Haryana

Yamunanagar

CC/756/2013

Parminder Singh S/o Gurmel Singh - Complainant(s)

Versus

The Manager ,New India Assurance Company. - Opp.Party(s)

S.S.Saini

29 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No.756 of 2013.

                                                                                    Date of institution:10.10.2013.

                                                                                     Date of decision: 29.8.2017.

 

Parminder Singh s/o Shri Gurmel Singh age about 24 years r/o House no.1792, B-6, Vishnu Nagar, Jagadhri workshop, tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                     

                                                                                                  …Complainant.

                                    Versus

1.         The Manager, New India Assurance Company office opposite Madhu Palace, Jagadhri road, Yamuna Nagar.

                                                                                                           

                                                                                                 … Respondents.

 

BEFORE:       SH. SATPAL, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.  

 

Present: Sh. S.S.Saini, Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for OP.

 

ORDER:

 

1.             The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the respondents (hereinafter respondent will be referred as OP). 

2.                 Brief facts of the present complaint are that the complainant is owner of car make Mahindra BOLERO SLX.7STR.2WD.BS2 purchased on 12.9.2009 vide invoice annexure C.1 to C.5 with temporary Registration No.CH-23(T)4853 vide annexure C.6 and it was got financed from the State Bank of Patiala (NWR) Jagadhri workshop.  The car in question was got registered vide Registration Certificate No.HR-02V-1133, chassis no.MAIPS2GAK02E88945, Engine No.GA94E48173, Model-2009, colour white.  The car in question was insured with the Op vide policy No.353503311101000001023 from 29.6.2011 to 28.6.2012.  The said car was stolen on 26.3.2012 at about 10.30 from Varindavan, Distt. Mathura (UP) and  FIR No.87/12, dated 26.3.2012 was lodged in Police Station, Varindavan and the intimation was also given to the OP. Claim was lodged with the OP and submitted all the documents required by the OP for payment of theft claim of car.  Non traceable report of the car and order of Chief Judicial Magistrate, Mathura has also been given to the OP-company.  All the investigations have been made by the Op but despite that the OP has failed to pay the claim, so legal notice dated 2.5.2013 was issued to the OP which was duly received by the OP.  Hence, the OP is liable to pay Rs.1000000/- as cost of car along with interest @15% p.a. and prayed for acceptance of complaint by directing the Op to pay Rs.10,00,000/- along with interest @15.5% p.a. as cost of the car and Rs.10000/- as litigation expenses and Rs.1,00,000/- as compensation for mental agony, harassment to the complainant.

3.                     Upon notice, the OP appeared and filed written statement by taking some preliminary objections such as that the complaint is not maintainable; there is no negligence or deficiency in service on the part of the OP; Insurance policy along with its terms and conditions stands already supplied to the insured issued in accordance with India Motor Tariff promulgated by Insurance Regulatory Development Authority of India; the complainant has not come to the court with clean hand; the complaint is bad for non joinder and mis joinder of necessary party i.e. State Bank of Patiala(NWR) Jagadhri workshop the Financer of Bolero Jeep No.HR02V-1133; the complainant has no locus standi to file the present complaint.  An intimation was received by the OP-company from the complainant that his Bolero Jeep No.HR02V-1133 was stolen on 26.3.2012 from Varindavan (UP) on which the OP deputed Investigators Bureau, an investigating Agency situated at Aditya Chambers 153-154, GT Road, Gur Mandi, opp. Rana Partap Bagh, New Delhi to conduct a investigation and submit a fact finding report in this regard.  The investigator conducted a detailed investigation in this case and during their investigation they contacted the complainant/insured a number of times and requested him to submit necessary documents.  The investigator visited Jagadhri on 29.4.2012 and requested the complainant to submit the required documents but the complainant failed to provide necessary documents to the investigator. A letter dated 31.1.2013 was written by the investigator to the complainant wherein the investigatorbrought the anomalies in the knowledge of the complainant and desired the required documents; the investigator submitted its report dated 15.2.2013/22.2.2013 to the OP-company wherein the investigator categorically opined that for the reasons stated above and the fact that the complainant could not produce relevant/documentary proof to establish his claim, the alleged theft is doubtful and theft dated 26.3.2012 did not take place.  It has also been reported by the investigator that the insured and his family members run a tour and travel business having four five cars/suvs and they use private cars in this business and as and when the loss/accident/theft is caused to these vehicles they submit claim papers to insurance companies of these vehicles as self driven cars; on receipt of the report of the investigator the claim in question was further processed by the OP-company and letters dated 20.3.2013 and 4.4.2013 were written to the insured to complete the required formalities but the complainant miserably failed in this regard.  The complainant had sent a legal notice dated 2.5.2013 through his counsel to OP-company on 10.6.2013 in which it was categorically brought to the notice of the complainant that his claim is not genuine and no vehicle of the complainant insured with the OP-company was stolen and it was intimated to the complainant that no claim is payable under the policy in question and finally the OP-company vide its registered letter dated 12.12.2013 closed the file of the complainant as “no claim”.  On merits, the OP admitted that the complainant is owner of Bolero Jeep HR02V-1133 which was duly insured with the OP for IDV of Rs.4,40,000/-.  The OP alleged that vehicle Bolero Jeep HR02V-1133 was not stolen on 26.3.2012 from Varindavan (UP) and a false FIR was got registered.  It is further alleged that the complainant has failed to submit any document to the insurance company to substantiate the presence of the insured vehicle in Varindavan(UP) on the date of alleged theft.  The insured has not submitted any Toll Tax receipt from Yamuna Nagar to Mathura to establish that he was on the way from Jagadhri to Mathura.  It is further alleged that the complainant has not submitted any parking receipt to the OP-company to establish the presence of above said vehicle and reiterated the stand taken in the preliminary objections.  There is no deficiency in service on the part of the OP-company and prayed for dismissal of complaint with special costs.

4.                     In support of his case, the complainant tendered into evidence his affidavit as Annexure C.X, Photocopy of invoice dated 5.6.2009 as Annexure C.1, photocopy of sale certificate as Annexure C.2, photocopy of Vat invoice as Annexure C.3, photocopy of form No.22 as Annexure C.4, photocopy of certificate as Annexure C.5, photocopy of temporary certificate of Registration as Annexure C.6, photocopy of R.C. as Annexure C.7, photocopy of cover note as Annexure C.8, photocopy of FIR  as Annexure C.9, photocopy of intimation given to the Insurance company as Annexure C.10, photocopy of FIR and untrace report as Annexure C.11, photocopy of legal notice dated 2.5.2013 as Annexure C.12 and Acknowledgement as Annexure C.13 etc. and closed his evidence.

5.                     The counsel for the complainant filed an application dated 7.4.2016 for additional evidence which was allowed on 24.5.2016 after proper hearing of the parties.  The counsel for complainant tendered other documents into additional evidence such as photocopy of application which bears the report of Registering Authority, Jagadhri as Annexure C.14, photocopy of application as Annexure C.15,Photocopy of application dated 27.3.2012 as Annexure C.16, photocopy of letter dated 5.6.2012 from the Investigators Bureau as Annexure C.17, photocopy of statement of Sh.Vijay Kumar as Annexure C.18, photocopy of ration card of Sh.Vijay Kumar as Annexure C.19, photocopy of statement of Sh. Manmohan Krishan dt. 29.8.2012 as Annexure C.20, photocopy of ration card of Sh.Manmohan Krishan as Annexure C.21, photocopy of statement of Parminder Singh complainant dated 29.8.2012 as Annexure C.22, Photocopy of letter dt. 20.3.2013 as Annexure C.23, Photocopy of letter dated 4.4.2013 as Annexure C.24, photocopy of letter dated 22.4.2013 as Annexure C.25, photocopy of application dated 9.1.2013 as annexure C.26, photocopy of letter dated 5.4.2013 as Annexure C.27, photocopy of application dated 6.5.2013 as Annexure C.28, photocopy of reply of legal notice as Annexure C.29, photocopy of application dated 4.7.2013 as Annexure C.30, photocopy of application dated 10.7.2013 as Annexure C.31, copy of email dated 23.7.2013 as Annexure C.32, photocopy of application dated 23.7.2013 as Annexure C.33, photocopy of letter dated 7.8.2013 as Annexure C.34, photocopy of claim form as Annexure C.35, photocopy of application as Annexure C.36, photocopy of cancelled cheque as Annexure C.37 and photocopy of statement of account as Annexure C.38 and closed the additional evidence of complainant.

6.                     On the other hand, the counsel for OP tendered into evidence affidavit of Divisional Manager as Annexure RW/A, affidavit of Sh.Dinesh Gopal, Investigator as Annexure RW/B, photocopy of letter dated 31.1.2013 as Annexure R.1, photocopy of report of investigator bureau dated 15.2.2013 as Annexure R.2, photocopy of letter dated 20.3.2013 as Annexure R.3, photocopy of letter dated 4.4.2013 as Annexure R.4, photocopy of legal notice and reply of legal notice as Annexure R.5 & R.6, photocopy of letter dated 12.12.2013 as Annexure R.7 and policy as Annexure R.8  and closed the evidence on behalf of OP.

7.                     We have heard the learned counsel for the parties and gone through the pleadings as well as documents placed on the file carefully and minutely.  The counsel for the complainant argued that on 26.3.2012 when the vehicle in question was found missing from the place of parking, an FIR was immediately got registered with the concerned police station on the same day and also given the intimation to the Insurance Company regarding the theft of the vehicle and completed all the formalities as is clear from the annexure C.14 which is the screening report from the Registering Authority, Jagaddhri. It is further argued that the OP deputed the Investigators Bureau who demanded some documents which were duly supplied to the investigator as is clear from tick marks marked on the letter dated 5.6.2012 (annexure C.17).  The complainant also filed affidavits of two neibhourers along with their IDs wherein they have supported the version of the complainant. It is further argued that as per letter dated 9.1.2013 (annexure C.26) the complainant made a request to the Branch Manager, New India Assurance Co. Yamuna Nagar to look into the matter as the surveyor had asked the complainant to give four witnesses at Varindavan (Mathura) and complainant also made a complaint of the surveyor that the surveyor is harassing the complainant.  Not only this, as per annexure C.27 the complainant submitted all the bills and MCR on 5.4.2017, so the letters dated 20.3.2013, 4.4.2013 and 22.4.2013 (annexure C.23 to C.25) were issued after the complaint of the surveyor.  Moreover, the complainant was in constant touch with the OP and vide letters dated 6.5.2013, 4.7.2013 and 10.7.2013, he had requested the OP to pay the claim to him, and as such the plea of the OP that the complainant has not completed the formalities has no force.  The counsel for the complainant further argued that in reply to the letter/email dated 23.7.2013,(Annexure-32), the complainant had sent a detailed reply to the OP vide letter dated 23.7.2013 (Annexure C.33).  The counsel for the complainant drew the attention of this Forum towards authority reported in 2015(3)CPR 437 (NC) titled as Bharti Axa General Insurance co. Ltd. vs. Sarvjit Dhanda, in which it has been held that,“ Insurance-Theft of car-State Commission directed to pay Rs.2676150/- with 7.5% p.a. interest and directed to pay Rs.20000/- as cost of litigation-Intimation regarding theft of car was given by complainant to opposite party immediately after theft and there was no delay in intimation to opposite party and on this ground Opposite Party committed deficiency in repudiating claim-Whether car has been stolen by starting it or by lifting it, complainant is not aware and in such circumstances mere because car has been fitted with Vin specific advanced technology system, it can not be presumed that car could have been stolen only by leaving wallet, key in car-Appeal dismissed. Ld. counsel for complainant further draw our attention towards case law reported in 2015(3) CPR 533 (NC), titled as New India Assurance Co. Ltd. vs. Niranjan Singh, wherein it was held that, “in cases of theft of vehicle, nature of use can not be made basis for repudiation”.  The learned counsel for the complainant further draw the attention towards authority reported in 2015(3) CPR 353 (NC) titled as Regional Manager, National Insurance Co. Ltd. vs. Sunil Sharma held that, “Sections 17,19 and 21-Insurance-Theft of JCB machine-Insurance company contested complaint justifying repudiation on ground that the complainant’s driver committed gross negligence by leaving vehicle unattended at place of alleged theft-Complaint allowed by State Commission along with compensation and cost-Insured or driver is not expected to remain present every moment on spot to ensure safety of vehicle but he is only expected to take reasonable precaution and care-Appellant has not even listed out documents which were not furnished by insured or given any specific allegations with respect to non-co-operation of Respondent/Complainant-When insured had proved by way of documentary evidence that his vehicle was stolen, repudiation by Insurance Company based on such flimsy grounds is not justified-Appeal dismissed”. Further complainant draw the attention of this Forum towards authority reported in 2015(2) CPR P.219 (NC) titled as National Insurance Co. Ltd. vs. Ram Diya, in which the Hon’ble National Commission held that, “Insurance claim can not be repudiated in event of any single violation of provisions of M.V.Act”. The learned counsel for the complainant also draw the attention of this Forum towards authority reported in 2015(1) CPR 49 (NC)  titled as M/s Sagar Samrat Pvt. Ltd. vs. The Oriental Insurance Co. Ltd. held that, “Insurance company cannot repudiate a genuine claim”.  Further the counsel for complainant draw the attention of this Forum towards case law reported in 2015(1) CPR 69 (NC) titled as Sri Abdul vs. The Divisional Manager, National Insurance co. Ltd. held that, “Insurance company cannot repudiate a genuine claim on suspicious grounds”. Ld. Counsel for the complainant also tendered case law report in 2016(4) CPR 414 (NC) titled as New India Assurance Co. Ltd.vs.Arvind Kumar & Anr held that,“Consumer Protection Act, 1986-Sections 15,17,19 and 21-Insurance-Vehicle insurance-Theft of insured vehicle-Insurance Company has made complainant to run from pillar to post since year 1994 and has dragged him up-to this stage when both Fora have returned concurrent finding of fact in-sofar as question of deficiency in service on part of Insurance Company is concerned-No any jurisdiction error in impugned order warranting interference in exercise of Revisional Jurisdiction-Revision Petition dismissed”.   Ld. Counsel for the complainant has further argued that if the OP had any doubt about the genuiness of the theft then OP should have got the matter investigated from the competent authority which is not done so far and the Op instead of paying the genuine claim of the complainant closed the claim file of the complainant illegally and without any reason and prayed for acceptance of complaint.

8.                     On the other hand the learned counsel for the OP argued that no doubt the vehicle in question was insured with the OP and intimation was given by the complainant regarding theft of vehicle on which the surveyor i.e. Investigators Bureau was deputed who investigated the matter.  As per the report of the surveyor the complainant has failed to supply the required documents and further reported that subject vehicle has not been reported to have been stolen.  OP-Insurance company had written several letters to the complainant to complete the formalities but the complainant had failed to comply with the letters issued by the Op, hence, there is no deficiency in service on the part of Op and prayed for dismissal of complaint with costs.

9.                     After hearing the counsel for the parties and going through the pleadings as well as documents placed on the file, it has been proved that the complainant is owner of the Bolero Jeep bearing Registration No.HR02V-1133 and the same was duly insured with the OP-Insurance company vide policy No.353503311101000001023 valid from 29.6.2011 to 28.6.2012.  During the currency of the insurance policy i.e. on 26.3.2012 the vehicle in question was stolen from Varindavan, Distt. Mathura(UP).  FIR was got registered on the same day i.e. on 26.3.2012 with the police and the Intimation of the occurrence was also given to the OP.  Now only two points are to be decided by this Forum, (i) Whether the complainant had completed the formalities required by the OP or not? (ii) Whether the Bolero Jeep No.HR02V-1133 was not stolen on 26.3.2012 from Varindavan (UP) and a false FIR was got registered by the complainant?  Regarding point No.1 the complainant has placed on record letter dated 5.4.2013 (annexure C.27) whereby he had completed all the formalities as per requirement of the investigators Bureau and the OP-Insurance company has not filed any evidence/documents in rebuttal of this document despite affording opportunity for the same vide this Forum’s order dated 24.5.2016.  Further, the complainant has also filed affidavits of two neibhourers along with their IDs in support of his version that the vehicle in question was stolen from Varindavan.  From the perusal of Annexure C.26, it reveals that the complainant had made a request to the Branch Manager, NIA, Yamuna Nagar to look into the matter as the surveyor was asking him to produce four witnesses at Varindavan (Mathura) on which the complainant had requested the surveyor that it was not possible for him to produce four witnesses at Varindavan but he can file the evidence of the witnesses at Yamuna Nagar for which he had already filed two affidavits and complainant also made a complaint of the surveyor about his act and conduct that he was harassing him.  Not only this, as per annexure C.27, the complainant submitted all the bills and MCR on 5.4.2017, hence, compliance of the letters dated 20.3.2013, 4.4.2013 and 22.4.2013 (annexure C.23 to C.25) has already been made by the complainant. Moreover, the complainant has been in constant touch, with the OP as is clear from the letters dated 6.5.2013, 4.7.2013 and 10.7.2013 regarding payment of claim.  So, the plea taken by the OP regarding non-submission of documents and completion of formalities by complainant is not tenable.  So, far as second point is concerned, the OP had taken the plea that vehicle was not stolen and a false FIR was got registered.  This plea of the OP is not sustainable as the concerned Police Officer at Varindavan  has submitted the untraced report in the learned CJM Court, Mathura instead of cancelation report.  Had, the FIR been false, the Police would have requested for cancellation of the FIR.  Further, the Learned CJM Court, Mathura has also accepted the untraceable report of the Police.  Hence, it is clearly proved that the vehicle was stolen at Varindavan.  Furthermore, the complainant is not supposed to answer enery query of OP such as space of parking, slip of tolls etc.  After obtaining the untraced report from the learned CJM Court, Mathura, the same was submitted by the complainant to the OP and as such the OP can not now take the plea that false FIR was got registered by the complainant regarding theft of vehicle. 

10.                   From the perusal of the above documents as well as from the pleadings of the parties, it is clear that there is deficiency in service on the part of the OP-Insurance Company in rejecting the genuine claim of the complainant.  As such the complainant is entitled for the relief.

11.                   Resultantly, we partly allow the complaint of the complainant and direct the OP to pay to the complainant a sum of Rs.4,40,000/-  (Rs. four lacs and forty thousand only) the insured amount of the vehicle Bolero Jeep bearing No.HR02V-1133 on account of theft of vehicle along with interest @9% p.a. from the date after three months from the date of theft till its realization and further to pay Rs.5000/- as litigation expenses. Order be complied within 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. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.29.8.2017.                         

                                                                                                                                                                                                                                                                                                          (SATPAL)

                                                                             PRESIDENT

                                                                                                   

(VEENA RANI SHEOKAND)                          (S.C. SHARMA)

MEMBER.                                                          MEMBER