Chandigarh

DF-I

CC/968/2022

GIRDHARI LAL SHUKLA AGED 57 YEARS S/O LATE HAZARI LAL SHUKLA - Complainant(s)

Versus

THE NEW INDIA ASSURANCE COMPANY LIMITED THROUGH ITS MANAGING DIRECTOR - Opp.Party(s)

DAVINDER SINGH

01 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/968/2022
Date of Institution	:	9.12.2022
Date of Decision	:	1/11/2023

 

Girdhari Lal Shukla S/o late Hazari Lal Shukla R/o House No.1368, Vikas Nagar Mauli Jagran, U.T., Chandigarh.

… Complainant(s)

V E R S U S

1.       The New India Assurance Company Limited SCO No.828, Manimajra (NAC above Vijay Bank) Chandigarh through its Managing Director and lastly the office was SCO No.36-37, Sector 17-A, Chandigarh.

2.       The New India Assurance Company Limited, Head Office, Building 87, Mahatma Gandhi, Road Fort, Mumbai 400001.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Arjun Kumar Shukla, Advocate for complainant
	:	Sh. Devinder Kumar, Advocate proxy for Sh. Sudhir Gupta, Advocate for OPs

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that the complainant being owner of three wheeler bearing registration NO. PB 65 AA 1572 (hereinafter referred to be as subject auto)  got the same insured from OP No.1 vide policy Annexure C-2, valid from 11.11.2014 to 10.11.2015. On the morning of 25.4.2015 around 9.30 a.m., the subject auto was being driven by driver Ram Bhajan Tiwari and was heading  from railway station to Zirakpur with one passenger who further extended his destination for Giansagar Hospital near Banur,  on reaching the hospital the said passenger requested the driver to buy a cigarette  from near-by shop. On this the driver went to take cigarette and in the meantime the said passenger offered the driver an intoxicant drink  and after drinking the same the driver went unconscious. Thereafter when the aforesaid driver regained his consciousness, he found himself near Sambu Barrier and he found that the subject auto has been stolen by the said passenger. The driver immediately  informed the complainant about the theft of the subject auto and after few days he reported the matter to the police, in pursuance to which FIR  U/s 328, 420 IPC vide Annexure C-3 was registered .   The OP insurance company was also informed about the theft of the subject auto and all the documents were also submitted to it. However, the police failed to trace out the subject auto and submitted untraced report in the SSP office on 13.5.2015 but did not submit the said report to the area Magistrate for its acceptance.  The complainant visited the police station several times to get the status of the aforesaid FIR but he was never provided the satisfactory reply for a long period of 6 years.  Thereafter the complainant moved an application before the JMIC, Rajpura for getting untraceable report on 29.9.2021 and only then the said untraceable report was filed in the aforesaid court and the same was accepted by the Hon’ble court vide order dated 14.5.2022.   As the subject auto was insured with the OP No.1 having IDV of Rs.1,84,300/-and the OPs have not settled the genuine claim of the complainant despite of the submission of the documents to them including order passed by the learned magistrate, the aforesaid act of the OPs amounts deficiency in service  as the complainant is suffering with mental pain and harassment. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of  maintainability, limitation and non joinder of necessary party. On merits it is admitted that the subject auto was insured by the OPs at the relevant time vide policy Annexure C-2/OPR-2 valid from 11.11.2014 to 10.11.2015. However it is alleged that the complainant has not submitted the requisite documents despite of repeated request  by the answering OPs. The claim of the complainant was closed as no claim on 29.7.2016. It is further alleged that since the present complaint has been filed almost after 6 years of the closer of the claim, the complaint of the complainant is barred by limitation. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant was registered owner of the subject auto as is evident Annexure C-1 and the same was insured with the OP insurance company vide policy document Annexure C-2/OPR/2 and on the theft of the subject auto the complainant lodged FIR at police station Banur  as  is evident from Annexure C-3 and further at the time of theft the subject auto was being driven by driver Ram Bhawan Tiwari and the untraceable report was accepted by the learned Presiding Member  National Lok Adalat , Rajpur/JMIC-1 vide order dated 14.5.2022 as is also evident from Annexure C-4. at page 26 of the complaint paperbook, the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in not settling the genuine claim of the complainant and the complainant is entitled for the relief as prayed for, as is the case of the complainant or if the complaint of the complainant is not maintainable and the same is liable to be dismissed as is the defence of the OPs.
   2. Perusal of Annexure C-3 copy of FIR clearly indicates that Ram Bhawan Tiwari  the then driver  of the subject auto  had reported the matter to the police at police station Banur qua the theft of the subject auto and on this untraced report was prepared by the police as also evident from  the report available at  page No. 18 to 23 of the  complaint paperbook. It is further clear from the statement of complainant Girdhari Lal recorded by the Presiding Officer Lok Adalat that he had made no objection in case the untraceable report be accepted and accordingly  vide order dated 14.5.2022 the learned JMIC  being Presiding Member  of the National Lok Adalat  had accepted the untraceable report vide order dated 14.5.2022 as is also evident from the order available at page 26 of the complaint paper-book. Thus, as it has come on record  that untraceable report was not accepted by the concerned Magistrate till 14.5.2022 and the matter remained pending either with the police or with the court for the acceptance of the untraced report qua the subject auto, the non submission of the said report by the complainant to the OPs for the settlement of his claim was beyond the control of the complainant, especially when it is an admitted case of the parties that the complainant had submitted all the documents to the insurer OPs immediately after the accident except the untraceable report and order passed by the learned Magistrate accepting the untraced report.
   3.  The complaint has been resisted by the OPs on the sole ground that  the claim of the complainant has already been closed as No Claim on 29.7.2016 and the same is barred by time. But at same time as it has been admitted in para 4 of the written version by the OPs that the complainant has submitted some of the documents in September 2022, it is  safe to hold that the complaint of the complainant is very much within time as the actual cause of action arisen to the complainant to file the  complaint on 14.5.2022 i.e. only when the untraced report was accepted by the learned Magistrate on 14.5.2022 as discussed above.
   4. Moreover, when it has come on record that the OPs had not repudiated the claim of the complainant till date rather they had only closed the claim of the complainant being no claim in the year 2016 on account of non submission of documents by the complainant with the OPs and further it has come on record that the complainant  has submitted all other documents to the OPs in the year 2015-16 except the order passed by the Magistrate of the untraceable report, the complaint of the complainant is very much within time as cause of action accrued to the complainant from 14.6.2022 to file the instant complaint when the order was passed by the Magistrate.
   5. It is an admitted case of the parties that the subject auto was insured with the OPs at the relevant time and the subject auto was having IDV of Rs.1,84,300/- as is evident from Annexure
      C-2/OPR/2  and  further the surveyor appointed by the OPs  has mentioned in survey report Annexure OPR/3 that on the verification with the police, insured, driver and neighbours , the theft of three wheeler was confirmed and also that the OPs have not settled the claim of the complainant till date despite of receiving all the documents from the complainant, the aforesaid act  of OPs amounts to deficiency in service and unfair trade practice on their part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs. Hence, the instant consumer complaint deserves to be allowed.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay ₹1,84,300/- to the complainant alongwith interest @ 9% per annum from the date of institution of the present consumer complaint  till onwards.
2. to pay an amount of ₹20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

However, it is made clear that the financier Hinduja Leyland Finance Ltd. whose name is also reflected in the RC and also that the learned counsel for the complainant admitted that the subject vehicle was financed by the said financier, shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any, of the insured.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 1/11/2023 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member