Haryana

Kaithal

86/21

Jagrup Singh - Complainant(s)

Versus

Shikha Motors Bajaj Auto Ltd - Opp.Party(s)

Sh.Mukesh Kumar

02 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 86 of 2021.

                                                               Date of institution:   30.03.2021.

                                                               Date of decision:      02.05.2024.

 

1. Jagrup Singh s/o Shri Sadhu Ram (since deceased) now represented by his LRs:-

1. Neelam widow of Jagrup Singh
2. Jannat d/o Jagrup Singh, aged about 15 years (minor daughter)
3. Shourya s/o Jagrup Singh, aged about 9 years (minor son)

through their mother and natural guardian.

 

All residents of Ward No.23, Gali No.23, Peoda Road, Kaithal.

                                                                                      …Complainants.

                                                       Versus

 

1. Shikha Motors Bajaj Auto Ltd., Ambala Road, near Hindu Girls School, Kaithal, Tehsil and District Kaithal, through its MD/Manager.
2. The New India Assurance Co. Ltd., D.O. (354400), above Vijay Bank, near Pehowa Chowk, Ambala Road, Kaithal.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

 

Present:       Shri Mukesh Kumar, Advocate for the complainant.   

                   Ms. Shivangi, Advocate for Opposite Party No.1.

                   Shri M.R. Miglani, Advocate for Opposite Party No.2.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

          Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019, against the OPs.

2.                It is alleged in the complaint by the complainant (since deceased) that he purchased a motorcycle Platina 100 Alloy ES BS-IV from OP No.1 and got registered the same in his name bearing Registration No.HR-08Y-1964. That the said motorcycle was insured by OP No.2, vide insurance policy No.35440031180300003190 valid from 27.06.2018 to 26.06.2019. That in the night of 06.03.2019, the said motorcycle was stolen from Baba ki Kutia in front of Chaudhary Petrol Pump between 09:30 to 10:00 PM and in this regard, he got lodged FIR No.111 dated 09.03.2019 u/s 379 of IPC in PS Civil Line Kaithal, upon which, the police submitted Untraced Report, which was accepted by the Court concerned. That he applied for claim with OP No.2 vide claim No.35440031180390001372, but the same was wrongly repudiated, by OP No.2, vide its letter dated 29.12.2020, on the ground that the statement given by him to the police and to the investigator of OP are different, rather no statement has been given by him before said investigator of OP. That the above act of OPs of repudiating his genuine claim, amounts to clear cut deficiency in service, on the part of OPs, due to which, he suffered huge mental agony, physical harassment, constraining him, to file the present complaint, against the OPs, before this Commission.

3.                Upon notice of complaint, OPs appeared before this Commission and filed their respective written statements

4.                OP No.1, in its written statement admitted about selling the motorcycle in question to the complainant. It is further stated that OP No.1 has no concern with the present complaint, as OP No.1 is only the dealer of Bajaj Auto Limited and it neither insurer nor insurance service provider, rather only dealing in selling and service of new motorcycles and prayed for dismissal the present complaint, against it.

5.                OP No.2, in its written statement stated that after receiving intimation on 12.03.2019, OP appointed surveyor Shri Shamsher Singh, who found so many discrepancies regarding place of theft, time and date etc. That as per intimation letter, complainant mentioned that motorcycle was stolen in 06.3.2019 from Chaudhary Petrol Pump, Dhand Road, but as per version of FIR, you got recorded that motorcycle was stolen from Baba ki Kutiya. That during investigation, investigator taken your statement, wherein you mentioned that on 22.3.2019 you stopped for some time in the farm of Miya Singh and parked his bike on the farm and after half an hour when you come back you found that the bike is not there. As per investigator report, complainant concealed the true and material facts from OP, violating terms and conditions of insurance policy. Hence, claim of complainant was rightly repudiated and there is no deficiency in service, on the part of OP No.2 and prayed for dismissal the present complaint.

6.                To prove the case, complainant tendered into evidence affidavits Ex.CW1/A, Ex.CW2/A alongwith documents Annexure-C1 to Annexure-C6.

7.                On the other hand, OP No.1 tendered into evidence affidavit Ex.RW1/A. OP No.2 tendered affidavits Ex.RW2/A, RW3/A and documents Annexure R1 to R5.

8.                We have heard the learned counsel for the parties and perused the record carefully.

9.                Learned counsel for the complainant has argued that the complainant purchased a motorcycle Platina 100 from OP No.1 bearing Registration No.HR-08Y-1964, which was insured by OP No.2 valid from 27.06.2018 to 26.06.2019. He further argued that in the night of 06.03.2019, the said motorcycle was stolen from Baba ki Kutia in front of Chaudhary Petrol Pump between 09:30 to 10:00 PM and in this regard, he got lodged FIR No.111 dated 09.03.2019 u/s 379 of IPC in PS Civil Line Kaithal, upon which, the police submitted Untraced Report, which was accepted by the Court concerned. He further argued that the complainant applied for claim with OP No.2, but the same was wrongly repudiated, by OP No.2, vide its letter dated 29.12.2020, which amounts to clear cut deficiency in service, on the part of OPs.

10.               On the other hand, learned counsel for OP No.1 has argued that OP No.1 has no concern with the present complaint, as OP No.1 is only the dealer of Bajaj Auto Limited and it neither insurer nor insurance service provider, rather only dealing in selling and service of new motorcycles.

11.              Learned counsel for OP No.2 has argued that after receiving intimation on 12.03.2019, OP appointed surveyor Shri Shamsher Singh, who found so many discrepancies regarding place of theft, time and date etc. He further argued that as per intimation letter, complainant mentioned that motorcycle was stolen in 06.3.2019 from Chaudhary Petrol Pump, Dhand Road, but as per version of FIR, the complainant got recorded that motorcycle was stolen from Baba ki Kutiya. He further argued that during investigation, investigator taken statement of complainant, wherein he mentioned that on 22.3.2019, he stopped for some time in the farm of Miya Singh and parked his bike on the farm and after half an hour when you come back you found that the bike is not there. He further argued that as per investigator report, complainant concealed the true and material facts from OP, violating terms and conditions of insurance policy. Hence, claim of complainant was rightly repudiated and there is no deficiency in service, on the part of OP No.2. In order to support his above contentions, he placed reliance upon case laws titled Shri Krishna and others Vs. Universal Sompo General Insurance Co. and others, 2018(4) CLT, 474 (NC) and Nand Kishor Vs. Haryana State Agriculture Marketing Board and others, 2018(2) CLT, 478 (NC).

12.              Undisputedly, complainant is the registered owner of motorcycle bearing Registration No.HR-08Y-1964 Annexure C-6, which was insured with OP No.2 vide insurance policy No.35440031180300003190 valid from 27.06.2018 to 26.06.2019 with Insured Value of Rs.44,919/- vide Two Wheeler Enhancement Cover Policy Annexure C-1. The said motorcycle was stolen and in this regard, FIR bearing No.111 dated 09.03.2019 was registered in PS Civil Line Kaithal Annexure C-2, upon which, police submitted Untraced Report Annexure C-4 and the same was accepted, by the Court concerned, vide its order dated 12.11.2020 Annexure C-5. The complainant lodged his claim with OP No.2, who repudiated the same vide its letter dated 29.12.2020 Annexure C3 on the ground of misrepresentation of true facts.  

13.              Learned counsel for the complainant has alleged that OP No.2 has wrongly repudiated the claim of complainant, which amounts to deficiency in service, on the part of OP No.2.

14.              Contrary to it, learned counsel for OP No.2 has contended that after receiving intimation, OP appointed surveyor Shri Shamsher Singh, who submitted his report Annexure R-1, and found so many discrepancies regarding place of theft, time and date etc. He further contended that as per claim intimation and police version Annexure R-4, the said vehicle has been stolen on 06.3.2019, but as per Insured written statement Annexure R-5, the said vehicle had been stolen on 22.03.2019. He further contended that as per claim intimation, place of theft was Chaudhary Petrol Pump, but as per Insured written statement Annexure R-5, the said place is away about 1 kilometer from Chaudhary Petrol Pump. He further contended that as per version of police, the complainant went to Baba Kutiya and after half an hour, when he saw his motorcycle was not found there, but as per written statement of Insured, during investigation, he mentioned that he was coming from village Teek via drain and suddenly rain came at about 09:30 PM and he stopped at Miya Singh Saini farm. To support his above contentions, OP No.2 has produced report of said surveyor as Annexure R-1 and alleged statement of complainant as Annexure R-5. But contrary to it, learned counsel for the complainant has submitted that no such statement has been given by the complainant to the said surveyor, at any point of time.

15.              From the above pleadings of the parties, we found that OP No.2 has repudiated the claim of the complainant on the ground that there found so many discrepancies, in the version of complainant, recorded with the police Annexure R-4 and the statement of complainant, recorded by surveyor Annexure R-5 regarding place of theft, time and date etc. But contrary to it, learned counsel for the complainant has denied that no such statement has been ever recorded by the complainant, with the said surveyor. However, from perusal of alleged statement of complainant Annexure R-5, we found that there is no signature of complainant, rather there is only written name of complainant i.e. Jagrup Singh, with two mobile numbers. However, it is pertinent to mention here that when the complainant denied about got recording any statement with the surveyor of OPs, then it was the duty of OP No.2 to cross-examine the complainant in the witness box, to prove the authenticity of alleged statement Annexure R-5, during the lifetime of the complainant, by moving an application, before this Commission, but nothing such as, has been done, by OP No.2, reason best known to them. Since the complainant has denied about got recording his statement, with the surveyor, by signing the same underneath it Annexure R-5, therefore, the onus was upon OP No.2 to prove this fact that this statement having signature underneath it, belongs to complainant. But contrary to it, OP No.2 has failed to produce even a single documents, on the case file, to prove his above version/contentions, due to which, the genuineness of this alleged statement of complainant Annexure R-5 is doubtful. Hence, in view of above facts, the above contentions of OP No.2 that there found so many discrepancies, regarding place of theft, time and date etc. in the FIR and statement of complainant, has no force, hence rejected.

16.              Secondly, learned counsel for OP No.2 has contended that as per intimation letter of complainant, the motorcycle in question was stolen on 06.03.2019, whereas, the FIR Annexure R-4 was got recorded on 09.03.2019 i.e. after a delay of three days, which is in violation of terms and conditions of insurance policy, as such, claim of complainant was rightly repudiated on this ground also. But it is pertinent to mention here that delay in FIR is no ground to repudiate/reject a claim. In this regard, our view is fully supported by the case law, produced by the complainant, titled Om Parkash, Appellant Versus Reliance General Insurance and Anr. (supra), wherein, the Hon’ble Supreme Court of India has held that “Consumer Protection  Act, 1986, Section 23- Insurance Claim – Theft of vehicle – Delay  in lodging claim with Insurance Company – Claim repudiated by Insurance Company – Person  having lost vehicle not expected to straightway go to insurance company to claim compensation- Some efforts expected to have been made to trace vehicle – Condition of owner to intimate insurer immediate after theft of vehicle not to bar settlement of genuine claims – Cogent reasons for delay given by claimant for 8 days in  informing Insurer- Investigator verified to be genuine – Claimant entitled for sum claimed along with compensation”. So, in view of the above case law, the second ground taken by learned counsel for OP No.2 about delay in FIR, to repudiate the claim of the complainant, has no force, hence rejected.

17.              So, keeping in view the above facts and circumstances of the case, we are the considered view that OP No.2 insurance company has not been able to prove the allegations, on the basis of which, they had repudiated the claim of the complainant vide letter Annexure C-3. Thus, the repudiation of the claim, done by OP No.2, is held to be unjustified and amounts to gross deficiency in service, on the part of OP No.2.  

18.              Now the question which arises for consideration is what should be the quantum of indemnification? From policy document Annexure C-1, it is evident that the Insured Value of the motorcycle in question was Rs.44,919/-. Hence, OP No.2 is liable to reimburse the said amount of Rs.44,919/- along with compensation amount + litigation expenses, to the LRs of complainant, in equal shares each. Since OP No.1 has only sold the new motorcycle in question to the complainant and it has no role in the matter in question, therefore, complaint qua OP No.1 is liable to be dismissed. The case laws, produced by OP No.2 are not applicable to the case in hand, being rested on different footings.

19.              In view of our above discussion, we accept the present complaint against OP No.2 and dismiss the same against OP No.1. We direct OP No.2 to pay insured amount of Rs.44919/- along with compensation amount of Rs.10,000/- + litigation expenses of Rs.5000/-, to the LRs of complainant, in equal shares each, subject to the condition that LRs of complainant shall submit requisite documents, with OP No.2 regarding cancellation of Registration Certificate of vehicle in question and thereafter, OP No.2 shall make the payment of total award amount to the LRs of complainant. OP No.2 is further directed to comply with the order of this Commission within 45 days positively, failing which, the total award amount shall carry interest @6% per annum, from the date of filing the present complaint, till its actual realization.

20.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.       

Announced in open Commission:

Dt.:02.05.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

Typed by: Sham Kalra, SSS.