Punjab

StateCommission

FA/12/788

Tarlok Singh - Complainant(s)

Versus

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

D.V.Mehta

20 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 788 of 2012

                                                           

                                    Date of institution: 11.6.2012 

                             Date of Decision:  20.2.2015

 

Tarlok Singh son of Late Gopal Singh, resident of House No. HL 539, Phase-9, (Sector-63), SAS Nagar (Mohali).

…..Appellant/Complainant

                                      Versus

1. Branch Manager, Shriram General Insurance Company Ltd., SCO 178, 1^st Floor, Sector 38-C, Chandigarh.
2. Shriram General Insurance Company Ltd., E-8, EPIR RIICO, Sitapura, Jaipur (Rajasthan).

…..Respondents/Opposite parties

 

First Appeal against the order dated 9.5.2012 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Kamaldeep Singh, Advocate for

                                                          Sh. D.V. Mehta, Advocate

          For the respondent :         Sh. Sanjeev Goyal, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 9.5.2012 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as “the District Forum”) in consumer complaint No.103       dated 9.5.2012 vide which the complaint filed by the complainant was dismissed.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘the OPs’) on the allegations that being owner of Auto Rickshaw(Three Wheeler) bearing No. PB-65-H-7216, which was being plied by him to earn his livelihood was got insured with Ops for the period 20.1.2011 to 19.1.2012. During the insurance period on 25.11.2011 at about 8.30 p.m., his son Jagdish Singh had taken the Three Wheeler to weekly Sabji Mandi held in Sector 68, Mohali and it was parked near the Sabji Mandi premises. When he came after purchasing the vegetables, he was surprised to see that his Auto Rickshaw was not there and was stolen by some unknown person. He tried to locate it in and around Sabji Mandi and after that he informed the Police Control Room at 9.00 p.m. by applying No. 100, which was duly registered with Wireless Station of Police Control Room. Two Police parties reached at the spot at 9.30 p.m. and Jagdish Singh explained to the Police about the theft of the Auto Rickshaw. The Police asked Jagdish Singh to lodge the written complaint. On the same day at about 9.50 p.m. Jagdish Singh made a written complaint to SHO, P.S. Phase VIII, Mohali. Complainant also informed the opposite party on phone and after one week the Ops sent M/s Gopal Dass Gupta, Investigators & Recovery Agency. In the meantime, Ops sent letter to the complainant addressed to DTO, Phase I, Mohali to issue RC particulars of vehicle No. PB-65-H-7216 as the original documents were also stolen, which was got endorsed from the said office and was sent to authorised Investigator of OP at New Delhi. The Ops failed to properly process and to pass the insurance claim of the complainant and its claim was rejected vide letter dated 3.1.2012. The insurance services are provided by the Ops but they failed to settle the claim, which amounts to deficiency in services on the part of the Ops. Hence, the complaint with the direction to the Ops to pay an insurance claim of Rs. 99,000/- alongwith interest @ 12% p.a., pay Rs. 20,000/- on account of mental agony and harassment and litigation expenses of Rs. 10,000/-.

3.                The complaint was contested by the opposite parties, who filed written reply taking preliminary objections that there was no deficiency in services on the part of the Ops as the complaint was false, bundle of lies and vexatious; filed with an ulterior motive to take undue benefits from the Ops. There was delay in giving intimation to the Ops, the theft allegedly took place on 25.11.2011 whereas the Ops were informed on 28.11.2011, which deprived the insurance company to investigate the matter properly; there was negligence on the part of the son of the complainant as Jagdish Singh left the vehicle without lock as handle lock of three wheeler was not working and he left the vehicle in un-lock condition in the Sabji Mandi, therefore, the insured had not taken reasonable steps to safeguard his vehicle from loss of vehicle. It is also violation of Condition No. 1 & 5 of the policy and that the complainant does not fall within the definition of the ‘consumer’ as he was plying the three wheeler for commercial activity. On merits, insurance of the three wheeler in question was admitted but it was stated that the lock of the three wheeler was not working for the last 15-20 days. The insured did not take any care to get repaired the lock or get it changed and left the three wheeler on the road near Sabji Mandi without any lock, which help the unknown persons to commit the theft, therefore, the insured failed to take reasonable care to protect his vehicle. No merit in the complaint and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence affidavit Ex. CW-1/1, RC Ex. C-1/1, permit copy Ex. C-1/2, permit Ex. C-2, driving licence of Jagdish Singh Ex. C-3, certificate-cum-policy Ex. C-4, complaint regarding theft to the Police Ex. C-5, written complaint Ex. C-6, report of DTO Ex. C-7, courier report Ex. C-8, letter dt. 3.1.12 with call details Exs. C-9 & 10.

On the other hand, the opposite parties had tendered into evidence affidavit of Ankur Mathur, Manager (Legal) Ex. RW-1/1, affidavit of Jay, Manager Ex. RW-2/1, claim intimation letter dt. 28.11.11 Ex. R-1, insurance policy Ex. R-2, repudiation letter Ex. R-3, investigation report Ex. R-4.

6.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the complaint was dismissed by the learned District Forum as stated above.

7.                In the grounds of appeal, it has been pleaded that the learned District Forum failed to appreciate the fact that the complainant had informed the opposite parties well in time regarding theft of the vehicle and the Police was also informed about the theft. The claim was rejected totally on false and baseless grounds. The learned District Forum failed to appreciate the evidence on the record. The report submitted by the Ops regarding leaving the vehicle un-locked at the spot is totally false and frivolous and fabricated one, therefore, the order so passed by the learned District Forum is liable to be set-aside and appeal be accepted.

8.                There is no dispute with regard to the fact that three wheeler of the complainant was stolen during the insurance period. However, the main preposition in this complaint is whether the complainant failed to take reasonable care to protect his property. He had taken three wheeler to Sabji Mandi and it was parked outside the Sabji Mandi without any lock. Although counsel for the complainant has denied this fact, however, there is a report of the Investigator and Recovery Agency Ex. R-4 and in the finding, it has been observed that the insured could not properly lock the handle lock of the three wheeler as it was not working properly. He used to start the vehicle by Jugaad. Normally, the report of the Surveyor should be admitted unless contrary to it is proved by the other party. Apart from that report, there is affidavit given by the complainant dated 28.12.2011 in which it has been stated that the lock of the said Auto-rickshaw was not working and he could not get it repaired well in time. Therefore, no other evidence is required over and above the affidavit given by the complainant himself. The policy condition Nos. 1 & 5, which are relevant, the learned District Forum has referred the same and reads as under:-

“1.      Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ summons and/or process or copy thereof shall be forwarded immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the policy and cooperate with the company in securing the conviction of the offender.

2 – 4.           xxxxxx                            xxxxxx                            xxxx

5.       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.”

9.                Whereas counsel for the appellant stated that this ground does not find mention in the impugned repudiation letter but has been pleaded first time in the written statement. It is not only the repudiation letter but the entire terms and conditions are to be taken care while deciding the complaint of the complainant. In case the complainant himself has filed the affidavit that lock of the handle of the three wheeler was not working, which shows that when the three wheeler was left outside the Sabji Mandi, it was not under lock and key, meaning thereby that reasonable care, which the owner of the vehicle should have taken was not taken by the complainant. To support this preposition that the insured must take reasonable care, the counsel for the respondents referred judgments of the Hon’ble National Commission II (2009) CPJ 169 (NC) “New India Assurance Company Limited versus T.V. Sarathi” and I(2012) CPJ 256 (NC) “Amit Kumar & Anr. Versus New India Assurance Company & Anr.”. In both the judgments, Hon’ble National Commission held that in case reasonable care is not taken and there is violation of the terms of the policy then the claim can be repudiated. We are of the opinion that the learned District Forum has rightly dismissed the complaint of the complainant. We do not find any evidence on the record for allowing the complaint filed by the complainant. Order so passed by the learned District Forum is justified; we affirm the same.  

10.              In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.

11.              The arguments in this appeal were heard on 9.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

12.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 20, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member