Haryana

Karnal

546/2012

Ashwani Kumar S/o Jagan Nath - Complainant(s)

Versus

Shriram General Insurance Company - Opp.Party(s)

Sh. N.K. Zak

06 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No. 546 of 2012

                                                             Date of instt.20.11.2012

                                                               Date of decision 6.5.2016

 

Ashwani Kumar son of Shri Jagan Nath, resident of House no.739, Dyalpura Colony, Karnal.

                                                                                      ……..Complainant.

                                      Versus.

Shriram General Insurance Company Limited, SCO no.410, MCM, Karnal, through its Branch Manager.

 

                                                                   ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

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

                   Sh.Anil Sharma…….Member.

 

Present:      Sh. N.K. Zak Advocate for the complainant.

                   Sh. Vineet Rathore Advocate for opposite party.

 

 ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he got insured his tractor  bearing registration no.HR-21-D-0425 alongwith trolly from opposite party no.1, vide insurance cover note no.1000/A 130906 commencing from 26.3.2011 to midnight 25.3.2012. On 25.5.2011 Jai Kumar the driver after putting fertilizer in the field, parked the tractor trolley at the Bhatta (Brick-kiln) of Raman Kumar and handed over the key to Raman Kumar, which was given by Raman Kumar to him(comlplainant) at about 9.00 p.m.  On 26.5.2011, at about 4.00/5.00 a.m. he received telephonic call from Raman Kumar that the tractor trolley was not at the Bhatta and same might have been taken away illegally. First Information Report was lodged in the concerned police station and intimation was given to opposite party on the same day. The claim no.10000/31/12/C-011243 was registered by the opposite party. However, the claim has not been settled by the opposite party, which amounted to deficiency in service and caused him mental pain and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite party, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has not approached this forum with clean hands; that this forum has got no jurisdiction to entertain and decide the present complaint; that the complaint is bad for mis-joinder and non-joinder of necessary party; that the complainant has no cause of action and that the  complaint is false and frivolous and has been filed with the sole motive to extract money and harass the opposite party for no fault on its part.

                   On merits, it has been submitted that the tractor trolley was parked at Bhatta, which was open space and venerable to theft. The complainant failed to take reasonable care and left the vehicle unattended. As he was negligent in his conduct, he cannot be permitted to take advantage of his own negligence. He violated the condition of insurance policy regarding taking all reasonable steps to safeguard the vehicle from loss. It has further been pleaded that the tractor was meant for agriculture purpose only whereas in the First Information Report lodged by the complainant he stated that the tractor was given on rent to Balaji Bhatta Company i.e. for hire and reward. Thus, the complainant violated the condition of the policy regarding “Limitation as to use”. It has also been alleged that the intimation of the theft was given by the complainant belatedly on 1.6.2011, which was also violation of condition of the policy. Therefore, the claim of the complainant was rightly repudiated by the opposite party. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1, affidavit of Raman Kumar Ex.CW2/A, affidavit of Jai Kumar Ex.CW3/A, affidavit of Rajbir Ex.CW4/A and documents Ex.C2 to C13, Ex. x and Ex.y have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Vishal Gupta, Manager Ex.OP1/A and documents Ex.OP1/B to Ex.OP1/V 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.                Tractor and trolley of the complainant were insured by the opposite party and the same were stolen on the intervening night of 25/26.5.2011 while being parked at brick-kiln of Raman Kumar. The claim lodged by the complainant to the opposite party was repudiated, vide letter dated 3.5.2012, the copy of which is Ex.OP1/C, on two grounds viz: that at the time of theft, the vehicle was being used other than for agriculture purpose, which was violation of policy condition “Limitation as to use” and secondly intimation of the theft was given after six days on 1.6.2011.

7.                Learned counsel for the opposite party vehemently argued that the vehicle of the complainant was stolen on the intervening night of 25/26.5.2011 but he had given intimation after six days on 1.6.2011 whereas according to policy condition intimation was required to be given immediately and in this way the complainant violated the policy condition and as such his claim was rightly repudiated on this ground.

8.                The argument advanced by the learned counsel for the opposite party cannot be accepted being devoid of force. No document worth the name has been produced by the opposite party, which may indicate that the complainant intimated the opposite party, about the theft for the first time on 1.6.2011. Complainant in para no.3 of the complaint specifically pleaded that the intimation of theft of vehicle given to the opposite party on 26.5.2011 and the opposite party registered the claim vide claim no.10000/31/12/C-011243. The complainant by way of his affidavit Ex. C1 reiterated the same facts regarding giving intimation to the opposite party on 26.5.2011 itself. His evidence in this regard has gone completely unrebutted, therefore, there is no reason to disbelieve the same.

9.                Learned counsel for the opposite party further put a great thrust upon the contention that the tractor trolley of the complainant was registered for agriculture purpose only and insured by the opposite party also for the same purpose. However, the complainant in the First Information Report stated that the tractor was given to Balaji Bhatta Company on rent, which was violation of policy condition regarding “Limitation as to use”.  Thus, there was violation of the policy condition by the complainant.

10.              To wriggle out the aforesaid contention learned counsel for the complainant contended that evidence of the complainant by way of affidavits of complainant, Raman Kumar, Jai Kumar and Rajbir Ex.C1, Ex.CW2/A, Ex.CW3/A and Ex.CW4/A respectively is definite that the tractor was being used for agriculture purpose only and the same was never used for any commercial purpose as well as for use for brick-kiln purpose. Even the investigator of the opposite party in his report Ex.OP1/B concluded that the vehicle was used for field works and nowhere mentioned that the tractor was given on hire to Balaji Bhatta company. Thus, the opposite party has failed to prove that the tractor alongwith trolly was being used for commercial purpose and not for the agriculture purpose.

11.              A perusal of the copy of First Information Report Ex.OP1/G reveals that the case regarding theft of the tractor trolley was registered on the basis of statement of the complainant and in the opening line of his statement he stated that the tractor trolley was given on hire to Balaji Bhatta Company Birchpur and Jai Kumar was employed as driver on the same. It is well settled principle of law that admission is the best evidence against the maker thereof. The evidence of the complainant by way of affidavits does not falsify his statement before the police on the basis of which First Information Report regarding theft was registered. It has not been clarified by the complainant that he made such statement to the police due to some wrong impression or not being in fit state of mind or under some influence or pressure. The fact that the tractor trolley was stolen while the same was parked at the Balaji Bhatta (Brick-kiln) Brichpur further lends support to the initial version given by the complainant to the police for lodging the First Information Report, according to which the tractor trolley was given by him on hire to Balaji Bhatta Company. No importance can be attach to the report of investigator, in view of the categoric admission by the complainant while lodging the First Information Report regarding use of the tractor trolly.  Under such facts and circumstances, it is established that the tractor alongwith trolley was given by the complainant on hire to Bajali Bhatta Company and the same was stolen from there whereas the same was registered and insured for agriculture purpose only. Thus, there was violation of the policy condition regarding “Limitation as to use” of the vehicle.

12.               Faced with such situation, the learned counsel for the complainant further that even if there was violation of condition of the insurance policy, the complainant is entitled to compensation on non standard basis.  In support of his contention, he placed reliance upon  Amalendu Shaoo Vs. Oriental Insurance Company Ltd. ii (2010) CPJ 9 (SC)  wherein  the claim was repudiated by the insurance company on the ground that vehicle was being driven on hire, whereas according to the policy terms, such  use was not permitted and the insurance company was not liable to any compensation  for such unauthorized use . Hon’ble Supreme Court discussed the decision of Hon’ble National Commission in New India Assurance Company Ltd. Versus Narayan Prasad  Apparasad Pathak  2006 (II) CPJ 144(NC) wherein guidelines by the Insurance Company about settling claim on non standard basis were considered. As per guideline(iii) in case of breach of warranty condition of the policy including limitation as to use , percentage of settlement was 75% of the admissible claim. Under those circumstances it was held that insurance company cannot repudiate the claim in toto. Direction was issued to insurance company to pay consolidated sum of Rs.2,50,000/-  even the compensation claimed was Rs.5.00 lacs.

                   The learned counsel for the complainant also referred to  United India Insurance Company Ltd. Vs.Deen Dayal,  IV(2009) CPJ 218 wherein vehicle meant for carrying goods was carrying  passengers at the time of accident. Keeping in view the guidelines issued by the General Insurance Corporation, the Hon’ble National Commission directed the insurance company to settle the claim on non standard basis and to pay 75% of the loss assessed by the surveyor.

13.               The proposition of law laid down in the aforediscussed authorities squarely  covers the facts of the present case as well,  wherein  there was breach of condition of the policy regarding “Limitation as to use” of the vehicle. Therefore, the claim of the complainant is to be settled by the insurance company on non-standard basis as per guidelines issued by the General Insurance Corporation.

13.               The tractor alongwith trolley of the complainant was stolen during subsistence of the policy, the same could not traced out and the police submitted untraced report, which was accepted by the Learned Additional Chief Judicial Magistrate Karnal, vide order dated 9.1.2012, the copy of which is Ex.y. The insured value of the tractor alongwith trolley was Rs.2,50,000/-. Therefore, the claim is to be settled on non-standard basis i.e. upto 75% of the loss. Under such circumstances, repudiation of the claim of the complainant by the opposite party in toto definitely amounted to deficiency in service.

14.              As a sequel of aforesaid discussion, we accept the present complaint and direct the opposite party to pay Rs.1,87,500/- i.e. 75% of the insured value of the vehicle i.e. Rs.2,0,000/- with interest @ 9% per annum from the date of filing the complaint till its realization. We further direct the opposite parties to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The party concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 6.5.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member