Haryana

StateCommission

A/405/2015

ORIENTAL INSURANCE CO. - Complainant(s)

Versus

MUKESH AND ORS. - Opp.Party(s)

J.P.NAHAR

21 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.405 of 2015

Date of Institution: 01.05.2015

Date of Decision: 21.09.2014

 

The Oriental Insurance Company Ltd., D-Park, Delhi Road, Rohtak, through its Divisional/Branch Manager now through its authorized signatory, S.P.Singh Regional Manager, LIC building, Jagadhari road, Ambala Cantt.

…..Appellant

 

Versus

 

1.      Mukesh S/o Kartar Singh R/o village Mandothi,Tehsil Bahadurgarh, Distt. Jhajjar.

2.      Indusind Bank Ltd. situated at Opposite Tehsil complex, Delhi road, Rohtak, through its Branch Manager.

…..Respondents

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri J.P.Nahar, Advocate counsel for appellant.

Shri Robin Hooda, Advocate counsel for respondent No.1.

Mr.Gaurav Gaur, Advocate counsel for the   respondent No.2.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          Oriental Insurance Company Limited (in short Insurance Company)-opposite party has preferred this appeal against the order dated March 17th, 2015 passed by District Consumer Disputes Redressal Forum, Rohtak (for short “District Forum”).  

2.      It was alleged by the complainant that he got his vehicle bearing registration No. HR 63 A 1760 insured with the opposite party No.1 for the value of Rs.4,93,776/- and policy was valid from 21.04.2009 to 20.04.2010.  On 21.11.2009 he parked his vehicle at plot No.404, Hirani Road, Mundka, P.S.Nangloi, Delhi and went to his house  on 22.11.2009.  He received information that the vehicle was stolen he immediately inform police on 100 number. Police people adviced him to trace the vehicle in nearby area, but, without any success.  He moved complaint before Police  Station (P.S.) Nangloi, New Delhi on 26.11.2009 and FIR No.497 was registered on 29.11.2009 for the offence punishable under section 379 of Indian Penal Code,1860(in short “I.P.C.”). He immediately informed opposite parties (O.Ps.) about the theft and submitted claim after completing all the formalities. Surveyor deputed by O.P.No.1 investigated the matter and assessed loss to the tune of Rs.4,93,776/-.  Untrace report issued by Metropolitan Magistrate, was also handed over to the surveyor on 09.04.2010.  The O.Ps. did not pay any amount to him and delayed the matter under one pretext or the other.  O.P.No.2 also assured about processing his case, but, to no use.

3.      O.P.No.1 alleged in it’s reply that his claim was repudiated on 31.03.2011, but, he filed complaint on 12.06.2013 after two years of repudiation and is time barred as per provisions of Consumer Protection Act, 1986 (In short “Act”).  Complainant lodged FIR after seven days of theft.  It was informed on 24.11.2009 and there was delay of two days in intimation. This time was sufficient for scrap dealer to dismantle the vehicle.  Had he informed immediately necessary steps could have been taken to avoid damage to the vehicle.  He did not take reasonable steps to safeguard the vehicle  from theft and left the same unattended.  He concealed true facts from the District Forum.  Objections about maintainability of complaint and locus standi were also raised and requested to dismiss the complaint.

4.      O.P.No.2 filed separate reply and alleged that it was not having any concern with the theft.  Complaint was not maintainable against it before District Forum.  The vehicle was hypothecated with it and complainant was not the absolute owner. There was no deficiency in service on it’s part. Complainant did not repay the amount and huge amount was standing against him.  A complaint was filed against him under section 138 of Negotiable Instrument Act of 1881 (In short “Instrument Act”) and execution was still pending.  Other averments were also denied and requested to dismiss the complaint.

5.      After evaluating the evidence of the parties, District Forum allowed the complaint and ordered as under:-

“In view of the facts and circumstances of the case, it is directed that opposite party no.1 shall pay the insured declared value of vehicle i.e. Rs.493776/- (Rupees four lac ninety three thousand seven hundred seventy six only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 12.06.2013 till its actual realization and shall also pay a sum of Rs.2200/- (Rupees two thousand two hundred only) as litigation expenses to the complainant within one month from the date of completion of formalities by the complainant e.g. transfer of R.C. & Subrogation letter etc. to the opposite party no.1. Complaint is allowed accordingly.”

6.      Feeling aggrieved therefrom, appellant/opposite party No.1 has come  in appeal.

7.      Arguments heard. File perused.

8.      Learned counsel for the appellant/opposite party No.1 vehemently argued that  cause of action accrued to complainant on 31.03.2011 when his claim was repudiated.  He was suppose to file complaint within two years therefrom i.e. up to 01.04.2013, but, he has filed this complaint on 12.06.2013. In this way the complaint was time barred as per section 24 A of the Act.  He did not file any application for condonation of delay. When the complaint was time barred it should have been dismissed only on this ground.

9.      This argument is of no avail.  Firstly O.Ps. did not place copy of repudiation letter before the District Forum as well as the State Commission. It was the bounden duty of O.P.No.1 to prove that on the aforesaid date his claim was repudiated. It is a public limited company and must be maintaining the record. It would have shown the repudiation letter even at this stage.

10.    Secondly even if it is presumed for the arguments sake that his claim was repudiated on 31.03.2011, the appellant has failed to show that when that letter was delivered to complainant.  Limitation in such like cases is to start from the date of knowledge of repudiation.  To prove this fact O.Ps.-Insurance Company could have produced any receipt vide which letter was sent to complainant.  In the absence of any such document it could not be presumed that complainant was ever informed about the repudiation. If the company had taken decision and kept sitting on the letter and did not give information to the insured, the complaint cannot be dismissed  on the ground of limitation.  If this principle will be followed then insurance companies can keep repudiation letter on the file and will not dispatch the letter to the insured and lateron they can raise plea that complaint is time barred.  In these circumstances the complaint is not liable to be dismissed on this ground.

11.    Learned counsel for the appellant further argued that complainant gave information after two days of theft.  He left one key in the vehicle and facilitated his theft. He did not take proper care of the vehicle and violated the terms and conditions of insurance policy, so he is not entitled for any compensation. 

12.    This argument is of no use.  It is well settled preposition of law that if theft is genuine then the claim of complainant cannot be repudiated on this ground.  In this case the delay is only of two days. Had there been long delay then it could have been a different matter.

13.    More so investigator appointed by insurance company mentioned in his report Ex.R-5 that theft was genuine, so the version of complainant cannot be doubted.  It has no where come on the file that complainant left the key in the ignition point.  If he left one key in dash board of the vehicle and locked the same with other key, it does not mean that he facilitated the theft.  Had he not locked the vehicle and went away then it could have been a different matter.  So there was no negligence on his part and his claim cannot be repudiated on this ground. Learned District forum has taken into consideration all the aspects from every angle and there is no ground to disturb the impugned order. Resultantly appeal fails and the same is hereby dismissed.

14.    The statutory amount of Rs.25000/-  deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision if any.

September 21st, 2015

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.