Haryana

Yamunanagar

CC/346/2012

Shiv Kumar s/o. Nathi Ram - Complainant(s)

Versus

OIC.Ltd. - Opp.Party(s)

Lal Singh Dattana

29 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 346 of 2012.

                                                                                             Date of institution: 10.4.2012.

                                                                                             Date of decision:29.10.2015

Shiv Kumar son of Sh. Nathi Ram resident of H. No. 428, New Jain Nagar, Jagadhri, Tehsil Jagadhri, Distt. Yamuna Nagar.    

                                                                                                           …Complainant.

                                    Versus

 

The Oriental Insurance Company Limited, Branch Opposite Hindu Girls College, 1^st Floor, Court Road, Jagadhri through its Branch Manager.                                                                                                                                                                                          …opposite party.

 

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

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

 

Present:  Sh. Lal Singh Dattana, Advocate, counsel for complainant.  

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

             

ORDER

 

1.                     Complainant Shiv Kumar has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to pay the repair charges of Rs. 62354.91 on account of damage of the car bearing registration No. HR-02X-3033 alongwith interest at the rate of 12% per annum from the date of bill dated 5.8.2011 till realization and also to pay Rs. 1,00,000/- as compensation.

2.                     Brief facts of the complaint, as alleged by the complainant, are that the complainant is registered owner of TATA Indigo car bearing registration No. HR-02X-3033 which was insured with the OP insurance company for a sum of Rs.  5,69,613/- vide policy No. 261701/31/2011/7008 valid w.e.f. 27.11.2010 to 26.11.2011. The car in question was borrowed by the friend of the complainant Sh. Romin Gupta to go to Delhi on 14.7.2011 alongwith driver of the complainant and when he was coming back to Yamuna Nagar 3 persons robbed the car in question on the gun point from the driver of the complainant and Sh. Romin Gupta. Regarding this an FIR bearing No. 250 dated 14.7.2011 under section 395 IPC and 25/54/59 of Arms Act ,P.S. Indri was registered. Copy of which is Annexure R-7. A claim was also lodged with the OP company. However, later on the car in question was found on 21.7.2011 near main road Ladwa Radaur village Alipur in a damaged condition.  All the tyres of the car were changed, chamber was broken and all four doors were also in damaged condition. On the advise of the OP the complainant got repaired his car from authorized dealer and sent all the bills i.e. Bill No. JD-1112-02678 dated 5.8.2011 for a sum of Rs. 14068, Bill No. 19028 dated 5.8.2011 for a sum of Rs. 29536.91 paise and bill No. 355 dated 3.8.2011 for a sum of Rs. 18750/- to the OP Insurance Company  and also completed all the other formalities as demanded by the OP but the OP company has refused to pay the claim of the complainant without any reason and on flimsy ground. Hence this complaint.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no cause of action, no locus standi, complainant has concealed the true and actual facts and on merit it has been admitted that complainant’s TATA Indigo car bearing registration No. HR-02X-3033 which was insured with the OP insurance company for a sum of Rs.  5,69,613/- vide policy No. 261701/31/2011/7008 valid w.e.f. 27.11.2010 to 26.11.2011 and the same was robbed. It has been specifically denied that Romin Gupta borrowed the car. The true facts were that Sh. Romin Gupta deals in mobiles and on 14.7.2011 he was coming from Delhi to Yamuna Nagar with mobiles phone worth Rs. 3,00,000/- and using the said car for commercial purpose. On intimation M/s Royal Associates was deputed to investigate the matter who submitted his report dated 10.10.2011 Annexure R-5. Besides this, Sh. M.L.Garg Surveyor and Loss Assessor was also deputed to assess the loss of the car in question who also submitted his detailed report which is Annexure R-10. In the investigation, it was found that the said Sh. Romin Gupta was using the car in question for commercial purpose because he was bringing mobile phones for resale purpose in the car in question. Hence, the complainant has violated the terms and conditions of the insurance policy. Regarding this, a news was also published in Dainik Jagran News Paper. Copy of which is also on the file as Annexure R-8. However, an amount of Rs. 22850/- was assessed on account of damages to the car in question by the surveyor and loss assessor vide his report dated 6.11.2011. Copy of which is Ex. R-10. Lastly, it has been stated that as the car in question was being used for commercial purpose for carrying mobile from Delhi to Yamuna Nagar which violate the terms and conditions of the insurance policy as the car was registered for private use only. Hence, the claim of the complainant has rightly been repudiated by the OP vide letter dated 13.3.2012. Copy of which is Annexure R-12.

4.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. Sanjeev Madan, Branch Manager as Annexure RX, affidavit of Kashmir Singh Investigator of Royal Associates as Annexure RY and Sh. M.L. Garg Surveyor & Loss Assessor as Annexure RZ and documents as Annexure R-1 to R-12 and closed the evidence on behalf of OP.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                      It is not disputed that complainant is registered owner of car bearing registration No. No. HR-02X-3033 which was insured with the OP insurance company vide policy bearing No. 261701/31/2011/7008( Annexure R-1) for a sum of Rs.  5,69,613/- w.e.f. 27.11.2010 to 26.11.2011. It is also not disputed that the car in question was snatched and regarding this an FIR was lodged which is evident from Annexure R-7 and R-8. Further it is also admitted that a surveyor and loss assessor was deputed by OP company who submitted his report assessing the loss of Rs. 22,850/- which is evident from Surveyor and Loss Assessor Report Annexure R-10.

8.                     The only plea of the OP company is that the car in question was being used  driven in violation of terms and conditions of the insurance policy as it was using for commercial purpose. At the time of snatching Sh. Romin Gupta was travelling in the car and he was carrying mobiles worth Rs. 3,00,000/- whereas as per registration of the vehicle, the same vehicle is passed for private use only. Learned counsel for the OP draw our attention towards the terms and conditions of the insurance policy.

9.                     On the other hand, counsel for the complainant hotly argued that investigator M/s Royal Associates has specifically mentioned in his report Annexure R-5 under the head of opinion on the last page of the report that “ on the basis of the above said finding, we are of the opinion that time, date and place of theft seems to be genuine. The insurance company was informed about the theft of vehicle on 16.7.2011. Particulars of the vehicle as mentioned in the FIR, RC and Insurance policy are same. As per police report and our investigation said vehicle has been recovered and the insured has already taken the delivery of the car from the police station after getting the same released on superdari from court on 25.7.2011. Insurer may deal with claim as per terms and conditions of policy, keeping in view of abovesaid finding. This report is issued without prejudice.”

10.                   After going through the above noted facts mentioned by the investigator, we find that the investigator has nowhere mentioned in his report that the vehicle in question was being driven in violation of terms and conditions of the insurance policy. Moreover, from the contents of FIR, in which it has nowhere been mentioned that the car in question was snatched by the fare paid passenger.  So,  the subsequent report submitted by the investigator i.e. M/s Royal Associates on dated 28.11.2011 Annexure R-6 seems to be manipulated and has been obtained by the OP company by pressuring the Investigator to submit the same by molding the facts. Hence, the version of the OP company that the car in question was used for commercial purpose is not tenable. Further we are also not convinced with the arguments advanced by the counsel for the OP company that the complainant was using the car for commercial purpose as Mr. Romin Gupta was carrying mobile of Rs. 3,00,000/- at the time of snatching the car in question. If a person carries some valuable articles with him in the vehicle then it cannot be said that the car was being uses for commercial purpose. Moreover, from the contents of the FIR, News Paper cutting or even from the contents of report of investigator it is not proved that the car in question was being used as taxi. It is not the case of the OP Company that Mr. Romin Gupta took the car of the complainant after hiring the car in question. Further OP company has also failed to produce any evidence on file that Mr. Romin Gupta was running a shop for selling and purchasing of the mobiles. The damages caused to the car in question have no concern whatsoever with the carrying of mobiles in the said car. It is evident from the contents of the FIR that the car in question was snatched by some unknown person which was recovered later on in damaged condition. Hence, there is no nexus between the damages to the car and carrying of the mobiles as alleged by the OP company. Moreover, section 149 (2)1)(ii) of the Motor Vehicle Act, empower the insurance company to repudiate the claim wherein the vehicle in question is damaged due to accident to which driver of the vehicle who does not hold a valid driving license is responsible in any manner. It does not empowers the insurance company to repudiate a claim for damages which has occurred due to the acts of which the driver has not, in any manner, contributed i.e. damages occurred due to the reasons other than the act of the driver.

11.                   So, we are of the considered view that the OP company has illegally repudiated the claim of the complainant on the ground that the car in question was being used for a commercial purpose.   

12.                   Now question arise what amount the complainant is entitled to get from the OP Company on account of damages. We have perused the report dated 6.11.2011 of surveyor and loss assessor Sh. M.L.Garg deputed by the OP company in which an amount of Rs. 22850/- has been assessed. However, argument of the learned counsel for complainant that complainant is entitled to get an amount of Rs. 62,355/- is not tenable as the complainant has totally failed to file any expert report to rebut the surveyor report otherwise. It is a settle law that credence should be given to the surveyor report being an authentic document as the only surveyor is best person to assess the loss ( If any).

13.                   After going through the circumstances noted above and after going through all the documents we are of the considered view that the OP Insurance Company has wrongly repudiated the claim of complainant on flimsy ground and the complainant is entitled to get an amount of Rs. 22850/-.

14.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 22850/- the amount assessed by the surveyor to the complainant alongwith interest at the rate of 9% per annum from the date of repudiation of claim i.e. 13.2.2012 till its realization. Further the OP company is also directed to pay a sum of Rs. 5000/- as compensation for mental agony, harassment as well as litigation expenses. Accordingly, the complaint is partly allowed in above terms. Order be complied within 30 days from the date of preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. 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.29.10.2015.

                       

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.