh, Adv. Counsel for OP No.3.

Order

Kuljit Singh (President)

1. The instant complaint has been filed by the complainant, wherein he alleged thatthe OPs No.1 & 2 are the insurance companies and OP No.3 is the finance company from whom the complainant got his vehicle (Auto Rickshaw) insured and financed. The OP No.3 in this complaint is only a performa party and no relief is claimed against OP No.3. That in the year 2016, the complainant purchased a new Auto Rickshaw make Piaggio- bearing No.PB-08-DG-4389 from M/s Globe Tractors Ltd., G. T. Road, Near B. S. F. Chowk, Jalandhar on hire purchase basis on 17.08.2016 and got it financed from Proforma OP No.3 i.e. M/s Aujla Finance Corporation [Regd], Jalandhar. That the complainant after purchasing the vehicle also got it insured from OPs No.1 & 2 vide cover note No.DY 1302981486 and Policy No.OG-17-1202-1803-00000230 Policy No.OG 17-1202, 1803-00000230 valid from 17.08.2016 to 16.08.2017 on a payment of premium of Rs.6625/- to the OPs No.1 & 2. That earlier the complainant was driving the said vehicle of his own to earn his livelihood and was regularly making the payment of the Hire Money installments to the performa OP No.3. But after sometime, the health of the complainant was deteriorated as such he was unable to ply the vehicle properly hence the complainant appointed Anil Kumar Yadav son of Ram Nath Yadav as his driver to ply the vehicle in question in the area of Kartarpur, District Jalandhar. That on 29.10.2016 at about 09:30 p.m. when the above said Anil Kumar was coming back after doing his work and on the way he went to see his relatives at Wariana Complex Kartarpur and parked his vehicle near Tea Shop and when after sometime he came back at about 10:30 p. m. he found that his auto was missing. He also tried his best search the same, but all in vain and the said Anil Kumar found that the said auto of the complainant has been stolen by somebody and as such, he immediately informed the complainant in this regard and the complainant on the same day immediately reported the matter to the local policy of P. S. Maqsudan who registered the FIR No.176/2016 at PS Maqsudan Jalandhar against unknown person, copy of the FIR is attached with the file. That the complainant also sent intimation with regard to the theft of his auto rickshaw to the OP No.1 to 3 and lodged a theft claim bearing No.OC-17-1202-1803-00000083 with OP No.1 and 2 and on raising the claim the OP No.1 and 2 appointed one Jagir Singh as their investigating officer for the settlement of the claim of the complainant. The said Investigator Jagir Singh after approaching the complainant obtained his signature on some blank paper and printed form by alleging that these documents are required for settlement of his claim and assured that after collecting all the relevant documents his claim would be settled within one month and the complainant in good faith signed the said printed forms and papers on the assurance of the said Investigating Officer. The said Investigator further assured the complainant that the remaining documents, if any, required for settlement of the claim would be collected by him from the OP No.3 and in furtherance of that assurance the said Investigator Officer also approached to the OP No.3 and obtained the original documents i.e. R. C., Original route permit, Aadhar Card, Insurance Cover and the duplicate keys and other documents as mentioned in receipt dated 28.12.2016 of the above said vehicle from the OP No.3 and also assured the OP No.3 that the claim of the complainant would be settled within one month. The said Investigator also issued a receipt dated 28.12.2016 to the OP No.3 regarding receipt of documents. But the assurance of the said Investigator proved to be false as nothing has been heard from the said OP No.1 & 2 by the complainant in spite of passing of more than 4 months. That being aggrieved the complainant approached to the OPs No.1 & 2 and requested for the earlier settlement of his claim, but they continue to say that the matter is in process, hence the complainant also approached to performa respondent No.3 and requested them to verify the status of claim so that he may be able to settle the loan against the said vehicle and on the request of the complainant the OP No.3 also wrote a letter No.2455 dated 09.05.2017 to the Manager Claims of the OPs No.1 & 2 and requested for the earlier settlement of the claim of the complainant and to verify the status of his theft claim. That in response to the letter of proforma OP No.3, the OPs No.1 & 2 sent a letter dated 29.05.2017 to the OP No.3 vide which they disclosed that the claim of the complainant Kewal has already been closed on 27.02.2017 by alleging that the said claim has been withdrawn by the complainant, whereas the complainant has never withdrawn his claim from the insurance company i.e. OP No.1 and 2 nor he has ever make any such statement or signed any such document of withdrawal of his claim. Rather, the complainant was running from pillar to post to get the claim settled at the earliest. It was very shocking for the complainant that his claim has been closed by the OPs No.1 and 2 without any reasonable cause and excuse and on the basis of some false forged and fabricated statement or documents with a malafide intention to avoid the claim of the complainant. That on enquiry from the OP, the complainant came to know that the above said Investigator who has obtained the signature of the complainant on blank papers has converted the said blank papers into an affidavit dated 06.01.2017 in which he has got typed that the complainant has sold his vehicle to above said Anil Kumar and as such he do not want to proceed with his theft claim of his vehicle and wants to withdraw the same, whereas no such affidavit was ever executed by the complainant at any point of time. Even a perusal of the affidavit clearly shows that the same has been got typed later on after obtaining the signature of the complainant  on blank papers. Moreover, the said document was got attested by the said Investigator at his own identification from Batala District Gurdaspur, whereas the complainant has never gone to the Batala to purchase any stamp papers or to get it attested from Batala nor he ever appeared before the Notary Public to get any document attested from him. Moreover, the perusal of the said affidavit clearly reflects that there is no rubber stamp and signature of the vendor on the said stamp paper nor it bears the particulars of the person who purchased these stamp papers. It is also pertinent to mention here that the complainant has never sold his auto to his driver Anil Kumar nor there was any such occasion. Rather the same is the creating of mind of the Investigator as well the officials of OPs No.1 and 2 to refuse the claim of the complainant by creating false, frivolous, bogus, forged and fabricated documents. It is also pertinent to mention here that the complainant is an illiterate person and he does not know English and he only knows to sign in Punjabi Language. Moreover, the complainant has never withdrawn his claim, rather he has been to get his claim settled at the earliest so that he may pay his loan outstanding against his vehicle. That the OPs No.1 & 2 in connivance with the Investigator has misused the blank signed papers of the complainant and converted it into false, bogus and fabricated affidavit dated 06.01.2017 to make a ground for refusal of the genuine claim of the complainant. The OPs No.1 and 2 in connivance with the Investigator has illegally and malafidely closed the case of the complainant on 27.02.2017 without any intimation to the complainant. The complainant also filed a separate complaint bearing No.GID 1150996 dated 17.07.2017 to the Commissioner of Policy, Jalandhar to take appropriate legal action against the OPs No.1 & 2 and their investigator, but since the matter under the present complaint pertains only with regard to illegal refusal of genuine claim of the complainant, hence the present complaint filed with the prayer that the OPs be directed to pay the insured amount of Rs.2,02,000/- to the complainant alongwith compounded interest @ 24% per annum from the date of filing of theft claim to the OPs No.1 & 2 of payment till the date of its realization and further to pay an amount of Rs.1,00,000/- as compensation for causing mental tension and harassment to the complainant and further to pay Rs.20,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 & 2 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainant is gross abuse of process of law and is absolutely false, frivolous and vexatious thereby making it illegal and not tenable thus as the said complaint filed without any cause of action, the same is liable to be dismissed in limine. It is further alleged that the OPs No.1 & 2 as Bajaj Allianz General Company however the name of this opponent Co. is Bajaj Allianz General Insurance Company Limited. It is therefore most humbly submitted that this issue may be disposed off, before going into merits of the case. The fact that the vehicle No.PB08DG4389 was insured with Bajaj Allianz General Insurance Co. Ltd. is admitted and there is no issue for the same. It is further alleged that the present complaint of the complainant is not tenable under the provision of law and as such it is liable to be dismissed with cost. The complainant has suppressed the material facts and information which are essential and necessary for the adjudication of this matter by the Court and as such, the complaint is liable to be dismissed. It is further alleged that the complainant has not approached to this Commission with clean hands and as such, the complaint is liable to be dismissed. The complaint is bad due to acts deeds, conduct and acquiescence of the complainant. It is further alleged that the complainant has got no cause of action to file and maintain the present complaint against the answering OP. On merits, it is admitted that the vehicle was insured with OP/Bajaj Allianz General Insurance Co. Ltd., but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
3. OP No.3 filed separate reply and contested the complaint by taking additional plea that the vehicle in question was purchased by the complainant on hire purchase basis from OP No.3 and executed an hire purchase agreement dated 23.08.2016 in favour of the OP No.3 qua the said vehicle and agreed to repay the hire money installments and interest thereon in 35 monthly installments of Rs.7230/- each.  Hence, it is the answering OP No.3 who is having first lean over the said vehicle as well as the claim amount whichever is awarded by the Commission in favour of the complainant on account of lost of the vehicle especially when an huge amount to the tune of Rs.2,38,590/- on account of hire money installments and interest thereon is still outstanding against the complainant. Hence, the OP No.3 being creditor is having first right over the claim amount to settle its due from the claim amount. On merits, it is admitted fact that the complainant purchased the vehicle and got it financed from OP No.3 and paid only few installments of the vehicle and some amount is still outstanding against him. It is also admitted that the said vehicle of the complainant has been stolen by somebody and FIR was also registered and intimation regarding theft also sent to the OPs No.1 & 2 and lodged a claim and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits Ex.CA, Ex.CB and Ex.CC alongwith some documents Ex.C-1 to Ex.C-11 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel Sarpreet Kaur Ahluwalia as Ex.OP1&2/A alongwith some documents Ex.OP1&2/1 to Ex.OP1&2/6 and then closed the evidence and counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A and some documents Ex.OP3/1 to Ex.OP3/3 and then closed the evidence.
6. We have heard the argument from learned counsel for the respective parties and also gone through the case file very carefully.
7. It is admitted that the vehicle bearing No.PB08DG4389 of the complainant was insured with the OP No.1&2 which was stolen at Wariana Complex Kartarpur and necessary FIR bearing No.176/2016 was recorded by the police Station Maqsudan.  The complainant has proved that his vehicle was insured and the policy was valid from 17.08.2016 to 16.08.2017. The OP has simply denied the theft but admitted the insurance of the vehicle.The OP has failed to rebut the allegations or produce any evidence to falsify the claim of the complainant.The complainant has proved the insurance and theft of his vehicle bearing registration No.PB-08DG-4389 which was insured with OPs for Rs.1,91,900/- as mentioned in Ex.OP1&2/1.  The vehicle has not been traced by the police despite report lodged by the complainant.
8. We placed reliance on 2005 (2) CPC page 617 titled as Hon’ble National Insurance Company Versus Darshan Singh and the relevant Para No.6 is reproduced as under:-

“6.     Before us again the same point has been urged that no FIR had been got recorded by the complainant.  As held by the District Forum, which we hereby affirm, the duty of the person is to inform the police of the alleged offence (in this case the “theft”).  Whether the police records a DDR or records an FIR, it is the job of the police.  The victim’s job is only to inform the police about the crime.  In this case, the day the theft took place, DDR was got lodged.  If FIR is not recorded, it is no fault of the victim.  If the police does not take any action or cannot trace the stolen property of the victim, the Insurance Company cannot repudiate the claim on that count.  When insurance is done it is done regarding the jewellery which is lying in a particular house, which may include the jewellery of the insured’s wife, daughter-in-law, who are staying with him.  For example, even if a person is not staying with the insured and it is proved that at a given time the jewellery of a person was in the custody of the insured and the same is stolen, the Insurance Company would still be liable.  It is not the case of the Insurance Company that the son and daughter-in-law of the insured was not part and parcel of the household at the time the alleged theft of jewellery and cash took place.”

9.  The complainant has proved that his vehicle was insured with OPs, which was misplaced and necessary report was lodged with the concerned police station on 27.11.2016.  He has also proved on record that the vehicle was not recovered.  The reasons for rejection of claim of the complainant are without any base and are contrary to the documentary evidence produced by the complainant.
10. In view of the above discussion, the present complaint is allowed and the OPs No.1&2 are directed to pay Rs.2,02,000/- i.e. cost of the vehicle to the complainant.  The complainant has been harassed by the OPs No.1&2 as his claim has not been settled, hence the complainant is held entitled for compensation and litigation expenses of Rs.10,000/- and Rs.3000/- as Consumer Legal Aid of the Commission.

11.     Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

9^th Day of February 2021

(Kuljit Singh)

President

(Jyotsna)

Member