Haryana

Karnal

CC/636/2002

Devinder Singh S/o Munshi Ram - Complainant(s)

Versus

National Insurance Company - Opp.Party(s)

Rajesh Kakkar

24 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.636 of 2002

                                                               Date of instt. 6.05.2012

                                                               Date of decision: 2.09.2015

 

 

Devinder Singh son of Shri Munshi Ram, through H.P.A Holder Shri S.K Kakkar through Deepak Sharma, G.P.A. Holder and Manager of National Finance Co. 21, Ist Floor, Nehru Palace, Kunjpura Road, Karnal.

                                                             ……….Complainant.

                             Versus

 

The National Insurance company Ltd. through its Sr. Divisional Manager, Railway Road, Karnal.

 

                                                           ……… Opposite Parties.

 

                    Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.   

         

 

 Present:       Sh.Rajesh Kakkar Advocate for the complainant.

                   Sh.Parveen Daryal Advocate  for the OP.

                  

 

ORDER:

 

                   This complaint has been filed u/s 12 of the Consumer Protection Act, 1986, on the averments that complainant got insured his Jeep Model Marshal -750-DI-2WD-Hard Top, bearing chassis No. DW-216946, engine No. DW-216946 and  temporary NO. HR-05A/TP-5231  vide cover note No.0026322 dated 29.11.1998 against a sum of Rs.3,60,000/- and paid the premium of Rs.12,625/- to Opposite Party ( in short OP).     The policy was valid for the period of  29.12.98 to 28.1.2.1999 .  The said vehicle was handed over by the complainant to National Finance Company, Karnal  on terms and conditions of the Hire Purchase Agreement, according to which the Finance Company was  the  owner and the complainant was purchaser/hirer. The complainant had not paid the due installments and he  left all the liabilities and assets towards the National Finance Company.  On 19.10.199 9, the said vehicle was stolen from the area of  Shalimar Bagh, New Delhi  and the FIR  No.746  of 1999 was lodged in that, regard. Own damage claim was lodged by the complainant regarding the theft of the vehicle with  the OP,  but  the same was rejected on 5.4.2002 on the ground that National Finance Company did not fall within the definition of insured person and the case did not  come within the  jurisdiction of Insurance ombudsman.  Such act on the part of the OP amounted to deficiency in services, which caused mental agony and harassment to the complainant apart from financial loss.       

 

2.                 Notice of the complaint was given to the OP,   who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that complainant has no locus standi and cause of action to file the present complaint; that the complaint is not maintainable; that the complainant is estopped by  his  own acts and  conduct from   filing the present complaint; that complaint is malafide and abuse of the process of law; that the complainant has not approached this Forum with clean hands and that the complaint is barred by limitation,

 

                   On merits, it has been submitted that the vehicle was insured in the name of Devinder Singh and National Finance Company does not fall within the definition of insured  person. The OP rejected the claiam on the basis of report of Investigator.  vide letter dated 15.5.2001.The application moved by the National  Finance Company was also rejected vide order dated 5.4.2002. It has been asserted that there was no deficiency in services on the part of the OP and the complaint has been filed only to harass the OP.

 

3.                 In the evidence of complainant, affidavit of Shri Raj Kumar  Ex.C1 and Surender Singh  Ex.C1( again marked)  and documents Ex. Ex.C2 to Ex.C19 have been tendered.

 

4.                 On the other hand, in the evidence of OP affidavit of Shri R.K.Goswami Ex.O1 and documents Ex.O2 to Ex.O7 have been tendered.

5.                 We have heard the learned counsel for the parties and have gone through the case file very carefully.

6.                 The Learned counsel for the OP laid emphasis on the contention that Devinder Singh,  who got his vehicle insured  was not available for the purpose of statement before Mr.Desh Raj Ghakar, who was appointed as Investigator by the OP, in order to investigate the factum of theft of the vehicle. The investigator made best efforts to trace Devinder Singh, but he could not be contacted. Therefore, the claim lodged by Devinder Singh was closed, vide letter dated 15.5.2001.It has also been argued that  even during the pendency of the present complaint, Devinder Singh never appeared and  cheque of Rs.5000/- deposited by the OP in compliance of the order of Hon’ble State Commission  to Devinder Singh, is also on the file. It has further been contended that the present complaint  has not been filed by insured Devinder Singh, rather the same has been filed by the National Finance Company who is not the consumer of the OP, because the vehicle was got insured by Devinder Singh and not by National  Finance Company, therefore, the complaint is liable to be dismissed on the ground of maintainability also.

 

7.                 The vehicle of Devinder Singh was insured by the OP for the period of 29.12.1998 to 28.12.1999.The said vehicle was stolen on 19.10.99 and first information report , the copy of which is Ex.C16, was lodged regarding theft on 29.10.99 in Police Station, Shalimar Bagh, Delhi. It is pertinent to note that it is not the case of the OP that intimation regarding theft was not given to OP by Devinder Singh immediately   after the theft or within the period mentioned in the insurance policy.  If, the claim was lodged by the insured Devinder Singh within time, then the OP could get the matter investigated immediately thereafter.  However, the document Ex.O5 shows that Mr.Desh Raj Ghakar, was deputed by the OP to investigate the said claim vide letter dated 28.2.01 i.e. after a long period of the theft of the vehicle. Mr.Ghakar in his report mentioned that whereabouts of Devinder Singh could not be traced despite contacting Sh.Surinder Kumar Kakkar, proprietor of the National Finance Company and his son Rajesh Kakkar.  Even if,  Devinder Singh not available, ,the investigator could very well go through the investigation carried by the Police  in respect of  FIR got registered by Devinder Singh and in that report even the site plan regarding the place of theft could be available.   

Para no.9 of  his report shows that on visiting Police Station, Shalimar, Delhi, he found that Investigating Officer had investigated the case on 20.10.99, 30.10.99, 28.11.99 and 5.12.99 and thereafter  untraced report was sent by the Station House Officer on 8.12.99, which was filed by Assistant Commissioner of Police on 13.12.2000. In the conclusion, he made it clear that there was no material to  reject the  untraced report,  which confirmed the theft. When the investigator of the OP confirmed that vehicle of  Devinder Singh was stolen, then OP was not justified  in closing the claim lodged by Devinder Singh regarding theft of the vehicle.  Closure of the claim merely on the ground that Devinder Singh could not be contacted and his where abouts  could not be traced, was neither legal nor justified, rather the same amounted  deficiency  in services on the part of the OP.

8.                 Now, we  advert to deal with the second limb of argument advanced by the learned counsel for the OP, whether the complainant falls within the definition of consumer or not. The title of the complaint makes it quite clear that same has been filed on behalf of  Devinder Singh by Deepak Sharma, General Power of Attorney  holder and Manager of National Finance Company, who had the authority on behalf of Devinder Singh , under Hypothecation Agreement. As per the evidence on the file, the vehicle was purchased by Devinder Singh and was got financed by him from National Finance Company under hire purchase agreement.  As per hire purchase agreement, Devinder Singh was the hirer, whereas National Finance Company was to remain its owner till the financed amount was paid as per terms of the hypothecation agreement.  The complaint has not been filed by National Finance Company as a consumer, rather the same has been filed on behalf of Devinder Singh.  Therefore, legally speaking Devinder Singh is the complainant and National Finance Company is not the complainant. Devinder Singh had got insured his vehicle   from the OP, therefore, it cannot be said in any manner that the complaint has not been filed by a consumer.

 

9.                 Now, the question arises whether, National Finance Company was authorized by Devinder Singh to file the complaint on his behalf. Copy of hire purchase agreement Ex.C4 shows that as per clause 19  the insurance policy was to be vested in the owner i.e. the  Financer who would be sole beneficiary under the insurance policy. Devinder Singh had also written a letter dated 15.11.99, the copy of which is Ex.C6, to the Divisional Manager of OP, authorizing the finance company for settlement of his insurance claim in respect of his vehicle. The copy of letter dated 10.2.2000 Ex.C17, shows that Devinder Singh requested the OP  to take up the matter and take necessary action regarding claim lodged by him . In the said letter, he clarified that he had lodged the claim through his Financer i.e. M/s National Finance Company, Karnal. Affidavit of Devinder Singh Ex.C6 shows that he had authorized National Finance Company to get claim regarding theft of his vehicle from the insurance company.  From all these documents, it is clearly established that Devinder Singh had authorized National Finance Company to pursue the claim regarding theft of his vehicle on his behalf. Under such circumstances, it can very well be said that National Finance Company was authorized by him to file even the complaint against the OP in respect of claim lodged by him with the OP regarding theft of his vehicle. Therefore, looking from any angle, the arguments advanced by the learned counsel for OP cannot be accepted being devoid of any force.

 

10.                   As a sequel to the foregoing discussion, we accept the present complaint and direct the OP to make the payment of Rs.3,60,000/- to the complainant alongwith interest @ 6% per annum from the date of filing of the present complaint i.e. 6.5.2002 till its actual realization. The complainant shall also  be entitled for a sum of Rs.10,000/-for the mental agony, harassment caused to  him and for the litigation expenses. The compliance of this order shall be made by the OP within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:2.09.2015                                                                                 

                                               

                                                                 (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

              

 

 (Anil Sharma)            (Smt.Shashi Sharma)      

     Member.              Member.

 

 

Present:        Sh.Rajesh Kakkar Advocate for the complainant.

                   Sh.Parveen Daryal Advocate  for the OP

 

                   Arguments heard. For orders, the case is adjourned to 2.9.2015.

Announced
dated: 31.08.2015                                                                             

                                               

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

              

 

 (Anil Sharma)          (Smt.Shashi Sharma)        

     Member.            Member.

 

 

Present:        Sh.Rajesh Kakkar Advocate for the complainant.

                   Sh.Parveen Daryal Advocate  for the OP

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated: 2.09.2015                                                                               

                                               

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

              

 

 (Anil Sharma)          (Smt.Shashi Sharma)        

     Member.            Member.