Haryana

Karnal

452/2012

Rajbir Singh S/o Hari Singh - Complainant(s)

Versus

Shriram General Insurance Company Limited - Opp.Party(s)

Rajesh Kumar

19 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.452 of 2012

                                                          Date of instt.: 17.09.2012

                                                          Date of decision:19 .01.2016.

 

Rajbir Singh son of Shri Hari Singh resident of VPO Dahar, tehsil and District Karnal.

 

.                                                                               ……..Complainant.

                                      Vs.

 

1.Shri Ram General Insurance Company Limited, SCO No.410, Ist Floor, Mugal Canal, Karnal through its Sub Divisional Manager/Divisional Manager.

 

2.The Manager/Managing Director/Authorized signatory, Shri Ram General Insurance Company Ltd. E-8/EPIP, RIICO Sitapura, Jaipur 302022.

.                                                                           ………  Opposite Parties.

 

                     Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-       Sh.Rajesh Dhounchak Advocate for the complainant.

                   Sh.Rohit Gupta Advocate for the Opposite Parties

ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he got his truck bearing registration No. HR-67/0097 insured with the  Opposite Parties  vide, policy No. 108048/31/11/021470 for the period of  16.2.2011 to 15.2.2012.  On the night of   19.1.2012 , the truck was parked in front of the Panchayat  Bhawan  Dahar, District Panipat, but in the morning the same was found stolen. He  tried his level best to trace out the truck, but to no avail. Ultimately, he got registered the First Information Report No. 7 dated 21.1.2012 with the Police Station  Israna, regarding the theft of the truck. Intimation of the theft was also given to the Opposite Parties. All the formalities for payment of the claim were completed. The Opposite Parties asked him to submit the blank consent letter on the representation that full claim under the policy would be released to him. However, on 4.9.2012, the Opposite Parties paid a cheque of Rs.4,15,000/- , He raised objection and requested the Opposite Parties to  release the amount under the policy, but the Opposite Parties threatened him that if he would not receive the said cheque, his claim would be repudiated. Therefore, he accepted the  said cheque under protest. He is entitled to get the full claim of insurance to the tune of Rs.6,00,000/-, but the Opposite Parties paid the amount of Rs.4,15,000/- only,  which amounted to deficiency in services on their part due to which he suffered mental pain and agony apart from financial loss.

2.                 Notice of the complaint was given to the Opposite Parties,        who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has got no loucs standi and cause of action to file the present complaint; that complicated questions of law and facts are  involved, which cannot be adjudicated by this Forum in a summary manner ; that the complaint is not maintainable in the present form and that this Forum has got no territorial jurisdiction to entertain and to decide the present complaint as the policy was issued from  Agra and the claim of the complainant was processed  at Jaipur office of the Opposite Parties.

                    On merits, it has been submitted that claim of Rs.4,15,000/- was paid to the complainant on non standard basis vide cheque no.25276 dated 27.8.2012 in full and final discharge of the claim  to which he had not objected and accepted the amount voluntarily without any protest. A consent letter was also issued by the complainant towards full and final settlement of his claim.  The cheque was also got encashed by the complainant without any protest. Therefore, the complainant is estopped from filing the present complaint by his own acts and conduct. It has further been pleaded that fitness of the vehicle of the complainant had expired a day before the theft. Moreover, the complainant left the vehicle unattended in an open area and as such directly contributed to the theft, as he  failed to take the minimum reasonable safeguard for the vehicle from loss, which was against the term and condition No.4,  of the policy, therefore, he was paid claim on  non standard basis. There was no deficiency in services on the part of the Opposite Parties.  All other allegations made in  the complaint have been denied.

3.       In  evidence of the complainant his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C16 have been tendered.

 

4.                 On the other hand, in evidence of the Opposite Parties, affidavit of Sh.Vikash Goel, Assistant Manager Legal, Ex.O1 and documents Ex.O2 to Ex.O19 have been tendered.

5.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

 

6.                 There is no dispute between the parties regarding insurance of the truck bearing registration No. HR-67/0097 of the complainant by the Opposite Parties  for the period of 16.2.2011 to 15.2.2012 and theft of the same on the night of  19.1.2012, while being parked in front of Panchayat Bhawan, Dahar  District Panipat.  Admittedly, the vehicle was insured for a sum of Rs.6.00 lac . The Opposite Parties had paid a sum of Rs.4,15,000/- to the complainant. Now the complainant  has claimed the balance amount of Rs.1,85,000/- from the Opposite Parties.

7.                 The learned counsel for the Opposite Parties put a great thrust upon the contention that this Forum has no jurisdiction to entertain and decide the present complaint as the policy was issued from Agra and the claim of the complainant was processed at Jaipur office of the Opposite Parties.

8.                 The argument advanced by the learned counsel for the Opposite Parties cannot be accepted being not tenable under the facts and circumstances of the present case. The complainant specifically pleaded in para no.7 of the complaint that the Opposite Parties were having  their office at Karnal. The learned counsel for the Opposite Parties could not produce any material on record, which may show that there was no branch office of the Opposite Parties at Karnal at the time of filing of the present complaint. The complainant is resident of district Panipat and the cover note, the copy of which is Ex.C1’ was issued  by the agent of the Opposite Parties at Panipat. The claim Forum was  also sent by the complainant from Panipat and it was specifically mentioned that his correspondence address would lbe at village Dahar Disitrict Panipat. Admittedly, there was no branch office of Opposite Parties at Panipat at the relevant time. Karnal was the nearest branch office of the Opposite Parties. Therefore, this Forum has got jurisdiction to entertain and try the present complaint. 

9.                 The learned counsel for the Opposite Parties further contended  that fitness of the truck had expired a day before the theft. Moreover,  the complainant left the vehicle unattended in an open area and such directly contributed to the theft, as he failed to take minimum  reasonable safeguard for the vehicle from loss, which was against the terms and condition no.4 of the insurance policy. Therefore,  he was paid claim on non standard basis.  It has further been argued that the complainant had also signed a consent letter for full and final settlement of the claim after receiving the cheque of Rs.4,15,000/-, therefore, he is estopped from filing the present complaint by his own acts  and conduct.

10.               The truck was not being plied on the road at the time of theft, rather the same was parked in front of the Panchayat Bhawan of village Dahar  district Panipat   at the relevant time. Therefore, fitness of its being road worthy was not  required.   Moreover, the  complainant had not violated any  term or condition of the  policy by  not having fitness certificate at the time of theft of the truck.  Under such circumstances, the Opposite Parties had no right to repudiate the claim on the ground that there was no fitness certificate of the truck  on the date of theft. In this context   sustenance may be sought from  New India  Assurance company Ltd.  and another Versus Yogesh Gupta  2010(3) CLT 540    wherein the claim was repudiated by the insurance company on the ground that the vehicle was not having fitness certificate  at the time of accident. It was held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh  that  the insurance company had no right to repudiate the claim on the ground that by driving the vehicle without fitness certificate the complainant had violated the statutory provisions.

11.               As  per the version of the complainant, the truck was parked on the night of 19.1.2012  in front of Panchayat Bhawan of village Dahar and the same was stolen from  there. This fact cannot lost sight of that every owner of the truck cannot be expected to  have  parking space with boundary walls. Generally, the trucks and other vehicles including cars are parked in the streets and roads due to non availability of sufficient parking places and the vehicles are only locked at the time of parking. Neither it has been alleged nor there is any evidence  on record from which even an inference  may be drawn that truck was not locked by the complainant at the time of parking the same  in front of  Panchayat Bhawan of village Dahar, Therefore,  it cannot be said in any manner that the  reasonable safeguard of the vehicle from loss was not observed by the complainant.

12.               The copy of the consent letter has been produced by the complainant as Ex.C4, wherein the columns regarding place of  theft of   vehicle,  the  amount  in figures and words and date of loss are lying blank.   Leaving these columns blank shows  that signatures of the complainant were obtained on blank consent letter and  relevant column  remained unfilled. Therefore, this document cannot be accepted as  a consent by the complainant to accept the amount of Rs.4,15,000/- as full and final settlement of the claim.  Moreover, obtaining consent letter from the complainant by the insurance company before making payment of the amount on non standard basis amounts to coercive bargaining,  as the insurance company cannot be accepted to take legal right of the insured seeking  Redressal of his grievance.  In fact, obtaining consent letter is nothing, but  taking undue benefit of unequal and weak status of the contracting party who has lost his vehicle.  In this regard reliance may be placed upon  the decision of  Hon’ble National Commission in  case  Abhay Neelawarne Versus New India Assurance Co.Ltd.and another (((2008) CPJ 261 (NC).                                                 

13.                   In view of the foregoing discussion, we arrive at the conclusion  that the Insurance company was liable to pay the insured amount to the complainant after making necessary deductions as per terms and conditions of the policy and making payment on non standard basis was not legally justified and the same amounted to deficiency in services on the part of the Opposite Parties.

14.               As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite parties to make the payment of balance amount of sum insured (minus already paid) by applying necessary deductions as per terms and conditions of the insurance policy alongwith interest at the rate of nine per cent per annum from the date of filing of the present complaint i.e. 17.9.2012 till its actual realization. The complainant shall also be entitled for a sum of Rs.5500/- for the mental agony and harassment caused to him and for the litigation expenses. The Opposite Parties shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:19.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma) 

               Member.

 

 

 

 

Present:-       Sh.Rajesh Dhounchak Advocate for the complainant.

                   Sh.Rohit Gupta Advocate for the Opposite Parties

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:19.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma) 

               Member.