The complainant M/s. R.G. Industries, Aujla Road, Kapurthala through its proprietor Smt. Shama Sobti has filed the present complaint under Section 12 of Consumer Protection Act against National Insurance Company opposite party. <br /> 2 The case of the complainant she had insured her scooter Bajaj Chetak bearing Registration No. PB09-F-9478 valid from 18.1.2005 to 17.1.2005. The scooter of the complainant was stolen from Gopal Park, Kapurthala on 4.10.2005, <br /> -2-<br /> Kapurthala and to this effect a DDR No.14 dated 7.10.2005 was lodged in P.S.City, Kapurthala. She informed the opposite party regarding the theft of the scooter and also lodged claim with the opposite party. The opposite party also asked the complainant to furnish a non-traceable certificate from the police and she furnished the same to the opposite party on 6.8.2006. To the utter disappointment of the complainant, the opposite party repudiated the claim of the complainant illegally vide its letter dated 9.10.2006. It is, therefore, prayed that opposite party be directed to pay the insured amount of Rs.25,902/- to the complainant alongwith interest @ 18% from the date of theft and further the opposite party be directed to pay Rs.25,000/- as compensation for mental harassment and Rs.5000/- as litigation expenses. <br /> 3 Notice of the complaint was given to the opposite party who appeared and written statement has been filed raising preliminary objection that the complainant is not a consumer as defined under Section2(d) of the Consumer Protection Act 1986 as insurance was got done for commercial purpose . She has violated the established conditions of the privity of contract entered into with the opposite party as it came to the light during the course of investigation that the consumer left the scooter open with keys in the lock and that too unattended, therefore, such violation debar the complainant from filing the present complaint The complainant failed to take all reasonable steps to safeguard the vehicle from losses. On merits, it is also once again pleaded that the complainant has neither complied with the terms and conditions of the privily of contract by not taking the proper care and caution by locking the scooter, having been parked by him in <br /> schedule place at 8.00P.M.and that too unlocked leaving the keys in lock of the scooter and unattended and un-guarded. Therefore, the claim of the complainant has rightly been repudiated by the opposite party<br /> 4 The counsel for the complainant has tendered into evidence affidavit of <br /> -3-<br /> complainant Ex.C1, Insurance policy Ex.C2, repudiation letter Ex.C3, .DDR Ex.C4, Non-traceable certificate Ex.c5 and closed the evidence<br /> 5 On the other hand the opposite party has tendered into evidence affidavit of Nand Kishore Branch Manager Ex.OPA affidavit of Shri A.S. Sodhi, surveyor and loss assessor Ex.OPB alongwith documents Ex.OP1 to Ex.OP5 and closed the evidence<br /> 6 We have heard oral argument of both the parties and perused the written argument of the parties.<br /> 7 The learned counsel for the complainant has argued that the complainant has insured scooter i.e. Bajaj Chetak bearing Registration No.PB-09-F-9478 under Policy No. 6200008584/04 for Rs. 25,902/- with effect from 18.1.2005 dated 17.1.2006 and the said scooter of the complainant was stolen on 4.1.0.2005. DDR No.14 dated 7.10.2005 was lodged in Police Station City, Kapurthala. The opposite party was duly informed regarding the theft of the vehicle. The opposite party repudiated the claim of the complainant vide letter dated 9.10.2006 which amounts to deficiency in service on the part of the opposite party/Insurance Company.<br /> 8 On th other hand, the counsel for the opposite party has argued that after receiving the intimation regarding theft of the scooter No. PB-09-F-9478, Mr. A.K.Sodhi Surveyor and Loss Accessors was deputed to investigate the matter. During investigation it was observed that scooter in dispute was unlocked and unattended outside at the time of the theft. Thus, the complainant violated the terms and conditions of the policy under which insured was required to take <br /> proper care and caution of the vehicle which he failed to take. Thus, the claim of the complainant was rightly repudiated<br /> 9 Now the question for determination is whether the repudiation of the claim of the complainant on the basis of investigation report is just or not.<br /> -4-<br /> 10 It is not disputed that complainant had duly insured his scooter Bajaj Chetak with the opposite party under the policy no. 6200008584/04 Ex.C2 on th file for a sum of Rs.25,902/- . for a period from 18.1.2005 to mid night of 17.1.2006. The vehicle in dispute was stolen on 4.10.2005 as clearly evidenced in Ex.C4 and Ex.C5i.e. Copy of DDR and Non-Traceable Certificate. We have gone through copy of insurance policy Ex.OP5. At the very outset it is admitted that the insurance company will indemnify the insured against loss of damage to the vehicle insured hereunder and/or its accessories whilst thereon interalia.<br /> i) by fire explosion self ignition or lightning <br /> ii) “by burglary housebreaking or theft etc.<br /> and subject to a deduction for depreciation at the rates mentioned below in respect of the parts replaced” No doubt, the condition No.4 stipulates that insured shall take all reasonable steps to safeguard the vehicle from loss and to maintain it in efficient condition, but no where violation of this condition by the complainant has been proved by the opposite party by producing any document on record.<br /> 11 The opposite party produced on record investigation report of Shri A.S. Sodhi & Company Ex.OP4. Reliance cannot be placed on this document as the complainant has rebuted this report in his affidavit Ex.C1 that no investigation was ever done by the opposite party and investigation report has been created lateron.<br /> 12 After going through the record,. It transpires that the opposite party has not filed investigation report alongwith written statement whereas it has been <br /> placed on record later on after the complainant filed application for production of documents. It has been observed by our Hon'ble Supreme Court in <br /> 2002(3) Civil Court Cases page 517 Dr. J.J.Merchant's & others Vs.Shri Nath <br /> Chaturvedi<br /> <br /> -5-<br /> Consumer Protection Act, 1986,S 13(4)<br /> “Complaint-Documents-Documents sued upon & relied<br /> upon should be produced alongwith the complaint or written<br /> reply.”<br /> It at all the opposite party has appointed investigator to investigate the matter then what difficulty was confronted with the opposite party to produce investigation report alongwith the written statement. Moreover, no affidavit of ShriKimti Lal Jain and Shri Rajan Shukla has been placed on record to corroborate their statement given in investigation report. Thus, this document does not stand in the eyes of law.<br /> 12 In view of the above observation, the complaint is hereby allowed. The opposite party is directed to reimburse the complainant Rs.25,902/-, i.e. the sum insured subject to deduction for depreciation as per terms of the policy alongwith interest at the rate of 12%per annum from the date of filing of the complaint, till realization and also to pay Rs.2000/- as costs of litigation and Rs.1000/- as compensation for mental tension and harassment. The above order be complied with by the opposite party within a period of one month from the receipt of copy of this order, failing which the same be recovered from the opposite party in accordance with law<br /> Let certified copy of the order be sent to the parties through registered post free of costs without any delay. File be consigned to the record room.<br /> <br /> Dated: SUDHA SHARMA SUSHMA HANDOO A.K.SHARMA<br /> 4.4.2007 MEMBER MEMBER PRESIDENT<br />