Haryana

Yamunanagar

CC/433/2013

Harkash Chand S/o Saudaggar - Complainant(s)

Versus

Shriram General Insurance Company - Opp.Party(s)

Anil Pundir

20 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                Complaint Case No. 433 of 2013

                                                                                                Date of institution: 10.06.2013  

                                                                                                Date of decision: 20.10.2016                       

 

Harkesh Chand son of Shri Saudagar, resident of village Judda Jattan, Tehsil Bilaspur, District Yamuna Nagar.                                                                                                                                                   

                                                              …Complainant.

                                                     Versus

Shriram General Insurance Company, SCO 1^st Floor, Plot No.57/75, Thapar Colony, Workshop Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                              …Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Sh. Anil Pundir, Advocate for complainant.

                        Sh. Ajay Shakti Goel, Advocate for OP.

           

ORDER

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act. 1986, praying therein that respondents (hereinafter referred as OP Insurance Co.) be directed to pay the insured amount of Rs.28,000/- on account of theft of the Motor Cycle and also to pay compensation  as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a Motorcycle, Hero Honda, Splendor Plus bearing Registration No. HR71-8816 having Engine No.02290, Chassis No.01627 from one Gurmeet Singh son of Shri Sucha Singh, which was insured with the OP Insurance Company for the sum assured of Rs.28,000/- vide cover note No.1096641 and Policy bearing No. 10004/31/12/049028 valid from 15^th March 2012 to 14^th March, 2013. It has been further mentioned that when on dated 03.06.2012 at about 10:30/11.00 pm, the nephew of the complainant Jai Kumar was driving  the motor cycle in question  and going from village Arayasnwala  to his village Judda Jattan, District Yamuna Nagar and reached near Sarsawan Road then 3/4 persons stroked their motorcycle  from the backside, due to which said Jai Kumar fell down on the road  and taken undue advantage of the situation, the said 3/4  persons illegally and unauthorized run away from the spot with motorcycle in question and cash lying in the pocket of the said Jai Kumar. Thereafter, an FIR bearing No.77 dated 04.06.2012 under Section 279,337 and 379 IPC was registered in PS Sadahura against unknown persons. The police officials of the Police Station Sadahura could not recover the motorcycle in question and forwarded the un-trace report bearing No.87-R dated 10.01.2013 to Court and the same was accepted by the Hon’ble Court of Addl. Civil Judge, Bilaspur. It has been further mentioned that complainant visited so times to the office of OP Insurance Company and requested to pay the claim amount, but the OP Insurance Company has put of the matter on one pretext or the other and till date no amount has been paid, which constitute the deficiency in service on the part of the OP Insurance Company. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint not maintainable; complainant is no cause of action; complainant no locus standi as the complainant is not the person who has insured the motorcycle in question from the OP Insurance Company  i.e. Insurance policy of the motorcycle in question stands in the name of previous owner  Shri Gurjeet Singh as such complainant was not  having any Insurable interest and on merit, controverted the plea taken in the complaint and reiterated the stands taken in the preliminary objection and lastly prayed for dismissal of the complaint.

4.                     In support of the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A, and documents such as photocopy of misc. receipt as Annexure C-1, Attested photocopy of FIR bearing no.77 dated 04.06.2012 as Annexure C-2, Application given to the SHO for lodging the FIR as Annexure C-3, photocopy of Registration Certificate of motorcycle bearing No. HR71-8816 as Annexure C-4, photocopy of Ration Card as Annexure C-5, photocopy of Insurance Policy as Annexure C-6, photocopy of Cover Note of Insurance as Annexure C-7, Certified of untraced report issued by Superintendent of Police, Yamuna Nagar as Annexure C-8, photocopy of Cover note as Annexure C-9 and closed his evidence.

5.                     On the other hand, learned counsel for the OP insurance co. tendered into evidence Affidavit of Shri Arvind Sharma, Legal Officer as Annexure RW/A, photocopy of Insurance policy as Annexure R-1 and closed the evidence on behalf of OP insurance company.

6.                     We have heard the Ld. Counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that Motorcycle, Hero Honda, Splendor Plus bearing Registration No. HR71-8816 having Engine No.02290, Chassis No.01627 was insured with the OP Insurance Company for the sum assured IDV of Rs.28,000/- vide cover note No.1096641 and Policy bearing No. 10004/31/12/049028 valid from 15^th March 2012 to 14^th March, 2013 which is duly evident from Insurance Policy as Annexure C-6. It is also not disputed that motorcycle in question was snatched/ stolen on 03-06-2012 which is also duly evident from the copy of FIR as Annexure C-2. It is also not disputed that the police officials of the Police Station Sadahura could not recover the motorcycle in question and forwarded the un-trace report bearing No.87-R dated 10.01.2013 to Court and the same was accepted by the Hon’ble Court of Addl. Civil Judge, Bilaspur which is also duly evident from the certified copy of untraced report Annexure C-8. Learned counsel for the complainant argued at length that claim of the complainant has been wrongly repudiated by the OP No.1 Insurance Company on the flimsy ground that complainant was not having any insurable interest in the motorcycle in question at time of alleged loss/theft, whereas from the copy of registration Certificate of motorcycle in question i.e. bearing No. HR71-8816 Annexure C-4, it is clearly evident that motorcycle in question stands in the name of complainant. So now Insurance Company cannot repudiate the claim of the complainant. Lastly, prayed for acceptance of the complaint.

8                      On the other hand, learned counsel for OP Insurance Company hotly argued at length that OP Insurance Company has rightly repudiated the claim of the complainant as the complainant was not having any insurable interest in the motorcycle in question at the time alleged theft and further the motorcycle in question was left unattended by the said Jai Singh, so, there was violations the terms and conditions of the insurance policy.  Learned counsel for OP insurance company referred the copy of insurance policy Annexure R-1/C-6 and argued that as per insurance policy previous owner Shri Gurjeet Singh was standing as insured of the motorcycle in question on the date of alleged theft. Hence, the claim of the complainant has been rightly repudiated by the op insurance company and prayer for dismissal of the complainant.

9                      After hearing both the parties at length and in the circumstances noted above, we are of the considered view that there is deficiency in service on the part of the op insurance company.

10.                   The first plea taken by the OPs Insurance Company is that the said Jai Kumar who was driving the motorcycle in question at the time of incident, left the motorcycle in question unattended at the spot which also violates the terms and conditions of insurance policy is not tenable as after going through the contents of FIR, it is clear that some bed criminal nature persons were beating to said Jai Kumar and also snatched some money from him, so, it cannot be said that the said Jai Kumar left the motorcycle in question unattended. Further, the OP Insurance Company has not filed any cogent evidence to prove this version.

11                    The second plea of the OP Insurance Company is that the insurance policy in question was stands in the name of previous owner namely Sh. Gurjeet Singh and the complainant has not applied for transfer the insurance policy in his name but the plea of the OP Insurance Company is not tenable as from the perusal of copy of RC (Annexure C-4), it is clearly evident that the registration certificate was transferred in the name of complainant on 03.06.2012 and alleged incident took place on 26.04.2012 i.e. within a period of 35-36 days. As per Section 157 (2) of the Motor Vehicle Act 1988 amended up to date it is clear that transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance but no doubt in the present case complainant could not transfer the insurance policy in his name within the stipulated period, however, as the alleged incident took place within a short span of time i.e. near about 35-36 days, so, it may be possible that complainant could not apply the same due to some unavoidable circumstances. Moreover, the complainant is an illiterate person which is evident from the copy of complaint as he put his thumb impression on the complaint itself. So, we are of the considered view that the OP Insurance Company has wrongly repudiated the claim of the complainant in toto whereas it should be decided on non standard basis. The same view has been held in case titled as National Insurance Co. Ltd. Vs. Nitin Khandelwal reported in IV(2008) CPJ page 1 (SC) in which the Hon’ble Apex Court has held in para No.13 of judgment, that the appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy; the appellant insurance company ought to have settled the claim on non-standard basis. In this case, the Hon’ble State Commission allowed 75% of the claim on non-standard basis, which was upheld upto the Hon’ble Supreme Court.

12.                   In the circumstances noted above and going through the law referred by both the parties, we are of the considered view that the complainant is entitled to get the claim on account of theft of motorcycle in question on non standard basis.

13.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 21,000/- i.e. 75% of the insured value of Rs. 28,000/- on non standard basis alongwith interest at the rate of 7% per annum from the date of filing of complaint till its actual realization, subject to submit the documents i.e. subrogation letter, indemnity bond and Form No.28, 29 and 30 duly executed by the complainant- in the name of Insurance Company. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Parties are left to bear to their own cost. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court: 20.10.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                          DCDRF Yamuna Nagar

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER