DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB)
CC No. 485 of 20-10-2010 Decided on : 09-02-2011
M/s. Bawant Singh & Sons, B/6/52 Gurudwara Street, Goniana Mandi, District Bathinda through its Proprietor Ajaib Singh S/o Sh. Balwant Singh S/o Joginder Singh R/o B-VI, Near Telephone Exchange, Goniana Mandi, Bathinda. .... Complainant Versus
The New India Assurance Co. Ltd., through its Senior Divisional Manager, The Mall, Bathinda. The New India Assurance Co. Ltd., through its Branch Manager, Old Post Office, Malout. .... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Ms. Vikramjit Kaur Soni, President Dr. Phulinder Preet, Member Sh. Amarjeet Paul, Member
For the Complainant : Sh. Sanjay Goyal, counsel for the complainant For the Opposite parties : Sh. Vinod Garg, counsel for the opposite parties.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The complainant got his Maxi Jeep insured from the opposite parties vide Cover Note No. 360603/31/08/01/00000751 after making payment of Rs. 8819/- for the IDV of Rs. 2,48,000/-. The vehicle was financed by ICICI Bank, Bathinda and the entire loan has been repaid by the complainant. Only the Cover Note was given to the complainant and no separate terms and conditions were ever supplied to him. On 03-04-2009, the vehicle of the complainant was stolen and FIR No. 36 dated 19-04-2009 under Section 379 IPC was registered at Police Station Nahiawala, Bathinda and the intimation in the regard was also given to the opposite parties. The opposite parties demanded copy of FIR, Copy of Non-traceable report from the Ilaka Magistrate and copy of non-traceable certificate from Crime Bureau. The complainant supplied copy of FIR, copy of Non-traceable certificate issued by the SSP Bathinda and all other documents within time to the opposite parties, but the claim of the complainant has been withheld by the opposite parties on the ground that vehicle was stolen and still Ilaka Magistrate has not given the non-traceable certificate. The earlier complaint No. 66/2010 filed by Ajaib Singh was withdrawn on technical ground as insurance Cover Note was issued in the name of M/s. Balwant Singh & Sons and complaint was filed by Ajaib Singh in his individual capacity. The complainant alleged that the opposite parties have illegally withheld his claim. Hence, this complaint seeking directions of this Forum to the opposite parties to pay IDV of the vehicle with interest alongwith compensation and cost. The opposite parties filed their joint written reply and admitted that claim was lodged with them by the complainant regarding theft of vehicle and they demanded relevant documents including copy of non traceable report duly accepted by the Area Magistrate and also copy of non-traceable certificate from crime bureau. It has been pleaded that the copy of non-traceable certificate issued by SSP Bathinda, is not valid and conclusive proof for processing the claim. It is mentioned on that report that it is not valid for any insurance claim or other legal purposes. In case of goods carrying vehicles acceptance of non-traceable report by Area Magistrate is essential before finalizing the claim as per instructions of opposite parties. The complaint is premature as the non-traceable report has not been accepted by the Area Magistrate although the same is mandatory and in the absence of that report, the payment cannot be made to the complainant. Even otherwise, in case of acceptance of claim after completion of formalities, the complainant has to transfer the ownership of the vehicle in favour of the opposite parties and to execute the necessary documents so that they may claim the vehicle in case it is recovered at any stage in future. Parties have led evidence in support of their pleadings. Arguments heard and written submissions submitted by the parties perused. The learned counsel for the complainant has submitted that Maxi Jeep of the complainant was insured with the opposite parties vide Cover Note No. 360603/31/08/01/00000751 after making payment of Rs. 8819/- for the IDV of Rs. 2,48,000/-. The vehicle was financed by ICICI Bank, Bathinda and the entire loan has been repaid by the complainant. The opposite parties issued only cover note and no terms and conditions were ever supplied to the complainant. The vehicle in question was stolen on 03-04-2009 and in this regard FIR was registered at Police Station Nahiawala, Bathinda and intimation was also given to the opposite parties. He submitted that the complainant has submitted all the documents including copy of FIR and copy of non-traceable certificate issued by SSP Bathinda, but the opposite parties have not yet paid the claim to him on the ground that vehicle was stolen and still Ilaka Magistrate has not given the non-traceable certificate. The learned counsel for the complainant prayed that vehicle was being used by the complainant exclusively for personal use and not for commercial purposes. On the other hand, the learned counsel for the opposite parties has submitted that the complainant did not submit the non-traceable report duly accepted by the Area Magistrate. Though he was sent a letter Ex. C-3, the claim could not be processed and payment could not be made in the absence of non-traceable report. For this, he has placed reliance on Ex. R-2 i.e. Motor Technical Department – for theft claim. The complainant submitted Vehicle Inquiry Report dated 31-12-2009 Ex. C-5 only which is not valid for the insurance claim or for legal purposes. He further submitted that loss has occurred after six months of the purchase of the policy and as such, depreciation @5% is to be applied on the IDV i.e. Rs. 2,48,000/-. The learned counsel for the opposite parties further submitted that the complainant has to produce NOC from the financer and handover the double key of the vehicle alongwith duplicate RC to the opposite parties. He also submitted that complainant has not produced any document to prove his proprietorship as the FIR Ex. C-6 has been lodged by one Pushpinder Singh stating himself to be owner. He submitted that complainant is not consumer. The claim of the complainant has not been paid yet by the opposite parties on the ground that non-traceable certificate of the Area Magistrate was not furnished. For this, the learned counsel for the opposite parties have placed reliance on Ex. R-2 which reads as under :- “For theft claim, 75% on account payment can be made after 90 days with a letter, asking claimant to produce Non-Traceable Certificate (duly endorsed by Magistrate Court, in case of commercial vehicles), within further 90 days, failing which the claim file will be deemed closed.” First of all the above said terms and conditions Ex. R-2 were never supplied to the complainant. However, for arguments sake if it be admitted that such terms and conditions were sent to the complainant, even then, this condition applies in case of commercial vehicles. The opposite parties have not produced any document on file to prove that the vehicle in question was being plied by the complainant for commercial purposes for earning profit. When the vehicle is not being used for commercial purposes then there is no need for getting the non-traceable certificate endorsed by Magistrate court. The opposite parties have submitted that complainant has not produced any document to prove his proprietorship as FIR has been lodged by one Pushpinder Singh. Although Sh. Ajaib Singh, has produced his affidavit Ex. C-1 wherein he has stated that “ I Ajaib Singh aged 35 years Prop. of M/s. Balwant Singh & Sons. Goniana Mandi” yet a perusal of FIR Ex. C-6 reveals that Pushpinder Singh has no where stated that he is the owner of the vehicle rather it has been clearly mentioned in the FIR that vehicle in question is registered in the name of firm M/s. Balwant Singh & Sons. Moreover, the FIR can be got registered by any person on behalf of the complainant. Hence, this objection of the opposite party is not tenable. Further more, the opposite parties have not produced any evidence on file to prove that complainant's firm was being run for earning huge profit by employing many persons. Hence, the said firm is being run by the complainant for earning his livelihood and as such, he is a consumer. Further the opposite parties have stated that the complainant has to furnish NOC from the financer. Although the complainant has stated in his complaint as well as in his affidavit Ex. C-1 that he has paid the entire loan against the vehicle in question yet he has produced on record a copy of NOC issued by the said financer i.e. ICICI Bank to Regional Transport Office Ex. C-4 to the effect that vehicle loan of the complainant stands terminated and requested for removal of hypothecation from the registration. Thus, it is proved that the loan amount against the vehicle in question has been paid by the complainant to the financer. Once a vehicle is comprehensively insured and it is a case of total loss, as is in this case as vehicle has been stolen by someone and it could not be traced then it is the insured's declared value that is payable as has been held by the Hon'ble State Commission of Punjab in the case of United India Insurance Co. Ltd. Vs. Gurjant singh & another First Appeal No. 1342 of 2005 decided on 31.01.2006. In view of above discussion, this Forum is of the view that there is deficiency in service on the part of the opposite parties in not paying the claim amount to the complainant even after a lapse of more than one year whereas the complainant has already furnished Non-traceable certificate/Vehicle Inquiry report issued by SSP, Bathinda Ex. C-5 , without any sufficient cause. Thus, this complaint is accepted against the opposite parties with Rs. 3,000/- as compensation and cost. The parties are directed to do as under :- i) Complainant would execute Letter of Subrogation as per requirements of the opposite parties in their favour conferring all the rights of the Maxi Jeep in question including ownership with them– Insurance Company through its Divisional Manager and would deliver 2nd key of the vehicle in question to the opposite parties, within 15 days from the date of receipt of copy of this order. ii)After the complainant executes Letter of Subrogation and delivers 2nd key of the vehicle in question as mentioned above, opposite parties would pay Rs. 2,48,000/- with interest @ 6% P.A. from the date of filing of the complaint i.e. 20-10-2010 till relisation, alongwith Rs. 3,000/- being compensation and cost to the complainant i.e. in the name of M/s Balwant Singh & Sons, within next 30 days. The compliance of complete order be made within 45 days from the date of receipt of copy of this order.
A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
Pronounced 09-02-2011 (Vikramjit Kaur Soni) President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member
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