Haryana

Ambala

CC/171/2019

Gurleen Kaur - Complainant(s)

Versus

Oriental Insurance Co. - Opp.Party(s)

Rohit Jain

01 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :  171 of 2019

                                                                       Date of Institution           :  13.05.2019

                                                                       Date of decision     :  01.02.2021

 

Gurleen Kaur wife of Shri Gajinder Singh, aged 36 years, resident of House No.73, New Colony, Pooja Vihar, Jagadhri Road, Ambala Cantt., Haryana.

……. Complainant.

 

The Oriental Insurance Company Limited, 170/2-5 Netaji Subhash Marg, Ambala Cantt., through its Senior Divisional Manager, 170/2-5, Netaji Subhash Marg, Ambala Cantt.

                                                                    ….…. Opposite Party.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Rohit Jain, Advocate, counsel for complainant.

Ms. Upma Bhalla, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President

Complainant 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 ‘OP’) praying for issuance of following directions to it:-

1. To pay claim amount of Rs.6,67,757/-, to the complainant alongwith interest @ 18% per annum.
2. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.

                   OR

                   Any other relief which this Hon’ble Commission may deem  fit.

 

Brief facts of the case are that the complainant is the owner of Ertiga Car bearing Registration No.HR-01-AP-4519, which was insured with the OP for a value of Rs.6,67,757/-, for the period from 17.07.2017 to 16.07.2018, vide policy No.21570031201871919. The said car was purchased by the complainant by financing it from Induslnd Bank on 18.07.2016. She has to repay the loan amount by paying monthly installments within the period of 60 months. Billa was known to the husband of the complainant and on 03.11.2017, husband of the complainant had gone to Rajasthan alongwith Billa and his two relatives. When they crossed Hanumangarh and reached 5-6 KM, ahead of Kachiya, Distt. Ganganagar, Billa and his relatives robbed, by inflicting several injuries with knife to the husband of the complainant. At that time Billa tried to    murder husband of the complainant and also took away the above said Ertiga Car bearing Registration No.HR-01-AP-4519, one mobile phone, purse, ATM Card and other documents. After regaining consciousness Gajinder Singh, husband of the complainant was medico legally examined at Government Hospital, Ganganagar. Due to the injuries sustained in the said incident, the husband of the complainant remained admitted in General Hospital, Shri Ganganagar till 05.11.2017 and thereafter had taken follow up treatment from Civil Hospital, Ambala. On the statement of Gajinder Singh, an FIR No.189 under Section 307, 392/34 IPC was registered against Billa and others, police station Ghamurwali, Distt. Ganganagar. The OP was intimated regarding the said robbery by the father-in-law of the complainant. All the relevant documents were provided to the OP i.e. copy of FIR, insurance policy, driving license, MLR and treatment record of Civil Hospital, Ganganagar etc. however the OP did not pay the claim to the complainant despite several reminders. Ultimately OP asked the complainant to obtain a final report of the FIR from the Court and after receipt of the final report, she will be paid the insurance cover amount of the above said vehicle. After a lapse of long period of 8 months, the police neither succeed to arrest said Bill and his accomplice nor recovered the vehicle of the complainant. The husband of the complainant requested the police to provide the final report of the said FIR, it was told to him that same could be given only after the arrest of the culprits or after closure of the said FIR. The complainant accordingly informed the OP that it was not possible to get the final report of the said FIR, in absence of arrest of the culprits. However, opposite party insisted that claim can only be released after obtaining the cancelation report. The officials of police station of Ghamoodwali, Distt. Ganganagar filed a final report with the trial Court that the police had tried their level best, to arrest the culprits, however after a period of 8 months they could not arrest them and there was no chance of their arrest in near future also. It was further reported that they will try to recover the case property and cash and it will not be appropriate to keep the FIR pending, therefore, the same be filed as untraced. He again approached the OP and provided them copy of police report, claim form and the FIR and requested for payment of the claim amount of the cover as per terms and policy. However, OP again paid no heed to the repeated requests of the complainant and ultimately rejected the claim vide letter dated 28.02.2019. The claim of the complainant has been rejected on mere assumptions and presumptions and the complainant has been deprived of her rightful claim. By not paying the claim amount, the OP has committed deficiency in service. Hence, the present complaint.

2.                Upon notice, the OP appeared through counsel and filed written version and has raised preliminary objections regarding maintainability, estoppel, not coming before this Commission with clean hands, suppression of true and material facts, jurisdiction and cause of action. On merits, it is stated that false story has been concocted by the husband of the complainant in connivance with Billa and his relatives to extract the money from the OP. Further stated that false FIR has been got lodged. It is admitted that father-in-law of the complainant informed the answering respondent about the alleged robbery. However, the collusion between the husband and his friend Billa canot be ruled out to grab the money from the answering OP. As per the documents submitted by the complainant and per the statement of Shri Gajinder Singh that Mr. Billa was his close friend and he and his two relatives robbed him and took away the car in question along with other article and got registered the FIR with the police. However, to the utter surprise of the OP that Gajinder Singh himself closed the investigation of the case by giving statement before the Judicial Magistrate, despite the fact that offences mentioned in the FIR were of serious nature. Complainant and her husband didn’t made any efforts with the police authorities to trace the vehicle. Further stated that it is difficult to believe that police could not trace out the culprits when they are the close friends of husband of the complainant. Gajinder Singh himself didn’t cooperate with the police. Denying rest of the allegations made in the complaint, it is stated that there is no deficiency in service on its part, thus the complaint filed against it may be dismissed with costs.

3.                The ld. counsel for the complainant tendered affidavit of the complainant as Annexure CA along with documents as Annexure C-1 to C-22 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavit of Shri Sanjeev Kumar Madan, Sr. Div. Manager, The Oriental Insurance Company Ltd. as Annexure OP-A and closed the evidence on behalf of OP.

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

5.                 It may be stated here that the OP has not disputed that part of the version of the complainant as given in para No.3 of the complaint that her husband namely Gajinder Singh was going in the car in question to Shri Ganganagar along with Billa and his relatives, when the said occurrence took place, but has contended that the allegation of forcible snatching of the car by Billa and his relatives from her husband is a concocted story and is not true. The reason given by the OP to presume this fact is firstly, that Billa was said to be a friend of Gajinder Singh, and would not indulge in snatching and secondly that the police continued for investigating the case for tracing out the car and culprits for about eight months, but could not succeed in doing so and ultimately police sent the case as untraced and Gajinder Singh made the statement before the Judicial Magistrate that he did not want to pursue the case due to which it was sent as untraced. The contention of the Ld. counsel for the OP is that due to these reasons the version given by Gajinder Singh should not be accepted as correct.

                   As per statement of Gajinder Singh as given in FIR Annexure C-7, while driving the car, when they reached a place ahead of Hanumangarh in Rajasthan, it was dead of night i.e. 12:00’o clock, Billa turned the car on a Kutcha Path, and stopped it. Billa dragged him out from the car and his relatives, gave knife blows on Gajender Singh with intention to kill him. He became unconscious, after which Billa and his relatives  ran away in the car in question, after taking several articles from his possession. This version is corroborated from the documentary evidence also. In the OPD card Annexure C-16, issued by Civil Hospital, Ambala, it is categorically mentioned that complainant was examined and an MLR was prepared at Civil Hospital, Ganganagar on 04.11.2017. From the photographs Annexure C19 to C22, it is evident that Gajinder Singh sustained injuries. Perusal of discharge ticket Annexure C15, reveals that Gajinder Singh was discharged from General Hospital, Ganganagar on 05.11.2017. From th report under Section 173 Cr.P.C. Annexure C-6, it is evident that when police came to place of occurrence, they found blood spilled on the soil, broken knife and a rope and took the same in their possession. These facts lend support to the version given by the Gajinder Singh. Had there been a collusion between Gajinder Singh and Billa, there was no reason for the culprits to cause him injuries nor was there a need for Gajinder Singh to have offered himself to suffer injuries because the snatching could be done otherwise also. The story mentioned by Gajinder Singh, therefore cannot be disbelieved. As regards to the contention raised by the OP that investigation remained pending for about 8 months and neither Billa nor his accomplices have been arrested nor the car was recovered, so the story narrated by the complainant and Gajinder Singh cannot be accepted. The mere fact that police was unable to recover the car or to arrest the culprits does not mean that no such occurrence took place. No doubt, its reflects adversely against the efficiency of police, but no fault on its basis can be found with Gajinder Singh nor the version given by him can be presumed to be false. Gajinder Singh had told the police in FIR Annexure C-7 that Billa was running a Timber shop at Ambala and one of his relatives accompanying them was from Panipat. The Police report Annexure C-6, shows that they searched for the culprits at Ambala, Panipat and several other places, but could not apprehend any of them. The call details from the Mobile phone of Gajinder Singh were also obtained and efforts were made to contact those persons who had called Gajinder Singh. There is no such complaint from the police, if Gajinder Singh was not cooperating or assisting them during investigation. Therefore, no such act on the part of Gajinder Singh due to which he could be blamed.

6.                It is true that Gajinder Singh had agreed as mentioned in judicial record Annexure C-3, that he has no objection, if the investigation is stopped and case is sent as untraced. However, sufficient reasons have been given by the complainant as to why it was so agreed. The investigation had been continuing for about eight months and the police could neither trace out the vehicle nor arrest the culprits. As per the complainant, she had purchased the car after taking loan from a bank and was liable to pay the installments and interest thereon. She has produced the bank statement Annexure C-12 to prove her contention. She was therefore under pressure to pay back the bank loan with interest. When complainant approached the OP to pay her the claim amount, they refused to pay the same on the ground that final report has not been received from the police. Complainant contended that on one side the insurance company refused to pay the claim amount to her and on the other hand the police was not submitting the final report in the absence of arrest of the culprits. As regards the police, they had their own reasons for sending the case as untraced. The police was unable to arrest the culprits or to recover the vehicle inspite of their best efforts as is clear from report Annexure C-6 and felt that there was no chance of their arrest in near future too. The case property also was not being recovered. Under these circumstances, the police may have thought it proper not to keep the investigation pending and to send it as untraced. When the police was of the opinion to suspend the investigation of the case and  had no hope of apprehending the culprits or to recover the case property and further the final report could be submitted by them only if, case was sent as untraced. Gajinder Singh had no option, but to make the statement before the Judicial Magistrate agreeing for sending the case as untraced, so that police issues a final report and on its basis his wife gets the amount of compensation to pay back the bank loan. Under these circumstances, the fact that Gajinder Singh agreed to the case, being sent as untraced cannot be considered a circumstance against the complainant to deny the payment of compensation. There may be some misconception with the OP that case being sent as untrace means that the complainant or husband were not interested in pursuing the case against the culprits or that the case is a false one. If, they think so then they are wrong. Even otherwise, police had at no stage during investigation found it as a false and concocted case and if no such occurrence took place or if there was any complicity of Gajinder Singh in said snatching. The OP neither alleged so before the police nor produced any such evidence. Therefore, we do not find any merits in the contention of the OP. In the case of Jagrut Nagrik & Anr. Versus Oriental Insurance Company Limited II (2018) CPJ 158 (NC), wherein the insured vehicle was taken away by the driver for delivery of goods, but the driver neither turned up nor he did bring the vehicle. The Hon’ble National Commission by placing reliance on the case of United India Insurance Co. Ltd. Vs. Ravi Kant Gopalka, IV 2007 CPJ 32 (NC), rendered by a Bench of Three Members of the Hon’ble National Commission, has held that the act of the driver amounts to malicious act and it was a case of theft of the vehicle, though it may possibly constitute a case of an offence punishable under Section 406 of IPC, therefore there was no escape from the conclusion that petitioner was liable to reimburse the complainant for loss suffered by him.

                   Undisputedly, the vehicle in question was snatched during the subsistence of the police, the OP is thus liable to compensate the complainant for the amount for which the vehicle was insured. From the perusal of copy of certificate-cum policy schedule Annexure C8, it is evident that the IDV of the vehicle in question was of Rs.6,67,757/-, therefore the OP is liable to indemnify the complainant to the extent of Rs.6,67,757/- along with interest. OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by her alongwith litigation expenses.      

7.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-

1. To indemnify the complainant by paying Rs.6,67,757/- i.e. IDV of the vehicle in question along with interest @ 5% p.a. from the date of repudiation of the claim i.e. 28.02.2019 till its realization.
2. To pay Rs.8,000/- as compensation for mental agony and physical     harassment suffered by the complainant along with litigation expenses.

          The OP is further directed to comply with the aforesaid direction within the period of 45 days from the date of receipt of the certified copy of this order. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on:01.02.2021.

 

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

          Member                             Member                         President

                                                                                      DCDRC, Ambala