DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 470 of 25.11.2016

                                      Decided on:   15.3.2019

Nitesh Garg son of Davinder Garg, resident of Ismailabad, Police Station Ismailabad, District Kurukshtera ( Haryana)

                                                                   …………...Complainant

                                      Versus

1. National Insurance Co. Ltd., Branch office: 25, Factory Area, Patiala through its Branch Manager.
2. National Insurance Co. Ltd., Railway Road, Kurukshtera ( Haryana) through its Branch Manager.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt.Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member      

ARGUED BY

                                      Sh.K.S.Saini, counsel for the complainant.

                                      Sh.Amit Gupta, counsel for the OPs.        

ORDER

                                    SH. M.P.SINGH PAHWA,PRESIDENT

1. This is the complaint filed by Sh.Nitesh Garg (hereinafter referred to as the complainant ) against National Insurance Co. Ltd.,& Anr.(hereinafter referred to as the OPs).
2. Briefly the case of the complainant is that earlier he filed complaint No.132/2015 dated 15.6.2015 before District Consumer Disputes Redressal Forum, Kurukshtera, in which the OPs appeared and after long trial, the said complaint was dismissed, vide order dated 19.10.2016 for want of  territorial jurisdiction. However, the complainant was held entitled to the benefit of provision of Section 14 (2) of Limitation Act, for the period during which proceedings before the said District Forum took place.
3. It is pleaded that complainant is registered owner of vehicle bearing No.HR-41-D-3991. He got the same insured for a sum of Rs.3,00,000/- with the OPs vide policy No.25331031130150053557 and paid  huge  amount as premium to Hemant Goyal Motors, Rajpura Road, Patiala.
4. It is pleaded that the vehicle was parked in the house situated at Roshanpur Road, Ismailabad District Kurukshetra, in a vacant place as usual on 11.12.2013 at 10.00PM under full control and supervision. On 12.12.2013 at about 7:00AM, the complainant found the vehicle was not there. It was stolen by un known person. He lodged FIR No.176 dated 12.12.2013 at P.S.Ismailabad under Section 380 IPC. OPs were also informed on the same date regarding theft of the vehicle. The claim was lodged with the OPs. The vehicle could not be traced by the police. Police presented no trace report before the Judicial Magistrate, Pehowa which was accepted by the court vide order dated 5.12.2014.All the requisite documents were supplied by the complainant to the OPs as demanded by them but the OPs have not released the claim amount and treated the  same as “no claim” vide letters dated 6.5.2015, 21.5.2015 and 2.6.2016.
5. It is alleged that all the facts and circumstances show that there is clear cut deficiency in service on the part of the OPs.The complainant has suffered great mental agony, tension, harassment, inconvenience and humiliation, for which  he is also entitled for compensation.
6. By this complaint, the complainant  has prayed for direction to the OPs to release the claim amount of Rs.3,00,000/- i.e. total value of the vehicle, Rs.1,00,000/- as compensation towards mental agony, tension, harassment, inconvenience and humiliation suffered by him and Rs.22000/-as litigation expenses.
7. Upon notice, OPs appeared through counsel and contested the complaint by filing written reply. In reply the OPs raised preliminary objections that the complaint is not maintainable; there is no deficiency in service on the part of the OPs.
8. As per version of the complainant, in the FIR No.176 dated 12.12.2013 the car No.HR41D-3991 was parked at 10:00AM on 11.12.2013 in the vacant/open plot on the right side of his house and on the next day i.e. 12.12.2013 at 7:00AM, he found the car was not there and some unknown person has stolen his car. On this allegation the FIR was lodged at 5.30PM on 12.12.2013 under Section 380 IPC in police station Ismailabad. The complainant should have lodged the FIR immediately after 7:00AM on 12.12.2013.
9. Moreover, as per version of the complainant, he parked the car at 10:00PM on 11.12.2013, which was stolen and till 7:00AM the said car might have gone/travelled at least 400KMs.
10. The complainant lodged the claim with the OPs on 19.12.2013, after 7 days of the alleged theft. He must have lodged the claim immediately after the alleged theft. It is clear cut contravention of the terms and conditions of the policy. The claim is not payable by OP1 or OP No.2.
11. The house of the complainant is situated at Roshanpur Road, opposite Kaushal Nursing Home, Ismailabad and the car was parked in an open, vacant and un-occupied plot situated at left side of the house of the complainant. The parking place was not directly approachable from the house of the complainant.
12. From these facts, it is clearly established that the complainant acted negligently. He failed to take proper care and caution for protection of the car. The complainant was required to take due care of the vehicle as per the terms and conditions of the insurance policy. He has left the vehicle un-attended by parking the same in open and unoccupied plot, which amounts to breach of the terms and conditions of the policy by the complainant intentionally and knowingly. Hence the complainant is not entitled for any claim.
13. To the above effect, letter dated 6.5.2015 was sent to the complainant through registered post. Reminders dated 21.5.2015, 2.6.2015 and 25.6.2015 were also sent to the complainant but the complainant did not reply the same. It was clearly written in the letter and reminders that if, the reply is not received within 7 days, then the claim will be treated as “no claim”. That the complaint is totally false and baseless. It is liable to be dismissed with costs.
14. On merits also, insurance of the car is not disputed but it is stated to be strictly subject to the terms and conditions of the policy. In further reply the OPs have reiterated their stand as taken in the preliminary objections and detailed above. In the end, the OPs prayed for the dismissal of the complaint.
15. Parties were afforded opportunity to produce their evidence.
16. In support of the complaint, the complainant tendered into evidence his affidavit, Ex.CA, copy of order dated 19.10.2016 of District Forum , Kurukshtera,Ex.C1,copy of policy, Ex.C2, copy of order,Ex.C3,copy of report, Ex.C4.
17. The OPs tendered into evidence affidavit of Bhupinder Singh Malik, Ex.OPA, copy of policy, Ex.OP1, copy of claim form Ex.OP2, copies of letters, Exs.OP3 to OP6, copy of claim form dated 20.2.2015, Ex.OP7, copy of investigation report, Ex.OP8, copy of letter dated 6.5.2015, Ex.OP9, copy of letter dated 21.5.2015, Ex.OP10, copy of letter dated 2.6.2015, Ex.OP11, copy of letter dated 25.6.2015, Ex.OP12, copy of postal receipt, Ex.OP13 and closed the evidence.
18. The complainant has also submitted the written arguments.
19. We have heard the ld. counsel for the parties and have also gone through the record of the case file carefully. They have reiterated their stand as taken in their respective pleadings and detailed above.
20. We have given careful consideration to their submissions.
21. The admitted facts are that the complainant being the owner of the car bearing registration No. HR-41-D-3991 got it insured from the OPs. Covered period was from 8.10.2013 to 7.10.2014 and the IDV of the vehicle was Rs.3lacs. On the intervening night of 11/12 December,2013, the vehicle was stolen by some un known person. complainant lodged the FIR on 12.12.2013 and intimated the OPs also. The OPs have repudiated the claim .Although the OPs have  formally not repudiated the claim but the letter dated 6.5.2015,Ex.OP9 makes intention of the OPs clear that the OPs have come to the conclusion that the complainant has acted negligently and failed to take proper care and caution for the protection of the vehicle. He has left the vehicle un-attended by parking the same in free and un occupied plot, which amounts to breach of the terms and conditions of the insurance policy. It was also intimated to the complainant that he is not entitled to any claim and if, he is to say anything, he can sent comments within seven days from the receipt of this letter. The further letters dated 21.5.2015 and 2.6.2015 are to the effect that the complainant has not taken any further action on the letter dated 6.5.2015.

Of course in the written version, the OPs have alleged that thecomplainant has lodged the FIR after 7:00AM and lodged the claim with the OPs on 19.12.2013 i.e. after 7 days but when the claim is denied on the ground of negligence, therefore, this Forum will examine whether the repudiation on this ground is justified.The OPs are estopped from taking any other ground which is not mentioned in the letter dated 6.5.2015. OPs have produced copy of policy alongwith policy schedule, Ex.OP1.

22. Of course as per condition No.4 of the terms and conditions, the insured is to take responsible steps to safeguard the vehicle from loss or damage. The point for determination is as to whether there is any negligence on the part of the complainant which resulted in the loss of the vehicle.
23. On the intimation of the complainant, the OPs appointed investigator to investigate the claim. The report of the investigator is Ex.OP8.Some observations recorded by the investigator are relevant for decision of the controversy. It was observed that during investigation the representative met with several neighbours of insured. They confirmed the incident of theft of the Indigo car. It was also   observed  that during investigation their representative visited at the spot where the complainant had parked his car. The car was parked at the outside of his house in vacant plot. Therefore, the report of the investigator proves that the theft has actually occurred and the car was parked outside the house of the complainant in empty plot. There is nothing in the report of the investigator to point out any negligence on the part of the complainant. Therefore, in these circumstances, the conclusion i s that the denial of claim is not sustainable and is liable to be setaisde.
24. For the reasons recorded above, the complaint is partly accepted with costs of Rs.5000/-.Since the OPs have repudiated the claim illegally, therefore, the complainant is held entitled to compensation by way of interest @12% per annum on the IDV of the vehicle (Rs.3,00,000/-) from the date  of repudiation i.e. 6.5.2015 till payment. The OPs are directed to pay the IDV of the vehicle i.e. Rs.3,00,000/- alongwith interest @12%  per annum from the date of repudiation i.e. 6.5.2015 till payment. Complainant will  be liable to execute the documents required for transfer of ownership of vehicle in the name of OP’s.

Compliance of the order be made by the OPs within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:15.3.2019       

   B.S.Dhaliwal                         Inderjeet Kaur            M. P. Singh Pahwa

       Member                                 Member                                      President