BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.374 of 2014

Date of Instt. 22.10.2014

Date of Decision :21.07.2015

Kulwinder Singh Basra aged about 59 years son of Sucha Singh R/o VPO Udhopur, Tehsil & District Jalandhar.

..........Complainant Versus

1. M/s IFFCO TOKIO General Insurance Company Ltd, IFFCO Tower, 4th and 5th Floors, Plot No.3, Sector 29, Gurgaon-1222001, Haryana through tis Director/General Manager/Authorized Person.

2. M/s Lally Motors Pvt Ltd, GT Road, Paragpur, Jalandhar-144010, through its Director/General Manager/Authorized Person.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.RS Sarna Adv., counsel for complainant.

Sh.APS Pathania Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant is owner of Honda City car bearing registration No.PB-08-BN-5560, Engine No.LE15A70014169 and Chasis No.MAKGM252B9N010858 and he is using the said car exclusively for his domestic purpose. Opposite party No.1 is general insurance company and opposite party No.2 is authorized dealer of Honda Motor Vehicle Company and is also an agent of opposite party No.1. Employee of the opposite party No.2 approached complainant and offered him to get his car insured from opposite party No.1 and assured and promised complainant that in case the said car meets with an accident or gets damaged, opposite party No.1 shall pay for all the repair and spare parts directly to the workshop and complainant shall not have to pay any money to the workshop for the repairs. Believing the words and promise made by the employee of opposite party No.2 complainant agreed and got his said Honda City car bearing registration No.PB08-BN-5560, insured from opposite party No.1 for the period from 19.2.2012 to 18.2.2013 vide policy No.ITG/82025651. Complainant paid gross premium of Rs.19081/- to the opposite party on the total assessed/declared value of said vehicle i.e Rs.482400/-. Unfortunately the above said car of the complainant met with an accident on 30.12.2012 and got badly damaged. The said car at that time was driven by a friend of the complainant namely Shiv Kumar son of Jai Krishan as he had borrowed the same from the complainant. Thereafter the complainant immediately approached opposite parties and brought into their notice the fact of said accident and said car was immediately taken to opposite party No.2 for repairs. But there the employees of opposite party No.2 declared the said car as totally damaged and irreparable. The said fact was communicated to opposite party No.1 and all the requisite documents were also supplied to the opposite parties. Thereafter the complainant approached the opposite parties number of time to get the claim against the said insurance policy. But to the shock of complainant, opposite party No.1 vide letter dated 5.6.2013, refused to pay for repair of the said car on false, vague and baseless reasons that "Insured Kulwinder Singh Basra has sold the vehicle to Suraj Chauhan on i.e 30.12.2012. Hence there is no insurable interest in the said vehicle on the date of accident". Whereas as a matter of fact complainant is till date registered owner of the said vehicle. On such like averments, the complainant has prayed for directing the opposite parties to pay him Rs.4,82,400/- as per insurance policy. He has also claimed damages and litigation expenses.

2. Upon notice opposite party No.1 appeared and did not file any written statement inspite of number of opportunities offered to it for this purpose. Consequently opposite party No.1 was debarred from filing written statement vide order dated 17.3.2015.

3. Upon notice opposite party No.2 did not appear and as such it was proceeded against exparte.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA/1 and Ex.CA/2 alongwith copies of documents Ex.C1 to Ex.C4 and closed evidence.

5. Although opposite party No.1 was debarred from filing any written statement but as held in Joginder Singh Vs Baldev Singh and another 1985 RLR 287 by Hon'ble Punjab and Haryana High Court that "even if defence is struck off or the defendant is proceeded exparte still he has a right to join the proceedings from any stage and has a right to cross-examine the witnesses or to lead evidence to disprove the, plaintiff's case". So opposite party No.1 was given opportunity to lead rebuttal evidence. Counsel for opposite party No.1 tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP19 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties.

7. The facts involved in the present case are not much disputed. The claim lodged by the complainant in respect of the insured card was repudiated by opposite party No.1 insurance company vide letter dated 5.6.2013 Ex.OP1 on the ground that insured Kulwinder Singh Basra has sold the vehicle to Suraj Chauhan on 30.12.2012. Hence there is no insurable interest in the said vehicle on the date of accident. The complainant is denying this fact. On the other hand, opposite party No.1 company has produced copy of affidavit of Kulwinder Singh Basra complainant duly attested by notary public Ex.OP18, wherein it is mentioned that he sold this car i.e car in question to Suraj Chouhan/Shiv Chouhan son of Jai Kishan Chouhan R/o 40/1 Gali No.26, Jalandhar Cantt in September 2011 and he purchased Scorpio No.PB-08-AW-0044 and gave him his Honda City car and no cash was given or taken in this deal. In his affidavit he has further mentioned that he got transferred the Scorpio in his name after purchase but he (Suraj/Shiv Chouhan) did not get transfer the car to his name till date. The opposite parties have also produced copy of statement of Kulwinder Singh Basra Ex.OP19 recorded by Sh.V.K.Goyal, Prop. of Detective Centre India wherein Kulwinder Singh is alleged to have stated that he has sold his car to Suraj Chouhan and in exchange he obtained his Scorpio of model 2005. Ex.OP17 is report of above said detective centre in this regard. Counsel for the complainant contended that affidavit of Kulwinder Singh as well as statement of Kulwinder Singh (complainant) alleged to have been recorded by Sh.V.K.Goyal are forged one. He further contended that complainant never got attested any affidavit nor gave the above said statement to Sh.V.K.Goyal of Detective Centre. Whether the above said affidavit which is attested by notary public and the statement alleged to have been given by Kulwinder Singh regarding the sale of his car before the accident are forged and fabricated one, can not be decided in the present summary proceedings. To decide the forgery, the appropriate forum is civil court. Further in this case to decide the alleged forgery, detailed evidence and inquiry including the examination and cross-examination of the witnesses is required. The question of forgery can not be effectively decided in the present summary proceedings.

8. In view of above discussion, the present complaint is dismissed with liberty to the complainant to approach the civil court for redressal of his grievance. In the circumstance of the case, there shall be no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

21.07.2015 Member Member President