BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR
Complaint No. 32 of 2016
Date of Institution:19.1.2016
Date of Decision : 14.6.2016
Jaspal Singh Gill son of Wassan Singh Gill, resident of VPO Varpal, Tarn Taran Road, Tehsil & District Amritsar
..Complainant
Versus
- The Oriental Insurance Company Limited Branch Office Amritsar Road, Tarn Taran through its Manager
- Punjab National Bank Branch The Mall, Amritsar through its Manager
….Opposite Parties
Complaint under section 12 & 13 of the Consumer Protection Act, 1986
Present: For the Complainant : Sh.G.S. Bal,Advocate
For the Opposite Party No.1 : Sh. Subodh Salwan,Advocate
For the Opposite Party No.2 : Sh. A.K.Sharma,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Jaspal Singh, complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is permanent resident of village and post office Varpal, Tarn Taran Road,Tehsil and District Amritsar. The complainant is owner of the truck bearing No. PB-02-BK-9702. The complainant purchased the said truck with loan facility advanced to him by opposite party No.2 to the tune of Rs. 18,13,000/- on 30.7.2010. The aforesaid truck of the complainant was insured with the opposite party vide policy No.233308/31/2012/2037 commencing from 12.10.2011 to 11.10.2012, copy of the insurance policy is attached. On 20.5.2012 Kulwinder Singh, driver of the truck, was going from Khadur Sahib side to village Dhotian and at about 10 a.m near village Kallah, he parked his truck and went to attend the call of the nature, then some unidentified person committed theft of the said truck. Kulwinder Singh informed SHO P.S. Sadar and also the opposite parties regarding the theft. Matter was also entered in already registered FIR No. 147 dated 17.10.2011 at P.S. Sadar , Tarn Taran under section 457/380 IPC. Copies of the application moved by Kulwinder Singh, police proceedings and FIR are attached. The police during investigation could not trace out the accused as well as the truck and as such submitted untraced report on 26.8.2012. Ultimately, when the complainant came to know about the submission of the untraced report, he obtained the certified copy of the same under RTI on 11.8.2015 and approached the opposite party that the police has submitted the untraced report and as such claim of the stolen vehicle may be released in his favour. But opposite party did not listen to the lawful and genuine request of the complainant and went on lingering the matter on one pretext or the other and till date they have not paid the claim amount to the complainant. The aforesaid act of the opposite party for not making the payment of the claim amount to the complainant is arbitrary, unlawful and against the terms and conditions of the policy issued by opposite party No.1. There is gross negligence and deficiency in service on the part of the opposite party and the complainant is suffering a lot on account of said illegal act on the part of opposite party No.1. The complainant has sought the following reliefs vide instant complaint :-
i) Opposite party No.1 be directed to release the compensation/insured amount in favour of the complainant immediately alongwith interest @ 12% p.a.
ii) Opposite party No.1 be also directed to pay compensation to the tune of Rs. 50000/- on account of mental pain, agony and harassment suffered by the complainant.
iii) Opposite party No.2 be also directed not to prosecute the complainant under section 138 of the N.I.Act till the realization of the compensation amount by opposite party No.1 in favour of the complainant.
iv) Costs of the proceedings to the tune of Rs. 10000/- be also granted in favour of the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 appeared and filed separate written statements contesting the claim of the complainant.
3. In its written statement, opposite party No.1 took certain preliminary objections therein inter alia that the complainant is stopped by his own act and conduct from filing the present complaint ; that the complainant does not fall within the ambit of consumer under section 2 of the Consumer Protection Act ; that no cause of action has arisen to the complainant to file the present complaint as the filing of the present complaint do not depict any consumer dispute inter-se parties ; that the complainant has not come to this Forum with clean hands and is guilty of suppression of material facts from this Forum ; that the present complaint is barred by limitation ; that the present complaint is bad for non joinder of necessary party. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.
4. In its written statement, opposite party No.2 also took certain preliminary objections therein inter alia that this forum has got no jurisdiction to entertain and try the present complaint and the complaint filed by the complainant is not legally maintainable . On merits, it is stated that however, if opposite party No.1 accepted the claim of the complainant or this Forum pass the order in favour of the complainant, it is replying opposite party, who is entitled to the said claim as the claim amount is to be adjusted in the loan amount of the complainant. The loan amount is a public money. It is admitted that replying opposite party filed complaint u/s 138 of the Negotiable Instruments Act. Replying opposite party has every right to prosecute the complainant under the relevant provisions of the law and a prayer for dismissal of the complaint with cost was made.
5. In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A, copy of policy cover note Ex.C-1, copy of goods carriage permit for hire or reward Ex.C-2, copy of motor insurance certificate cum policy schedule Ex.C-3, copy of the letter dated 14.8.2015 Ex.C-4, copy of FIR Ex.C-6 , affidavit of Sh.Kulwinder Singh Ex.CW2/A and closed his evidence.
6. To rebut the aforesaid evidence, opposite party No.1 tendered affidavit of Sh.Gurdeep Singh, Divisional Manager Ex.OP1/1, copy of intimation letter to the company Ex.OP1/2, copy of repudiation letter Ex.OP1/3, copy of statement of Jaspal Singh Ex.OP1/4, copy of statement of Kulwinder Singh Ex.OP1/5, copy of Insurance policy Ex.OP1/6, copy of intimation to police Ex.OP1/7 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh.A.K.Sharma,Adv.counsel for opposite party No.2 tendered affidavit of Sh.Rishab Jain, Manager Ex.OP2/1, copy of account statement Ex.OP2/2 and closed the evidence on behalf of opposite party No.2.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
9. Ld.counsel for the complainant has vehemently contended that the complainant was admittedly owner of truck bearing No.PB-02-BK-9702. On 20.5.2012 Kulwinder Singh, driver of the truck was going from Khadoor Sahib side to village: Dhotia and about 10 AM near village Kallah, he parked his truck and went to at tend the call of the nature, then some unidentified person committed theft of the truck in dispute. Regarding the theft of the truck in question, the intimation was given by Kulwinder Singh to SHO, P.S.Sadar, on the basis of which formal FIR was registered at P.S.Sadar, Tarn Taran. Copy of the untraced report is Ex.C5 on record as the police could not trace out either the truck or the thief of the truck in question. The complainant lodged claim for compensation with the insurance company since the truck in question was insured with Opposite Party No.1 w.e.f. 12.10.2011 to 11.10.2012 vide policy bearing No. 233308/31/2012/2037, copy whereof is Ex.C1. Opposite Party No.1 has repudiated the claim of the complainant without any reasonable cause vide letter of repudiation Ex.OP1/3 on the ground that the alleged theft took place on 20.5.2012 while intimation regarding the loss has been sent on 23.7.2012 i.e. after a period of 2 months which is clear cut violation of the terms and conditions of the insurance policy. It is further stated that the claim for theft of the vehicle in dispute is not payable if theft is not reported to the insurance company within 48 hours of its occurrence. It is contended that the claim has been repudiated without any reasonable cause and therefore, the present complaint may be allowed and the complainant may be granted compensation for loss of the truck in question alongwith compensation to the
10. But, however, on the appreciation of the facts and circumstances of the case, it becomes evident that the repudiation of the claim of the complainant has been rightly made by Opposite Party No.1. It is admitted fact that the alleged theft of the vehicle of the complainant took place on 20.5.2012 while the complainant gave information to Opposite Party No.1 on 23.7.2012 i.e. after a period of more than 2 months from then date of occurrence. So much so, the complaint with police was also lodged on 23.5.2012 i.e. after a lapse of 3 days of the occurrence. It is settled terms and conditions of the insurance policy that intimation regarding the loss of the insured vehicle has to be given to the insurance company within a period of 48 hours of the occurrence. It has been held by Hon’ble National Commission in case Joginder Singh Versus New India Assurance Co.Ltd. 2013(1) CPJ 69 (NC) that where there is unexplained delay in giving intimation to the opposite party as well as police regarding theft of vehicle, it amounts to breach of policy condition and the opposite parties i.e. insurance company is justified in repudiating the claim of the complainant because opposite parties have been deprived of its right to make efforts to locate or find out the stolen vehicle and of thorough investigation of the case because in the mean time, vehicle could have been sold to kabaria or has been disposed of. Same view has been taken by Hon’ble Supreme Court of India in case United India Insurance Company Limited Versus M/s.Harchand Rai Chandan Lal 2004(IV) CPJ 15 (NC) as well as by Hon’ble National Commission in first appeal no. 321 of 2005 titled as NIA Versus Trilochan jane, IV (2012) CPJ 441 (NC). Hon’ble National Commission has further held that in the said case, insurer i.e. insurance company would be within its right to decline to settle claim even on ‘non standard basis’. Similar are the facts of the present case. The complainant could not explain why he did not inform the opposite party about the theft/ loss of his insured vehicle.
11. Consequently, we hold that the insurance claim has been rightly declined by the Opposite Party No.1 and therefore, the instant complaint fails and the same is ordered to be dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 14.06.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
