BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.              

                                                          Consumer Complaint no. 697 of 2019                                                              

                                                            Date of Institution :    03.12.2019

                                                          Date of Decision   :    01.08.2023

Kashi Ram son of Shri Hukmi Ram, resident of H. No. 630, Old Housing Board Colony, Sirsa, Tehsil and District Sirsa.

                      ……Complainant.

                             Versus.

1. The Oriental Insurance Company Ltd. (Extension Counter/ Business Centre), First Floor, Chaudhary Tractor, Ellanabad 125102 through its Incharge/ authorized person.

2. The Oriental Insurance Company Ltd., Branch at Gate No.1, New Anaj Mandi, Janta Bhawan Road, (Opp. Janta Bhawan), Sirsa, Tehsil and District Sirsa, through its Branch Manager.

3. The Oriental Insurance Company Ltd. through its Divisional Manager, Railway Road, Hisar. 

….Opposite Parties.

            Complaint under Section 12 of the Consumer Protection Act, 1986.

Before:       SH. PADAM SINGH THAKUR……. PRESIDENT

                   MRS.SUKHDEEP KAUR……………MEMBER.

Present:       Sh. Sandeep Gaba,  Advocate for the complainant.

                   Sh. A.S. Kalra, Advocate for opposite parties.

ORDER

                   In brief, the case of complainant is that complainant purchased new Tractor Trolley make Eicher- 241XTRAC for agriculture and personal use and same was duly registered with the Registering Authority, Sirsa vide registration No. HR-24Z/1145. That said tractor trolley was also insured with the ops vide insurance policy no. 261592/31/2019/358 for the period 22.06.2018 to 21.06.2019. That said vehicle was taken for agriculture and personal use as complainant is an agriculturist and used to take the land on lease and in the year 2018 complainant was doing agricultural work in land measuring 30 acres 4 kanals 17 marlas situated at village Sherpura, Tehsil and District Sirsa by taking the same on lease basis from Sh. Rajinder Parshad son of Sh. Nathu Ram. It is further averred that as complainant is resident of old Housing Board Colony and there are narrow streets (about 11’ in width) and it is not possible to park the vehicle in the street and house are also small and tractor trolley cannot be parked in the house, hence the complainant used to park his tractor trolley near/ in front to the shop of his family which is near to the house of complainant. On 16.07.2018 at night when the complainant came back from his field he had parked the tractor trolly in front of shop of his family near the Stadium but in the next morning i.e. on 17.07.2018 he was shocked to know that his tractor trolley was missing from there. The complainant thereafter tried to make search of the vehicle but could not found the same and ultimately he reported the matter to the Police Station City Sirsa and a V.T. message was conveyed on the same day through Control Room, Sirsa but the tractor trolley was not found. It is further averred that complainant on the very same day moved application for lodging of case against the accused person and the police also assured him to do the needful, however, when after lapse of long hours the police of Police Station City Sirsa failed to clear the matter regarding recovery of the tractor trolley, then he enquired the matter from concerned police station and came to know that FIR No.66 has been registered by the police of P.S. City Sirsa on 19.07.2018 under Section 379 IPC against unknown accused and as such for lapse if any in the registration of FIR, the complainant is not at any fault.

2.       It is further averred that complainant also lodged his claim with the ops vide claim No. 261503/31/19/036102 and thereafter took many rounds to the office of ops for getting his genuine claim, but the ops put of the matter with one pretext or the other. However, ops no.1 and 2 collected all the relevant documents on the pretext that these documents are required to get sanction the claim of complainant from op.3 but ops company failed to redress the grievance of complainant despite assurances and now vide letter dated 30.03.2019 the ops have repudiated the claim of complainant simply on the baseless ground that compensation could not be paid to complainant because complainant has violated the terms of policy. That complainant is legally entitled for the insured amount of Rs.3,74,000/- of his stolen tractor trolley and is also entitled to compensation for unnecessary harassment and mental agony. Hence, this complaint.

3.       On notice ops appeared and filed written version raising certain preliminary objections that there is no deficiency in service in any manner on the part of company or its officials as Competent Authority acted and decided the claim lodged by complainant in accordance with the policy, its terms and conditions, rules , regulations and norms of the company without having any ill-will or malafide intention against complainant, hence complaint is not maintainable. That complainant is involved in the business of supply of building material (reta, bajri etc.) and is not an agriculturist as he is running his business establishment here at Sirsa and driver Major Singh employed by him comes daily from his village Kheowali to Sirs and Tractor No. HR-24Z-1145 with trolley was got insured and registered for agriculture use only, but was used by complainant for business/ commercial purposes instead of agriculture use in violation of Motor Vehicle Act, Rules, terms and conditions of policy and road rules regulations. Not only this aspect is there, rather vehicle was parked, left unattended in front of the shop without taking proper precaution of safeguarding the vehicle, hence complaint is liable to be dismissed. That complainant has not come with clean hands before this Commission and has suppressed material information about use of the vehicle by him and complainant failed to follow and abide by the law, policy terms and conditions which were mandatory, contractual to be followed by him. It is further submitted that complainant also failed to intimate immediately to the answering op company about theft of the vehicle, resultantly right and interest of company for an early action of investigation at their end has been seriously prejudiced. Mere intimation to police is not enough for considering the compliance of terms and conditions of policy by the complainant and that false and frivolous plea of taking the land on lease by way of legal engineering with an afterthought version has been taken by complainant in order to justify the use of insured tractor trolley for the agriculture purposes, which is not plausible and not tenable in the eyes of law and is liable to be ignored as a business running the shop at Sirsa will not purchase new tractor trolley alleging taking four acres land on lease basis in village Sherpura. On merits, the pleas of preliminary objections are reiterated and contents of complaint are denied to be wrong. It is submitted that it is wrong that shop is of the family of complainant, rather it belongs to complainant. It is/ was the duty of complainant to ensure safety, security of the insured vehicle by taking necessary precaution to keep a person to safeguard the insured vehicle during the night hours, when it is left during the night hours at the place away from his management, control, supervision and he was contractually, morally and legally bound to do so, but he failed to take necessary steps to ensure safety and security of the vehicle where it was parked. It is further submitted that contention given by complainant about parking the tractor-trolley by him is wrong. As a matter of fact, tractor-trolley was parked by driver Major Singh and he left for the village after parking the same on road near the shop. It is also submitted that intimation to police is delayed one. FIR has been lodged on 19.07.2018 and there is no immediate intimation to the company. Intimation to company has been supplied on 23.07.2018 by complainant and there is no explanation by complainant for delay in intimating the company. It is further submitted that statement of driver will clearly reflect and prove the use of tractor trolley in utter, fundamental breach, violation of term and conditions of policy regarding limitation as to use. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.

4.       The complainant in evidence has tendered his affidavit Ex. CW1/A and copies of documents i.e. registration certificate Ex.C1, insurance policy Ex.C2, repudiation letter dated 30.03.2019 Ex.C3, FIR Ex.C4, Reply to RTI submitted by District Radio Officers (Telecom) Office of Superintendent of Police, Sirsa regarding VT message Ex.C5, lease deed executed between Rajender Parshad and complainant Kashi Ram Ex.C6, Ex.C7 and sale deed Ex.C8 and adhar card Ex.C9.

5.       On the other hand, ops have furnished affidavit of Sh. Virender Kumar, Sr. Divisional Manager Ex.R1, affidavit of Sh. Risal Singh Investigator Ex.R2, claim intimation format Ex.R3, supplementary investigation report Ex.R4, statement of Major Singh driver Ex.R5, letter dated 22.3.2019 Ex.R6, letter dated 30.3.2019 Ex.R7 and insurance certificate cum policy schedule Ex.R8.

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

7.       Learned counsel for complainant has contended that insured tractor trolley of complainant was stolen by some unknown person in the intervening night of 16/ 17.07.2018 and due intimation was given to the police as well as to the ops well in time but ops have wrongly repudiated the claim of complainant on 30.03.2019 whereas complainant has not violated any terms and conditions of the insurance policy and complainant was using the tractor trolley only for agricultural purpose and prayed for acceptance of the complaint.

8.       On the other hand, learned counsel for ops has contended that tractor trolley was insured by ops for agricultural and forestry purposes only as per insurance policy whereas it is proved on record that complainant was using the tractor trolley for commercial purposes as Investigator Sh. Risal Singh Investigator found that tractor trolley was being used by complainant for commercial purposes and during investigation he recorded the statement of driver of complainant namely Major Singh who admitted that tractor trolley in question was being used by complainant for supply of building material in his shop M/s Ramdev Building material. He has further contended that tractor trolley was parked outside the above said shop of complainant and was unattended and as such complainant has violated the terms and conditions of the policy and prayed for dismissal of the complaint.

9.       We have considered the rival contentions of the parties. In the case in hand, the complainant has claimed the sum insured on account of theft incident of insured vehicle i.e. tractor trolley which was admittedly insured with the ops for the period 22.06.2018 to 21.06.2019 and admittedly the vehicle was stolen in the intervening night of 16/17.07.2018 i.e. during the period of policy. Now the question arises as to whether at the time of the incident, the insured vehicle was used for commercial purpose. The copy of the FIR Ex.C4 does not reveal that at the time of theft incident, the insured vehicle was being plied by the complainant or driver Major Singh for commercial purpose and was carrying building material violating the terms and conditions of the insurance policy. Learned counsel for ops has drawn our attention to the statement of driver Major Singh Ex.R5 in which he has admitted that he is employed as driver on the shop of complainant which is being run with the name and style as M/s Ramdev Building Material and he plies tractor on the above said shop. However, in the present case the vehicle was stolen in the night time and insurance company has to prove that when the theft has taken place, the insured vehicle was carrying any building material violating the policy conditions and use of the tractor trolley was for commercial purposes. Apart from it, an unauthorized use of the insured tractor trolley has no relevancy to the loss of tractor trolley caused by the theft. Once it is proved that the loss was caused by the theft then this fact has no meaning that it was being plied for agriculture purposes or commercial purpose.  The defence of unauthorized use of the vehicle may be taken only when the loss to the insured vehicle was caused by the some accident of its unauthorized and commercial use. There is no such condition in any way in the insurance policy that theft should occurred only during its use of agriculture purpose. The alleged statement of driver Major Singh allegedly made to Investigator Risal Singh is not convincing and trustworthy and is not helpful to the ops because it appears that only his signatures were obtained by the Investigator on some blank papers and then same has been converted into his alleged statement. On the other hand, the complainant has proved on record that he is doing the agricultural work after taking the land of Sh. Rajinder Parshad on lease basis and in this regard complainant has placed on file lease agreements Ex.C6 and Ex.C7 executed between complainant and said Sh. Rajinder Parshad. In so far as another plea of ops that tractor trolley was parked outside the shop and was left unattended is concerned we also do not found any force in the said contention of ops because the tractor trolley in question was duly locked when it was parked and it is very commonly known that a tractor trolley is not a small vehicle that can be parked in the house. The complainant had brought the vehicle nearby the place to his residence and was parked there after locking it and insurance against the loss of theft can be claimed even the insured tractor was parked inside or outside of the premises of the owner. It cannot be said that owner of the tractor has to park the tractor trolley in the garage or in the agriculture field only. The plea of late intimation to the insurance company has also no substance because complainant timely informed the police about the theft of tractor trolley on 17.07.2018 and therefore matter has been investigated by the police and when tractor could not be traced, FIR bearing No. 686 dated 19.07.2018 under Section 379 IPC against unknown person was registered by the police of Police Station City Sirsa and therefore, it cannot be said that any prejudice has been caused to the insurance company. Moreover, the Investigator Sh. Risal Singh appointed by ops has also verified the factum of theft of tractor trolley of complainant. The ops have not placed on file any case law in support of their version. So, it is proved on record that ops have wrongly and illegally repudiated the genuine claim of complainant on baseless grounds and as such repudiation of claim of complainant is set aside. The complainant is entitled to the sum insured amount of Rs.3,74,000/- of his insured tractor trolley from ops for the theft on 16/17.07.2018 as tractor trolley was insured by ops for the sum insured amount of Rs.3,74,000/- on 22.06.2018.

10.      In view of our above discussion, we allow the present complaint against opposite parties and direct the opposite parties to make payment of insurance claim amount of Rs.3,74,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the above said amount of Rs.3,74,000/- from ops alongwith interest @6% per annum from the date of this order till actual payment. We also direct the ops to further pay a sum of Rs.11,000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.    

Announced.                                       Member                      President,

Dated: 01.08.2023.                                                        District Consumer Disputes

                                                                                    Redressal Commission, Sirsa.