Punjab

Ludhiana

CC/15/452

Parminder Singh - Complainant(s)

Versus

oriental Ins.Co.Ltd - Opp.Party(s)

Ashok Kumar Adv.

01 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.452 of 28.07.2015

Date of Decision        :   01.09.2016

 

Parminder Singh aged about 30 years son of Sh.Amrik Singh resident of House No.601, Street No.6, Guru Nanak Nagar, Khanna Tehsil:Khanna, District Ludhiana now street No.1, Friends Studio Street, Amloh Road, Khanna, Tehsil Khanna, District Ludhiana.

….. Complainant

Versus 

1.The Oriental Insurance Company Limited, A-25/27, Asaf Ali Road, New Delhi-110002 through its General Manager.

2.The Oriental Insurance Company Limited, G.T.Road, Khanna, Tehshil Khanna, District Ludhiana through its Branch Manager.

..…Opposite parties

 

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.KARNAIL SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :       Sh.Ashok Kumar, Advocate

For OPs                        :        Sh.G.S.Kalyan, Advocate

 

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant on 25.8.2011 at about 9:30 AM was driving his motor cycle bearing registration No.PB-26-F-2776 with temporary registration No.PB-10-DD-5350-2011 for reaching in office of insurance company. However, when the complainant reached near Khanna Sweets, G.T.Road, Khanna, then he met with an accident and fell down after sustaining injuries on parts of his body. Some passerby took the complainant to Dr.Amarbir’s Hospital, Khanna and got him admitted there. The motor cycle of the complainant was lying at the site of accident, but somebody stole away the same. Said motor cycle was insured with OP2 vide policy No.233605/31/2012/2887. FIR No.156 dated 7.9.2011 under Section 379 IPC qua loss of motor cycle in question was lodged with P.S.City, Khanna. Police officials failed to trace the motor cycle and that is why, report of untraceability was submitted with Sh.T.P.S.Randhawa, Learned S.D.J.M., Khanna  on 30.11.2013. OP2 repudiated the claim vide letter dated 8.7.2014. That repudiation alleged to be illegal and arbitrary because original papers of the motor cycle along with registration copy stood stolen. Complainant had to spend Rs.20,000/- for providing the documents to OP2, but despite that claim repudiated and as such, by pleading deficiency in service on the part of OPs, prayer made for directing Ops to pay the claim amount along with compensation for mental harassment of Rs.50,000/-.

2.                In the written statement filed by OPs, it is pleaded interalia as if the claim petition is not maintainable because same does not discloses the cause of action; repudiation of claim is legally justified being in accordance with the terms and conditions of the policy; complainant himself remained negligent in the entire process because he did not took due care of safety of his motor cycle at the road, resulting in stealing of the same. It is claimed that there is no deficiency in service on the part of OPs. Each and every other averment of the complaint denied by praying for dismissal of complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C5 and then closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Baljinder Singh, Authorized Signatory of OPs along with documents Ex.R1 to Ex.R23 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties, but oral arguments alone addressed and those were heard. Records gone through minutely. 

6.       Ex.C1 is the copy of policy schedule which shows as if the motor cycle in question was insured with OPs for the period from 1.8.2011 to 31.07.2012, but Ex.C2=Ex.R7 is the copy of FIR, which establishes as if the motor cycle in question stood stolen from the road on 25.8.2011, after complainant met with an accident due to striking of the motor cycle against the sheets put on the corner of the road. In Ex.C2 itself it is mentioned that the passerby took away the complainant to Amarbir Hospital for getting him admitted there after sustaining injuries by him in the said accident. Through Ex.C2=Ex.R7, it is reported that the complainant gave telephonic message to his relative and he after visiting the spot they found as if the motor cycle in question was not there near Khanna Sweets on G.T.Road, Khanna, where the accident in question took place. Contents of Ex.C2=Ex.R7 in this respect gets corroboration from the certificate Ex.R9 of Dr.Amar Bir Singh of Jeevan Jot Hospital because it is mentioned therein that the complainant was admitted in his hospital on 25.8.2011 and discharged there from on 26.8.2011. Even the surveyor appointed by OPs through report Ex.R12 claimed that motor cycle of the complainant was entangled with iron sheets (temporarily fitted to cover the construction work of overpass), due to which, complainant fell down on the road and sustained injuries and thereafter, he was taken to Jeevan Jot Hospital, Mulii Specialty Centre, Khanna for medical management with the help of passerby. However, motor cycle remained at the site of accident as per this report. As complainant was alone at the time of accident and as such, after sustaining of injuries, he was bound to be provided medical treatment in the first instance. So, if motor cycle left by the complainant at the spot after the accident, then he cannot be blamed for that because he was taken to the hospital in injured condition after the accident, by the passerby. Had complainant been in a position to move about, then he would not have been taken in the injured condition to the hospital by the passerby. However, passerby took away the complainant in injured condition and as such same enough to establish as if circumstances went out of control of the complainant to take care of his motor cycle after the accident. In view of these circumstances, inference of negligence of not guarding motor cycle properly by the complainant, is not draw-able. An injured person after sustaining of injuries definitely cannot take care of the motor cycle and as such,submissions advanced by Sh.G.S.Kalyan, Advocate representing OPs has no force that the complainant did not take due care of the motor cycle in question and as such, negligence of complainant resulted in stealing of the motor cycle by unknown persons. As these submissions of negligence on the part of complainant has no force and as such, benefit from ratio of case titled as Arjun Lal Jat vs. M/s HDFC Irgo General Insurance Co.Ltd. and others-2014(4)CLT-261(N.C.) cannot be gained by the counsel for OPs, even though, ratio of this case lays that once it is shown that theft took place solely on account of driver, employed by the insured, the insurance company cannot be fastened with liability for negligent act on the part of driver. In the reported case, it has been specifically found in para no.4 as to whether matter regarding leaving of key in the ignition and leaving the vehicle unattended amounts to breach of the terms and conditions of the policy, but that question not answered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. In the reported case, it was found in para no.4 itself that driver left the truck unattended with key of the truck in the ignition and as such, there was negligence in leaving the truck unattended, on the part of the driver of the truck. In the reported case, negligent driver did not sustain injuries and that is why, the above inference drawn. However, in the present case before us, the complainant after sustaining of injuries became helpless in safe guarding his motor cycle and that is why he was taken by passerby to nearby hospital. So, in such circumstances, negligence on the part of complainant is not inferable.

7.                Claim of the complainant repudiated through letter Ex.C4=Ex.R2. Through this letter, it is claimed that competent authority repudiated the claim on the basis of violation of the policy conditions. Name of competent authority, who repudiated the claim, not disclosed in Ex.C4=Ex.R2 and nor the date of such repudiation mentioned in these letters. Even the specific mention of the terms and conditions violated not made in these letters and as such, it is obvious that virtually the claim of the complainant repudiated without disclosing the real cause of repudiation. So, repudiation of claim on strength of Ex.C4=Ex.R2 is arbitrary and violative of the principles of natural justice.

8.                After going through Ex.R3, it is made out that the complainant submitted original RC, both the ignition keys, medical report, FIR report, untraceable report and NCRB report. When the keys of the ignition already sent by the complainant to Ops, the same reflects that the complainant took due care of retention of two ignition keys with him, despite the fact that he was unable to move about at his own. Perusal of Ex.C3=Ex.R6 along with copy of order dated 30.11.2013 passed by Sh.T.P.S.Randhawa, Learned SDJM in FIR No.156 dated 7.9.2011 of P.S.City, Khanna reveals that the stolen motor cycle in question remained untraced and that is why on submission of report, the same was accepted by the Learned SDJM on 30.11.2013. There is no dispute qua the fact that the motor cycle in question was insured with Ops. Besides, perusal of report Ex.R10 of Sh.Navjot Singh, Loss Assessors, Valuers and Engineers establishes that driving license submitted by the complainant was found genuine and correct after verification from the record of SDM Office. Copy of that driving license produced on record as Ex.R11. Ex.R13 is the report of genuineness of the registration certificate of motor cycle in question owned by the complainant, whereas, Ex.R14 is the copy of claim form submitted by the complainant with OPs. Report of untraceability Ex.R15 along with recorded statement of complainant Ex.R17 even has been produced on record. Photograph of the stolen motor cycle in question Ex.R19 along with bills of Bajaj Auto Finance Ex.R18, Ex.R18A, Ex.R18B and copy of insurance policy cover note Ex.R20 has been produced along with copy of claim intimation form Ex.R23. So, from all this documentary evidence available on record and after going through affidavit Ex.CA of complainant, it is made out that though, the complainant submitted due claim qua theft, but the same repudiated without disclosing the cause and reasons of repudiation or the name of competent authority. That is an act of high handedness on the part of OPs because as and when the repudiation to be ordered, the same should be ordered by mentioning the   violated terms and conditions along with reasons. In view of all this, complaint deserves to be allowed with somewhat high compensation for mental harassment along with litigation expenses. Even payment of the amount to be adjudged by the OPs should be ordered with interest @8% per annum from the date of complaint namely 28.7.2015 till payment because Banks grant interest on FDR at this rate.

9.                Therefore, as a sequel of the above discussion, complaint allowed in terms that Ops will reconsider the claim of complainant qua his lost/untraced motorcycle bearing registration No.PB-26-F-2776 and settle the same within 45 days from date of receipt of copy of order. After such settlement, payment of adjudged amount be made within 30 days with interest @8% per annum from the date of complaint namely 28.07.2015 till payment. Compensation for mental harassment of Rs.10,000/- (Rupees Ten Thousand only) and litigation expenses of Rs.5,000/- (Rupees Five Thousand only) more allowed in favour of complainant and against Ops. Payment of these costs and litigation expenses be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                                      (Karnail Singh)                            (G.K.Dhir)

                                   Member                                            President

Announced in Open Forum

Dated:01.09.2016

Gobind Sharma.