BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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                                        Complaint Case No : 1265 of 2009

                                        Date of Institution  :    01.09.2009

                                        Date of Decision    :    19.02.2010

Lalit Singla son of Sh.J.R.Singla, R/o H.No.152, Sector 44-A, Chandigarh.

….…Complainant

                                V E R S U S

1]     National Insurance company Ltd., SCO No.133-135, Sector 17-C, Chandigarh, through its Branch Manager.

2]     Sh.Jaswinder Pal Singh, Parking Contractor for Sector 35-B, Municipal Corporation, U.T., Chandigarh, R/o H.No.763, RCS Enclave Sector 49-A, Chandigarh.

                                        ..…Opposite Parties

CORAM:    SH.JAGROOP SINGH MAHAL      PRESIDENT

                SH.SIDDHESHWAR SHARMA         MEMBER

DR.(MRS) MADHU BEHL              MEMBER

Argued by:         Sh.J.R.Singla, Adv. or complainant.

Sh.Rajneesh Malhotra, Adv. for OP No.1.

Sh.Ankur Chandhrie, Adv. for OP No.2.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

                Briefly stated, the Maruti Car of the complainant bearing Regd. No.CH-03-R-5988 duly insured with OP Insurance Company vide Annexure C-1 w.e.f. 11.3.2009 to 10.3.2010, was stolen in the evening of 24.4.2009 when it was parked by the father of the complainant in front of Hotel Monarch,  Sector 35-B, Chandigarh after obtaining a Parking Chit (Ann.C-3) from OP No.2 i.e. Contractor of said paring lot.  The matter was reported to police and FIR No.101, dated 25.4.2009 under Section 406 IPC was registered at Police Station Sector 36, Chandigarh (Annexure C-2) was registered.  On informing OP Insurance Company, a Surveyor was appointed, who verified the facts and submitted his report.  It is averred that as desired by OP Insurance Company vide letter dated 30.7.2009, the key of the car was handed over to them and they were required to obtain the Untraced Report under Section 173 Cr.P.C. from the Police Station at their own level as there was no obligation of the complainant to obtain and supply such a report.  It is also averred that despite paying various visits to the office of OP Insurance Company for settlement of claim, the same has not been done nor any satisfactory reply has been given inspite of the fact that four months have elapsed from the date of occurrence and submission of claim.  Therefore, the present complaint has been filed alleging the above act of OPs as gross deficiency in service due to which the complainant had to suffer a lot.

2]             OP No.1 filed reply and admitted the factual matrix of the case.  It is stated that the complaint is not maintainable as no cause of action has accrued to the complainant to file present complaint.  It is submitted that the Company was ready & willing and still ready and willing to process the claim of the complainant as and when necessary documents & formalities are completed by the complainant, which has not yet been done by him. It is also submitted that Company again appointed Sh.S.S.Bedi, Surveyor, who reported that the case was under investigation and no untraced report had been sent to the Court for closure of the case.  It is further submitted that untraced report is required to process the claim as it is a document once approved by the Court gives authenticity to the fact that the stolen vehicle has not been traced and the claim be proceeded further.  It is next submitted that the untraced report under Section 173 Cr.P.C. cannot be obtained by the surveyor or the OP Company as the same is to be forwarded by the police official to the Magistrate after completion of the investigation and then the untraced report can be obtained by the owner of the car i.e. the complainant from the concerned court or the certified copy can be obtained from the concerned police station and it cannot be obtained by a third party.  Denying all other allegations it is prayed that the complaint be dismissed.

3]             OP No.2 also filed reply and denied the theft of the car for want of knowledge.  It is stated that a false FIR was registered under Section 406 of IPC as the car was never entrusted to OP No.2 nor there was any allegation that the car was misappropriated by OP No.2.  It is also stated that the OP No.2 has the responsibility to take care of the vehicles in the parking lot only upto the time mentioned in the parking chit.  It is further stated that the complainant did not come before the time as mentioned in the parking chit and that the complainant in connivance with the Police got the FIR registered against OP No.2.  It is denied that there was any deficiency on the part of OP No.2.  Rest of the allegations have also been denied and it is prayed that the complaint qua OP No.2 be dismissed.  

4]             Parties led evidence in support of their contentions.

5]             We have heard the ld.counsel for the parties and have also perused the record.

6]             There is no dispute about it that the vehicle was insured with OP-1 for a sum of Rs.1,15,000/-. Annexure C-1 is the copy of the insurance certificate cum policy schedule in this respect.  It is alleged by the complainant that the vehicle was parked in the parking lot opposite to Hotel Monarch, Sector 35-B, Chandigarh and was stolen therefrom on 24.04.2009.  FIR Annexure C-2 was lodged regarding this theft.  It is also admitted that the vehicle has not been recovered so far.  However OP-1 is delaying the disbursement of compensation on the ground that untraced report should be obtained by the complainant and produced before them.  The Learned Counsel however could not point out any provision in the insurance policy which required the complainant to produce any such report before the OP-1. Otherwise also the payment of compensation for theft of an insured vehicle cannot be made dependant on the untraced report.  Supposing for arguments sake, the police does not send untraced report for 10 years, should the compensation be withheld for such a long time? In our view the answer is in the negative.  It is only a reasonable period for which we should wait for the recovery of the vehicle and if it is not recovered as in the present case the OP should pay compensation, leaving the police to deal  with the criminal case in the manner they like to deal with.

7]             Admittedly OP-1 has deputed a surveyor and investigator, whose duty is to confirm the factum of theft also.   The surveyor had approached the police and confirmed the lodging of the FIR, he had also conducted his own investigation and found that the vehicle in question was stolen from the parking lot as alleged by the complainant.  His contention is that the untraced report has not so far been approved by the Court.  The complainant however has produced (now marked) annexure C-4 vide which information was given to the complainant by the police Station, Sector 36, Chandigarh that they are sending untraced report.  It may be mentioned that before sending the untraced report intimation is to be given to the complainant and the said intimation was given vide Annexure C-4.  The contention of the OP-1 that untraced report has not been sent is therefore falsified through Annexure C-4 also.  Infact by alleging that no untraced report has been sent they want to put unnecessary burden on the complainant to compel him to approach the police authorities for procuring the report.

8]             It is also argued by the Learned Counsel for the OP-1 that the untraced report cannot be obtained by the surveyor/investigator from the police and the same is to be given to the complainant alone.  There is no merit in this contention also.  Even if untraced report is needed, it is a public record/Court orders showing that the investigation has been stopped in the said case, there are no chances of the recovery of the vehicle.  Any body can obtain the certified copy of the said order or the report.  The Learned Counsel could not point out any provision of law under which the insurance company is not entitled to obtain the copy of the record.

9]             Otherwise also with the enactment of Right to Information Act, any such information can be obtained by the insurance company under the said Act from the police.  Infact OP-1 was not making any efforts to obtain the said information and wants to place this burden on the complainant though neither there is any agreement between the parties under which the complainant is required to obtain the said report nor are there any rules and regulations made known to the complainant at the time when the insurance was affected under which he is legally bound to procure the said report or the compesantion cannot be paid without such a report.  Infact the OP-1 is unnecessarily making it an issue point.  Admittedly the car has been stolen and has not been recovered so far.  The report about the same has been lodged with the police. The police have already informed the complainant that the said car cannot be recovered and they are sending the untraced report.  It is therefore only an academic discussion as to which of the party should procure the said report. The OPs had already appointed surveyor and investigator who are to remain in touch with the police.  It is therefore their duty to procure the repot and even if they have not procured the same, the money which the complainant is entitled as compensation on the date on which the vehicle is stolen cannot be withheld by the OP under such false presumptions and excuses causing loss of revenue to the complainant.

10]            In view of the above discussion, we are of the opinion that compensation cannot be withheld if the police has not sent the untraced report and therefore OP-1 is liable to pay the amount of Rs.1,15,000/- to the complainant immediately.

11]            As regards Jaswinder Pal Singh, OP-2, his contention is that he is a parking contractor and no such vehicle was parked in his parking lot of Sector 35-B nor was it stolen therefrom. This contention is falsified from the parking slip, a copy of which is Annexure C-3.  It shows that the vehicle in question was parked in the parking lot of sector 35-B, Chandigarh on 24.04.2009.  The complainant has filed an affidavit that when at 10.30 p.m. he came out to take the car out of the parking lot it was found that the car has been stolen.  The FIR was lodged and the police started investigating the case.  It is neither the case of the police nor that of OP-1 if the car was not parked in the said parking lot or had not been stolen.  OP-2 is therefore taking a false ground in this respect which cannot be accepted.

12]            The Learned Counsel for the OP then argued that the OP-2 has paid a huge amount of more than Rs.21,70,000/- for taking contract of this parking lot in which proper facilities have not been provided by the Municipal Corporation, despite his having written several letters to them.  It is argued that there is no fencing along the road adjoining to sector 34 and 35, making it easy for removing the vehicles from the parking lot without coming to the exit point. These grounds cannot be taken on face value to allow thefts from the parking area.  If there was no fencing along the road of sector 34 and 35, the OP-2 should have got it done at his own expenses or he may have deducted some amount for the fencing or would not have taken the parking lot on lease, where there were no proper facilities.  If he took the lease of the said area as a parking lot, it is thereafter his duty to make it safe so that the vehicles are not stolen therefrom. If nothing else was done by the Municipal Corporation, he could atleast depute a few more guards to keep a watch along the said road, where there was no fencing.  Infact he did not do anything and have started passing the buck on the Municipal Corporation which cannot be accepted.

13]            When the OP-2 had obtained the possession of the vehicle and charged fee therefrom vide Annexure C-3, he cannot evade the liability, if the vehicle is stolen from the said parking lot.  The OP-1 is liable to pay the amount of Rs.1,15,000/- for which the vehicle was insured, however, the compensation for physical and mental harassment is to be paid by OP-2 who did not make sufficient arrangement to avoid the loss and theft of the vehicle from the said parking area.  The contention of the complainant is that he had to pay various visits to the office of the insurance company for settlement of the claim which was delayed for more than four months, the complainant is a Senior Branch Manager in Infosis Multi National Company in I.T. Park, Chandigarh and has to travel daily by the said car.  In the absence of the car he suffered great physical and mental torture besides he had to spend a lot of money on hiring the transport daily which affected his business in the company. According to him he had spent Rs.500/- per day.  Apart from that he had undergone the ordeal of filing and pursuing the complaint.  The complainant prayed for a sum of Rs.30,000/- for the accessories fitted in the car and Rs.60,000/- as transport expenses plus Rs.50,000/- towards physical harassment and mental torture.  However, we are of the opinion that a sum of Rs.25,000/- would be just and fair for this purpose.

14]            In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OP-1 is directed to pay Rs.1,15,000/- to the complainant and OP-2 to pay Rs.25,000/- along with Rs. 5,000/- towards costs of litigation within 30 days from the receipt of the copy of this order.  If any of the OPs does not pay the aforesaid amount within the aforesaid period, it/he would be liable to pay the same alongwith penal interest @12% p.a. since the date of filing of the present complaint i.e. 01.09.2009, till the amount is actually paid to the complainant.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.