Haryana

Panchkula

CC/216/2015

DHARVINDER SINGH. - Complainant(s)

Versus

RASHID KHAN. - Opp.Party(s)

AMANDEEP BINDRA.

22 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

 

                                                         

Consumer Complaint No	:	216 of 2015
Date of Institution	:	06.10.2015
Date of Decision	:	22.03.2016

 

1.       Dharvinder Singh s/o Sh.Jaswant Singh s/o Sh.Labh Singh, aged about 47 years, R/o VPO Kakru, District Ambala (Haryana).

2.       Jaswant Singh s/o Sh.Labh Singh, aged about 82 years, R/o VPO Kakru, District Ambala (Haryana).

                                                                                      ….Complainants.

Versus

1.       Rashid Khan s/o Sh.Munna Khan, Parking Contractor, Northern Railway Vehicle Parking, Railway Station-Kalka, District Panchkula through Station master, Railway Station, Kalka.

          II Address: R/o Dhampur, District Bijnour, Uttar Pradesh.

2.       Iffco Tokyo General Insurance Company Ltd., 5C/1, Sheetal Complex, Ground Floor, Rajbaha Road, Patiala (Punjab).

                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Amandeep Bindra, Advocate, for the complainant. 

                             OP No.1 already exparte.

Mr.Ravinder Arora and Mr.Rohit Goswami, Advocates for the Op No.2.

ORDER

 

(Dharam Pal, President)

 

1. Dharvinder Singh and Jaswant Singh-complainants have filed this complaint against the Ops with the averments that the complainant No.1 insured his Motorcycle Make-Hero Honda Splendor Plus, bearing registration No.HR-01AD-1768, engine No.J07631 and chassis No.J07359 with the Op No.2 vide insurance policy No.89488882 which was valid from 18.10.2014 to 17.10.2015 for a total IDV of Rs.25,000/-. On 23.12.2014, the complainant No.1 parked his vehicle at parking area, Railway Station, Kalka being managed by Op No.1 by paying the requisite amount against the parking slip No.2319 dated 23.12.2014 as he had to travel to Shimla. After return on 27.12.2014, the complainant No.1 found that his motorcycle was missing from the parking area. The complainant immediately informed the Op No.1. Thereafter, the complainant informed the police authorities of GRP, Kalka as well as to the Op No.2. The police authorities of GRP, Kalka refused to lodge the report directing the complainant to look for the vehicle at his own level initially. Despite many efforts, the vehicle could not be traced out. Thereafter, on 31.12.2014, the Op No.1 admitting his negligence in taking care of the vehicle and was ready to compromise with the complainant No.1 to provide another motorcycle of the same make/model by 08.01.2015. The compromise was reduced into writing in the presence of the marginal witnesses and under the attestation of concerned police authorities but the Op No.1 refused to abide by the terms and conditions of the compromise dated 31.12.2014. After great persuasion made by complainant, the police authorities lodged FIR No.1 dated 10.01.2015 u/s 380 of IPC. Intimation was also sent to the Op No.2 and requisite documents were also signed by the complainant No.2 sent to the OP No.2 for processing the insurance claim. The Op No.2 also got signed some blank papers from the complainant No.2. The complainants also told the Op No.2 that all the original papers were laying in the box of the stolen vehicle. Further the OP No.2 asked the complainant to wait for some time by giving the excuse that the claim was under process and would be settled soon. The complainant received a letter dated 31.01.2015 from one of the investigators appointed by the Op No.2 in which he demanded the documents which were already submitted with the company alongwith some more documents and also stated that if the complainant failed to supply the documents within 7 days, the claim would be treated as NO CLAIM. The complainants visited the office of Op No.2 and appraised the Op No.2 that all the documents have already been submitted, to which the concerned official of OP No.2 requested to afford some more time for process of claim but to no avail. Thereafter again, the OP No.2 demanded the documents alongwith one other documents, one untraceable report issued by the court of competent jurisdiction. The complainants again visited the office of Op No.2 and told that apart from the untraceable report, all the other documents have already been submitted. The complainant No.2 also submitted the report of the National Crime Records Bureau and the untraceable report was not issued by the police and court of Judicial Magistrate First Class. The complainant also gave one circular to OP No.2 of the insurance companies of the year 2009 vide which a provision was made to pay 75% on account of payment for the theft cases after 90 days and to produce non-traceable report within further 90 days in case of commercial vehicles and the complainant requested the OpNo.2 to release 75% of the claim subject to submission of untraced report but the Op No.2 refused to pay the amount. This act and conduct of the OPs amounts to deficiency in service on their part.  Hence, this complaint.
2. Notice was issued to Op No.1 through registered post. But none has appeared on behalf of the Op No.1. It is deemed to be served and the Op No.1 was proceeded against ex-parte vide order dated 18.11.2015.
3. The Op No.2 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the Hon’ble Forum has no territorial jurisdiction to try the present complaint as the policy was issued from Delhi branch in the name of complainant No.2 which was valid from 18.10.2014 to 17.10.2015. It is submitted that the complainant has violated the terms and condition of the policy. It is submitted that the complainant intimated the Op No.2 regarding theft of vehicle after one month and 5 days against the policy conditions. It is submitted that the date of theft of vehicle was 23.12.2014 and the intimation was given to Op No.2 on 28.01.2015 which is violation of terms and conditions on the part of complainant. It is submitted that the theft took place on 23.12.2014 and FIR was lodged on 10.01.2015 and no reason for delay in lodging FIR was explained by the complainant. It is submitted that the Op No.2 appointed investigator-Jagjit Singh Sethi who investigated the matter and submitted his report (Annexure R2/2). It is submitted that the Op No.2 had issued various letter dated 03.08.2015, 18.08.2015, 31.08.2015 and 09.09.2015 to complainant No.2 to provide the requisite information/documents for the settlement of claim i.e. original court accepted Fr u/s 173 Cr.P.C. (Duly signed and rubber stamp by Judicial court Magistrate, original purchase invoice, 2^nd key of the lost vehicle, explanation on reason for delay in FIR and explanation on reason for delay in ITGI but the complainant No.2 had failed to supply the same. It is denied that the Op No.2 had ever asked the complainant to wait as claim was under process. It is submitted that the complainant himself had delayed the matter by not supplying the requisite information/documents to Op No.2. It is denied that the complainant No.2 never visited the office of Op No.2 and never supplied the required documents till date. It is submitted that the complainant had never given the National Crime Records Bureau to Op No.2. Thus, there is no deficiency in service on the part of the Op No.2 and prayed for dismissal of the complaint with costs.
4. The learned counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-8 and closed the evidence. On the other hand, learned counsel for the Op No.2 has tendered the evidence by way of affidavit Annexure R2/A alongwith documents Annexure R2/1 to R2/4 and closed the evidence.
5. We have heard learned counsel for the parties and have also perused the record carefully and minutely and also considered the written arguments submitted by the Op No.2.
6. In this case, admittedly, the motorcycle had been parked   by complainant No.1 in the parking lot managed by the OP No.1 on 23.12.2014 and a ticket No.2319 for the same had been issued which has been placed on file as Annexure C2. From the circumstances, it is quite evident that the vehicle having been parked in the parking lot on 23.12.2014 was stolen from there and regarding this an FIR No.1 dated 10.01.2015 u/s 380 IPC (Annexure C4) was also registered. It is established on the case file that the vehicle was insured with OP No.2 vide cover Note/Policy No.8948882 having validity from 18.10.2014 to midnight of 17.10.2015 and the same had been stolen during the subsistence of the policy in question. The question now is as to whose responsibility it is to compensate the complainants for the loss. The insurance company has come with the plea that the OP No.2 is not responsible to compensate for the loss suffered by the complainants as they have violated the terms and conditions of the insurance by not intimating it in time. As per pleadings put-forth by the complainants the date of theft of the vehicle was 23.12.2014 and information regarding this was given to OP No.2 on 28.01.2015.  This Forum is in agreement with the pleadings taken on behalf of the insurance company i.e. Op No.2 that it cannot be held responsible for the lapse committed by the complainants. On this point, reliance can also be taken from judgments passed by Hon’ble National Commission in the case titled as Virender Singh Vs. OIC passed in Revision Petition No.2660 of 2013 decided on 21.01.2016, New India Assurance Company Vs. Trilochan Jane, First Appeal No.321 of 2005 and the case titled Om Parkash vs. National Insurance Company Ltd. 2012(III) CPJ 59. Hon’ble National Commission in case titled Om Parkash Vs. National Insurance Co. Ltd. (supra) has observed that “Insurance-Theft of vehicle-Delay in intimation-claim repudiated-alleged deficiency in service-District Forum allowed complaint-State Commission allowed appeal-Hence revision-Terms and conditions of insurance policy are required to be strictly construed and no exception can be made on the ground of equity-Even delay of few days in not intimating Insurance Company  about incident of theft is fatal-Insured loses its right to be indemnified when he himself is not vigilant about his rights and his obligations in regard to compliance of terms and conditions of policy-Impugned order upheld”. Similarly, Hon’ble National Commission in the case titled New India Assurance Company Ltd. Vs. Trilochan Jane (supra) has observed in the case of theft that “where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle.  Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced.  The insurer can coordinate and cooperate with the Police to trace the car.  Delay in reporting to the insurer about the theft of the car for 9 days, 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. 
7. The complainant No.1 had hired the services of Op No.1 by paying Rs.10/- at the time of parking of his motor cycle in the area managed by Op No.1.  The complainants have placed on file a copy of written compromise (Annexure C-3) executed amongst complainants and OP No.1 wherein the Op No.1 had agreed to pay the value of the motor cycle but till today the Op No.1 has not complied with the promise made in the compromise. Moreover, it is a known fact that the parking lots are being auctioned by the concerned authorities to the contractors and between two of them, a handsome amount is received from the people parking the vehicles in the parking areas. It is encumbent upon the persons owing and operating the parking areas and earning profit out of the same to ensure the safety of the vehicle parked since consideration for the same is received by them. In this view of the matter, the loss suffered by the complainants due to the theft of motorcycle from the parking lot managed by OP No.1 is to be compensated by it. Since, the complainant had paid the amount to OP No.1, the deficiency in service stood proved against OP No.1 for the loss of the vehicle, therefore, it is liable to compensate the complainants for the loss suffered. The complaint qua Op No.2 is dismissed. The OP No.1 is directed as under:

1. To pay Rs.25,000/- (being IDV of the vehicle) to the complainant alongwith interest @ 9 % from the date of filing of the complaint till its actual realization.
2. To pay an amount of Rs.5,000/- as compensation for   mental agony, harassment.

 

Let the order be complied with within 30 days from the receipt of the certified copy of this order. A copy of this order be sent to the complainant free of costs and file be consigned to the record room after due compliance.

 

 

Announced

22.03.2016    S.P.ATTRI           ANITA KAPOOR          DHARAM PAL

                      MEMBER                      MEMBER                                 PRESIDENT

 

 

 

Note: Each and every page of this order has been duly signed by me.

 

         

                                 

                                                         DHARAM PAL

                                                          PRESIDENT