DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.195 of 11-05-2011 Decided on 14-10-2011
Kuldeep Singh S/o Sh. Amarjit Singh Kaushal, Resident of House No.27214, Opposite Canal Office, Gali No.1, Bathinda, Tehsil and District Bathinda. .......Complainant Versus
The National Insurance Company, Magma Limited, Division (V. National Insurance Building 8, India Exchange Building Place, Ist Floor, Kolkata-700001, through its Managing Director. The National Insurance Company, Magma Limited, Near Tinkoni Road, Goniana Road, Bathinda, through its authorized/competent person Pardeep Bansal. The National Insurance Company, Magma Limited, Divisional Office at Ludhiana, through its Divisional Manager.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President Sh.Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member Present:- For the Complainant: Sh. A.S.Kaushal, counsel for the complainant. For Opposite parties: Sh. Sanjay Goyal, counsel for opposite party Nos.1&3 Sh. J.S.Kohli, counsel for opposite party No.2
ORDER
Vikramjit Kaur Soni, President:-
The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant purchased one New Mahindera Pick up Model 008, bearing Engine No.ABSI818458, Chassis No.MAIZA2ABESIB 14870 for earning his livelihood, vide registration bearing No.PB-03-M-9192. The said vehicle was insured with the opposite party Nos.1&3 vide Policy No.150100/31/10/6360610170 dated 18.05.2010 w.e.f. 18.05.2010 to 17.05.2011. The said vehicle of the complainant was stolen on 16/17.09.2010 midnight when it was lying parked outside of his house. He has reported this matter to the Police Station, Canal Colony, Bathinda and the FIR No.77 dated 17.09.2010 u/s 379 IPC has been registered by the Police. The complainant has duly informed the opposite parties regarding the aforesaid incident on 28.09.2010 who had appointed the surveyor Sh. Lal Chand, retired Inspector of Police, Patiala. He made investigation to the theft of the vehicle from Police Station, neighbourers and Municipal Counselor of the ward No.31, Bathinda. The complainant has also completed the required formalities and submitted the final report of the investigation through Sh. B.S. Chada, retired D.I.G. for releasing Rs.2,00,000/- being the value of the insured vehicle of the complainant but this copy of investigation report has not been supplied to the complainant so far. The complainant has alleged that the opposite parties has been lingering the matter on one or the other pretext and the opposite party No.2 asked the complainant to give Non-Traceable Certificate and the complainant submitted the same to the opposite parties but inspite of the said fact, the opposite parties have not taken any step to settle the claim of the complainant. The complainant has also issued a legal notice dated 28.02.2011 but no reply has been given by the opposite parties. Hence, the complainant has filed the present complaint for seeking directions to the opposite parties to pay Rs.2 Lacs as loss of vehicle alongwith cost and compensation. Notice was issued to the opposite parties. The opposite parties after appearing before this Forum, have filed their separate written statements. The opposite party Nos.1&3 have filed their joint written statement and pleaded that the vehicle in question was being plied for commercial purposes and the complainant is not consumer of the opposite parties. The opposite party Nos.1&3 have admitted the fact that the intimation regarding the theft of the vehicle, was given to the opposite parties on 28.09.2010 and they appointed an Investigator in this connection. In the case of theft, the claim is payable only after submitting the untraceable report issued by the Police authorities after approval from the Court of Judicial Magistrate. The report of untraceable of the vehicle is yet to be approved by the Court of Ilaqa/Judicial Magistrate u/s 173 Cr.P.C, without which, the untraceable report is incomplete and the claim on such report, cannot be paid. The complainant has failed to comply with the requirements for processing the claim. The opposite party No.2 has filed its separate written statement and has taken the legal objections that the complainant has not come to the Court/Forum with clean hands. The complainant is not consumer of the opposite party No.2 as it is only the sourcing agent of the National Insurance Company, thus the opposite party No. 2 has no role in processing of any type of claim which is well within the ambit of National Insurance Company. The complainant is using the vehicle for commercial purposes as such, he is not a consumer under the 'Act'. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. Admitted facts of the complaint are that the vehicle of the complainant bearing registration No. PB-03-M-9192, Engine No.ABSI818458, Chassis No.MAIZA2ABESIB 14870 is insured with the opposite party Nos.1&3 vide Policy No.150100/31/10/6360610170 dated 18.05.2010 w.e.f. 18.05.2010 to 17.05.2011. The vehicle in question was stolen on the midnight of 16/17.09.2010 from the outside of his house. The matter was informed to the Police and an FIR No.77 dated 17.09.2010 u/s 379 IPC was registered. The complainant informed the opposite parties on 28.09.2010 vide letter dated 20.09.2010. The opposite party Nos.1&3 appointed Sh. Lal Chand, retired Inspector of Police, Patiala as Surveyor to investigate the matter. He submitted his final report through Sh. B.S. Chada, Retired D.I.G. and assessed the value of insured vehicle to the tune of Rs.2,00,000/-. The opposite party Nos.1&3 have submitted that the complainant has not submitted the untraceable report of the vehicle, approved by Court of Ilaka/Judicial Magistrate as required u/s 173 Cr.P.C, without untraceable report, the claim can not be paid. The complainant has specifically pleaded in para no.6 of his complaint that he has submitted the Non Traceable Certificate to the opposite parties but despite that the claim of the complainant has not been settled. He has also sent a legal notice dated 28.02.2011 to the opposite parties which has not been replied by them. The opposite party Nos.1,2&3 have taken the objection that the complainant is plying his vehicle for commercial purposes. The opposite party No.2 has taken the objection that the complainant has not approached this Forum with clean hands and the complainant is not consumer as the opposite party No.2 is sourcing agent only of the National Insurance Company and has no role for processing of any type of claim which is well within the ambit of National Insurance Company. With regard to the objection of commercial purposes, the complainant has specifically pleaded that he has been plying his vehicle for earning his livelihood. Moreover, the opposite parties have not placed on file any document to prove that he has been plying the said vehicle for commercial purposes. Moreover, the purpose of plying the vehicle whether for livlihood or commercial purposes, has no nexus with the accident. The support can be sought by the law laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled National Insurance Company Ltd. & Ors. Vs Balwant Singh, I(2010) CPJ 167 (NC), wherein it has been held:- “Consumer Protection Act, 1986 – Section 21(b) – Insurance – Vehicle stolen – Claim repudiated – Violation of policy terms alleged – Contention private car being used as taxi – Theft of vehicle had no nexus regarding user/purpose for which vehicle actually plied – Insurance Company liable to indemnify insured for loss suffered. Result; R.P. Dismissed.” Hence, this objection of the opposite parties is not tenable. The second objection taken by the opposite party No.2 that the complainant has not come to the Court/Forum with clean hands, no such evidence has been placed on file by the opposite party No.2 that he has concealed any fact from this Forum. Nothing has been placed on file by the opposite party No. 2 that how the complainant has approached this Forum with unclean hands. Thus, this objection of the opposite party No.2 is also not tenable. The third objection of the opposite party No.2, the complainant is not the consumer to the opposite party No.2, is also not tenable as the opposite party No.2 has himself admitted that he is sourcing agent of the National Insurance Company. Hence, the complainant is a beneficiary qua the opposite party No.2. With regard to the Untraceable report, the complainant has specifically pleaded that he has submitted the untraceable report whereas the opposite parties have pleaded that he has not submitted untraceable report of the vehicle in question, approved by Court of Ilaka/Judicial Magistrate. The complainant had produced on file Ex.C-16 untraceable report, issued by Addl. Chief Judicial Magistrate, Bathinda on 09.09.2011. The complainant has submitted the untraceable report earlier to and has also placed on file untraceable report, issued by Addl. Chief Judicial Magistrate. Therefore, in view of what has been discussed above, this Forum concludes that the Insurance Company i.e. opposite party Nos.1&3 are lingering the matter on one or the other pretext. The support can be sought by the precedent laid down by Hon'ble Orissa State Consumer Disputes Redressal Commission, Cuttack in case titled Oriental Insurance Co. Ltd. Vs Kandha Nayak, IV(2009) CPJ 96, wherein it has been held : - “Consumer Protection Act,1986 – Section 2(1)(g) – Insurance – Vehicle stolen – Intimation to police and insurer delayed – Claim repudiated by insurer – Deficiency in service alleged – Complaint allowed by Forum – Hence appeal – Consumer Protection Act, a beneficial Act, claim should not be repudiated only on hyper technical grounds – Repudiation on technical ground unjust, arbitrary, made to defeat spirit of legislation – Order of Forum upheld. Result: Appeal dismissed.” Moreover, the opposite party Nos. 1 & 3 were directed to produce the documents vide order dated 2-8-2011, but till date they have not complied with the directions of this Forum, hence adverse inference is taken, this also shows the act and conduct of opposite party Nos. 1 & 3, not upto mark. Thus, there is deficiency in service on the part of the opposite party Nos.1&3. Hence, this complaint is accepted with Rs.5,000/- as cost and Rs.10,000/- as compensation against the opposite party Nos.1&3 jointly or severally and dismissed qua opposite party No.2. The opposite party Nos.1&3 are directed to pay Rs.2,00,000/- (Two Lacs) as claim amount of the insured vehicle in question to the complainant. Compliance of this order be done within 45 days from the date of receipt of copy of this order. In case of non-compliance, the interest @9% p.a. will yield on Rs. 2.00 Lacs from the date of this order till realization.
A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ' Pronounced in open Forum 14-10-2011 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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