BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Sanjeev Kumar son of Som Nath, aged about 41 years, resident of village Shahzadpur, Tehsil Naraingarh, District Ambala.

          ……. Complainant

                                                Versus

1. The New India Assurance Company Limited, above IOB Bank, Barwala-Dera Bassi Road, VPO, Barwala, Barwala-134118 through its Branch Manager.
2. Shriram City Union Finance Limited, SCO 404, 1^st  & 2^nd  Floor, Mugal Canal, Karnal-132001 through its Branch Manager.
3. Verma Auto Mobile, Authorized ASC: Bajaj Auto Limited, Near Punjab National Bank, Ambala Road, Shahzadpur, Tehsil Naraingarh, District Ambala through its Proprietor/Authorized person.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

Present:      Shri Gaurav Dhingra, Advocate, counsel for the complainant.

                      Ms. Priya Sharma, Advocate, counsel for the OP No.1

                   Shri Sunny Sharma,  Advocate, counsel for OP No.2.

                   OP No.3 already ex parte vide order dated 04.03.2022.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1.           To settle the claim of the complainant qua the theft of the motorcycle i.e cost of the motorcycle alongwith interest @ 1 8% per annum.
2.           To pay Rs.50,000/- on account of mental torture, mental tension
3. To pay cost of litigation

2.           Brief facts of the case are that the complainant purchased a Motorcycle bearing temporary No.HR/4/TMP/2017/2329, having Engine No.DUYP HD30023, Chasis No.MD2A18AY9HPA27727, Make Bajaj CT of Blue Colour from OP no.3 vide invoice dated 11.09.2017. The above said motorcycle was financed by the OP no.2 and was insured by OP No.1, vide Policy No.35350731170300000431 dated 11.09.2017 which was valid from 11.09.2017 to 10.09.2018. The said policy was a comprehensive policy covering all risks i.e. theft, damage etc. Unfortunately the motorcycle in question was stolen on 30.09.2017 from Krishna Rice Mill, Shahzadpur where the complainant was employed and the same was stolen by one Sanju, resident of Uttar Pradesh who was also working in the Rice Mill. Thereafter, the complainant had lodged FIR No.233 dated 15.12.2017 under Section 379 IPC in Police Station Shahzadpur against above said Sanju regarding the theft of the motorcycle in question. Inspite of best efforts of the police neither the accused was arrested nor the motorcycle was recovered and ultimately the police filed Untrace report in the Court, which was accepted by the Court of Ms. Manmeet Kaur Ghuman, Id. Judicial Magistrate Ist Class, Naraingarh vide order dated 06.02.2019. Intimation in this regard was also given to the OPs alongwith necessary documents but till date the claim of the complainant has not been settled. The complainant also served a registered AD legal notice dated 19.12.2019 upon the OPs but to no avail. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that  this complaint is not maintainable; the complainant never informed about the incident of theft of his motorcycle and requested OP No.1 to provide claim amount; before the filing of written objections, OP No.1 had requested this Commission to direct the complainant to provide all the documents including claim request/letter to OP No.1 which were not provided by him and it clearly shows that there is no cause of action accrued in favour of the complainant; the complainant has not approached this Commission with clean hands and has suppressed the true and material facts; the complainant himself violated the terms and conditions of the policy and he is thus stopped from his own conduct to file/claim any compensation etc. On merits, it has been stated that the vehicle of the complainant was insured vide policy No.35350731170300000431 for the period from 11.09.2017 to 10.09.2018. There is no truth in the complaint of the complainant. The complainant never requested OP No.1 to settle his claim till date. Now, since there is a delay of huge period as such the complainant is just trying to condone the period by excuses and concocted allegations. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with heavy costs.
4.           Upon notice, OP No.2 appeared and filed written version wherein it raised preliminary objections to the effect that this complaint is not at all maintainable; the present complaint is liable to be rejected in limine as the same has been filed beyond the prescribed period of limitation; the complainant has not come to this Commission with clean hands and has suppressed true and material facts; the complaint is bad for mis-joinder of OP No.2 as necessary party etc. On merits, it has been stated that OP No.2 being a RBI recognized Financial Institution/company is engaged in providing loan/finance to its customers. At the time of the purchase of the motorcycle either the complainant or the OP No.3 might have got the same insured from the OP No.1. The loan of Rs.32000/- was provided by OP No.2 to the complainant at his own request for the purchase of the said vehicle. The amount of loan has been fully repaid by the complainant to the OP No.2 on 1-1-2021 and a No Objection Certificate in this respect has also been given to the complainant. So the relation of borrower and lender has also ended more than a year ago. OP No.2 has no role whatsoever in the settlement of any Insurance claim. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with special costs.
5.           Upon notice, none appeared on behalf of the OP No.3, before this Commission, therefore, it was proceeded against ex-parte vide order dated 04.03.2022.
6.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1A alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of R.K. Mittal, Authorized Signatory of OP No.1-Company-The New India Assurance Co. Ltd., Suit Claim Hub, Karnal as Annexure OP-1/A and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Ankush Gaur, Authorized Signatory/Power of attorney holder of OP No.2-Shriram City Union Finance Limited, as Annexure OP-2/A alongwith documents Annexure OP-2/1 to OP-2/9 and closed the evidence on behalf of OP No.2.
7.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 and 2 and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that despite the fact that the theft of the vehicle in question took place during the subsistence of the policy in question, and all the documents required were submitted with OP No.1 alongwith claim form, as such, OP No.1 was under legal obligation to pay the claim amount under the policy in question but his genuine claim was not considered by it, which act amounts to deficiency in providing service.
9.           On the contrary, the learned counsel for the OP No.1 submitted that since the complainant neither intimated the fact of theft of his vehicle to  OP No.1 even till the date of filing of this complaint nor he lodged any claim with OP No.1 qua alleged theft of his vehicle and as such, now he wanted to condone the said delay to get his claim through this Commission by way of filing this consumer complaint, which is not permissible under law. 
10.           Learned counsel for OP no.2 submitted that OP No.2 has no concern with the dispute in question as OP No.2 has only financed the vehicle in question and has no concern whatsoever with the claim of the said vehicle qua its theft, which has not been considered by OP No.1. Even NOC has been issued by OP No.2 to the complainant as he has repaid the loan amount.
11.           The moot question which arises in this case is as to whether the complainant is entitled to get any relief in this case or not. It may be stated here that we have gone through the entire record of this case and are of the considered view that the complainant is not entitled to get any relief from this Commission because firstly the complainant has failed to place on record not even a single evidence to prove that he ever reported the case of theft of his vehicle or has even filed his claim with OP No.1 in the matter.
12.           Secondly, even if for the sake of arguments, it is only presumed that the complainant had filed his claim with OP No.1, even then the same was not payable by the insurance company because it is the own case of the complainant that theft of the insured vehicle in question took place on 30.09.2017, from Krishna Rice Mill, Shahzadpur, where he was employed, yet, FIR No.233 was lodged in that regard to the Police Station, Shahzadpur only on 15.12.2017. The complainant has failed to explain as to why such a huge delay of more than 2 months took place in lodging of FIR qua theft of the vehicle in question.  This negligence on the part of the complainant had deprived of the Police machinery to set in motion, so that necessary immediate steps for tracing and recovering of the vehicle could be expedited. In  Kanwarjit Singh Kang vs. M/s ICICI Lombard General Insurance Co. Ltd. & Anr. SLP (C) No. 6518 of 2018, decided on 29.03.2022, the Hon’ble Supreme Court upheld the repudiation of the claim by the insurance company on account of unexplained delay in lodging FIR qua theft of the vehicle with the police, considering it as a fundamental breach. The principle of law down by the Hon’ble Supreme Court in Kanwarjit Singh Kang’s case is squarely applicable to the present case and as such it is held that the complainant is not entitled to get any relief in this consumer complaint qua theft of his vehicle.
13.           In view of peculiar facts and circumstances of this case, this complaint stands dismissed with no order as to costs. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 01.02.2024