Haryana

Yamunanagar

CC/967/2010

Alok Gupta S/o Durga Parshad Gupta - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Tarun Rohila

22 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                              Complaint No. 967  of  2010.

                                                                                              Date of institution: 13.10.2010

                                                                                              Date of decision: 22.12.2015.

Alok Gupta aged 39 years son of Sh. Durga Parshad Gupta, resident of House No. 927 Press Street, Jagadhri, District Yamuna Nagar.                                                                                                                                                                            …Complainant.

                                    Versus

 

The Oriental Insurance Company Limited, through Branch Manager, Branch Office at Opp. Hindu Girls College, Court Road, Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                       … Respondent.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Tarun Rohilla, Advocate, counsel for complainant.   

              Sh. Naveen Kumar Kaushal, Advocate, counsel for respondent. 

 

ORDER

 

1.                     Complainant Alok Gupta filed this complaint under section 12 of the Consumer Protection Act 1986 praying therein that respondent (hereinafter referred as OP) be directed to pay a sum of Rs. 4,00,000/- as cost of stolen car and a sum of Rs. 50,000/- as compensation for mental agony and physical harassment and further to pay Rs. 11,000/- on account of litigation expenses. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is owner of one Hyundai Accent Sedan CRDI car bearing registration No. HR-02P-0401which was duly insured with the OP i.e. Oriental Insurance company Ltd. vide policy bearing No. 261701/31/2009/7826 w.e.f. 30.12.2008 to 29.12.2009 for a sum insured of Rs. 4,00,000/-.

3.                     On 23.10.2009 at about 10.00 A.M. the complainant asked his driver Neeraj alias Rinku resident of Jagadhri to bring lady suits from Model Town, Yamuna Nagar but when the driver did not return back then complainant talked on mobile with driver who told him that he was in Kala Amb and after that switched off his mobile. The complainant tried to contact the abovesaid driver on his mobile again but remained failed after that. On the next day i.e. on 24.10.2009, he received a phone call from some unknown person as Lala that driver of complainant is lying unconscious at Delhi Gate, Nahan and as such the complainant immediately went to Nahan alongwith his brother and friend and on reaching there complainant came to know that driver Neeraj was got admitted in Civil Hospital, Nahan and at the time of admission in Hospital he was semi-conscious and told the police which had come in the hospital on 24.10.2009 that when he alongwith abovesaid car reached near Jagadhri Bus Stand there one unknown person requested him that he simply had to go Nahan where he has got some work and just after one hour he would come back from Nahan to Jagadhri. On this, he came at Nahan with that person and parked the car in the car parking and they had lunch in one dhaba and thereafter unknown person took the driver to hotel Regency for taking coffee and that person brought one cup of coffee for him and after taking the coffee he become unconscious and on the next morning at 8 A.M. i.e. on 24.10.2009, the hotel employee awakened and asked him to leave the hotel. Then he left the hotel to go to car parking which is at a distance of few yards but when he reached near Delhi Gate he fell down and become unconscious and thereafter he was got admitted in Civil Hospital, Nahan. After that his parents came back alongwith him at his residence at Jagadhri and he remained mentally upset for a number of days and when he gained his conscious he told the whole story to the complainant. After that the complainant alongwith driver went to car parking Nahan where he was told that the boy who had come alongwith driver to park the car had taken the car there from on the same day i.e. on 23.10.2009.  Then the driver Neeraj lodged a complaint with the police Nahan on 8.11.2009. However the OP insurance company was informed by the complainant on 26.10.2009 and a claim was lodged. The OP insurance company deputed Sh. A.S. Vaish Investigator who made the investigation regarding the theft of abovesaid car. The OP Insurance Company assured the complainant that as soon as he would submit “ No Trace Report” in their office the OP will settle the claim and would make the payment but the complainant was stunned to receive one letter dated 21.5.2010 from the OP vide which the OP has rejected the claim of the complainant on the plea that the said vehicle was “plying on hire or rewards at the time of theft” which is absolutely false, frivolous and devoid of truth. It has been further submitted that complainant never used the car in question on hire and reward but the same was used for his own personal work. The OP insurance company cannot reject the claim of the complainant merely on the basis of contention of FIR. The act of the driver was a malicious act as the driver went to Nahan without the knowledge, consent and permission of the complainant and the OP Insurance Company cannot escape from its liability and repudiated the claim of the complainant. Hence, there is a deficiency in service as well as unfair trade practice on the part of OP. Hence, this complaint.

4.                             Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi, no cause of action, not come to the Forum with clean hands and on merit  it has been admitted that complainant’s car bearing registration No. HR-02-0401 was insured with the OP company vide policy bearing No. 261701/31/2009/7826 valid w.e.f. 30.12.2008 to 29.12.2009 and the same was stolen. It has been further admitted that complainant sent information to the OP Company regarding theft and Sh. A.S. Vaish Investigator was deputed to investigate the matter. The claim of the complainant has been rightly repudiated vide letter dated 21.5.2010 on the ground as mentioned below:

            “ In connection with the above, we are to inform you that, while going through the FIR No. 260 dated 8.11.2009 lodged with P.S. Nahan (H.P) and other related documents, it has been observed that the said vehicle was plying on hire or rewards at the time of theft, which is violation of policy conditions, whereas as per registration of the vehicle is registered for private use. Keeping in view the above, the competent authority has repudiated the said claim. This is for your information.”

5.                     Rest contents of the complaint have been specifically denied being false and fabricated and manipulated. It has been further mentioned that FIR was lodged after 15 days i.e. on 8.11.2009 and there was sufficient time with the complainant and his driver to manipulate the facts and FIR must have been lodged after much deliberation. In the MLR of the driver namely Neeraj Kumar which was conducted on 24.10.2009 in the presence of police, his occupation is mentioned as Taxi Driver and the driver has been shown as conscious. It creates doubt that when the police was present in the hospital on 24.10.2009 and the driver told history to the doctor, then why the FIR was not lodged on the same day or within one or two days. These facts proved that vehicle in question was used as Taxi by the complainant by employing driver namely Rinku alias Neeraj Kumar. Therefore, there is no deficiency or negligence in service as well as unfair trade practice on the part of OP. Hence, the complaint is liable to be dismissed.

6.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of FIR as Annexure C-1, Photo copy of report of SHO as Annexure C-2, Photo copy of parking fees as Annexure C-3,  Photo copy of Medical report of Rinku alias Neeraj issued by Medical Department, Himachal Pradesh as Annexure C-4, Photo copy of report of police produced in the court for preparing untraceable report as Annexure C-5, Photo copy of Untraceable report as Annexure C-6, Photo copy of application made to Registering Authority for verification of vehicle as Annexure C-7, Photo copy of insurance certificate cum policy schedule as Annexure C-8, Photo copy of repudiation letter as Annexure c-9, Photo copy of registration certificate as Annexure C-10 and close the evidence on behalf of complainant.

7.                     On the other hand, counsel for the OP Company tendered into evidence affidavit Sh. A.S.Vaish, Investigator as Annexure RW1/A and Affidavit of Ashok Kumar Sahni, Sr. Branch Manager  Oriental Insurance Company as Annexure RW1/B and documents such as Photo copy of insurance certificate cum policy schedule as Annexure R-1, Photo copy of insurance policy as Annexure R-2, Photo copy of intimation letter dated 26.10.2009 as Annexure R-3, photo copy of FIR as Annexure R-4, Photo copy of medical report of Rinku (Neeraj) as Annexure R-5, Photo copy of surveyor report as Annexure R-6, Photo copy of repudiation letter as Annexure R-7 and closed the evidence on behalf of OPs. 

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite parties reiterated the averments made in the reply and prayed for its dismissal.

9.                     Admittedly, the car in question of the complainant was insured with the OP vide policy bearing No. 261701/31/2009/7826 (Annexure R-1/C-8) having validity from 30.12.2008 to 29.12.2009 for a sum of Rs. 4,00,000/- in the name of Alok Gupta complainant.

10.                    The only plea of the complainant is that the genuine claim of the complainant has been wrongly repudiated by the OP Insurance Company on the flimsy ground that the vehicle was plying on hire or rewards at the time of theft.  Learned counsel for the complainant argued that complainant never used the car in question on hire and rewards but the same was using for his personal work. The insurance company cannot reject the claim of the complainant. The act of the driver was a malicious act as the driver went to Nahan without the knowledge, consent and permission of the complainant and insurance company cannot escape from its liability and lastly prayed for acceptance of complaint.

11.                    On the other hand, counsel for the OP Insurance Company hotly argued that claim of the complainant has been rightly repudiated as the complainant was using the car/vehicle in question for hire and reward basis which is evident from the contents of FIR bearing No.260 dated 8.11.2009 (Annexure C-1) and further from the copy of MLR dated 24.10.2009 (Annexure C-4) and draw our attention towards the copy of MLR (Annexure C-4) wherein in the column of occupation it was recorded as taxi driver and in the column of histoy “ H/o,- come to Nahan Yesterday alongwith passenger”. Further from the contents of FIR it is clear that complainant was using the said vehicle/car as taxi for carrying passengers from the bus stand. Learned counsel for the OP Insurance Company further argued that the case of the complainant is totally doubtful. The version of the complainant mentioned in th complaint is totally different from the version of the driver mentioned in the copy of FIR. Further, when on 24.10.2009 police of P.S. Nahan was informed by the doctor of Civil Hospital, Nahan after preparing the MLR of the driver then why no FIR was lodged by the driver of the complainant. Lastly prayed that the complainant was using his car as taxi for carrying passenger and lodged the FIR after 15 days with the police, hence, there is no deficiency in service on the part of OP Insurance company and claim of the complainant has been rightly repudiated and referred the case law titled as Royal Sundram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil, 2015 (3) CLT page 90 (N.C) and another case law titled as H.D.F.C. Ergo General Insurance Co. Ltd. Versus Bhagchand Saini, 1(2015) CPJ page 206 (N.C.) and New India Assurance Company Ltd. vs. Trilochan Jane, First Appeal No. 321 of 2005 decided on 9.12.2009

12.                    After hearing both the parties, we are of the considered view that there is no deficiency in service on the part of OP Insurance Company and the claim of the complainant has been rightly repudiated. From the perusal of copy of MLR (Annexure C-4) it is clear that the driver Rinku alias Neeraj at the time of examination i.e. on 24.10.2009 was conscious but no FIR was lodged on that date i.e. on 24.10.2009. Further driver Rinku alias Neeraj disclosed before the doctor that he come to Nahan yesterday alongwith passenger and disclosed his occupation as taxi driver. The version of the complainant mentioned in the complaint and the contents of FIR lodged by the driver Rinku alias Neeraj is totally different as the complainant has stated in his complaint that driver went to bring lady suits from Sheena Boutique, Model Town, Yamuna Nagar on 23.10.2009 whereas driver Rinku made a statement on 8.11.2009 (Copy of FIR) before the police that he came to bus stand with the car in question at Jagadhri. As per version of the complainant, he came to know that his driver Rinku alias Neeraj Kumar not returned back his home on 23.10.2009 after taking delivery of the suits from the Sheena Boutique, Model Town, Yamuna Nagar but he never lodged any complaint or reported the matter with the police immediately and kept mum till i.e. lodging of FIR on 8.11.2009 even the said FIR has been lodged on the statement of driver and not on the statement of complainant.  The case law titled as Royal Sundram Alliance Insurance Co. Ltd. Versus Kanwal Jeet Singh Gil, and another case law titled as H.D.F.C. Ergo General Insurance Co. Ltd. Versus Bhagchand Saini, and New India Assurance Company Ltd. vs. Trilochan Jane, (supra) are identical to the facts and circumstances of the case as in the present case also theft took place on 23.10.2009 whereas FIR was lodged on 8.11.2009 i.e. after a near about 15 days which is a clear cut violation of terms and conditions of the insurance policy (Annexure R-1).

13                     In the above noted facts and circumstances of the case, we are of the considered view that there is no deficiency in service on the part of OP Insurance Company and the claim of the complainant has rightly been repudiated by the Insurance Company. Hence, 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. 22.12.2015. 

 

                                                                                                ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER