DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No 05 of 03-01-2007<br /> Decided on : 28-05-2007<br /> <br /> Surinder Pal Bansal S/o Sh. Hem Ram Bansal R/o H. No. 21601, Street No. 7, Power House Road, Bathinda.<br /> ... Complainant<br /> Versus<br /> 1.The New India Assurance Company Limited., Registered & Head Office New India Assurance Building, 87 NC Road, Mumbai 400001 through its Managing Director/Chairman;<br /> 2.The New India Assurance Company Limited through its Branch Manager, Old Suvidha Bazar Building, Near Railway Crossing, Dabwali 125104;<br /> 3.The New India Assurance Company Limited through its Branch Manager, The Mall, Bathinda. ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection Act, 1986.<br /> <br /> QUORUM<br /> <br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Sandeep Baghla, Advocate. <br /> For the Opposite parties : Sh. J.D. Nayyar, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') which has been preferred by the complainant seeking direction from this forum to the opposite parties to pay him claim amount of Rs.3,36,834/- alongwith interest @ 18% P.A. w.e.f. 10.5.06 till realisation and Rs. 50,000/- as compensation on account of mental tension, agony and harassment besides cost of the complaint.<br /> 2. Adumerated in brief version of the complainant is that Tata Indica Car bearing Chassis No. 600132 LUZPF0385 Engine No. 475 IDIOSLUZPF4731 was purchased by him in the year 2006 for a consideration of Rs. 3,54,453/-. It was got registered with the registering authority i.e. District Transport Officer, Bathinda. Registration No. PB-03N-5286 was alloted. He was plying this vehicle to earn his livelihood. Car was comprehensively got insured for Rs. 3,36,834/- with the opposite parties vide cover Note No. 0508202 dated 27.3.06. Policy was effective from 27.3.06 to 26.3.06. A sum of Rs. 14,969/- was paid as premium. Insurance risks covered included the indemnification for theft of vehicle. Certificate of insurance was not issued. Raj Kumar S/o Subedar was assisting him for plying the vehicle. On 9.5.06 two persons approached Raj Kumar for seeking the car for going to a village adjoining Hissar. Raj Kumar accompanied those persons. He was driving it for taking them to the destination. At about 12.30 night, they reached near village Singram. Car was got stopped by those two occupants for answering call of nature. When Raj Kumar, driver of the car alighted from it, those two unknown persons illegally took away the car leaving Raj Kumar stranded then and there. In this manner, they committed theft of the vehicle. He (complainant) at the behest of Raj Kumar had moved an application dated 11.5.06 in Police Station, Sadar, Hissar. Case with FIR No. 363 dated 11.5.06 under Section 379 of the Indian Penal Code was registered. Opposite party No. 2was intimated about the theft of this vehicle. He had submitted proof of ownership, copy of driving licence, copy of FIR, fitness certificate and permit etc., to the opposite parties for settlement of the claim. He was under the impression that his bonafide claim would be satisfied within a short span of time. He was satisfying the queries put forth by the opposite parties. So much so he has also furnished the non traceable certificate dated 15.9.06 issued by the concerned Police Station. Vehicle enquiry report dated 27.11.06 from State Crimes Records Bureau vide which it had been certified that vehicle has not been recovered yet by it was also submitted. Opposite parties are deliberately adopting delaying tactics with ulterior motive to defy his valuable rights. They wrote letter dated 12.12.06 seeking final investigation report through court. There is no such requirement as per terms and conditions of the contract especially when non-traceable certificate and vehicle enquiry report have already been submitted. Opposite parties have failed to settle the claim despite his repeated requests. Accordingly, there is deficiency in service and unfair trade practice on their part. He has been subjected to persistent mental tension, agony and harassment for which he is entitled to compensation.<br /> 3. Opposite parties filed their version taking preliminary objections that complaint is not maintainable in the present from; complainant has no cause of action to file it; this forum has got no jurisdiction to entertain and try it; complainant is not consumer; complaint is pre mature as claim has not so far been repudiated; complainant has violated terms and conditions of the policy and complaint is false and frivolous. They admit the ownership of the car and the fact that it was got insured with them. Claim, if any, was payable as per rules and as per terms and conditions of the policy. They do not specifically deny the registration of case with FIR No. 363 dated 11.5.06. Report dated 27.11.06 from State Crimes Records Bureau regarding the fact that vehicle was not recovered yet, was submitted. As per report of State Crime Records Bureau, investigation was not complete and was still continuing. Case was not closed by police department. As per report of National Crime Records Bureau, vehicle has not been stolen. After receiving this information, letter dated 12.12.06 was issued asking the complainant to submit final investigation report through court as per requirement of the policy. There is no malafide intention on their part. Similarly they refute the allegation of deficiency in service and unfair trade practice on their part. Similarly the rest of the contents of the complaint stand denied.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of R.C. of vehicle (Ex. C-2), photocopy of Insurance Cover Note (Ex. C-3), photocopy of Final Form/report (Ex.C-4), photocopy of crime detail form (Ex. C-5), photocopy of Parvana Bandi (Ex. C-6), photocopy of vehicle enquiry report (Ex. C-7) and photocopy of letter dated 12.12.06 (Ex. C-8).<br /> 5. In rebuttal, on behalf of the opposite parties reliance has been placed on the affidavit of Sh. P K Jain, Senior Divisional Manager (Ex. R-1), photocopy of vehicle enquiry report (Ex. R-2), photocopy of letter dated 12.12.06 (Ex. R-3) and photocopy of Investigation report (Ex. R-4).<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record and written briefs of arguments submitted on behalf of the parties.<br /> 7. Some are admitted facts. They are that complainant is the owner of Tata Indica Car. It was got registered with the registering authority i.e. District Transport Officer, Bathinda and registration No. PB-03N-5286 was allotted. This vehicle was comprehensively got insured with the opposite parties. Insurance Cover Note, copy of which is Ex. C-3 was issued. All the risks including indemnification for theft were covered. Insurance was effective from 27.3.06 to 26.3.2007. Complainant in his affidavit Ex.C-1 has reiterated his version about theft of the car. Complaint was lodged and FIR No. 363 dated 11.5.06 under Section 379 of the Indian Penal Code was registered in Police Station, Sadar Hissar. Matter was reported to opposite party No. 2 regarding theft of the car. Complainant has submitted the material papers to the opposite parties for settlement of the claim.<br /> 8. One of the objections taken in the reply of the complaint is that complainant is not consumer as he had been using the vehicle for commercial purposes. In view of the observations of the Hon'ble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd., I(2005) CPJ 27 (NC), complainant is consumer as a person who takes insurance policy to cover envisaged risk not takes policy for commercial purpose. Policy is only for indemnification of actual loss, not intended to generate profit.<br /> 9. Mr. Baghla, learned counsel for the complainant vehementally argued that complainant has completed all the formalities and has submitted all the relevant documents to the opposite parties. Despite this, claim has not so far been settled. Through letter dated 12.12.06, copy of which is Ex. C-8, they have demanded Final Investigation Report through court although it is not required.<br /> 10. Mr. Nayyar, learned counsel for the opposite parties submitted that complainant has submitted report dated 27.11.06, copy of which is Ex. C-7 according to which vehicle has not been recovered yet. As per report of State Crime Records Bureau, investigation is not complete and is continuing. As per information available with National Crime Record Bureau, vehicle has not been stolen. As per requirements of the policy, final investigation report through court has been demanded from the complainant. No delaying tactics are being adopted by the opposite parties. Claim is payable only as per rules and terms and conditions of the policy. Since complainant has not submitted the final investigation report of the case through court, he is estopped from filing the complaint by his act and conduct.<br /> 11. We have considered the respective arguments.<br /> 12. As mentioned above, there is no dispute about the fact that complainant has submitted documents to the opposite parties for settlement of the claim. Criminal case got registered with the police about the theft of the car has been sent as untraced as is evident from Ex. C-6 and copy of final report is Ex. C-4. Not to speak of this, complainant submitted vehicle enquiry report dated 27.11.06, copy of which is Ex. C-7, from State Crime Records Bureau according to which car has not been recovered yet. Objection taken by the opposite parties on the report dated 27.11.06 is that “Vehicle has not recovered yet” . What else could be the report of State Crime Records Bureau. Even if upto date report in such situation is made certificate can be given in this manner. In the reply of the complaint, opposite parties were stressing that claim is payable only as per terms and conditions of the policy. Complainant asserts that copy of the insurance policy was not issued to him. Hence, it was upon the opposite parties to place on record insurance policy alongwith terms and conditions. They have not brought the policy alongwith terms and conditions on record. From this, adverse inference is drawn against them to the effect that there is no mandatory condition in the terms and conditions about the submission of the final investigation report through court in such like case. We are constrained to remark that opposite parties are delaying the claim without any solid reason. Ex. R-4 is the copy of the investigation report dated 13.9.04 submitted by Sh. Risal Singh, approved investigator of the opposite parties. A perusal of this document shows that prior to this report, he had submitted another report which has been withheld by the opposite parties. For this inference can be drawn that if that report would have been produced, it would have gone against them. Even through report dated 13.9.06, investigator of the opposite parties found that claim of the complainant is genuine. Despite this, opposite parties did not settle the claim and issued letter dated 12.12.06, copy of which is Ex. R-3, although no basis for issuing it has been brought before us. Car was stolen on the intervening night between 9/10-5-06. Immediately intimation was given to opposite party No. 2. Despite this, inordinate delay is being caused by the opposite parties in settling the claim without any sufficient cause. Non settling the claim within reasonable time itself amounts to deficiency in service as has been held by the Hon'ble National Commission in the case of M/s. Narain Cold Storage & Allied Industries Ltd. Vs. Oriental Insurance Co. Ltd. 2003(3) CPR 114 (NC) and Col. J S Virk (Retired) Vs. National Insurance Company Limited through Senior Divisional Manager & Anr II(2001) CPJ 233. In the facts and circumstances of this case, we conclude that deficiency in service on the part of the opposite parties is writ large.<br /> 13. Now question arises as to which relief should be accorded to the complainant in the given situation. 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. Hence, it is a fit case for issuing direction to the opposite parties to pay the insured's declared value under the policy i.e. Rs. 3,36,834/- alongwith interest @ 9% P.A. w.e.f. 11.08.06 (the date calculated on expiry of three months period from information, a period required for processing the claim in an effective manner in normal course) till realization. Complainant would execute Letter of Subrogation as per requirements of opposite party No. 3 in its favour conferring all rights in the stolen car including ownership. Complainant is seeking compensation/damages of Rs. 20,000/- on account of mental tension, agony and harassment. In our view there is no case to allow it in the face of the relief going to be accorded as above, particularly in view of the authority in the case of Life Insurance Corporation of India Vs. Miss Bhupinder Kaur (Minor) and others 2002(2) CLT 646 wherein Hon'ble State Commission of Punjab held that interest is not granted within the contract between the insured and insurer but within the provisions of Section 14(1)(d) of the Act on deficiency in rendering service being established for compensating the complainant. Held accordingly.<br /> 14. No other point was urged before us at the time of arguments.<br /> 15. As a result of our foregoing discussion, complaint is allowed against the opposite parties with cost of Rs.1,000/-. In the circumstances, parties are directed to do as under :-<br /> i) Complainant would execute Letter of Subrogation as per requirements of opposite party No. 3 in its favour (The New India Assurance Company Limited) conferring all the rights in the car including ownership through its Branch Manager, within 15 days from the date of receipt of copy of this order.<br /> ii) After the complainant executes Letter of Subrogation as mentioned above, opposite parties would pay Rs. 3,36,834/- to him alongwith interest @ 9% from 11.08.2006 till payment, within one month.<br /> iii) In case, complainant does not execute Letter of Subrogation as per clause (i) within the period referred to above in favour of New India Assurance Company Limited, he would not be entitled to interest on the amount of Rs. 3,36,834/- after 1-1/2 months after the receipt of copy of this order.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced : <br /> 28-05-2007 <br /> (Lakhbir Singh)<br /> President<br /> <br /> <br /> <br /> (Dr. Phulinder Preet) (Hira Lal Kumar)<br /> Member President<br />