BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.138 of 2015

Date of Instt. 01.04.2015

Date of Decision :22.07.2015

Narotam Singh son of Bishan Singh R/o 90-C, Ravinder Nagar, Mithapur Road, Jalandhar City.

..........Complainant Versus

National Insurance Company Limited, through its Manager, Branch Office-III, BMC Chowk, Jalandhar.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act,1986.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.VK Sareen Adv., counsel for complainant.

Sh.RS Arora Adv., counsel for opposite party.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against the opposite party on the averments that the complainant has been the owner of a vehicle bearing No.PB-08-BU-4490. The aforesaid vehicle had been got insured with opposite party No.1 vide policy No.404305/31/12/ 6100004598. The aforesaid insurance cover was valid upto the mid night of 1.3.2014. The aforesaid vehicle had been taken by the son of the complainant namely Inderjit to Noida for his use and on 1.3.2014, he had parked the aforesaid vehicle outside his residence at about 10.00 PM and was duly locked. Thereafter, the son of the complainant had gone inside his house. Sometime thereafter, the aforesaid vehicle had been stolen from the place, where it had been parked by the son of the complainant outside his house. When the son of the complainant discovered that the aforesaid vehicle, had been stolen by somebody from outside his house, some times prior to midnight of 1.3.2014 and 2.3.2014, he alongwith his friends searched the vehicle in the near about places, but he could not find the same and as such, on the next day, he had reported the theft of the aforesaid vehicle to the police and on his statement, the police had recorded an FIR bearing No.158/2014 dated 2.3.2014 and in the said FIR, it has been clearly recorded that the theft had taken place some times between 10.00 PM to 12.00 PM on 1.3.2014. After the registration of the aforesaid case, the police could not trace out the aforesaid vehicle, the police of Police Station Division No.24, Gautam Budh Nagar (UP) has submitted a closure report in the court of learned Magistrate and the said court was pleased to accept the closure report vide order dated 23.7.2014. When the police could not trace out the abovesaid vehicle within a reasonable time, the complainant had lodged a claim with the opposite party company bearing No.404305/31/13/ 6190000655 and while lodging the said claim, the complainant had furnished to the opposite party, all the requisite documents for the settlement of the claim and from the documents furnished by the complainant to the opposite party, it clearly stood established that the vehicle owned by the complainant, which had been insured with the opposite party, had been stolen from the place of the son of the complainant some times between 10.00 Pm to 12.00 PM on the night intervening on 1.3.2014 to 2.3.2014. This fact is also borne out by the time of occurrence as recorded in the aforesaid FIR. This vehicle had been stolen from outside House No.I-18, Sector-12, Noida(UP). After the lodging of the aforesaid claim, the complainant had received a letter from the opposite party dated 13.10.2014 written under the signatures of the Senior Branch Manager of the opposite party to the effect that the opposite party was unable to understand as to how the son of the complainant, had come to know about the theft of the vehicle having occurred prior to 12.00 PM on the night intervening on 1.3.2014 and 2.3.2014, whereas, according to the statement of the son of the complainant recorded by the investigator appointed by the opposite party, the theft of the vehicle had come to the notice of the son of the complainant at 4.15 AM on 2.3.2014. The said letter was replied by the complainant vide his letter dated 22.10.2014 indicating to the opposite party that a totally false plea had been taken in the letter dated 13.10.2014. Whereas, in fact, theft was discovered some times prior to the mid night. Despite there being no justification to withhold the payment of the claim lodged by the complainant regarding the theft of his vehicle, the opposite party vide letter dated 20.2.2015 had illegally repudiated the claim and in the letter of repudiation, it had been mentioned that the claim was being repudiated because the complainant had not been able to provide any documentary evidence to prove that the vehicle was stolen during the policy period little forgetting that in the copy of the FIR which had been furnished to the opposite party for the settlement of the claim, it had been clearly mentioned that the time of occurrence was between 10.00 PM to 12.00 PM on the night intervening 1.3.2014 and 2.3.1014, which, inter-alia, proved that the vehicle had been stolen some times prior to the mid night. Thus, the ground projected by the opposite party to repudiate the claim was absolutely baseless. On such like averments, the complainant has prayed for refund of amount of Rs.6,28,000/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply pleading that there is no deficiency on part of the opposite party in asking the complainant how did he fix the time of theft between 10-12 PM midnight between 1.3.2014 and 2.3.2014 and on his failure to provide any answer, there is no deficiency on part of the opposite party in repudiating the claim. The complainant is liable to be relegated to the civil court on the ground that the matter involves proving the factum of theft between 10-12 PM through statements of the complainant and his son, and testing their stance through cross-examination by the opposite party to disprove their version, which is not possible in the summary proceedings in this Forum. It is wrong that the complainant discovered as alleged that the vehicle was stolen from outside his house prior to midnight of 1.3.2014 or that he alongwith his friends searched the vehicle in the near about places but could not find the same. It is wrong that on the next day, he had reported the theft to the police and lodged the FIR. The FIR on the face of it is tampered as to the date, and the time is mentioned as 12.30 PM, which connotes 12.30 noon whereas that is not the alleged case of the complainant. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA to Ex.CD alongwith copies of documents Ex.C1, Ex.C2, Ex.C2A, Ex.C3 to Ex.C12 and closed evidence.

4. On the other hand, learned counsel for the opposite party has tendered affidavits Ex.OA, Ex.OB alongwith copy of document Ex.O1 and Ex.O2 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant.

6. It is not disputed that insured vehicle of the complainant was stolen on the intervening night of 1.3.2014 and 2.3.2014. It is important to note here that the insurance policy was valid till 12.00 midnight of 1.3.2014. So the main question involved for adjudication in the present complaint is, whether the theft took place before 12.00 midnight of 1.3.2014 or thereafter when the insurance policy has expired. Counsel for the complainant contended that in the FIR Ex.C6 the period of theft is mentioned as in between 10.00 PM to 12.00 PM meaning thereby that the theft took place when the policy was in force. He further contended that this fact find corroboration from the affidavit Ex.CC of Amulpreet Singh and affidavit of Ex.CD of Inderjit Singh. On the other hand it has been contended by learned counsel for the opposite party that FIR was got lodged on the next date i.e 2.3.2014 and at that time the person lodging the FIR must have been aware that insurance policy was only valid till 12.00 midnight and as such he might have got recorded the time of theft between 10.00 PM to 12.00 PM on 1.3.2014. He further contended that in the above affidavits Ex.CC and Ex.CD it is mentioned that when both the deponents i.e Amulpreet Singh and Inderjit Singh came out in the balcony of the residence after taking meals at about 11.30 PM, they notice that the above said vehicle was missing from the place where it had been parked. He then further contended that in both the affidavits it is mentioned that son of the complainant had parked the vehicle at 9.30 PM on 1.3.2014 outside his residence in Noida. He further contended that as per the above both affidavits, theft took place between 9.30 PM to 11.30 PM on 1.3.2014 but why this fact was not specifically got recorded in the FIR. He further contended that in the FIR the time of theft is mentioned as in between 10.00 PM to 12.00 PM. We have carefully considered the contentions advanced by learned counsels for both the parties and further gone through the written arguments submitted on behalf of complainant. The opposite party has produced copy of statement Ex.O1 of Narotam Singh complainant recorded by the investigator and detective wherein it is mentioned that his son parked the vehicle at 10.00 PM and on 2.3.2014 in the morning at 4.50 AM, he found the car to be stolen. He has further stated that his son gave him intimation about the occurrence on phone on 2.3.2014 at 7.30 AM. So the decision of the controversy involved in the present case involves disputed question of facts. To determine whether the theft had taken place in between 10.00 PM to 12.00 PM on 1.3.2014 when the policy was in force or thereafter can not be effectively decided in the present summary proceedings and to decide the same veracity of the witnesses is required to be tested by way of cross-examination before the Civil Court. In Oriental Insurance Co.Ltd Vs. Munimahesh Patel 2006(3) Apex Court Judgment 365 (SC), it has been held by Hon'ble Supreme Court as under:-

"Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the document (i.e proposal forms) produced by the appellant".

7. The ratio of this authority is applicable on the facts of the present case. The disputed questions involved in the present case can not be effectively decided in the present summary proceedings particularly in view of statement Ex.O1 of the complainant wherein he has stated that the vehicle was found missing by his son on 2.3.2013 in the morning at 4.50 AM. It may be again mention here that after 12.00 midnight of 1.3.2014, the policy had already expired. So in our opinion, to decide the controversy involved in the present case, the appropriate forum is civil court.

8. In view of above discussion, the present complaint is dismissed with liberty to the complainant to approach civil court or any other appropriate forum. In the circumstances of the case, there shall be no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

22.07.2015 Member Member President