Punjab

Ludhiana

CC/15/341

Gurpreet Singh - Complainant(s)

Versus

The New India Ass.Co.Ltd - Opp.Party(s)

G.S.Sandhu ADv.

28 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.341 of 20.05.2015

Date of Decision        :   28.11.2016

 

Gurpreet Singh son of Sh.Balwinder Singh, resident of House No.222, VPO Lall Kalan, Ludhiana, Punjab-141001.

….. Complainant

Versus 

 

The New India Assurance Company Limited, Regional Office, 108, Surya Tower, 4^th Floor, The Mall, Ludhiana (Punjab), through its Brach Manager.

..…Opposite party

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :         Sh.G.S.Sandhu, Advocate

For OP                          :         Sh.Vinod Kumar, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, owner of Trailer fitted with trolley make 4018 bearing registration No.PB-05-L-6447, got the same insured with OP vide insurance policy No.36020031140100000356 with validity period from 27.4.2014   to 26.4.2015 on payment of Rs.31,235/- as premium. Said cover note  also covered the power unit load along with detachable/replaceable trolley of the trailer. Complainant sent his trailer for repair after detaching the trolley. Said trolley was lying parked before the office of the complainant on 5.11.2014, but on the next day, when the complainant visited his office at 6 A.M., then he found the trolley was not lying parked there. Despite best efforts, complainant failed to trace out the said trolley and that is why, FIR No.148 dated 13.11.2014 under section 379 IPC was registered at P.S.Division No.6, Ludhiana against unknown person. Intimation of theft was immediately given to OP by      sending the copy of FIR and claim application. All the formalities were completed by sending the requisite documents, but OP failed to make the payment of the claim amount. Now Op after gap of three months came up with plea that single claim of the trolley is not to be given because the power unit/Ghora was not stolen. That plea of OP is against law because the trolley was also insured along with the Trailer(Power unit/Ghora). By pleading deficiency in service on the part of OP and by claiming that due to refusal of  payment of claim, complainant has suffered mental harassment.                 Prayer made for directing OP to pay the amount of Rs.3 lac as insurance amount. Besides, counsel fee of Rs.11,000/- and compensation for mental harassment of Rs.5 lac claimed. In all Rs.8,11,000/- claimed.

2.                OP filed written statement by claiming interalia as if the complaint is not maintainable in the present form; complainant has not approached this Forum with clean hands; complainant is estopped by his act and conduct from filing this false and frivolous complaint; complainant has no cause of action and this Forum has no jurisdiction because matter should be decided by Civil Court. Admittedly, the policy in question was purchased by the complainant on payment of premium. However, it is claimed that covered part of trailer fitted with trolley was insured with a condition that company was not liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. Even as per those conditions, company not liable to make any payment qua damages caused by overloading or strain of the insured vehicle or for loss or damages to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time. Fact regarding sending of the power unit/Ghora for repair after detaching trolley denied for want of knowledge. However, it is admitted that intimation along with claim letter and copy of FIR was sent by the complainant to OP. Claim defended to be rightly repudiated in terms of terms and conditions of the insurance policy. Each and every other averment of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C4 and thereafter, counsel for complainant closed the evidence.

4.                On the other hand, counsel for the OP tendered in evidence affidavit Ex.RA of Sh.R.M.Bhatnagar, Manager of OP along with documents Ex.R1 & Ex.R2 and thereafter, closed the evidence.

5.                Written arguments submitted by both the parties. Oral arguments of counsel for the parties heard and records gone through minutely. 

6.                From the pleadings of the parties and contents of affidavits as well as documents Ex.C4=Ex.R1, it is made out that Trolley in question bearing registration No.PB-05-L-6447 was duly insured by the complainant with OP for the period from 27.4.2014 to 26.4.2015(midnight). Theft of that trolley took place during period from 5.11.2014 at about 5:00 PM afterwards to 6 AM of 6.11.2014 and that is why FIR Ex.C1 was lodged and intimation of theft was given by the complainant to OP. That trolley could not be traced out despite efforts is a fact borne from the contents of copy of report of Adampata placed on record by the complainant. It is not denied by Op that the complainant submitted claim with OP. However, that claim was repudiated vide letter Ex.R2 dated 24.2.2015.

7.                After going through Ex.R2, it is made out that the claim was repudiated on ground that trolley being accessory alone was stolen and as such, in view of exclusion clause contained in section 1 para 2(a) of terms and conditions of insurance policy, the claim is not maintainable. It is vehemently contended by counsel for the complainant that policy in para no.2 of column no.4 clearly stipulates for providing insurance claim in respect of theft and burglary of the insured vehicle. In view of this, it is contended that repudiation of claim on new plea qua claim not entertainable with respect to open trolley is not justified. It is vehemently contended that power unit/Ghora has value with open trolley. Besides, it is contended that commercial vehicles are purchased to earn livelihood and not for parking in the showroom or to show the public and as such, it is contended that a genuine claim is submitted qua the loss of stolen item of trolley. The refusal of claim is unjustified. Even if the trolley may be a part of power unit, but despite that terms and conditions of the contract of insurance to prevail, because this Forum can’t add or subtract to the terms and conditions of the contract. In cases titled as Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.), it has been specifically held that parties are bound by the terms and conditions of insurance policy and nothing can be added or subtracted by giving different meaning to the words mentioned in the insurance contract agreement. In view of this legal position, this Forum has to go      through the terms and conditions of the contract agreement arrived at between the parties. Even if in para no.1(ii) of Section I of Standard Form For Commercial Vehicles Package Policy, it is mentioned that company will indemnify the insured against loss or damage to the vehicle on account of burglary, housebreaking or theft, but at the same time, it is mentioned in para no.2(a) of these terms and conditions of package policy that company will not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damages caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.

8.                So, general rule of liability of insurer to indemnity the insured contained in para no.1(i) of Section I of the terms and conditions of the insurance policy is circumscribed by the specific clause providing for exoneration of the insurer contained in para 2(a) thereof. After going through para no.2(a) of the terms and conditions of the insurance policy quoted above, it is made out that the insurer will not be liable for loss or damage to the accessories by burglary, housebreaking or theft unless the insured vehicle is stolen at the same time. So, liability of theft restricted for indemnification in case loss or damage to the accessories caused along with loss or damage to the insured vehicle also in course of theft. Trolley certainly is an accessory of the power unit/Ghora and that is why, the trolley is detachable. It is also the case of the complainant that trolley was detached from the power unit/Ghora for parking the same outside the office of the complainant. In view of this detachment of trolley from the power unit/Ghora, there is no escape from the conclusion that the trolley in fact is an accessory of the insured vehicle i.e. power unit/Ghora. So, single claim regarding loss on account of theft of the trolley and power unit/Ghora is entertainable against the insurer only.       However, claim with respect to the accessories alleged to be stolen alone put forth by claiming that insured vehicle i.e. power unit/Ghora still with the complainant and as such, by applying clause of para no.2(a) of the terms and conditions of package policy in question, there is no escape from the conclusion that the complainant not entitled for insurance claim at all. Being so, repudiation of claim by OP is justified. In view of this, Op has not provided any deficient service to the complainant at all.

9.                Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:28.11.2016

Gurpreet Sharma.