Haryana

Yamunanagar

CC/227/2012

Ranbir Kumar S/o Phool Chand - Complainant(s)

Versus

New India Assurance Co.Ltd. - Opp.Party(s)

G.C.Verma

21 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                           Complaint No. 227  of 20112

                                                                                                           Date of institution: 02.03.2012

                                                                                                           Date of decision:  21.04.2017

Ranbir Kumar aged about 31 years son of Shri Phool chand Nehra resident of Village Bilaspur, Tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                                             …Complainant.

                                                Versus

1. The New India Assurance Co. Limited Branch Office at Jagadhri Yamuna Nagar Road, Yamuna Nagar, through its Branch Manager.
2. The New India Assurance Co. Limited, 6269, Nicholson Road, Ambala.                                                                                                                                     

                                                                                                                            …Respondents

BEFORE:  SH. ASHOK KUMAR GARG……………………… PRESIDENT

                   SH. S.C.SHARMA, ………………………………….MEMBER         

                   SMT. VEENA RANI SHEOKAND………………….MEMBER

 

Present: Sh. G.C.Verma, Advocate, counsel for complainant.     

              Sh. Amit Bansal, Advocate, counsel for OPs.

ORDER

1.                     The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act 1986.

2                      Brief facts of the present complaint, as alleged by the complainant are that the complainant is registered owner of the Car TATA Indica bearing registration No. HR-02R-7436 which was insured  with the respondents (hereinafter respondents will be referred as OPs Insurance Company) for a sum insured of Rs. 2,12,400/- vide policy bearing No. 35350131100100004919 valid from 12.09.2010 to 11.09.2011. It has been further mentioned that on 22.04.2011, the car of the complainant which was taken by the driver namely Rajbir son of Haripal for paying homage to Peer Baba, Gangoh was stolen and immediately on getting information, the complainant reported a complaint to P.S. Gangoh but the police instead of registering case under section 379 IPC registered the case under section 406 IPC vide FIR No. 185 dated 24.04.2011. After that, complainant also informed the OPs Insurance Company and furnished claim intimation letter on 29.04.2011. The investigator of the Ops Insurance Company made thorough enquiry from the complainant and assessed the loss due to theft of his car but the official of the Ops Insurance Company repudiated the claim vide letter dated 19.01.2012 alleging that as per their legal retainer, loss under section 406 IPC is not covered under the scope of insurance policy. It has been further mentioned that car in question was insured with the OPs Insurance Company but the Ops Insurance Company has wrongly and illegally repudiated the claim which constitute the deficiency in service and unfair trade practice and lastly prayed for directing the OPs Insurance Company to make the payment of the sum insured and also to pay compensation as well as litigation expenses. Hence this complaint.

3.                     Upon notice, Ops appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainant has not approached this Forum with clean hands; the complainant has tried to manipulate the facts for imposing this false complaint; this Forum has no jurisdiction to entertain and try this complaint; complainant has no cause of action to file the present complaint; after receiving the intimation from the complainant, regarding the theft of vehicle bearing registration No. HR-02R-7426, the OPs Insurance Company immediately appointed Sh. Vijay Kant Vasist to investigate the case and during the investigation it came into the knowledge of the OPs Insurance Company that this is not the case of theft rather it is a case of criminal breach of trust. Moreover, the complainant himself lodged FIR No. 185 dated 24.04.2011, in which he had stated that “ Rajbir Singh son of Hari Pal resident of village Marwa Kalan, Tehsil Bilaspur was employed as driver on car in question and on 22.04.2011, he took the car from the complainant for going to Gangoh, U.P. but he committed breach of trust and disposed of the car without the consent of his owner/complainant.” From the facts of this FIR, it is crystal clear that criminal breach of trust has been committed by the driver and criminal breach of trust is not covered under the present insurance policy, hence the claim of the complainant has been rightly repudiated on 19.01.2012 by the Ops Insurance Company and on merit all the contents mentioned in the complaint were controverted and reiterated the stand taken in the preliminary objections. Lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as annexure CW/A and documents such as photo copy of insurance cover note as Annexure C-1, Photo copy of registration certificate as Annexure C-2, Photo copy of charge sheet as Annexure C-3, Photo copy of complaint made to the police by Rajbir Singh as Annexure C-5, Photo copy of repudiation letter as Annexure C-6 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs Insurance Company tendered into evidence affidavit of Sh. B.L.Jagwan Divisional Manager as Annexure RW/A, Affidavit of Dinesh Kumar Branch Manager as Annexure RW/B, Affidavit of Vijay Kant Vashisht Investigator as Annexure RW/C and documents such as attested copy of Insurance policy alongwith terms and conditions as Annexure R-1, Photo copy of recommendation and repudiation letter as Annexure R-2 and R-3, Photo copy of Investigator report as Annexure R-4, Photo copy of statement of Sh. Ranbir Kumar as Annexure R-5, Photo copy of statement of Phool Chand Nehra as Annexure R-6, Photo copy of joint statement of witnesses recorded by the Investigator as Annexure R-7, Photo copy of sketch of the car key as Annexure R-8, Photo copy of clarifies section 406 downloaded from the internet as Annexure R-9, Photo copy of certified copy of FIR as Annexure R-10, Photo copy of charge sheet as Annexure R-11, Photo copy of NCRB Report as Annexure R-12, Photo copy of history of repairs of the cars as Annexure R-13, Photo copy of cover note of insurance as Annexure R-14 and closed the evidence on behalf of OPs.

6.                            We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     Learned counsel for the complainant argued that the OPs Insurance Company has wrongly and illegally repudiated the genuine claim of the complainant on the flimsy ground that FIR bearing No. 185/2011 dated 24.04.2011 was registered under section 406 IPC instead of 379 IPC and draw our attention towards the repudiation letter Annexure C-6. Learned counsel for the complainant further draw our attention towards the photo copy of registration certificate Annexure C-2 in which the complainant has been shown as registered owner. Learned counsel for the complainant further argued that at that time the car in question was insured with the OPs Insurance Company which is duly evident from the copy of Insurance Cover Note Annexure C-1. Lastly, prayed for acceptance of the complaint and referred the case law titled as Oriental Insurance Company Ltd. Versus Rohit Kumar Gupta & Others, 1994(1) CPJ page 196  National Commission-Consumer Protection Act, 1986-Section 14(1)(d)- Insurance- Car- Compensation-Complainant had insured his car including risk of theft with an insurance Co.- Driver disappeared with the car- Claim lodged- Insurance Company repudiated the claim- Whether it is a case of theft and covers the risk-(Yes). Learned counsel for the complainant also referred the case law titled as New India Assurance Co. Ltd. Versus Pradeep Maheshwaeari, Revision petition No. 1409 of 2005 decided on 04.03.2009.

8.                     On the other hand, learned counsel for the OPs argued at length that the claim of the complainant has been rightly repudiated by the OPs Insurance Company vide its repudiation letter dated 09.01.2012 Annexure C-6/R-3. Learned counsel for the OPs further argued that even in the instant case the alleged incident took place on 22.04.2011 whereas the FIR bearing No. 185 under section 406 IPC was lodged on 24.04.2011 i.e. after a period of 2 days and due to that OPs Insurance Company has been deprived to investigate the matter immediately which also violates the condition No.1 of the terms and conditions of the Insurance Policy. Learned counsel for the OPs Insurance Company further argued that even the complainant has not placed on file any untrace report issued by the police authority or any Ilaqa Magistrate/ Criminal Court. Learned counsel for the OPs Insurance Company argued that even after investigation of the case, official of the P.S. Gangoh, District Saharanpur (U.P.) has submitted the charge sheet under section 406 IPC instead of 379 IPC. Learned counsel for the OPs Insurance Company draw our attention towards the contents of the FIR in which the complainant himself has disclosed that his car bearing registration No. HR-02R-7426 had been sold out by his driver Rajbir son of Haripal by committing criminal breach of trust by the driver. Learned counsel for the OPs Insurance Company further draw our attention towards the investigation report dated 30.11.2011 (Annexure R-4) submitted by Sh. Vijay Kant Vashisht and argued that during the investigation, the investigator has recorded so many statements and from the contents of all these statements, it is duly proved that driver of the complainant Sh. Rajbir Singh has committed an offence of description of criminal breach of trust (Amanat me Khiyanat). It is out of purview of the terms and conditions of the insurance policy in question. Hence, the claim of the complainant has been rightly repudiated by the OPs Insurance Company and referred the case law titled as Pardeep Garg Versus Bajaj Allianz General Insurance Company Limited & Another, 2016(1) CPJ page 57- Consumer Protection Act,1986- Sections 2(1)(g) , 15- Insurance- Driver eloped with vehicle- Criminal breach of trust- FIR and claim lodged- Claim repudiated- Delayed intimation- Exclusion clause- Deficiency in service alleged- District Forum dismissed complaint- Hence appeal- According to appellant’s own report loss is not due to theft it was due to criminal breach of trust by driver- Matter is under investigation- Driver arrested and case was registered- Repudiation justified.

             Lastly, counsel for the Ops Insurance Company prayed for dismissal of complaint.

9.                     After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the Ops Insurance Company as from the perusal of contents of FIR (Annexure C-4), it is clear that driver of the complainant Sh. Rajbir Singh disappeared with the car and complainant lodged the FIR bearing No. 185 on dated 24.04.2011 mentioning therein that his driver Rajbir Singh son of Hari Pal had sold out his car bearing registration No. HR-02R-7426 with the intention to grab the car in question. Further we have also gone through all the documents placed on file, but the complainant has totally failed to place on file any untrace report issued by the official of the P.S. Gangoh, District Saharanpur. Even, the complainant has not placed on file any latest status of the FIR to prove that whether the car in question was recovered by the police or not? And whether the driver Rajbir Singh was arrested by the police or not? Even, from the perusal of report of National Crime Record Bureau placed on file by the OPs Insurance Company (Annexure R-12), it is duly evident that the car in question has yet not been reported as stolen by the concerned police station or the complainant himself.

10.                   In the circumstances noted above and in the absence of any cogent evidence that whether the car in question was later on recovered by the police or not and as the FIR was also been lodged after 2 days under section 406 IPC instead of 379 IPC, we are of the considered view that claim of the complainant has been rightly repudiated by the OPs Insurance Company. The case law referred by the counsel for the complainant is not disputed but the facts of the present case are different whereas the facts of the case law referred by the counsel for the Ops are applicable to the facts of the present case.

11.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.21.04.2017.

 

                                                                                                        (ASHOK KUMAR GARG)

                                                                                                  PRESIDENT

 

 

                              (VEENA RANI SHEOKAND)                 (S.C.SHARMA)

                               MEMBER                                                 MEMBER