Haryana

Yamunanagar

CC/187/2011

Kanwaljit S/o Ram Piara - Complainant(s)

Versus

Reliance General Insurance - Opp.Party(s)

Harvinder Aneja

04 May 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 187 of 2011.

                                                                                                Date of institution: 07.03.2011

                                                                                                Date of decision: 04.05.2016.

Kanwaljit aged about 45 years son of Sh. Ram Piara, resident of Sector-17, HUDA, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                                   …Complainant.

                                    Versus

1. Reliance General Insurance, Reliance Centre, 19, Walchand Hirachand Marg, Ballard Estate Mumbai-400001, through its Managing Director/Authorized Signatory.
2. H.D.F.C. Bank Ltd., Near Nirankari Bhawan, Jagadhri Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar, through its Manager.                                                                                                                                        …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Harvinder Aneja, Advocate, counsel for complainant.

              Sh. Rajiv Gupta, Advocate, counsel for respondent No.1

              Sh. K.K.Gupta, Advocate, counsel for respondent No.2.  

 

ORDER

 

1.                     Complainant Kanwaljit has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondent No.1 (hereinafter referred as OP No.1) be directed to pass the claim of loss of truck i.e. insured amount of Rs. 7,50,000/- alongwith interest on account of theft of truck alongwith compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant purchased a truck bearing No. HR-58-A-1923 (Annexure C-1) and got financed the same with OP No.2 Bank i.e. H.D.F.C. Bank Ltd. Yamuna Nagar for a sum of Rs. 9,30,000/- and he is a registered owner of the aforesaid truck  which was insured with the OP No.1 insurance company vide insurance cover note No. 200702666692 valid from 21.01.2008 to 20.01.2009 for a sum insured of Rs. 7,50,000/-(copy of Insurance cover note Annexure C-2). During the currency of insurance policy, on 02.03.2008, the complainant through his friend Rajinder Singh son of Sh. Raj Pal singh, parked his truck at Vishwakarma Chowk, Yamuna Nagar but when he went there, he found that his aforesaid truck was not parked there and was stolen by some unknown person, upon which the complainant sent his friend Rajinder Singh to police station to intimate the police. On 02.03.2008, Sh. Rajinder Singh lodged a DDR No.12 dated 02.03.2008 at Police Station City Yamuna Nagar but while entering the rapat, the police wrongly wrote Rajinder Singh as owner of the truck whereas the complainant is the owner of the truck. Thereafter, FIR No. 287 dated 05.05.2009 under section 379 IPC was registered in Police Station, Yamuna Nagar. The complainant lodged the claim regarding loss of his truck with the OP No.1 Insurance Company and fulfilled all the necessary formalities and further supplied all the required documents but till today no claim has been passed and OP No.1 kept on putting off the matter one pretext or the other. In this way, there is a great deficiency and negligence in service on the part of OPs. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service on the part of OP No.1 Insurance Company, complainant has not come to this Forum with clean hands, the complainant has no insurable interest in the truck No. HR58A-1923 as the same has already been sold by him to one Rajinder Singh, therefore, the complainant has no locus standi to file the present complaint and no cause of action ever arose in favour of complainant and against the OP Insurance Company. It has been alleged that the OP No.1 insurance Company received an intimation that on 02.03.2008 that a theft has taken place of Truck bearing No. HR-58A-1923 and a DDR No. 12 dated 02.03.2008 was registered. On perusal of the said DDR and other relevant documents, it was found that the registered owner and insured of said truck is one Kanwaljit Singh son of Sh. Ram Piyara but as per DDR, No.12 dated 02.03.2008, Sh. Rajinder Singh son of Sh. Raj Pal Singh is the owner of the said vehicle and the claim was intimated by him with the OP Insurance Company as owner of the said truck. It was also found that as per aforesaid DDR, the said Rajinder Singh had parked the said truck in front of Quality Furniture near Vishavkarma Chowk, Yamuna Nagar four days prior to 02.03.2008 for the purpose of selling the same. It has been further alleged that leaving the truck in question unattended for 4-5 days before theft is a gross violation of the policy condition No.5 which is reproduced as under: -

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

4.                     Keeping in view the abovesaid facts, the OP Insurance Company issued a show cause notice dated 10.03.2008 to the complainant to clarify the abovesaid points so as to enable the OP Insurance Company to proceed further in this case and it was made clear to the complainant that in case no reply is given within the stipulated period of 10 days of the said Show Cause Notice, the Insurance Company shall close the file treating as no claim. However, the complainant did not correspond with the OP Insurance Company, therefore, the claim of the complainant was treated as repudiated/ No Claim by the OP Insurance Company. It has been further mentioned in the written statement that in the DDR No.12 dated 02.03.2008, the police had made thorough investigation and statement of number of persons including that of one Parveen Kumar owner of Quality Furniture was recorded and the said person disclosed to the police that no truck was standing/parked in front of his shop for the last 4-5 days as alleged in the DDR. Thereafter, the police came to the conclusion that the story put forward is suspicious in nature and the complaint of complainant Rajinder Singh as disposed off by the police on 07.04.2008. Thereafter, the said Rajinder Singh gave an application to S.P.Yamuna Nagar on which FIR No. 287 dated 05.05.2009 under section 379 IPC was registered and in the said FIR the said Rajinder Singh has categorically stated that he is the owner of truck bearing No. HR-58A-1923 which he had purchased 4-5 months prior to 02.03.2008 from Kanwaljit Mehta and the papers of the vehicle are in the police custody. It has been further mentioned that the story put forward by the complainant is concocted and false and the present complaint in question is without any merit and the same is liable to be dismissed. On merit, reiterated the averments made in the preliminary objections. Lastly, prayed for dismissal of complaint.

5.                     OP No.2 Bank filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi to file the present complaint, estopped from filing the present complaint, the complainant has concealed the true and material facts from this Forum. The complainant had been sanctioned a loan of Rs. 9,30,000/- for truck make TATA LPT 2515 TC, vide agreement No. 1027846, which was to be repaid in 46 monthly installments of Rs. 22,785/- w.e.f. 06.12.2004 to 05.09.2008 and a loan agreement was also executed between the parties but the complainant did not make the payment of the monthly installments as per term and conditions of the loan agreement. As such, he has been regular defaulter of the OP Bank so he is liable to make the payment of the due amount of loan to the OP Bank. It has been further mentioned that in case the OP No.1 is directed to make the payment of the claim against the vehicle of complainant, in that situation the OP No.1 be directed to deposit the claim amount with the OP NO.2 Bank being financer so that the said amount may be adjusted in the due amount of complainant loan account. On merit, it has been mentioned that the complainant has been defaulter and huge amount of Rs. 3,97,494/- as on 06.12.2012 is outstanding, so the OP No.2 bank being financer has first right to adjust the claim amount, if any, in the loan account of the complainant and reiterated the stand taken in the preliminary objections.

6.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of registration Certificate as Annexure C-1, Photo copy of Insurance Cover Note as Annexure C-2, Photo copy of DDR No. 12 dated 02.03.2008 as Annexure C-3, Photo copy of FIR as Anenxure C-4 and closed the evidence on behalf of complainant.

7.                     On the other hand, counsel for the OP No.1 Insurance Company tendered into evidence affidavit of Krishna Kant, Deputy Manger Legal, Reliance Gen. Ins. Co. as Annexure R1/X  and documents such as Photo copy of DDR No.12 dated 02.03.2008 as Annexure R1/1, Photo copy of FIR as Annexure R1/2, Photo copy of letter dated 10.03.2008 as Annexure R1/3, Photo copy of terms and conditions of the insurance policy as Annexure R1/4Photo copy of insurance policy as Annexure R1/5 and closed the evidence on behalf of OP No.1 Insurance company.

8.                     Counsel for the OP No.2 tendered into evidence affidavit of Rajesh Bhatia, Authorized Representative of HDFC Bank Ltd. as Annexure R2/X and documents such as Photo copy of agreement for vehicle loan as Annexure R.2/1, Photo copy of statement of account as Annexure R2/2, Photo copy of letter dated 10.07.2014 demanding of Rs. 4,67,153/- from the complainant as Annexure R2/3 and closed the evidence on behalf of OP No.2 Bank.

9.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

10.                   It is not disputed that the complainant is registered owner of truck bearing registration no. HR-58-A-1923 (copy of R.C. Annexure C-1) which was insured with the OP No.1 Insurance Company vide its cover note No. 200702666692 valid from 21.01.2008 to 20.01.2009 (Annexure C-2/R-1/5).

11.                   Learned counsel for the complainant argued that on 02.03.2008, complainant through his friend Rajinder Singh parked his truck at Vishwakarma Chowk, Yamuna Nagar but when he went there he found that the truck in question was not there where they parked the truck and in this regard a DDR No. 12 dated 02.03.2008 was registered at P.S. City, Yamuna Nagar but while entering the rapat, the police wrongly wrote Rajinder Singh as owner of the truck, whereas the complainant was owner of the truck in question. Learned counsel for the complainant further argued that the complainant lodged his claim with the Op Insurance Company but the OP Insurance Company has wrongly withheld the claim of the complainant on the flimsy ground that the truck was left unattended for a period of 4-5 days before theft and Rajinder Singh lodged only the DDR on 02.03.2008 and subsequently lodged the FIR on 05.05.2009 for the theft of truck in question and lodged claim alleging to be the owner of truck in question whereas at the time of lodging the DDR the Police of Police Station, Yamuna Nagar wrongly wrote Rajinder Singh as owner of the truck. Lastly, prayed for accepting the complaint of complainant and directing the OP No.1 Insurance Company to pay the insured amount to the complainant.

12.                   Learned counsel for the OP No.1 Insurance Company argued that the complainant has misrepresented the facts in respect of alleged theft as in the DDR/FIR Sh. Rajinder Singh son of Sh. Raj Pal Singh has categorically stated that he is the owner of truck No. HR-58-A-1923 which had been purchased 4-5 months prior to 02.03.2008 from complainant Kanwaljit Mehta. Furthermore, the learned counsel for the OP No.1 argued that a letter dated 10.03.2008 was issued to Kanwaljit Singh to clarify that he is registered owner and insured of abovesaid vehicle but Mr. Rajinder Singh son of Sh. Raj Pal lodged the DDR/FIR for the theft of vehicle and lodged the claim with Op No.1 Insurance Company alleging to be the owner of the vehicle and further he had left the vehicle unattended for a period of 4-5 days before theft which constitute gross negligence on his part and violate the condition No.5 of the Insurance Policy but the complainant did not give any reply of the aforesaid letter. Learned counsel for the OP No.1 further argued that the claim of the complainant has been rightly repudiated as “NO Claim”. Learned counsel for the OP No.1 referred referred the case law titled as New India Assurance Company Ltd. vs. Trilochan Jane First Appeal No. 321 of 2005 decided on 9.12.2009 wherein it has been observed in the case of theft “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 insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”   Further referred the case law titled as New India Assurance Company Ltd. vs. Chandrakant Bhuijangrao Jogdand, Revision Petition No. 4387 of 2009 decided in the month of March 2010 by the Hon’ble National Commission wherein it has been held that complainant filed a claim before the Insurance Company but the same was repudiated on 6.8.2005 on the ground that the complainant had no insurable interest as the policy on the date of the accident stood in the name of the previous owner. Lastly, learned counsel for the OpNo.1 Insurance Company prayed for dismissal of complaint.

13.                   Counsel for the opposite party No.2 argued that the complainant has availed a loan of Rs. 9,30,000/- against ‘the said vehicle’ from HDFC Bank (OP No.2) which was to be repaid by complainant in equal monthly installments of Rs. 22,785/- and a sum of Rs. 3,97,494/- was outstanding as on 06.06.2012 and this fact has not been denied by the complainant.

14.                   After hearing both the parties at length, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of Insurance Company as from the perusal of copy of DDR bearing No. 12 dated 02.03.2008 (Annexure C-3/R.1/1) registered in the police station, City Yamuna Nagar it is clear that this DDR has been lodged on the statement of one Rajinder Singh son of Rajpal Singh and some relevant contents of the same is reproduced here as under:

“ I Rajinder Singh son of Sh. Rajpal Singh, Rajput is R/o Purana Hamida. I am owner of truck bearing No. HR58A-1923. I parked my truck for selling in front of Quality Furniture Near Pucci Sarak Vishvakarma Chowk 4 days ago. Today i.e. on 02.03.2008 after noon I checked my truck but the same was not found there. It has been further mentioned in the DDR that police had made thorough investigation and statement of number of persons including that one Parveen Kumar owner of Quality Furniture was recorded and the said persons disclosed to the police that no truck was standing/parked in front of his shop for the last 4-5 days as alleged in the DDR. It has been further mentioned in the DDR that no truck was stationed/parked near his shop, therefore, the police came to the conclusion that the story put forward is suspicious in nature”

15.                   Further we have perused the copy of FIR bearing No. 287 dated 05.05.2009 which has been lodged after a period of more than one (1) years two (2) months, in which it has also been admitted by one Sh. Rajinder Singh that he purchased the truck bearing No. HR58-A-1923 prior 4-5 months from the date of theft from the complainant i.e. Kanwaljit Singh and the same was parked 2-3 days ago before the date of theft i.e. 02.03.2008 for selling the same at Vishvakarma Chowk.

16.                   From the contents of the DDR as well as FIR, it is clear that complainant Kanwaljit had already sold his truck to one Rajinder Singh prior to 4-5 months from the alleged theft and it has also been clear from the contents of this DDR and FIR that truck in question was parked 2-3 days ago unattended before the date of alleged theft at Vishvakarma Chowk for further selling. Further contents of the DDR, clearly shows that the official of the police investigated the matter properly and found that the circumstances in which the theft of the truck has been shown by one Rajinder Singh, was suspicious in nature. Even the FIR bearing No. 287 has been lodged after a period of 1 year 2 months which also creates doubt. No cogent evidence has been filed to prove the case by the complainant. Mere filing the copy of registration certificate Annexure C-1 and copy of Insurance policy is Annexure C-2 and copy of DDR as well as FIR it cannot be held that the theft of truck in question had taken place more particularly when the police clearly mentioned in the DDR lodged on the same day i.e. on 2.3.2008 that the circumstances are suspicious in nature. No untraceable report has been filed by the complainant to prove his case. Even the complainant did not bother to file any affidavit or summon to Rajinder Singh son of Sh. Rajpal Singh who lodged the FIR as well as DDR in support of his version. Besides this, the claim was lodged with the Ops Insurance Company by that Rajinder Singh not by the complainant. As per the story of the complainant the truck in question was parked unattended from the last 2-3 days as it is admitted version of Rajinder Singh son of Raj Pal Singh that he was owner in possession of the truck in question and the same was parked from the last 2-3 days at Vishvakarma Chowk for selling the same prior to the date of alleged theft i.e. 02.03.2008. Meaning thereby that the truck was standing unattended which is clearly violation of the terms and condition No.5 of the insurance policy? The present complaint has been filed by Kanwaljit Singh whereas from the contents of the DDR as well as FIR recorded on the statement of Rajinder Singh son of Sh. Rajpal Singh, it is clearly established that complainant was not having any insurable interest at the time of alleged theft of the truck in question. Normally, documents do not speak lie but man may do so as in this case also, from all the documents it is clear that complainant Kanwaljit had already sold the truck in question to one Sh. Rajinder Singh and further the alleged story regarding theft of the truck in question is also suspicious which is clearly mentioned by the official of P.S. Yamuna Nagar in DDR No.12 dated 02.03.2008.

17.                   In the facts and circumstances noted above, we are of the considered view that the complainant has totally failed to prove his case and the Ops have rightly repudiated the claim of the complainant. As such, there is no deficiency or unfair trade practice on the part of Ops Insurance Company.

18.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 04.05.2016.

                                                                                                               ( ASHOK KUMAR GARG)

                                                                                                               PRESIDENT,

 

                                                                                     

                                                                                                                 (S.C.SHARMA )

                                                                                                                  MEMBER.