DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 318 of 15.12.2020

                                      Decided on:         16.9.2024

Sanjit Kumar aged about 42 years son of Sh.Ram Sareshat, Resident of Ward No.8, Lakhwali Basti Patran, District Patiala.

                                                                   …………...Complainant

                                      Versus

1. Oriental Insurance Co. Ltd., Regd. & Head office : A-1 25/27,Asaf Ali Road, New Delhi-110002 through  its Managing Director.
2. Oriental Insurance Co. Ltd.,Branch Office: Nabha Gate, Sangrur, through its Branch Manager.
3. Anjali Garg wife of Naveen Garg, office Address near Bareda Machinery Store, Near Ravi Dass Mandi Street, Nirwana Road, Patran District Patiala.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Sh.Pushvinder Singh, President

                                       Sh.G.S.Nagi, Member   

ARGUED BY              

                                       Sh.S.S.Sidhu, counsel for complainant.

                                      Sh.B.L.Bhardwaj, counsel for OPs No.1&2.

                                      Op No.3 ex-parte.                                     

 ORDER

                                      G.S.NAGI, MEMBER

1. The instant complaint is filed by Sanjit Kumar (hereinafter referred to as the complainant) against Oriental Insurance Co. Ltd., and another(hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. It is averred that in the complaint that the complainant is registered owner of vehicle make Mahindra Bolero Pick Up bearing registration No.PB-11-BR-4958, model 2011, having engine No.102GHB1F70328 and chassis No.MA1ZF2GHKB1F33870. That the complainant was using the said vehicle for rental  in different states i.e. Punjab & Haryana and to supply the used mobil oil to small industries, for earning his livelihood. That the complainant has been regularly paying the special road tax to Punjab Motor Vehicle Department, Patiala since 1.1.2016 to 30.6.2016 and again 1.7.2016 to 31.12.2016 and also fitness certificate of the vehicle was passed from the Motor Vehicle Inspector, Patiala which was valid up to 17.4.2017.It is averred that the pollution certificate of the vehicle was also valid from 7.7.2016 to 6.1.2017.
3. It is averred that the vehicle in question was insured with OP No.2 through OP No.3 under the Motor Insurance Certificate Cum Policy Schedule GCCV Private Carriers other than three Wheelers Package policy Zone C vide policy No.233502/312017/1460 having cover note No.CHD-d40550 for an insured declared value (IDV) of Rs.3,50,000/- valid from 18.8.2016 to 17.8.2017 by paying a premium of Rs.11700/- to OP No.3.
4. It is averred that in the intervening night of 21-22/8/2016 at about 10PM the complainant was driving his vehicle to Rohtak by picking up Wooden Boxes on rent in the area of Shivaji Colony, Rohtak Bhiwani, Hisar Road,Rohtak and parked his vehicle where the wooden boxed have to be unloaded near the shop. That on the next day he came to know that some unknown person has stolen his vehicle. The complainant tried his best to trace/search his vehicle on various places but he could not find his vehicle. That thereafter the complainant informed OPs No.2&3 regarding the theft of vehicle. Complainant also lodged FIR No.0295 dated 23.8.2016 U/s 379 IPC P.S. Shivaji Colony, District Rohtak (Haryana).Thereafter immediately complainant approached OP No.3 who prepared all the documents and submitted the claim with OP No.2.That OP No.2 advised the complainant to submit the untraced report of the above said vehicle. It is further averred that the police official of P.S.Shivaji Colony, Rohtak produced the final report  in the court of Ms. Khushaboo Goel, JMIC, Rohtak (Haryana) which was accepted by the court of Sh.Vivek Singh, J MIC, Rohtak on 1.3.2019 after recording the statement of the complainant.
5. That thereafter in the mid of March,2019 complainant again produced all relevant documents i.e. RC, Special Road Tax, Pollution Certificate, Fitness Certificate, Copy of  FIR alongwith final status report of the  FIR and order of the Hon’ble Court of Sh.Vivek Singh, JMIC Rohtak to OP No.2 with the request to expedite the process of disbursing the claim of the complainant  who assured that the same would be done very soon but nothing was done. Thereafter time and again complainant approached OPs No.2&3 for passing of the claim but every time OPs put off the matter on one pretext or the other and no amount was paid to the complainant which caused huge financial loss in the shape of loss of income as well as other pecuniary loss. That  the OPs indulged in mal practice and unfair trade practice and there is a clear cut deficiency in service on the part of the OPs which caused mental agony ,harassment and financial loss to the complainant. On this back ground of the facts complainant has filed this complaint with the prayer to accept the same by giving directions to the OPs to  pay the claim amount of Rs.3,50,000/- as envisaged in insurance policy alongwith interest @ 18% per annum from the date of theft of the said vehicle till realization; to pay Rs.2,00,000/- as compensation on account of mental agony, tension, harassment, humiliation and inconvenience suffered by the complainant; to pay Rs.2,00,000/- as compensation on account of loss of income and also to pay Rs.55000/- as litigation expenses.
6. Notice of the complaint was duly served upon OPs No.1&2 who appeared through counsel and filed written reply having contested the complaint whereas OP No.3 has refused to accept the notice and was accordingly proceeded against exparte vide order dated 26.2.2021.
7. In the written reply filed by OPs No.1&2 preliminary objections have been raised to the extent that the complaint of the complainant is not maintainable; that no legal notice has been issued by the complainant to OPs No.1&2; that the complainant has not come to the Hon’ble Commission with clean hands. It is pleaded that the complaint is also liable to be dismissed on the ground of late intimation regarding theft of vehicle in question which was given to the insurance company after lapse of 6/7 days i.e. 28.8.2016 whereas the alleged theft was reported to have occurred on 21/22.8.2016. It is further pleaded that the complainant has not submitted the requisite documents i.e. Permit, Load Challan issued by the consigner with its name and the consignee details and also has not handed over 2^nd key or copy of DDR,FIR in case of loss of 2^nd key . It is also pleaded that the complainant was also required to submit subrogation of the said vehicle to the insurance company. It is also pleaded that the vehicle in question is insured with the OPs as private vehicle whereas the same is alleged to be registered and being plied by the complainant as commercial vehicle and that the complainant has not paid premium as was applicable to the commercial vehicle .
8. On merits, it is admitted to the extent that vehicle No.PB-11-BR-4958 with engine/chassis No.GHBIF70328/MAIZF2GHKBIF33870 was insured as private vehicle for sum insured of Rs.3,50,000/-.Further the OPs have reiterated the facts taken in the preliminary objections which are not repeated for the sake of brevity.
9. In support of his case, ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents i.e. Ex.C1 copy of RC, Ex.C2 and Ex.C3 copies of tax receipts,Ex.C4 copy of fitness certificate,Ex.C5 copy of pollution certificate,Ex.C6 copy of insurance policy cover note,Ex.C7 copy of FIR,Ex.C8 to Ex.C10 copies of final report of JMIC Rohtak and closed the evidence.
10. The ld. counsel for OPs No.1&2 has tendered in evidence Ex.OPA affidavit of Mukesh Malhotra, Sr. D.M. OIC alongwith documents i.e. Ex.OP1 letter dated 1.3.2021, Ex.OP2 insurance policy,Ex.OP3 copy of intimation letter dated 28.8.2016 and closed the evidence.
11. Written arguments by the complainant and OPs No.1&2 have been filed. We have gone through the same, heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
12. The complainant has alleged he is owner of Mahindra Bolero pick up bearing registration No.PB-11-BR-4958, as per the certificate of registration, Ex.C1.The complainant has alleged that his vehicle was insured with the OPs as per insurance certificate,Ex.C6, which was valid from  18.8.2016 to 17.8.2017.The complainant has alleged that he had been paying special road tax from time to time and has produced tax receipt amounting to Rs.3000/- in this regard, for the period 1.1.2016 to 30.6.2016 issued by District Transport Officer, Patiala, as per Ex.C2 and another receipt  for the period 1.7.2016 to 31.12.2016, amounting to Rs.3000/-, as per Ex.C3.The complainant has also produced the copy of the fitness certificate issued by the Motor Vehicle Inspector, Patiala, copy of which is Ex.C4, as per which the vehicle of the complainant has been declared fit up to 27.4.2017. The pollution certificate in respect of the said vehicle issued by Sonu Pollution Checking Center, Kaithal, copy of which is Ex.C5 was also valid from 7.7.2016 to 6.1.2017.
13. The complainant has alleged that on the intervening night of 21-22.8.2016 he had gone to Rohtak (Bihwani Hisar Road, Rohtak) for unloading of wooden boxes at Shivaji Colony and parked his vehicle near the place of unloading. The complainant has alleged that on the next day i.e. 22.8.2016 when he woke up his vehicle was missing from the site. The complainant has alleged that he searched his vehicle, however, he was unable to trace the same. An intimation was then given to OP No.2 regarding the theft of the vehicle and an FIR No.0295 dated 23.8.2016 was also lodged  at Shivaji Colony Police Station, District Rohtak, as per Ex.C7 regarding the theft of the vehicle in question.
14. It is alleged that the complainant the approached the office of OP No.3 and submitted various documents regarding the claim on account of theft of vehicle. It is alleged that in spite of the best efforts of the police the vehicle of the complainant could not be traced and un untraced report was then filed by the police as per Ex.C8 in the Court of Khushboo Goel, JMIC, Rohtak, as per Ex.C9 which was accepted by the Court of Sh.Vivek Singh,Judicial Magistrate Ist Class,Rohtak as per Ex.C10. The complainant has alleged that all the documents were again submitted to the OP in the month of March,2019 after the receipt of the un traced report. However, the claim was not settled. The complainant has as such prayed for the claim of Rs.3,50,000/- i.e. the amount equal to the insured declared value of the vehicle , as per insurance certificate,Ex.C5, alongwith interest @18% per annum. The complainant has also prayed for compensation of Rs.2lac on account of mental agony and harassment and Rs.2lac on account of loss of income. Complainant has also prayed for litigation expenses of Rs.55000/-.
15. The OPs No.1&2 in their written statement and affidavit of Ex.OPA of  Sh.Mukesh Malhotra, Divisional Manager of the OPs have submitted that the vehicle of the complainant bearing registration No.PB-11-BR-4958 was insured as a private vehicle with the OPs. It is submitted that the vehicle was not insured as commercial vehicle. The premium paid was for private vehicle and not for commercial vehicle  and  vehicle was being used for commercial purposes by the complainant. The OPs have submitted that the complainant had lodged the claim on 28.8.2016 after the lapse of 6/7 days from the date of the incident i.e. theft of the vehicle which has taken place on 21-22.8.20216. The OPs have submitted that delay in reporting the theft of the vehicle to the insurer is a violation of the condition of the policy as it deprived the insurer i.e. the OPs of their right to investigate about the commission of theft. The OPs have further submitted that the requisite documents i.e. route  permit, load challan issued by the consigner with its details, bill bearing consignee detail, 2^nd key of the vehicle ( copy of DDR/FIR in case 2^nd key of the vehicle was lost by the complainant) in spite of repeated reminders by the OPs have not been provided by the complainant. The OPs have submitted that although the untraced report has been submitted by the complainant, the documents as detailed above have not been supplied by the complainant till date. Since all these documents have not been supplied by the complainant as such case of the complainant was closed and could not be settled.
16. We have gone through the rival submission of the parties and have also gone through the evidence placed on record.
17. The argument of the OPs that there was a delay of 6-7 days in reporting the theft of the vehicle to the OPs and as such OPs were not in a position to conduct their investigation in respect of the loss of the vehicle. The OPs have relied upon the order of the Hon’ble National Consumer Disputes Redressal Commission, passed in the case titled as New India Assurance Company Ltd. Vs. Trilochan Jane 2012(4)C.P.J., wherein it has been held that;

“B.Consumer Protection Act,1986, Sections 2(1)g, 14(1)(d) and 21(a)(ii) Insurance-Theft FIR lodged after 2 days-Delay in reporting to the insurer about the theft of the car , would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle-Repudiation of claim justified”.

18. We are of the opinion that the theft of the vehicle had taken place in the intervening night of 21-22.8.2016 and the FIR was duly lodged by the complainant on 23.8.2016,as per Ex.C7 i.e. within 48 hours of the theft of the vehicle. The Hon’ble Supreme Court of India, in the case titled as Jaina Construction Company Vs. Oriental Insurance Company Ltd. & Anr. 2022(2)R.C.R.(Civil)196 has held that:

“Repudiation of claim on the ground of delay in FIR- Whether Insurance Claim rightly repudiated in toto merely on the ground of delay of 5 months in informing insurance company regarding theft even though FIR was lodged immediately on next day-Held, No-FIR lodged immediately on the next day of occurrence-Accused were arrested and charge-sheeted-Challan filed in Court-However, vehicle could not be traced-Thus, Insurance Company cannot have repudiated claim merely on the ground of delay in intimating Insurance Company-Hence, repudiation of insurance claim by insurance company not justified”.

19. The complainant has also cited the judgment of the Hon’ble Supreme Court of India, in the case titled as Gurhinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr.2020(3)RLW 2236, wherein it has been held:

“Delay in intimating to Insurance Company-Denial of Insurance Claim- When insured lodged FIR immediately after theft of a vehicle occurred and when police after investigation have lodged a final report after vehicle was not traced and when surveyors/investigators appointed by insurance company found claim of theft to be genuine, then merely delay in intimating insurance company about occurrence of theft cannot be a ground to deny claim-Held, Lodging of FIR on same day theft occurred-Therefore, denial of claim set aside.”

20. In the instant case, FIR with regard to the theft of the vehicle in question was lodged with the police authorities within 48 hours of the incident, thus the plea of delay in reporting theft of the vehicle to the OPs is not justified as has been settled by the Hon’ble Supreme Court of India as cited above.
21. The vehicle was also road worthy and fitness certificate issued by the Motor Vehicle Inspector, Patiala, as per which passing of the vehicle was clear up to 17.4.2017, as per ,Ex.C4.
22. The another argument of the OPs that the vehicle was being used as commercial vehicle and was required to carry valid route permit for operation of the vehicle outside the state of Punjab from the concerned State is again not justified. The complainant has relied upon the judgment passed by the Hon’ble National Consumer Disputes Redressal Commission, in the Revision Petition No.1048 of 2019 titled as New India Assurance Co. Ltd. Vs. Jahangir Sheikh 2019(2) C.P.R.702, wherein the issue of route permit vis a vis Section 66(1) of the Motor Vehicle Act has been discussed and it has been held that :

“As far as the route permit is concerned, though Section 66(1) of the Motor Vehicles Act prohibits the owner of a motor vehicle from using of permitting the use of the vehicle as a transport vehicle in any public place except in accordance with the conditions of a permit, the said requirement does not apply in case of a goods vehicle, gross weight of which does not exceed 3000Kgs.”

23. A study of the copy of the registration certificate produced by the complainant reveals that the gross weight of the vehicle which was stolen, was 2880 Kgs and which is less than 3000Kgs, as required under Section 66(1) of the Motor Vehicles Act and as such no route permit in terms of the Motor Vehicles Act was required by the complainant.
24. The other argument of the OPs that the vehicle was registered as private vehicle and was being used by the complainant as a commercial vehicle. The policy issued to the complainant was for use of the vehicle as private vehicle. The premium paid would have been more had the vehicle been insured as commercial vehicle. No doubt the vehicle was being used for loading/unloading of material and as a commercial vehicle as has been pleaded by the complainant himself. As such this argument of OP regarding payment of less premium on account of the same is justified.  The same issue came up before the Hon’ble National Consumer Disputes Redressal Commission, in the case titled as Baljeet Vs. United India Insurance Co. Ltd., Revision Petition No.454 of 2013, wherein the policy was for private vehicle but at the time of theft, it was being used for commercial purpose. However, the claim was allowed on Non Standard Basis and 75% of the claim was allowed by the Hon’ble National Commission.
25. The OPs in their written arguments have submitted that if the Hon’ble Commission comes to the conclusion that the claim of the complainant is required to be processed by the Insurance Company then the complainant is required to subrogate the vehicle in question in favor of the Insurance Company.
26. In view of the discussion above, we partly allow the complaint and direct the OPs No.1&2 to settle the claim of the complainant on Non Standard Basis i.e. to the tune of 75% of the insured declared value of the vehicle in question alongwith interest @6% per annum from the date of loss of vehicle. The OPs No.1&2 are also directed to pay Rs.5000/-as compensation for causing mental agony and harassment to the complainant alongwith Rs.5000/-as costs of litigation. Compliance of the order be made by OPs No.1&2 within 45 days from the date of receipt of certified copy of this order.  However, it is made clear that at the time of settlement of claim by OPs No.1&2, complainant shall give an undertaking/affidavit to the effect that in case the vehicle in question was found the same will be handed over to the insurance company.
27.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work and for want of Quorum from long time.
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                                              G.S.Nagi                PUSHVINDER SINGH

                                              Member                          President