BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA. Complaint No:77 of 2008 Date of Institution:03.07.2008 Date of Service:01.08.2008 Date of Decision:25.09.2008 Buta Singh (aged 30 years) son of Sadhu Singh, resident of village: Kotla Mehar Singh Wala, Tehsil & Distt.Moga. Complainant. Versus 1. The New India Assurance Company Limited through its Manager, Head Office, New India Assurance Building, 87, Mahatma Gandhi Road, Bombay. 2. The New India Assurance Company Limited through its Divisional Manager, Divisional Office, 7, Gulabi Bagh, G.T.Road, Moga, Distt.Moga. Opposite Parties. Complaint Under Section 12 of the Consumer Protection Act, 1986. Quorum: Sh.J.S.Chawla,President. Smt.Bhupinder Kaur, Member. Sh.Jit Singh Mallah, Member. Present: Sh.Sukhdev Singh, Adv.counsel for the complainant. Sh.Ajay Gulati, Adv.counsel for the OPs. (J.S.Chawla, President) Sh.Buta Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as Act) against The New India Assurance Company Limited, Bombay through its Manager and another (herein-after referred to as Insurance Company)- Opposite Parties directing them to pay the insurance claim of motor cycle (TVS Victor) bearing no.PB-69-6893 alongwith interest @ 18% per annum from the date of theft till its realization and to pay Rs.50000/- on account of compensation for causing mental tension and harassment. 2. Briefly stated, the complainant got insured his motor cycle (TVS Victor) bearing no.PB-69-6893 Model 2005 with OPs-Insurance Company vide policy no.361100/31/06/01/00002124 for the period w.e.f. 11.07.2006 to 10.7.2007. That due to ill mental health, the complainant went somewhere with his aforesaid motor cycle. Lateron, it has come to know that the motor cycle in question has been stolen by some bad elements. That DDR no.9 on 13.7.2007 was alodged with P.S.Bagha Purana regarding the aforesaid incident. That the complainant lodged the claim with OPs-Insurance Company in this regard and submitted original insurance policy, untraceable report and completed all the formalities, but to no effect. That the complainant made various visits in the office of OPs-Insurance Company for the payment of the insured amount, but they repudiated his claim willfully and intentionally. Hence the present complaint. 3. Notice of the complaint was given to the OPs-Insurance Company who appeared through Sh.Ajay Gulati Advocate and filed their written statement. They took up preliminary objections that the complaint is not maintainable; that the complicated questions of law and facts are involved in the present dispute and it requires voluminous evidence; that this Forum has got no jurisdiction to entertain and decide the present complaint and that the claim of the complainant has been repudiated as no claim by their surveyor due to non completion of formalities. On merits, it was averred that firstly, the complainant has failed to prove his allegation regarding theft of motor cycle. Further, the complainant did not lodge any DDR/FIR in this regard. However, on the receipt of information on 23.10.2007, the OPs-Insurance Company immediately appointed Sh.U.S.Kohli, Surveyor, who submitted his report dated 14.11.2007. As per his information the claim was not genuine and he suggested that it should be treated as no claim. He also reported that the case in hand was not covered under the definition of theft as mentioned under section 378 of Indian Penal Code 1860. Thus, the OPs-Insurance Company has rightly repudiated the claim of the complainant. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant is false and frivolous and the same be dismissed with costs. 4. In order to prove his case, the complainant tendered in evidence affidavit Ex.A1, copy of policy Ex.A2, copy of DDR Ex.A3, copy of untraceable report Ex.A4 and closed his evidence. 5. To rebut the evidence of the complainant, the OPs-Insurance Company tendered affidavit Ex.R1 of Sh.J.R.Dhand, Divisional Manager, copy of letter Ex.R2, copy of investigation report Ex.R3, copies of statements Ex.R4 and Ex.R5, copy of repudiation letter Ex.R6, copy of insurance policy Ex.R7 and closed their evidence. 6. We have heard the arguments of Sh.Sukhdev Singh ld. counsel for the complainant and Sh.Ajay Gulati ld. counsel for the OPs-Insurance Company and have very carefully perused the evidence on the file. 7. Sh.Sukhdev Singh ld.counsel for the complainant has mainly argued that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant. This contention of the ld.counsel for the complainant has full force. Admittedly, the complainant got insured his motor cycle (TVS Victor) bearing no.PB-69-6893 Model 2005 with OPs-Insurance Company vide policy no.361100/31/06/01/00002124 for the period w.e.f. 11.07.2006 to 10.7.2007. It is the case of the complainant that on 8.7.2007 at about 11.00 AM due to ill natured health, he alongwith his motor cycle was lost. In this regard, his real brother Atma Singh alongwith Sh.Harjit Singh Sarpanch of Village Panchayat Mehar Singh Wala reported the matter in the Police Station, Bagha Purana, who recorded DDR no. 9 on 13.7.2007 Ex.A3. Thereafter, the complainant returned to his house on 30.8.2007, but his motor cycle could not be traced. In this regard, the police prepared untraceable report Ex.A4. The aforesaid circumstances are sufficient to hold that the motor cycle in question had been stolen by some bad elements. 8. On the other hand, Sh.Ajay Gulati, ld.counsel for the OPs-Insurance Company has argued that the complainant has failed to prove that his motor cycle had been stolen as alleged. This contention of the ld.counsel for the OPs-Insurance Company has no merit because after the missing of the complainant and his motor cycle, the matter was reported to the police station vide DDR no. 9 on 13.7.2007 Ex.A3. The complainant returned to his house on 30.8.2007 while his motor cycle remained missing. The police made investigation in this case, but unable to recover the motor cycle. Thereafter, they prepared untraceable report Ex.A4 duly signed by Sh.Jagsir Singh Munshi of Police Station Bagha Purana on 5.4.2008. Thus, it shows that the motor cycle in question belonging to the complainant had been stolen, and the same had not been recovered so far. In rebuttal, the OPs-Insurance Company has failed to produce any cogent and convincing evidence to prove that the motor cycle in question had been recovered or that the complainant had wrongly or falsely informed the police regarding the alleged theft. The aforesaid evidence constitutes commission of the motor cycle in question by some anti social elements. 9. The contention of the ld.counsel for the OPs-Insurance Company that the complainant himself might have concealed or sold his motor cycle in question has not been substantiated on the file. The OPs-Insurance Company has failed to lead any cogent and convincing evidence to prove that the motor cycle had been concealed or sold by the complainant himself. If the motor cycle has been concealed or sold by the complainant himself, then the officials of the OPs-Insurance Company, but no such effort had been made by them. Hence, the contention of the ld.counsel for the OPs-Insurance Company that the complainant has failed to prove the theft has not been proved. Moreover, the OPs-Insurance Company has repudiated the claim of the complainant on the ground that he has failed to submit the requisite documents/ papers. However, the complainant has alleged that he had submitted all the requisite documents/ papers to the OPs-Insurance Company and it has also proved from the copies of the same in this complaint also. Thus, there is deficiency in service on the part of the OPs-Insurance Company in repudiating the claim of the complainant. 10. To prove the aforesaid contention, the complainant has produced his affidavit Ex.A1, copy of policy Ex.A2, copy of DDR Ex.A3, copy of untraceable report Ex.A4. On the other hand, no reliance could be placed on the affidavit of Sh.J.R.Dhand, Divisional Manager Ex.R1 and other documents Ex.R2 to Ex.R7 and we discard the same. 11. The ld. counsel for the parties did not urge or argue any other point before us. 12. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OPs-Insurance Company is directed to pay the insured amount after deducting depreciation charges, if any, as per the rules to the complainant and also to pay Rs.5000/- on account of compensation for mental tension, harassment and cost of litigation within one month from the date of receipt of copy of this order, failing which the complainant is also entitled to the interest @ 9% per annum on the awarded amount from the date of repudiation of the claim till payment. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room. (Bhupinder Kaur) (Jit Singh Mallah) (J.S.Chawla) Member Member President Announced in Open Forum. Dated:25.09.2008. hrg*
