Punjab

Rupnagar

CC/15/57

Surjit Singh - Complainant(s)

Versus

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

Sh Mandeep Moudgil, Adv.

06 Jan 2016

ORDER

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Surjit Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘the O.P.’) praying for issuance of the following directions to it:-

i)       To pay Rs.4,00,000/- i.e. the sum assured on account of theft of truck in question bearing No.HP-67-0128,

 

ii)      To pay Rs. 30,000/- as damages on account of mental agony/tension and harassment suffered by him and Rs.20,000/- as litigation expenses.

2.                In brief, the case of the complainant is that he is the owner of truck bearing No. HP-67-0128(inadvertently written as HP-57-0128), chassis No. 388002JXZ118460, engine No.20J62239716 and the same was got insured by him from the O.P. for the period from 1.10.2013 to 30.9.2014. The said truck was being used by him for earning his livelihood and was being plied for shifting the coal from Barmana to Kiratpur Sahib. One Gurmukh Singh son of Roshan Singh, resident of Village Dehni was employed as driver by him on the said truck. On 29.4.2014, the above said Gurmukh Singh got the truck in question repaired from a mechanic at Kiratpur Sahib and parked the same at 9.00 PM in the area of Village Dehni Chowk in the vacant place in front of the shops and went to his house. On 30.04.2014, at about 9.30 A.M., when said Gurmukh Singh came to the place where the truck was parked, then he saw that it was not there and he told about the same to him. He tried to find out the truck in question at every possible place, but the same could not be traced out. Accordingly, FIR No. 44 dated 1.5.2014 was got registered under section 379 of IPC at Police Station, Kiratpur Sahib, against unknown person., but  even then, the said truck was not found and untraced report was filed by the police, which was accepted by the learned Illaqa Magistrate on 30.3.2015. The truck in question has not been recovered till date. He approached the O.P. and filed the claim and requested it a number of times to pay the claim amount to the extent of the sum assured, but the matter was put off on one pretext or the other and finally, it had flatly refused to pay the claim amount. Hence, this complaint.

3.                On being put to notice, the O.P.  filed written version in the shape of affidavit of Sh. Shree Ram, Sr. Divisional Manager, taking preliminary objections; that the complainant has no locus standi and no cause of action to file the instant complaint against the  O.P.; that the complaint is not maintainable against it; that this Forum has no jurisdiction to entertain & try the same and that there is no deficiency in service on the part of the O.P. On merits, it is admitted that as per record, the complainant is the owner of the truck bearing No. HP-67-0128 (inadvertently written as HP-57-0128); that Sh. Gurmukh Singh was employed by him as Driver to ply the same; that the said truck was insured with the O.P. and that it had received intimation regarding theft of the same. It is stated that as per the record, the truck in question was parked at night in the area of Village Dehni Chowk and after parking the same, he had gone to his house. It is stated that said driver was very much negligent while parking the said truck as he had left the keys and all the original documents in the truck itself while parking the same and has not taken precautions to avoid theft of the same. As per record, the said truck was stolen. It is further stated that the O.P. had appointed investigator, namely, SA Investigating and Consulting Agency to investigate the case, who had investigated the case and recorded the statements of the witnesses and submitted report dated 28.7.20124 to the O.P. On the basis of the said report, the O.P. has repudiated the claim of the complainant, after applying mind, on the following grounds:-

i)       That the complainant has not sent a written intimation

to NCRB Office regarding theft of the vehicle,

ii)      That a copy of the letter to DTO regarding theft has not been produced,

iii)     That the set of Keys have not been received by the O.P. till date,

iv)     That further as per statements of the witnesses the complainant and his driver left all the original documents as well as the keys of the vehicle left in the vehicle, which openly giving invitation for theft and was negligent while parking the truck in the night and hence the claim of the complainant was legally and validly repudiated. 

 

It is stated that claim of the complainant was legally & validly repudiated and intimation about the same was given to him vide Registered AD letter dated 10.3.2015. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof with costs, stating the same to be without any merits.

 

4.                On being called upon to do so, the complainant tendered his affidavit, Ex. C1, photocopies of documents Ex.C2 to Ex.C9 and closed the evidence. On the other hand, the learned counsel for the O.P.  tendered affidavit of Sh. Shree Ram, Senior Divisional Manager, Ex.OP-1, affidavit of Sh. Saravdaman Bhalla, Investigator, Ex. OP-2, photocopies of document Ex. OP3 to Ex.OP-16 and closed the evidence. 

 

5.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

6.                The learned counsel for the complainant submitted that the truck of the complainant, which was duly insured with the O.P., was stolen in the midnight of 29^th-30^th of April, 2014. Inspite of his best efforts and that of the police, the same could not be traced. As such, he lodged the claim and also submitted the relevant documents with the O.P. for the payment of the claim amount, but it has refused to pay the same, which amounts to deficiency in service. Therefore, the O.P. be directed to pay the sum assured of Rs.4 Lacs alongwith compensation and litigation expenses, as prayed for in the complaint.

 

7.                The learned counsel for the O.P. submitted that the complainant is not entitled to the claim amount, because the theft of the truck in question had occurred due to negligence of its driver, who while parking the truck, had left the keys and original papers inside the truck itself. In support of this version, the learned counsel for the O.P. has drawn our attention to the report of investigator, Ex.OP-5, statement of Sh. Vijay Kumar, Member Panchayat, Ex.OP-12, statement of Sh. Nirmal Singh, Member Panchayat, Ex.OP-13, statement of Sh. Dalwinder Singh, Sarpanch, Ex.OP-14, statement of  Sh. Gurmukh Singh, driver of the vehicle in question  Ex.OP-15, Statement of Sh. Surjit Singh, the owner of the truck in question, Ex.OP-16 and submitted that the complainant, driver of the vehicle and the above said other persons have admitted in their statements that the keys and original papers of the vehicle were in the vehicle itself and the same also got stolen alongwith the said vehicle. Therefore, it is proved beyond any doubt that the vehicle in question got stolen due to negligence of its driver, as such, the insurance company is not liable to pay any claim amount under the policy. In support of his submissions, the learned counsel has also placed reliance upon a case titled—‘Arjun Lal Jat vs. M/s HDFC Irgo General Insurance Co. Ltd. & others’ 2014(4) CLT 261.

 

8.                 The question for consideration before us is—as to whether the theft of the vehicle in question had taken place due to the negligence of its driver?       

                   From the perusal of report dated 28.07.2014 submitted by the investigator appointed by the O.P., Ex. OP-5, it is evident that during investigation, the said investigator had recorded the statements of various persons including Sh. Gurmukh Singh, driver of the said vehicle & its owner, Sh. Surjit Singh, i.e. the complainant. The said driver in his statement has stated that he is driver of vehicle No. HP-67-0128; that on the night of  29.04.2014, HP

 

as usual, he parked the said vehicle at the stand of village Dehni and went to sleep at home; that the keys and the original papers were in the vehicle itself; that in the morning i.e. on 30.04.2014,when he reached at the said stand, then he found that the vehicle was not there and it was stolen by some unknown person. Even Sh. Surjit Singh, complainant, in his statement has also stated that the original papers of the vehicle & the keys were in the vehicle itself and the same also got stolen alongwith the said vehicle. Moreover, Sh.Vijay Kumar, Sh. Nirmal Singh & Sh. Dalwinder Singh, in their respective statements Ex.OP-12 to OP-14, have also made statement to the same effect. Since the driver & owner of the vehicle in question have themselves admitted the fact that the keys & the original papers of the vehicle were left in the vehicle itself and the same also got stolen alongwith the said vehicle, therefore, we do not hesitate to conclude that the vehicle was got stolen due to the sole negligence of its driver who had not only parked the vehicle during night unattended, but had also left the keys & the original papers inside the said vehicle, consequently, the insurer cannot be held liable to indemnify the complainant for the loss suffered by him. In the case—‘Arjun Lal Jat vs. M/s HDFC Irgo General Insurance Co. Ltd. & others’ (supra), the Hon’ble National Commission has held that in case, the theft had taken place solely on account of negligence of the driver employed by the insured, who left the key inside the ignition, then the insurance company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured.

 

9.                In view of the aforesaid discussion, we dismiss the complaint, it being without any merit. The parties are left to bear costs of their own.

                   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                           (NEENA SANDHU)

Dated: 06.01.2016                                                PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                    MEMBER.