The facts agitated in complaint in brief are as under:-
The complainant who is the registered owner of a Motor Cycle Hero Honda Splendor plus bearing registration No.HR-27-B-7264 which was insured with the opposite party. His motor cycle was stolen on 21.8.2012 at night from the parking slot/ plot of one Raju Taneja from village Pinangwan Tehsil Punhana District Mewat and it came to light of the complainant in the morning that his motorcycle is missing from the place on 22.8.12 where it was parked at previous night i.e. on 21.8.12.
The complainant made efforts to locate his motorcycle but all in vain. He informed about the theft with the concerned Police post/P.S. on the same day but the report was lodged on 28.8.2012 bearing FIR No.356 dated 28.8.2012.
As per complainant, he also informed the opposite party regarding theft of his motor cycle and applied for the claim after completing all the necessary and legal formalities but all in vain.
The complainant also got issued legal notice, but not to talk of payment of claim, the opposite party did not even bother to reply the same.
When all the efforts of the complainant failed to bring the desired fruits for his legal and genuine claim, he was compelled to knock the door of this Fora and in his complaint the complainant has alleged that he has suffered a lot and has been harassed physically, mentally and has suffered a loss due to negligence and deficiency in services of the opposite party by not accepting the genuine claim of the complainant and prayed to this Forum to direct the opposite party:
To pay claim to the tune of Rs.28000/- the I.D.V. of the motor cycle in question with 18% interest p.a. and harassment alongwith legal expenses and further prayed for any other relief which this Fora deems fit and proper.
After registration of the complainant, notices were issued to the opposite parties who put up their appearance through learned counsel and filed reply of the complaint in question. The learned counsel at the very outset raised preliminary objections in his reply regarding the late intimation and lodging of FIR regarding the theft of Motor cycle by the complainant and complainant is not falling within the purview of Consumer Protection Act, 1986 as defined under section 2(g) and (o), the opposite party have also raised preliminary objections regarding the complaint being mis-conceived, devoid of merits, false and frivolous, the complainant according to the opposite parties have also concealed the material facts and further there is plea of violation of policy terms and conditions No.1,4 and 8. In addition to it, there is also preliminary objections regarding maintainability, jurisdiction complaint being false and bogus, no cause of action have accrued to the present complaint.
In parawise reply also the allegations levelled in the complaint have been denied in toto except the fact that the motorcycle in question of the complainant was insured and insurance was valid for the period from 13.10.11 to 12.10.12 against the I.D.V. of Rs.28,000/-. Further in the para No.2 of the reply, the plea of intimation to the opposite party regarding delay of two days have been taken and plea of FIR being lodged after lapse of 7 days i.e. on 28.8.12 have been taken and in the end it is prayed that present complaint deserved dismissal at the outright and claim being vaxious and false the opposite parties are entitled for compensation, cost and penalty of Rs.10,000/-.
To strengthen his claim, the complainant has adduced his evidence and in evidence he placed on record his affidavit which is Ex.CW1/A, in which he has re-asserted the allegations levelled in his complaint. Ex.C.1 is the copy of FIR in which date of occurrence has been shown to be that of 21.8.2012 though it has been lodged on 28.8.2012 which is regarding theft of motorcycle bearing No.HR-27-B-7264; Ex.C-2 is untraced report, Ex.C3 is the certificate of registration of motorcycle in question. Ex.C-4 is the policy cover note showing the validity and currency of insurance of motorcycle from 13.10.2011 to 12.10.2012 and its IDV value to the tune of Rs.28,000/- Ex.C-5 is the Voter Card of the complainant, Ex.C-6 is the legal notice dated 16.5.2013 and Ex.C-7 is the postal receipt of the legal notice issued.
To strengthen their version the opposite parties have placed on record the affidavit of Vishal Gupta, Assistant General Manager of the opposite parties in which he has re-asserted the pleas already taken in detailed reply filed by the opposite parties. The affidavit is Ex-R-1, Mark-A is the claim intimation slip dated 23.8.12, Annexure-A.1 is the Certificate cum Policy Schedule which proves the validity of the insurance period of motor cycle in question, its I.D.V. value and Annexure B is Two Wheeler Package Policy running into nine pages.
After adducing evidence both the parties put forth their written arguments and also raised oral arguments in support of their respective contentions.
The Ld. counsel of the complainant argued that he has been able to prove his complaint and the fact that the FIR of motor cycle bearing registration number HR-27-B 7269 have been lodged with the concerned police station. He has also laid stress that the complainant also informed the insurance company and there is delay of only two days and the complainant being illiterate and District Mewat is not so advanced in the matter of technology. The delay of only two days can be understandable and in practice also the police do not lodge the FIR on the same day in theft matters. It takes at least 7 to 8 days in lodging FIR, though according to the learned counsel the intimation to the concerned police station has been given on the same day and even in the FIR the date of occurrence has been shown to be that of 21.8.2012 and FIR number lodged on 28.8.2012. There is no fault on the part of the complainant in lodging FIR. The untraced report has also been placed on file and the learned counsel further argued that the legal notice was slapped on the opposite parties even then the opposite party has not arose from hibernation period.
The opposite parties are certainly have acted negligently and have not accepted the genuine claim of the complainant. In the end, he has prayed for granting claim and compensation to the complainant. Learned counsel has also argued that opposite parties have also failed to produce Surveyor Report on the file.
On the contrary, the learned counsel of opposite parties has also stoutly and forcefully argued that the claim of the complainant is not maintainable and there is violation of terms and conditions of the policy of the subject motorcycle. The Ld. counsel have argued that late intimation to the opposite parties regarding the theft of motorcycle in question was submitted as there was delay in lodging FIR with the concerned police station. However, there is no denial or rebuttal regarding the Policy’s validity, intimation to the opposite party and lodging of FIR and providing untraceable report by the police.
Learned Counsel have laid stress on violation of the terms and conditions of the policy and specifically mentioned that condition no. 1, 4 and 8 of the policy Annexure B have been violated. He has further argued that it is a false and vaxious claim and the complaint of the complainant deserved to be dismissed on the ground of mis- representation, vaxious claim and he forcefully argued that complainant is not entitled for any claim, his claim was rightly repudiated by the Company rather he has argued for imposing cost on the complainant for false, frivolous, vague and unwarranted claim. Counsel for the opposite parties has cited certain citations to support his case/version the citations are of Hon’ble Apex Court while dealing with the issue in United India Insurance Vs. M/s Harchand Rai Chandan Lal JT 2004(8) SC 8 held that the terms of contract has to be read strictly. In the present case the complainant has been able to prove the theft of motorcycle in question and have followed all the terms and conditions of the contract and on mere technical ground cannot be overlooked. Hence the facts in the present case are different from the citation of the Hon’ble Apex Court which is not applicable in the present case.
After perusal of the facts on file, evidence adduced by both the parties and after thoughtful consideration and evaluation of evidence, on the written as well as oral arguments raised by Ld. counsel of both the parties before embarking upon the correctness of repudiation of claim or allegations of the complainant it is the first and formost question which arises for our consideration:-
Whether the motorcycle in question was insured, theft took place during currency of insurance, and intimation to the opposite parties and FIR of theft to police lodged well on time or if intimation and lodging of FIR was delayed, how much was the delay and the delay was fatal in any manner to the complainant.
This Forum after thoughtful consideration and evaluating the evidence comes to the conclusion that the complainant has been able to prove that his motorcycle was stolen, he has successfully proved that it was insured and theft took place during the currency of insurance 13.10.2011 to 12.10.2012. This fact is also got unrebutted by the opposite parties and rather accepted that vehicle in question was insured and its insurance declare value (I.D.V.) was Rs.28,000/- It is also proved that police was not able to lay their hands on stolen motorcycle and submitted its untraceable report, which is also not disputed (untraceable report is Ex. C 2). Only question and sole plea is the delay of two days to intimate the Insurance Company and further delay of 7 days in lodging the FIR is of utmost importance and needs thorough consideration.
This Forum after consideration of the geographical area, illiteracy, unawareness and lack of technology of Distt. Mewat, and insufficient facility of modern day advanced technique of computerization and communication, the delay of only two days to intimate the opposite party/insurance company is not fatal in any way for the complainant and regarding delay in FIR only of 7 days also does not hamper the case of the complainant. Practically when a person goes for lodging FIR in a theft case of vehicle, the police do not immediately lodge the FIR and it takes few days. In the present case it is amply clear that intimation to police was given on the same day of occurrence of theft as it is clearly mentioned on the top of FIR that the date of occurrence is 21.8.2012 and FIR was lodged on 28.8.2012. So without entering into technility and being hyper technical will not serve the purpose and need of the Consumer Protection Act.
Moresoever, the citation of Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case titled as Shri Ram Gen. Insurance Co. Ltd. Vs. Manoj 2014 (3) CLT Page 447 decided on 8th July, 2014, is squarely applicable in the present case and has come to the rescue of the complainant in which ground that there was delay of 11 days in lodging FIR and delay of 33 days is giving intimation to the insurance company. In this case, it was decided that it is not violation of the terms and conditions of policy.
In the present case in hand it was amply proved that vehicle was stolen and could not be traced and it is a genuine case of the complainant and the insurance company cannot take the shelter under violation of conditions and repudiate the claim of the complainant which is otherwise proved to be genuine.
The other citation which is squarely applicable in the present case in Ram Seva Sahkari & others Vs. Agriculture Insurance Corporation of India and others-2014 (I) CLT page 395, it will not be reasonable and proper to dismiss the complaint on purely hyper-technical ground.
Further the other citation titled as Sanjay Kumar Gupta Vs. Kibel Kushan Bezma & others 2014(3) CLT 408 (NC), that a Consumer Fora is primarily meant to provide protection to the consumer and their claims cannot be defeated on technical or hypo technical grounds also applicable in the present case in hand.
Hon’ble Delhi State Consumer Disputes Redressal Forum CPJ (2008) Volume III page 459 in Radha Gupta Vs. National Insurance Company held that information to police in any form is sufficient requirement –Once report lodged in the police in any form, insurance company barred from appointing investigator to investigate whether theft took place or not. This citation also supports to the case of the complainant. is squarely applicable in present case.
So this Forum is of the considered view that the complaint of the complainant is accepted as he is able to prove his case and deficiency and negligence of the opposite parties and hold the opposite parties liable for their negligence act or for not providing sufficient services and directs the opposite parties:-
i) To pay the complainant a sum of Rs.25, 000/- out of I.D.V. of Rs.28,000/- by deducting depreciation value and model of the motorcycle in question bearing No.HR-27-B-7264 with interest at the rate of 9% p.a. from the date of institution of the complaint till its realization.
ii) The opposite parties are further directed to pay a sum of Rs.2000/- on account of litigation expenses for the present unwanted and unwarranted litigation only due to deficiency in service on the part of the opposite parties.
AND
iii) The opposite parties are further directed to pay compensation to the tune of Rs.5,000/- on account of sufferings due to mental agony and pain.
These above mentioned directions are to be complied within 45 days from the receipt of this order; otherwise the opposite parties will be further burdened with a cost of Rs.20, 000/-(twenty thousand).
Copy of this order be given to the parties free of costs. File be consigned to record room after doing needful. This order of the Forum is running into 9 pages in total and each and every page of this order has been signed.
Announced in open Court.
07.05.2015
(Rajbir Singh Dhariwal) (Jagbir Singh)
(Member) President,
District Consumer Disputes
Redressal Forum,Mewat at Nuh
