Present     (1)  Sri Nisha Nath Ojha

                              District & Sessions Judge (Retd.)

                       President

                       (2) Sri Sheo Shankar Prasad Singh,

                             Member

         Date of Order-     19.01.2015

                                                   ORDER

 Sheo Shankar Prasad Singh

1. The complainant has approached this forum for following reliefs against the Opposite Parties:-

1. To direct the Opposite parties to pay Rs. 6,50,000/-(Six lacs fifty thousand only) along with 18% interest.
2. To pay Rs. 2,00,000/-(Two lacs only) for loss and mental agony.
3. To pay Rs. 15,000/-(Fifteen thousand only) for litigation cost.

2. The complainant has made following averment and              submissions in his complaint:-

1. The complainant has taken a policy bearing no.- 210301/31/01/04773 from the Opposite Party No. 1 for his vehicle (Truck) bearing Registration No.- BR-1G-2566 for the period from 31.03.02 to 30.03.03 for a sum assured of Rs. 7,00,000/-(Seven Lac Only). The vehicle was purchased by the complainant for his livelihood only.
2. The said vehicle met with an accident on 03.11.02 and the complainant filed a claim before the competent authority and after investigation the Opposite Party repudiated the claim on the ground of suppression of facts and thereafter the complainant filed a case before this Consumer Forum bearing no.- 185/06 and it has been submitted therein that the claim is still pending with the Opposite Parties.
3. The vehicle in question was illegally seized by three unknown criminals in route on 17.03.03 and at that time it was plying with valid permit no. 927/03. The permit was issued by the RTA, Patna. Road tax of the vehicle was paid till 23.04.03. The complainant lodged FIR bearing no.- 29/03 and the case was investigated by the police and Final Form was filed before Learned ADJ, Barh on 23.08.03 and it was accepted by the Learned District ADJ, thereafter the complainant informed  the Opposite Party No. 1 on 26.03.03 who appointed a surveyor and during investigation surveyor met with the complainant and other witnesses. The complainant also submitted letters to the surveyor.
4. Thereafter he met the Opposite Parties for settlement of this claim and the complainant alleged that Opposite Party demanded something for the settlement but the complainant refused and filed a case bearing no. 60(M)/2004 before the competent court and the court after hearing, referred the matter to the police for verifying truth. It is important to mention that the said vehicle was insured with the National Insurance Co. Ltd. Begusarai. The claim of Insurance was also filed before the National Insurance Co. Ltd. Begusarai against the theft dated 17.03.03. The complainant filed a petition to the National Insurance Co. Ltd. Begusarai for withdrawal of the said claim. After receiving the letters the National Insurance issued a letter to the complainant as well as the investigator of the Opposite Parties Shri S.D. Jha (Investigator) for needful action and the National Insurance Co. Ltd. has accepted the prayer of the complainant. The National Insurance Co. Ltd. refunded the premium amount to the insured.
5. The Insurance Company has investigated the case, thoroughly and final report has been filed by the surveyor. The surveyor has not denied the case of theft. The Opposite Parties have not issued any letter to the complainant. The Opposite Parties have not demanded any document from the complainant after investigation of the case.
6. The Insurance Company has investigated the case, thoroughly and final report has been filed by the surveyor. The surveyor has not denied the case of theft. The Opposite parties have not issued any letter to the complainant. The Opposite parties have not demanded any document from the complainant after investigation of the case.
7. The Opposite Parties have deliberately ignored the insurance claim regarding theft. The Opposite Parties have not settled the case due to malafide and ill motive.

3.  The Opposite Party No. 1 and 2 in their Written Statement has submitted the following facts:-

1. The present complaint case has been filed by the complainant to take undue advantage from the Opposite Parties without impleading the National Insurance Company Limited also as Opposite Party to the present claim in view of the fact that as on the date of alleged snatching of the vehicle there were two insurance coverage 1^st from the United India Insurance Company Limited and 2^nd from National Insurance Company Limited.
2. Truck no. BR-1G-2566 of the complainant was insured with the United India Insurance Company Ltd. comprehensively w.e.f. 31.03.02 to 30.03.03. The complainant also got insured the same vehicle w.e.f. 26.08.02 to 25.08.03 from National Insurance Company Limited, Begusarai Branch.
3. On 30.11.02 during effectiveness of both policies the vehicle met with an accident and claim was lodged which was subsequently settled. Thereafter it was alleged that the vehicle was snatched on 17.03.03 and claim was lodged. If at any time any claim arises under the policy and there is any other existing insurance covering the same loss, damage or liability, the company shall not be liable to pay or contribute more than its retable proportion under loss, damages compensation cost or expense.
4. The Opposite Party deputed investigator Sri S.D. Jha and Sri Sudhir Kumar who vide his report dated 03.03.04 and 31.05.04 gave details about two policies at the time of incident as also the factum of theft was correct.
5. On the date of loss i.e. 17.03.03 there were two consistence policies and therefore as per IMT clause 9 of the Insurance Policy, the liability has not be apportioned between the two Insurance Company as per its retable proportion.
6.  However it was gathered through investigation reports that the insured got cancelled the existing policy with National Insurance Company on 17.12.03 and shifted total liability on United India Insurance Co. Ltd. as against the clause no. 9 of the I.M.T. clause of double insurance.
7. At this stage it is also stated that the policy starts from 31.03.02 as such the insured amount comes under I.E.V. (Insured Estimated value) therefore as per the IMT clause in case of total loss so far as the allegation of snatching is concerned, the liability would be lessor of the insured value or the market value.
8. The Insurance Companies has deputed loss assessor who is preparing reports with regard to liability in case of total loss considering the point of double Insurance as also the liability as per the market value of the vehicle at the time of snatching.
9. The Insured wants to shift the entire liability on the United India Insurance Co. Ltd. without even impleading National Insurance Company in this case as Opposite Party, as such the liability if any born by the Opposite Party would be as per the retable proportion in terms of clause no. 9 of the I.M.T. (Indian Motor Tariff).
10.  It is further submitted that there is no any deficiency in service on the part of the Opposite Parties in that it is the insured who has suppressed the material facts of double insurance and has not come with clean hand. It is at a very later stage that the information of double Insurance reached to these Opposite Parties but the insured has chosen to take refund of premium after withdrawal of his claim from National Insurance Company Ltd. and thus jeopardized our interest illegally.
11. The Opposite Parties are taking due diligence towards claim process which will be shortly done at the earliest opportunity so far as its proportional liability is concerned.
12. The case pertains to as alleged by the complainant Insurance theft claim of his vehicle which has been alleged to have been stolen on 17.03.03. The original claim file of the case is missing from the office and therefore the competent authority of the Insurance Company has demanded documents from its surveyor regarding the report. Similar other documents have also been asked for from the concerned authority which has not been received as yet
13.  It is stated that for the same vehicle on the same Insurance Policy and damage claim has been paid, and thereafter the complainant has initiated the present claim for theft of the vehicle.  It is further stated that it is a case of double insurance i.e. United India Insurance Company Ltd. and National Insurance Company Ltd. However the insured has not made National Insurance Company as party in this case which is essential for proper adjudication of the case.

4.  The complainant in his petition dated 17.08.11 has stated following assertions:

1.  From perusing the earlier order passed in this case, it is very clear that the Opposite Party has deliberately/intentionally and or malafide intention been ignoring Forum orders in which it has been directed that evidence filed by the Opposite Party must be supported with oath. Several orders have been passed in this regards but the Opposite Party has not complied with earlier orders as yet. On last occasion i.e. the Opposite Party has been directed to file affidavit otherwise adverse interference will be drawn against him.
2. The complainant submitted that if the Opposite Party fails to comply with the earlier direction than the Forum must take strong steps. The Opposite Party cannot be allowed to argue on the basis of evidence adduced/produced before the Forum.
3.  It is very important to mention here that the Opposite Party has filed contradictory evidence/statements on one hand the Opposite Party stated that the surveyor /investigators reports it has been found that the sum assured to an amount of 4,00,000/-(Four Lac Only) on the other hand the Opposite Party stated that the policy amount was of Rs. 3,50,000/-(Three Lac Fifty Thousand Only).Under the law both documents cannot run. One argument must be dropped by the Opposite Party.
4. It is well settled principle that if party did not produce/file affidavit it must suffer adverse interference against him. It is submitted that the Opposite Party tried to take benefits under false documents/evidence, it is not permissible under the law. The Opposite Party has not come with clean hand before this Forum, therefore all legal benefits/opportunities should be snatched.

5. In support of this case the complainant has cited the decision of Hon’ble National Consumer Disputes Redressal, Commission, New Delhi reported in I (2007) CPJ (NC) wherein the Hon’ble National Commission has ruled that

“As per Regulation 9, step-by-step procedure given for settlement of claim – Maximum time-limit does not exceed 5-6 months – Same not been done in present case – Deficiency in service proved – Insurer liable to pay interest @ 2% P.A above bank rate – Complainant entitled to Rs. 9,18,647/-(Nine Lac Eighteen Thousand Six Hundred Forty Seven Only) with interest @ 12% P.a.”.

6. One more decision of the Hon’ble Supreme Court has been cited by the complainant which is reported in III (2009) CJP 81(SC) wherein Hon’ble Apex Court has observed that :-

“Payment of loss assessed by chartered accountant directed by Consumer Forum – Order upheld in appeal. Insurance – Settlement of claim delayed – Insurer if not satisfied with surveyor’s assessment, retains right to settled claim for different amount – Assessment made by surveyor, joint surveyor rejected – Assessment made by Chartered Accountant accepted – Unnecessary delay not caused in settlement of claim – Once settlement reached payment should be made at earliest – Payment of loss assessed by Chartered Accountant directed – Insurer held liable to pay interest as compensation from date of assessment done by Chartered Accountant.”

7. The complainant has cited one more case decided by Hon’ble State Commission (i.e. Consumer Complaint No.- 11/08) wherein the Hon’ble State Commission has held as follows:-

“Here, we would like to express our opinion that the surveyor, Mr. Satish Sharan, who had been here in respect of cross examination, could not assign any reasons as to why he submitted his report after lapse of 13 months. Moreover, his cross examination is reveals that he is in receipt of lost articles furnished by the complainant on the date of his visit. So, such genuineness of the documents could not be brushed out. In the fact and circumstanced, after giving due and serious consideration of the facts, we are inclined to award at least Rs. 10, 96,200/-(Ten Lac Ninety Six Thousand Two Hundred Only) being the loss already assessed by the surveyor by way of loss sustained by the complainant coupled with interest @ 9% from the date of filing of the complainant till the date of realization. The order is to be complied within two months from the date of realization. The order is to be complied within two months from the date of passing of the order, filing which interest @ 12% shall be counted for the purpose of payment. The insurance claim is to be paid only by the Opposite Party No. 1, 2 and 3 the National Insurance Company Ltd. to the insured and so, the Opposite Party No. 5 the Oriental Insurance Company Ltd. are exempted for any liability in respect of payment of insurance claim to the complainant/insured.”

8. The Opposite Party too had cited one decision in support of their contention which is reported in 2012 (3) CPR 282 NC in which the Hon’ble National Commission has held as follows:-

“Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Insurance – Damage to vehicle in accident – Claim rejected on ground that at the time of accident petitioner was not holding a valid route permit – Complaint dismissed by State Commission in appeal – To hold valid route permit – Route permit could not be regarded as a valid permit could not be regarded as a valid permit in force on the day of accident – No fault could be found with impugned order passed by State Commission –Revision petition dismissed.”

We have perused the entire material available on the record and heard both the parties.

After going through the record and hearing the parties We have come to a conclusion that the Opposite party no.1 & 2 are not settling the matter till date and on affidavit they have stated as back as on 06.03.09 that the claim process will be shortly done at the earliest opportunity. In so far as to proportional liability are concerned notwithstanding the fact that the complainant has got his policy with National Insurance company cancelled on 17.12.2003 and premium amount thereof was allowed to be refunded.

On 21.02.09 the Opposite parties have even filed a unaffidavited petition in which it is stated that the original claim file is missing from their office and the Opposite parties has also filed photocopy of policy, from which it appears that the sum assured was Rs. 3,50,000/-(Three lacs fifty thousand only) .

Since the other policy has been withdrawn by the complainant the Opposite parties are liable to settle the claim of the complainant as policy and theft both are not denied.

Accordingly We direct the Opposite party no.1 & 2 to pay to the complainant Rs. 3,50,000/-(Three lacs fifty thousand only) along with interest @ 5% per annum from 21.02.09 on which date it was intimated by the aforesaid Opposite parties to this forum that claim file is missingand the amount so calculated will have to be paid within two months from the date of receipt of this order failing which the Opposite parties will have to pay interest at the rate of 8% on the due amount till final payment

We further direct the aforesaid Opposite parties to pay Rs. 5,000/-(Five thousand) only) to the complainant as composite charge for compensation and litigation cost within the aforesaid period of two months. 

Thus this complaint petition stands allowed to the extent indicated above

                  Member                                                              President