DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

Complaint Case No : CC/177/2022

Date of Institution   : 13.07.2022

Date of Decision    : 12.04.2024

Harmail Singh son of Sh. Hardev Singh, resident of VPO Guram, Tehsil and District Barnala.           

                          …Complainant Versus

1. The New India Assurance Co. Ltd., Branch Near St. No. 6, K.C. Road, Barnala, Tehsil and District Barnala through its authorized signatory.  

2. The New India Assurance Co., Regd. And Head Office: New India Assurance Bldg. 87 M.G. Road Fort, Mumbai-400 001 through its Managing Director/Chairman.   

                       …Opposite Parties

Complaint Under Section 35 of Consumer Protection Act, 2019.

Present: Sh. Preet Mohinder Singh counsel for complainant.

Sh. Ashish Kumar counsel for opposite parties.

Quorum:-

1. Sh. Jot Naranjan Singh Gill : President

2.Smt Urmila Kumari : Member

3.Sh. Navdeep Kumar Garg : Member 

ORDER

JOT NARANJAN SINGH GILL, PRESIDENT

The complainant namely Harmail Singh has filed the present complaint under Section 35 of the Consumer Protection Act 2019, (amended upto date) against The New India Assurance Co. Ltd., and others (hereinafter referred as opposite parties).  

2. The facts leading to the present complaint are that the complainant is owner of Ashok Leyland Truck having Registration No. PB-13BB-5243, Model 2018, Engine No. 148855, Chasis No. 4JPHB6793 and same got insured from opposite party No. 1 vide policy No. 36130131210100000537 valid from 11.9.2021 to 10.9.2022 for an amount of Rs. 25,50,000/- and in this respect opposite party No. 1 received an amount of Rs. 46,818/- as premium from the complainant. It is further alleged that the complainant is heart patient and on 12.1.2022 the complainant was going to Hisar (Haryana) from Village Guram (Punjab) on his above said Truck and at about 8:00 PM when the complainant reached near T-point at Bhikhi Road, Dhanaula, a severe pain started in the heart of the complainant and on that account the complainant parked his above said Truck on road side and called his friend and he took the complainant at Barnala for medicine and after taking medicine accompanied the complainant at his house and on 13.1.2022 in the early morning when the complainant reached at the spot where he parked his Truck, shocked to see that the said Truck was not there and the complainant tried his best to trace out the same but all in vain and this fact was duly informed by the complainant to the opposite party No. 1 and in this regard the complainant also reported to the local police station at Dhanaula and upon which an FIR No. 10 dated 17.1.2022 under section 379 IPC was registered against unknown persons and on 14.5.2022 the Hon’ble Court of Smt. Sucheta Ashish Dev, Chief Judicial Magistrate, Barnala issued untraceable report. It is further alleged that since right from the passing of the order regarding untraceable report dated 14.5.2022 the complainant made various requests and representations to the opposite party No. 1 and visited the premises of the opposite party No. 1 and submitted the required documents regarding the payment of said insurance policy, but the opposite party No. 1 putting of the matter on one pretext or the other and upon which the complainant contacted the opposite party No. 2 telephonically and told the opposite party No. 2 about the above said entire incident but the opposite party No. 2 did not pay any heed towards the request of the complainant. Thereafter, the complainant through counsel sent a legal registered notice to the opposite parties but with no result. Thus, the above said act of the opposite parties amounts to deficiency in service and unfair trade practice. Hence, the present complaint is filed for seeking the following reliefs.- 

i)To pay Rs. 25,50,000/- being financial loss as cost of the insured vehicle after charing the premium and Rs. 10,000/- for to and fro expenses.

ii)To pay Rs. 2,00,000/- for causing mental shock, pain, agony, harassment and trauma  and Rs. 50,000/- as litigation expenses in total Rs. 28,10,000/- to the complainant.  

3. Upon notice of this complaint, the opposite parties appeared and filed written version. It is alleged in the written version that at the time of theft Truck bearing No. PB-13BB-5243 was insured with opposite parties company subject to terms and conditions of the policy and the sum insured was Rs. 25,50,000/- (less deductible). It is further alleged that after receipt of intimation dated 24.1.2022 regarding theft of above said vehicle, the opposite parties company appointed Sh. Harkaranbir Singh Dhillon, Advocate for investigation and the said investigator personally investigated the matter in question. As per report of investigator, the theft tool place due to gross negligence of the insured as he parked the Truck on road side near T point at Bhikhi Road, in front of the shop of Atma denting works, on 12.1.2022 at about 8:00 PM in isolated and unattended condition and without adequate safety. The investigator further concluded that the insured had not provided the fast Tag details to him, which was required for ascertained that the Truck was in existence and the insured was regularly using the vehicle. The said investigator also concluded that the insured had not installed any GPS for the safety and security of the vehicle. The insured also failed to provide the service record to the investigator. The insured had not provided any medical record in regard to cardiac arrest of dated 12.1.2022. The investigator also recorded the statement of Avtar Singh son of Karan Singh and as per his statement, he did not see Trolla parked at his place and nor the insured told him on phone regarding the parking of the vehicle in front of the shop. As per report of investigator, present Sarpanch and member Panchayat did not state any fact regarding the theft of Truck in question. The investigator also concluded that the insured was not having valid and effective driving licence on the date of loss and he had informed the police after 5 days from the date of theft. The said investigator submitted his report dated 14.2.2022 alongwith statements/record subject to terms and conditions of the insurance policy. It is further alleged that after examining the entire file carefully, the opposite parties company repudiated the claim of the complainant on the following reasons;-

i)The Truck was parked at T Point Bhikhi Road, at the shop of Atma denting works. The vehicle was not properly parked at it was main road.

ii)No history of fastag, or service record or repair bill provided to us.

iii)No proof of existence of vehicle before theft was given to us. 

iv)Mr. Avtar Singh working at shop where Truck was parked, stated that he was not informed regarding the parking of vehicle in front of his shop. 

v)The present Sarpanch and member Panchayat did not state any fact regarding the theft of Truck. 

vi)The vehicle was driven by you at the time of parking and your driving licence was also expired on the date of loss. 

vii)There was delay of 5 days in lodging FIR and 12 days for intimating to the insurer, which is very fatal breach of terms and conditions. 

It is further alleged that the insured parked the Truck on road side near T point at Bhikhi Road, in front of the shop of Atma denting works, on 12.1.2022 at about 8:00 PM i.e. open place in isolated and unattended condition and without adequate safety and the complainant came back to said place on 13.1.2022 in the morning, which means he did not bother about his vehicle being left unsafe on whole night of 12.1.2022. The complainant did not take all reasonable steps to safeguard the vehicle from loss. The insured informed the loss to opposite parties on 24.1.2022 i.e. after a gap of 12 days though the vehicle was reportedly stolen in the night of 12-13/1/2022 and FIR was also lodged after 5 days of theft which is violations of terms and conditions of insurance policy and the complainant has also deprived the rights of opposite parties to investigate into the veracity of the claim and initiate steps towards recovery of the vehicle. Therefore, the opposite parties legally and rightly repudiated the claim of the complainant on the above said reasons and there is no unfair trade practice and deficiency in service on the part of opposite parties and finally they prayed for the dismissal of complaint. 

4. In order to prove his case the complainant tendered into evidence his own affidavit as Ex.C-1, copy of policy Ex.C-2 (containing 2 pages), copy of FIR Ex.C-3 (containing 4 pages), copy of order dated 14.5.2022 Ex.C-4, copy of legal notice Ex.C-5 (containing 3 pages), postal receipts Ex.C-6 & Ex.C-7 and closed the evidence. 

5. To rebut the case of complainant the opposite parties tendered into evidence copy of insurance policy Ex.O.Ps-1 (containing 3 pages), copy of terms and conditions of policy (containing 9 pages), copy of claim intimation letter dated 24.1.2022 Ex.O.Ps-3, copy of surveyor report dated 14.2.2022 Ex.O.Ps-4 (containing 21 pages), copy of registration certificate Ex.O.Ps-5, copy of driving licence Ex.O.Ps-6, copy of letter dated 1.4.2022 Ex.O.Ps-7, copy of letter dated 26.4.2022 Ex.O.Ps-8, copy of legal notice dated 15.6.2022 Ex.O.Ps-9 (containing 3 pages), copy of reply of legal notice dated 11.7.2022 Ex.O.Ps-10 (containing 3 pages), copy of letter dated 30.6.2022 Ex.O.Ps-11, affidavit of Harkaranbir Singh Dhillon Ex.O.Ps-12, affidavit of Narinder Kumar Singal Ex.O.Ps-13 and closed the evidence. 

6. We have heard the learned counsel for the parties and have gone through the record on file. Written arguments filed by the parties. 

7. To prove his case the complainant has placed on record his own affidavit Ex.C-1 vide which he reiterated the averments as mentioned in the complaint. The complainant has further placed on record copy of  insurance policy of vehicle in question i.e. commercial vehicle package policy Ex.C-2 which shows that the insurance policy of the vehicle in question was valid from 11.9.2021 12:00:01 AM to 10.9.2022 11:59:59 PM. The complainant also placed on record copy of FIR No. 10 dated 17.1.2022 U/S 379 IPC Ex.C-3 which shows that the vehicle in question was stolen in the intervening night of 12,13/01/2022. Ex.C-4 (Page No. 2) is the copy of order dated 14.5.2022 of the National Lok Adalat, Barnala, vide which it is mentioned that in view of the statement of the complainant, recorded on 12.5.2022 the untrace/cancellation report is hereby accepted. Ex.C-5 is the copy of legal notice which was sent to the opposite parties and the Ex.C-6 & Ex.C-7 are the postal receipts. 

8. To rebut the case of the complainant the opposite parties have placed on record copy of insurance policy of vehicle in question Ex.OPs-1 and Ex.O.Ps-2 are the copy of terms and conditions of the policy. Ex.O.Ps-3 is the copy of claim intimation letter dated 24.1.2022 which shows that the complainant Harmail Singh lodged claim with the insurance company of his vehicle No. PB-13-BB-5243 on account of theft and the same was signed by the complainant. The opposite parties further placed on record copy of surveyor report of Harkaranbir Singh Dhillon dated 14.2.2022 Ex.O.Ps-4 vide which in the column of conclusion it is mentioned that the insured party did not provide the FastTag details from which it can be ascertained that the truck was in existence and the insured is regularly using the vehicle and the insured stated that he is not aware of FASTTAG details as in accordance to government norms FASTTAG is mandatory. No service record of vehicle was provided. No due care and caution was taken by insured while parking the vehicle outside the shop of Avtar Singh i.e. Atma truck body builder, as insured did not even informed before parking of vehicle and without any security guard and proper parking place. No medical record in regard to cardiac arrest of dated 12.1.2022 is provided from which it can be ascertained that Harmail Singh is suffering from cardiac arrest. Further, no traceable report has been provided to the surveyor and there is delay of 5 days in lodging FIR. The truck of Harmail Singh is not recovered by police till date. Further, none of government authorities such as BDPO, Sarpanch and Member of Panchayat were not aware of fact of that truck has been stolen from Dhanaula of Harmail Singh and insured village Guram Tehsil & District Barnala. The video recording and statement of Avtar Singh owner of Atma body building works confirms that insured did not disclose for parking of truck before his shop. It is further mentioned that the present vehicle is unattended as it was not properly parked without intimating the person where the vehicle is parked, as on main road and no proper parking place was there to park the vehicle nor the witnesses supported the version of insured. Ex.O.Ps-5 is the copy of certificate of registration of vehicle No. PB-13-BB-5243 of Harmail Singh. Ex.O.Ps-6 is the copy of driving licence of Harmail Singh which shows the validity of transport upto 6.8.2021 and the validity of non transport upto 6.3.2022. Ex.O.Ps-7 is the copy of letter dated 1.4.2022 sent to the complainant by the opposite parties vide which the opposite parties have demanded the required documents i.e. Driving Licence of Mr. Harmail Singh S/o Jagdev Singh, Non-traceable certificate of the vehicle issued by the police authority and duly countersigned by the court, NCRB report, No Authentic proof given by you regarding unattended vehicle during the day of theft, Provide the medical record for the day of theft. Ex.O.Ps-8 is the copy of letter dated 26.4.2022 sent to the complainant by the opposite parties vide which the opposite parties again demanded the required documents from the complainant. Ex.O.Ps-9 is the copy of legal notice sent by the complainant to the opposite parties and Ex.O.Ps-10 is the copy of reply to the legal notice sent by the opposite parties to the complainant. The opposite parties further placed on record copy of letter dated 30.6.2022 Ex.O.Ps-11 vide which the opposite parties repudiated the claim of the complainant on the following grounds;-  

i.The truck was parked at T point bhikhi road, at the shop of Atma denting works. The vehicle was not properly parked as it was main road.

ii.No history of fastag, or service record or repair bills provided to us.

iii.No proof of existence of vehicle before theft was given to us.

iv.Mr. Avtar Singh working at shop where truck was parked, stated that he was not informed regarding the parking of vehicle infront of his shop.

v.The present sarpanch and member panchayat did not state any fact regarding the theft of truck.

vi.The vehicle was driven by you at the time of parking and your Driving Licence was also expired on the date of loss.

vii.There was delay of 5 days in lodging FIR and 12 days for intimating to insurer, which is very fatal breach of terms and conditions. 

Keeping in view the above facts, the recommendations of the investigator, our retainer, the competent authority has agreed to repudiate the claim. Thus, with reference to all the facts and recommendations we are closing your file as 'No Claim'.  

The opposite parties to prove their case further placed on record affidavit of Harkaranbir Singh Dhillon Advocate/Investigator Ex.O.Ps-12 vide which the Investigator reiterated the averments as mentioned in the report Ex.O.Ps-4. The opposite parties also placed on record affidavit of Narinder Kumar Singla Sr. Divisional Manager of the opposite parties Ex.O.Ps-13 vide which he also reiterated the averments as mentioned in the written version. 

9. So, after gone through the records we are of the view that the complainant had parked the Truck in question on the road side unattended and without adequate safety. Further, the complainant took the plea that on 12.1.2022 when he was going to Hisar (Haryana) from village Guram (Punjab) on his above said truck at about 8:00 PM and when he reached near T-Point at Bhikhi road, Dhanaula, he suffered from a severe pain in the heart and he parked the truck on road side and called his friend who took him at Barnala for medicine. But the complainant has failed to place on record any medical record or any prescription slip of a doctor in this regard and even has not placed on record any affidavit of his friend, who took him at Barnala for medicine, so the above said plea of the complainant is not tenable. The complainant further stated in his complaint that on 13.1.2022 in the early morning when he reached at the spot where he parked the truck, shocked to see that the said truck was not there and the complainant tried his best to trace out the same but all in vain and reported the matter to the Police Station at Dhanaula upon which an FIR No. 10 dated 17.1.2022 under section 379 IPC was registered against unknown person. It is important to mention here that the truck was remained/left unattended on the road side for the whole night of 12.1.2022. On the other hand, the allegation of the opposite parties is that FIR was lodged after the gap of five days because the incident took place on 12.1.2022 and the complainant registered the FIR on 17.1.2022 and to counter this allegation of the opposite parties the complainant has failed to place on record any evidence and even no reason is assigned by the complainant in his complaint for the delay of 5 days in lodging FIR for his stolen truck. It is important to mention here that the above said incident has took place in Bhikhi Road, Dhanaula on 12.1.2022 and the complainant has registered the FIR at Police Station, Dhanaula on  17.1.2022 at the same place after a gap of 5 days for the reasons best known to the complainant. Moreover, in the report of Investigator Ex.O.Ps-4 (at Page No. 9 in Column Enquiries From Place of Theft) it is mentioned that the Investigator met Avtar Singh owner of Atma body builder and enquired about the alleged theft, he stated that prior to parking his tralla harmail singh did not inform him that he is parking the tralla in front of his shop and after the alleged theft the insured harmail singh inform avtar singh at 04.00 pm in the evening of dated 13.1.2022 and the statement of above said Avtar Singh is corroborating the case of the opposite parties. Further, the Investigator met Baljinder Singh the person who picked harmail singh as per FIR, who stated in his statement that he picked harmial singh from ITI chownk due to his cardiac arrest, further he took him to hospital and he stated that he did not picked harmail singh from spot, and he cannot tell where the harmail singh parked truck. Further, (at Page No. 10 in the column of Verification From Locality) it is mentioned as “Then I visited neighbors and locality and enquired about the alleged theft. From locality present Sarpanch and member panchayat & others not stated any fact that the truck has been stolen”. The another allegation of the opposite parties is that the insured/complainant did not provide the FastTag details from which it can be ascertained that the truck was in existence and the insured is regularly using the vehicle. But the complainant has also failed to reply the above said allegation of the opposite parties by producing any evidence. Moreover, the complainant has also failed to place on record any service record of vehicle. The opposite parties in Ex.O.Ps-4 at page No. 3 has disclosed the fact that the above said truck was financed for Rs. 16,00,000/- approximately and this fact is proved from the copy of Certificate of Registration Punjab State of vehicle No. PB-13-BB-5243 Ex.O.Ps-5 vide which Hypothecation by M And M Financial Services Ltd., is mentioned. Further, (at Page No. 10 in the column of Verification From Financers/Bank) it is mentioned as “The vehicle is financed from Mahindra and Mahindra Financial Services Barnala on my visit I met Branch Manager and enquired about the loan outstanding of vehicle No. PB13BB5243 to my query he stated that 16,00,000 approx was outstanding with interest”. However, the complainant has neither disclosed this fact in his complaint nor impleaded finance company as a party to the present complaint. 

10. Further, to prove the case Ld. Counsel for the opposite parties has relied upon the judgment of the Hon’ble Supreme Court of India 2022 ACJ 1647 in case titled Kanwarjit Singh Kang Vs ICICI Lombard General Insurance Co. Ltd. and another vide which the Hon’ble Supreme Court of India has held in Para No. 10 that In any case, the necessity of giving immediate notice to the police cannot be gainsaid and if that had not been done, the entire claim would come under a thick cloud of suspicion and the onus is then heavy on the insured to justify the delay. In the present case, towards such justification, the submission on behalf of the petitioner is that it took him longer time in traveling from Ludhiana in the State of Punjab to Vardhaman in the State of West Bengal and, therefore, the FIR was lodged after a delay of 8 days. The three fora  have observed, and rightly so, that with the means of faster communications available, delay of 8 days in lodging the FIR remains unexplained and does not stand in conformity with the requirement of immediate action. Further, in Para No. 11 of the judgment the Hon’ble Court held that Moreover, the other pertinent part of the matter, that there had been want of reasonable care on the part of the petitioner or his employees in taking reasonable care of the insured vehicle, operates heavily against the petitioner. It is specifically found that the truck in question was left unattended on the roadside. That being the position, repudiation of the claim of the petitioner cannot be faulted with. 

11. Ld. Counsel for opposite parties also relied upon the judgment of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 4369 of 2014 (Against the Order dated 7/8/20214 in Appeal No. 185/2014 of the State Commission Himachal Pradesh) decided on 3.11.2021 in case titled Lokesh Kapoor Vs National Insurance Co. Ltd. and Others, vide which it is held in Para No. 11 that left the vehicle unattended on the road upto 7.40 PM. This shows sheer negligence on the part of the complainant. Petitioner cannot take the benefit of his own wrong. He was supposed to take reasonable and proper care of his vehicle. The opposite party cannot be directed to pay for the wrong of the complainant.  

12. Ld. Counsel for opposite parties further relied upon the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi 2012 (1) CLT 577: 2011 (4) CPJ 135: 2011 (50) RCR (Civil) 912 in case titled Keshav Natu Mhatre Vs New India Assurance Co. Ltd. and Anr., vide which it is held in Para No. 9 that It is an admitted case of the petitioner himself, that the vehicle was left unattended on the road for about 5 ½ hours. Mere fact that the same locked will not make any difference in this case, since it was the duty of the petitioner to have taken proper care before leaving the vehicle on the road. 

13. So, from the discussion of the above said facts of the case and in view of the above said cited judgments, it is proved on the file that the complainant himself is at fault because he had left/parked the truck in question unattended on the road side without taking proper safeguard and the opposite parties are not liable to pay anything for the wrong act of the complainant. Moreover, there was delay of 5 days in lodging FIR and 12 days for intimating to the insurer.

14. As a result of the above, the present complaint has no merits and the same is dismissed. However, there is no order as to costs or compensation. 

15. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

       12th Day of April, 2024

 

            (Jot Naranjan Singh Gill)

            President

 

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member