The present first appeal has been filed against the judgment dated 06.03.2017 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in CC no. 59 of 2015.

2.     The facts of the case as per the appellant/ complainant are that the appellant got his truck bearing registration no. HR 73 – 4390 insured from the respondents/ opposite party no. 1, vide policy no. 010065780200 for Rs.25,27,000/-. On 16.06.2013 the driver Wazir son of Umrao parked the said truck in his plot near Ice Factory and went to sleep in the room constructed there. In the morning on 17.06.2013 the truck was found missing. Thereafter, the appellant along with his father tried to trace the truck, but to no avail. Information was given to police as well as to the insurance company on 17.06.2013. Information about the incident of theft was given to police on 17.06.2013, but, the FIR was registered on 26.06.2013. After submission of the claim, the respondents demanded various documents which were duly supplied. Even, thereafter the respondents went on writing letters. The respondents repudiated his claim vide letter dated 09.02.2015 on flimsy grounds. Hence, the respondents be directed to pay the insured value of Rs.25,27,000/- along with compensation of Rs.5.00 lakh and Rs.50,000/- as litigation cost.

3.     The respondents filed separate replies controverting his averments. Respondent no. 1 alleged that the story of theft was concocted. Initially it was told that vehicle was snatched, which was clear from the transcript reproduced as under:

4.     Later on an FIR was lodged on 26.06.2013 and the fact of theft was introduced and the appellants did not supply the documents as and when required and only financier supplied the same. The appellants did not lodge the report with police immediately. No entry was made in Daily Diary Register (DDR) on the basis of alleged application dated 17.06.2007. It was a forged paper which was apparent on the face of it because writing was on the stamp. It shows that the blank paper with stamp was used for this application. The appellants violated the terms and conditions of insurance policy and was not entitled for any compensation. Objections about locus standi, applicability of Consumer Protection Act, 1986, maintainability of complaint, pecuniary jurisdiction, limitation etc., were also raised and respondent no. 1 requested to dismiss the complaint.

5.     It was alleged by the respondent no. 2 being a financier, the truck was hypothecated with it and contract was executed between them, hence, he has lodged a claim against respondent no. 1 only.  Documents were not demanded from him. The appellant purchased the truck in question on 29.09.2012 and raised a loan of Rs.23,25,000/- from. The said amount was refundable with interest @ 6.75% per annum in 46 monthly instalments from the date of agreement. Arbitration award was passed against him on 07.02.2014 for a sum of Rs.20,85,275/- so it was not liable to pay any compensation to him. Objections about maintainability of complaint, concealment of facts etc., were also raised and requested to dismiss the complaint.

6.     The State Commission vide its order dated 06.03.2017 while dismissing the complaint observed as under:

“6.    This argument is of no avail. The factum of theft is doubtful by itself. Initially when complainant gave information about loss of this vehicle it was told that same was snatched which is clear from the perusal of transcript dated 17.06.2013. The relevant portion is as under:

“Loss details – While in motion some people stolen the vehicle forcefully from the driver of the insured vehicle”.

This was the instant version after theft. At that time, there was no occasion to concoct false story, but later on complainant alleged that his trucks were stolen. It may be mentioned here that as per this application two trucks of the complainant were stolen and he has filed different complaint. Why the version of snatching has been changed is nowhere proved.

7.     More so, from the perusal, it is clear that it has been manufactured later on because there writing is on the stamp alleged to be of police station.  In this way a blank paper with the stamp of the police station was procured and thereafter this application was written. Had it not been so then stamp should have appeared on the words and not the words on the stamp. A person who tries to play some trick leaves the traces due to which he is caught.

8.     More so, it is alleged that Aas Mohammad son of Hurmat was driving the truck, but in complaint no. 60 of 2015 driving licence of Aas Mohammed son of Saheed is produced. Though complainant tried to give explanation by say that Aas Mohammad was adopted by Hurmat, but there is not document or evidence to prove this fact. It shows that he is trying to make improvements one after another. As per FIR information was received at PS on 26.06.2013 and not 17.06.2013. This fact also falsifies application. No entry was made in DDR about receipt of this application.

9.     Further, more it is alleged by OPs that complainant did not produce driver to prove this fact. When factum of theft was disputed by OPs, in the letters as well as in reply, complainant should have produced the drivers to prove his version. Complainant cannot alleged that it was not possible for him to produce them because as per his version they are his relatives. When theft is not proved insurance company not bound to give compensation. Had he succeeded to prove that theft was genuine then it could have been a different matter.

10.    As a sequel to above discussion when fact of theft is not proved, complainant is not entitled for compensation. Hence, the complaint is hereby dismissed.”

7.     Hence, the present appeal.

8.     I have heard the learned counsel for the appellant. Learned counsel for the appellant has contended that two trucks of the appellant were stolen is not in dispute.  The manner in which they were stolen is disputed, whether they were snatched or stolen. It is an admitted fact that the appellant had lodged the FIR with the police, who after investigation had closed the matter by saying that the vehicle is untraced. He contended that the insurance company had wrongly repudiated the claim on the grounds of delay of ten days in lodging the FIR as also on the grounds of lack of cooperation from the appellant in establishing his claim. He further contended that the State Commission had erred in dismissing the complaint on the grounds that the theft was not proved and hence, the appellant was not entitled for any compensation.

9.     I have gone through the record. It is seen from the FIR placed on record, that it was filed on 26.06.2013. It was reported that theft of two truck nos. HR 73 - 2719 and HR 73 – 4390 on the intervening night of 16/17^th June 2013. Information was given to the police, which reads as under:

        “To,

        The SHO, P S Hathin

        Subject : Representation to report theft of Truck no. HR 73 2719 and HR 43 4390.

        Sir,

        It is requested that I Irsad son of Shri Sohraab caste Mev, Resident of Meerka, Tehsil Hathim, District Palwal, Haryana. This is to state that I in order to do the upbringing of my child I purchased one truck bearing Registration no. HR 73 2719, Engine No. 11K84027235, Chasis no.MAT448099BAN08851. I had been up bringing my child from the income generated from the said truck and in the year 2013 on 31.03.2013 I had purchased a truck no. HR 73 4390, Engine no. 21J840773065, chasis no. MBYB97700CJA26979. I had kept my uncle’ son Wariz son of Umrao caste Mev Resident of Meka as driver and on the other truck baring truck no. HR 73 2719, I had kept Ash Mohammed son of Shri Hurmat caste Mev R/o Meerka, P S Hathin, Tehsil Hathin, District Palwal as its driver. In the night of 16.06.2013 both the said drivers parked the said trucks in my plot at Hathin which is near the ice factory, at the same place where they were parked every night and after parking the same they went to sleep in the room constructed inside. After waking up in the morning it was found that both the vehicles were not there. I received a phone call and thereafter I along with my father Sohraab reached the site in question and I searched for the vehicles in question and I came to know that some unknown persons have stolen my said vehicles. Legal action may be taken against unknown person and my vehicles be recovered. We have on our own done all the enquiry and now we have approached the police station and along with filing the representation are also attaching the photocopies of the documents of said vehicles. Action may be taken on my representation. Therefore Sir, I request that my vehicles may be recovered and strict punishment may be given to the accused. I shall be humbly grateful to you.

        Thanking you,

        Irsad”

10.    The claim was repudiated by the insurance company, i.e., respondent no. 1 on the following grounds:

        “Reference Claim no.620652463, policy no. 0100657802

        Subject : Theft claim of your vehicle No. HR 73 4390 AMW 2518

        We invited reference to you claim for the above vehicle for the theft reported to us on 17.06.2013 and to our previous letter dated 19.11.2014. We again would reiterate that an independent investigator investigated the claim. On perusal of your claim, we observe the following:

1. Please note that FIR in respect of theft of the vehicle has been registered after a delay of 10 days of the alleged incident and that too against an open area theft (u/ 379). No legitimate explanation in this respect has been submitted. Further, copy of the document substantiating this delay does not bear proper DD entry number and is just stamped, which seems to be forged.

2. It is to be noted that while intimating the claim on 17.06.2013 you categorically informed that the vehicle has been snatched from your driver’s (Mr Warish) possession but later the version was changed and it was stated that the vehicle was stolen not snatched.

3. During the whole course of investigation you failed to extend cooperation to the deputed investigator for investigations and further verifications. Also, the alleged place of spot and the place where consignment was dropped were not identified by you.

4. Despite repeated follow up no documents substantiating usage of vehicle preceding the date of theft have been submitted with us.

5. It is to be noted that contradictions have been observed in intimation to our call centre, duly signed handwritten statements and FIR, in context of the occurrence and sequence of events, date and time of the incident, your presence at the time of incident.

6. On perusal of duly signed handwritten statements of you and your driver we observe that you were present on the said vehicle at the time of delivery of consignment and after delivering the consignment you even returned to the place of parking and you and your driver slept in the rooms (Constructed on the said plot); next morning when both of you woke-up the vehicle was missing and it was after this you made a call to your father apprising him of the fact. While in the FIR and letter addressed to SHO (Hathin), you are admitting that after delivering the consignments your driver parked the vehicle in the said plot; next morning when your driver woke up, the vehicle was missing from the place of parking so your driver informed your on phone and it was after receiving this call you along with your father reached place of incidence.

7. Further, the deputed driver does not even remember from where the last consignment was loaded and whether there was any other vehicle or not.

8. It is to be noted that stolen vehicle comes with six cylinder and diesel engine. The said engine on idling and acceleration make lots of noise and in no circumstances such noise can go unheard by a human ear. Above all this vehicle is supplied with air break and one has to depress the hand brake and accelerate for a while so that the air tanks are filled with air and brakes become operational. In the absence of required air pressure the truck will not move unless and until the brake actuator is released.

   In the light of above observations policy condition no. 1 read in conjunction with police condition no. 8 and claim form declaration stands violated.

   Policy condition no.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 to the company immediately on 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 inquiry 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 police and co-operate with the company in securing the conviction of the offender”.

   As per the Motor Policy Condition number 8, the due observance and fulfilment of the terms, conditions and endorsement of this policy in so far as the relate to anything to be done or complied with by the insured shall be conditions precedent to any liability of the company to make any payment under this policy.

   Claim for declaration:

       I/we agree to provide additional information to the company, if required. I/we the above named, do hereby to the best of my/ or knowledge and belief, warrant the truth of the foregoing statement in every respect, and I/ we have made, or any further declaration of the company may require in respect of the said accident, shall make any false or fraudulent statement, or suppression or concealment, the policy shall be void and all rights to recover there under in respect of the past or future accident shall be forfeited.

   I understand the company reserves the right of verification (*) of facts and documents relating to the policy and claims.

       We regret, therefore, that we are unable to entertain this claim.

       The foregoing declination of insurer liability is issued on the facts as presently known. We reserve the right to extend or modify this declination should additional facts or circumstances become known to us.

       Should you believe that we have overlooked any material fact or circumstance or should you wish to present an alternative interpretation of any relevant policy provision, please draw the same to our attention for our further consideration within 15 days of receipt of this letter.

       If no representation/ clarification is received by us within 15 days of receipt of this letter, the claim will be finally treated as repudiated on the grounds clearly mentioned in this letter.”

11.    In their written statement before the State Commission also, the respondent no. 1 has stated that on receipt of intimation regarding theft of the vehicle the company had written a letter dated 18.06.2013 and the petitioner to submit the necessary documents mentioned therein to process the claim and the appellant/ complainant was also informed that investigator M/s Vikaas Kumar and Associates have been appointed. The relevant part of the written statement is reproduced as under:

“The claim intimation was made by the insured. Who has identified himself on the call. It was informed during claim intimation that the subject insured vehicle has been hijacked in intervening night of 15-16 June 2013 and it was confirmed that the incident took place at 02.30 AM on 16.06.2013. Transcript of the relevant part of call is reproduced below:

On receipt of the intimation regarding the theft of the vehicle, the company wrote a letter dated 18.06.2013 to submit the necessary documents mentioned therein  to process the claim and the complainant was also informed that the investigator Shri Vikas Kumar of Vikas Kumar and Associates was appointed to investigate the claim in question. It is incorrect to say that the insured made any call on 100 number. There is no record to prove the same. It is further submitted that the reported copy of complaint to police is a forged document as a close look at the copy of this complaint reveals that the complainant has been written on a blank stamped paper as handwriting on the complaint runs over the stamped portion of the paper. Further, there is no corresponding Daily Diary entry of the date, i.e., 17.06.2013 at police Statin – Hathin, District Palwal, Haryana. Subsequently, thereto, the answering respondent also wrote letter dated 22.08.2014 whereby the complainant was requested to arrange for meeting of the alleged driver, under whose possession the truck was at the time of the alleged theft. The copy of the letter dated 22.08.2014 is annexed herewith as annexure R 4. The complainant vide letter dated 19.11.2014 was requested to submit the documents, i.e., duly signed claim form, certified copy of the DDR etc.

Meanwhile, the investigatory submitted the interim report date 22.11.2014, the copy of which is annexed herewith as annexure R – 7. After the receipt of the interim report, the answering respondent appointed another investigation team consisting of Shri Rajeev Kumar Sr Executive Claims and Shri Satyendra Pandey, Manager Claims SIU to investigate the matter who submitted dated 21.01.2015, the relevant part of which reads as under:

• Insured while intimating the claim on 17.06.2013 had categorically informed that both the IV’s have been snatched from the possession of his respective drivers;

• Though insured had claimed to have informed the police, while intimating the claim, he failed to substantiate the same.

• The first day application copy submitted to our office seems to have been arranged by unfair means; as the written matter on it clearly appears to have been written over the stamp. This clearly proves forgery, as the paper used for writing the first day intimation was pre-stamped and was manipulated in the due course.

• The FIR against the alleged theft of the IVs had been registered after 10 days of the alleged incident as informed to us. Insured’s version changed in these 10 days, as initially it was informed that the IVs had been snatched while the FIR had been lodged against an open area theft.

• Version of insured reportedly kept changing from the very outset, i.e., at claim intimation, preliminary statement and final statement.

   

VERSIONS OF INSURED AT DIFFERENT STAGES

• Contradictions have been observed in the statements of insured and his drivers and FIR, in context of the occurrence and sequence of events, date and time of the incident, present of insured at the time of incident. These contradictions are outlined as under:

Contradictions in the version of insured and his drivers and as mentioned in FIR

• Insured failed to extend cooperation to the deputed investigator for investigations and further verifications. The alleged place of spot and the place where consignment was dropped were not identified by insured.

• The cabin lock keys provided against the TATA LPK 2518 Reg no. HR732719 were not original. The status of original keys was not informed to us.

• The both the drivers seems to be primarily engaged in business of Agriculture and driving was done by them part time. No conductor was found to have been deputed on these trucks.

• Insured failed to produce the documents substantiating usage of trucks preceding the date of theft.

• Insured contradicts his own statements by stating that the IVs were mostly run for moving Earth while as per the details of previous claim on one of the IVs it was found to have been used in transportation of stones from Pali Zone in the past.

• The DL of one of the drivers, i.e., of Mr Waris deputedon HR 73 4390 is with Faridabad Court as he is an accused in a stone theft case. He got bail on 16.05.2012. Details of this case and the vehicle involved were not provided. The said driver stated to have been driving insured’s vehicle since a year. The DL of the other driver was stated to be in possession of insured since the alleged date of theft.

• Insured reportedly stated that Mr Waris is his cousin. But he failed to substantiated the same on documents.

• One of the drivers of insured submitted DL copy in which the father’s name is different to the parentage as stated to us.

• As per investigator’s report insured is not having good reputation in his village. The people available in the village could not confirm to the happening alleged incident. One Mr Jafru confirmed of having heard of theft of one of insured’s vehicle (other than IV) from his residence.

• Insured’s Loan Account statement features poor track towards payments of EMI after March 2013.

• Insured reportedly was booked in a murder case and had also served considerable period in Jail in connection with the same.

• Financier has been very active since the very outset in these claims.

Conclusion:

    The detailed examination of the cases clearly indicates that actual facts and circumstances were deliberately misrepresented in the due course of these claims. The deviations in statements of insured and his drivers, contents of FIR and VLI; further non-cooperative inclination of insured are material in proving that actual circumstances were purposely concealed and manipulated for extracting these claims fraudulently”.

12.    The version of respondent no. 1 has been supported by two letters placed on file. The first letter is of 05.08.2014 from the respondent no. 1 to the appellant reads as under:

“Regarding: Theft of your vehicle no. HR 74 4390

        Insured under our policy no. 0100657802, our claim no. 620652463.

Dear Sir,

We invited reference to the above claim and to our previous letter dated 18.06.2013. Further, we also request you to kindly refer to our telephone discussion for arranging meeting of the driver Mr Warish son of Shri Umrao allegedly deputed on the above said vehicle, at our New Friends Colony Office on 04.08.2014 at 11.00 AM.

Reportedly your driver did not turn up for this pre-fixed meeting on the date and time specifically mentioned above. Please note that the meeting with the driver’s material in the process of this claim. Thus we again request you to kindly convene a meeting with the driver at the earliest. The address of our office and contacts details is as under:

        TATA AIG General Insurance Company Limited

        1^st Floor, Lotus Towers

        New Friends Colony

        New Delhi – 110 025

        011 -6653600/04

        Your cooperation will facilitate a speedy settlement.

        Please use the above-mentioned claim number as a reference number for any future correspondence.

        Thanking you,

        Yours truly,

        For TATA AIG General Insurance Co. Ltd”.

The second letter reads as under:

        “Dear Sir,

Regarding : Theft of your vehicle no. HR 73 4390

        Insured under our policy no. 0100657802, our claim no. 620652463

        We invite reference to your claim for the above vehicle, for the theft as reported to us on 17.06.2013. Perusal of the documents submitted  by you reveals that following documents have not been provided:

        c.      Duly signed claim form (blank copy attached)

        d.     Certified copy of daily diary entry regarding your intimation of the vehicle thefts with police on 16.06.2013 (Please note that FIR of the vehicle theft was registered after delay of 10 days on 26.06.2013).  

We would like to bring to your notice that despite effort, the bills of last usage of the truck was not be verified by issuer of the bills. Payment proof from issuer of the bills for services rendered by the truck may kindly be provided.

Further, there is no document supporting usage of the vehicle in months preceding the month of alleged theft. It is requested to provide supporting documents along with proof of payments received for such services.

We have appointed M/s Vikaas Kumar and Associates for verification of fact in the subject matter, who has contacted you earlier. The documents requested above may either be submitted through him or directly to our office.

        Your cooperative will facilitate an early processing of claim.

If there is any assistance you require please feel free to call us at 1800 266 7780. Please use the above-mentioned claim number as a reference number for any future correspondence.

        Assuring you of our best services at all the times.

        Thank you,

        Yours truly,

        Authorised signatory

        For TATA AIG General Insurance Co. Ltd”.

13.    The appellant has failed to controvert the facts brought out by the investigator as also the respondent no.1 to prove his case. He is merely relying on the untraced report of the policy to establish his claim for compensation of the theft of the vehicle. He has failed to explain the delay of ten days in filing the FIR as also establish as to when and how his vehicles were snatched/ stolen.

14.    In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference by this Commission. Hence, the appeal is dismissed with no order as to costs.