DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION CAMP COURT AT LUDHIANA

Received by way of transfer Consumer Complaint No.41 of 2018

                                            Date of institution:17.01.2018

                                            Date of Decision:17.10.2022

Naresh Kumar son of Sh. Krishan Lal, resident of House No.3780, Shivaji Nagar, Street No.10, Ludhiana

…….Complainant

Versus

1. M/s Tata AIG General Insurance Company Limited, having its branch office at Dashmesh Complex, First Floor, SCO-668, Near Park Plaza, Pakhowal Road, Ludhiana through its Senior Vice President/Branch Manage r
2. Rohit Walia Development Officer, C/o M/s Tata AIG General Insurance Company Limited, having Branch Office at Dashmesh Complex, First Floor, SCO No.668, Near Park Plaza, Pakhowal Road, Ludhiana
3. M/s Tata AIG General Insurance Company Limited, having its head office at 301-308, Third Floor, Aggarwal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema Rani Bhag, Pitampura, New Delhi through its Deputy Manager Claims
4. M/s Perfect Investigator, C/o M/s Tata AIG General Insurance Company Limited, Head Office at 301-308, Third Floor, Aggarwal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema Rani Bhag, Pitampura, New Delhi-110034
5. M/s Tata AIG General Insurance Company Limited, registered office at 15^th Floor, Tower A, Peninsula Business Park, Ganpatrao Kadam Marg, Off Senapati Bapat Marg, Lower Parel, Mumbai through its General Manager                                                                         ……..Opposite Parties

 QUORUM:   

   HON’BLE MR. RANJIT SINGH, PRESIDENT.

                  HON’BLE MRS. RANVIR KAUR, MEMBER

PRESENT:

Sh. Tarun Bhardwaj, Adv. for complainant

Sh. Rajeev Abhi, Adv. for OPs No.1,3 & 5
Complaint against OP1 and OP4 not admitted  

ORDER

RANVIR KAUR, MEMBER

1. The present order of ours will dispose of the above complaint filed under Consumer Protection Act, by the complainant against the Opposite Parties on the ground that the complainant has availed one insurance policy known as Commercial vehicle package policy which valid upto midnight of 26.11.2016. The purpose of the policy was insured the commercial vehicle of the complainant at anywhere in India. The complainant purchased a Mahindra Bolero CV Maxi Truck Plus BSIV PS open body type vehicle for carrying the goods made in colour white through Kotak Mahindra Bank Limited, from Dada Motors, Savitri Complex-II, First Floor, Dholewal Chowk GT Road, Ludhiana, in the year November 2015 vide invoice dated 27.11.2015 for Rs.5,11,404/-. At that time a temporary registration number was allotted to the said vehicle and lateron permanent registration number was allotted. At the time of purchasing of said vehicle from Dada Motors, Ludhiaha, the complainant also got insured the said vehicle on his name through agent/broker/producer Mahindra Insurance Brokers Limited. OP No.1 insured the said vehicle. After purchasing the said vehicle, the complainant was being used such vehicle as for carrying the goods. For carrying the goods through said vehicle, the complainant got employed a driver immediately after purchasing of said vehicle. On 04.08.2016 at 9.30 PM the said driver took the raw material from the firm M/s Bansan Paper and Plastic Industries situated at E-118, Phase IV, Focal Point, Ludhiana and loaded the same in the vehicle. The said goods was to be delivered by the said driver on 5.8.2016 to the Firm M/s SS Food Factory situated at Naushera Punia, Near Harike Pattan, District Tarntarn. On the next day i.e. 6.8.2016, when the driver not returned to the complainant along with said vehicle and the expensive of raw material as well as the expensive of carrying the said goods, the complainant enquired about the said driver at their residence. After reaching there, the complainant learnt that wife of the driver along with her daughter had left the said house and driver never returned. Thereafter, the complainant also enquired about the driver from the owner of the factory where he unloaded the said goods. The owner of the factory told him that the said driver unloaded the raw material on 5.8.2016 at 12.00 PM and thereafter the said factory owner handed over an amount of Rs.25,000/- as cash as the expense of said raw material and one cheque of Rs.30,000/- as the expense of carrying of goods and after receiving the same he left from there. The complainant also enquired about the said driver as well as vehicle on number of places, but till date neither the driver is found nor is the said vehicle found. Immediately, the complainant had informed the said fraud of the driver to the OP No.1. The complainant had also informed the said fact to the concerned police authorities. Then, the complainant lodged a claim to the OP No.1 but the Ops repudiated his claim on the false ground. Thus, alleging deficiency in service on the part of the OPs. Therefore, the complainant prayed for the following reliefs against the OPs:- 

1. To pay the claim amount of Rs.4,85,834/- along with interest @ 24% per annum i.e. Rs.1,74,900.24/- with Misc expensive with regard to the personal visits of the complainant making of telephone and mobile calls and correspondence etc.

3. To pay Rs.1,00,000/- as compensation

4. Any other additional or alternative relief to which the complainant is found entitled to in the facts and circumstances of the case to the complainant.

2. Upon notice, the OPs No.1,3 & 5 have filed written reply taking preliminary objections; that the complaint is barred under Section 26 of the Consumer Protection Act; that the present complaint is not maintainable. On merits, it is stated that since claim for the allged loss dated 6.8.2016 was reported on 9.8.2016 i.e. 3 days after the alleged loss. Also, the FIR was registered on 25.8.2016 i.e. after 21 days of the alleged loss. The act of the complainant stands in violation of policy. Condition No.1. which states 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 to the company immediately on the receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution/inquest or fatal enquiry 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 a subject matter of claim under the policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offenders. It is one of the condition No.8  in the policy that the due observance and fulfillment of the terms, conditions, endorsements of this policy in so far as they relate to anything to be done or complied with by the insured shall be a condition precedent to any liability of the company to make any payment under this policy. After receipt of the intimation of alleged loss, an independent investigator was appointed to investigate the alleged theft claim. The said investigator had made thorough investigations, recorded the statements took the documents and thereafter prepared his report dated 15.6.2017 under their signatures and submitted the same to the Ops along with annexures and enclosures attached with the report which clearly stating that on 5.8.2016 i9nsured driver sent for unloading of vehicle but after unloading driver and vehicle both did not come back. Driver along with his family left the place and ran away. FIR was duly lodged and as per statement of insured police was not lodging FIR as such delay was there. Both the original keys and original documents were in the vehicle and took away by driver as such no key provided by insured. We have visited driver address but neither driver nor his family member is available all have left this place. We have also tried to contact driver’s relative and his various mobile numbers but there has been no response neither nobody met. We visited the place where driver has last unloaded the vehicle they have also confirmed that driver has unloaded the vehicle and took payment for us. After the receipt of the report of the investigator, the answering OPs repudiated the claim of the complainant as no claim vide letter dated 12.10.2017. Thus, alleging no deficiency in service on the part of answering OPs and prayed for dismissal the complaint. 
3. In support of the complaint, the complainant has tendered various documents. On the other hand, the OPs has also tendered documents in support of their evidence.
4. We have heard the learned counsel for the complainant and have gone through the record of the file, carefully.
5. It is important to mention here that contract of insurance is not denied and the occurrence during the subsistence of insurance is also not denied. From the pleadings, evidence  and the arguments, the issue have been narrowed down as follows;-

The allegation by the OP that there is delay in loading the claim of the complainant with the insurance company does not hold any ground. The complainant came to know of the malicious act of the driver in the due course, when the driver along with the vehicle did not turn up and the follow up action by the complainant revealed the relevant occurrence and thereafter without any unreasonable delay the complainant lodged the claim with the insurance company. Further the allegations of the OP that there is delay in lodging the FIR also does not hold. It is matter of common knowledge that the police does not register the case immediately on filing of the complaint. In the circumstances, of the present case, on coming to know about the malicious act after follow up by the complainant started making efforts for lodging the FIR and there is no unreasonable delay by him in lodging the complaint with the police for registration of FIR. Further the fact remains that the FIR has been registered of the malicious act. The third allegation of the OP that the occurrence is not covered under the insured acts is also without any merit. The OP has rejected the claim of the complainant on the basis of surmises and conjectures. Firstly the point of the OP that only the case of the theft and the offence of criminal breach of trust is covered under the insurance policy has not genuine reasoning because here the OP is trying to reject the claim of the complainant on mere technicality, not warranted under law. However, for the sake of arguments, even by going with the point of OP, the act is very much covered under point VII (malicious act) of the relevant acts covered in the insurance policy the dictionary meaning of the malicious act is “desired to harm someone” which certainly covered the case of the complainant.

6.     Consequently, the case of the complainant succeeds against the insurance company.  The insurance company is liable to pay sum assured amount policy Rs.4,85,834/- payable from the date of lodging the complaint with interest @ 7% per annum till payment. The complainant is also entitled Rs.20,000/- as compensation along with Rs.11,000/- as litigation expenses. The Insurance Company is further directed to comply with the said order within 30 days from the date of receipt of certified copy of this order. Free certified copies of this order be sent to the parties, as per rules. The file be sent back to the District Consumer Commission, Ludhiana, for consigning the same to the Record Room.

October 17, 2022

(Ranjit Singh)

(Ranvir Kaur)