BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 295 of 2016.
Date of Instt.:15.11 .2016.
Date of Decision:29 .11 .2017.
Ajay Bharti son of Vidhya Bhushan Bharti resident of Old Tehsil Chowk, Fatehabad, Tehsil and District Fatehabad.
..Complainant
Versus
The New India Assurance Company Ltd. Branch Office, Above Arovansh Dharamshala, Dharamshala Road, Fatehabad, Tehsil and District Fatehabad through it Branch Manager
..Respondent/OP
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.B.L.Nagpal, Adv. for the complainant.
Sh.V.K.Mehta, Adv. for the OP.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OP with the averments that he got his car bearing Registration No.HR-22L-2975 insured with the OP vide Insurance Policy No.31260031150302749246 valid from 25.05.2015 to 24.05.2016 and a payment of insurance premium was made by the complainant to the OP and as such the complainant is consumer of OP as defined in Consumer Protection Act, 1986. It is further averred that the above said vehicle was stolen on 22.02.2016 and in this regard FIR No.33/2016 was recorded in Police Station Lehra, District Sangrur, under Section 379 of the Indian Panel Code. The incident of the theft was also reported to the OP. Thereafter the said stolen vehicle was traced and the complainant got the same released on Superdari on 03.03.2016. It is further submitted that the recovered vehicle was found in a damaged condition and an amount of Rs.1,14,224/- was spent by him for repair and its denting and painting. Thereafter the complainant submitted the bills with the OP for settlement of his claim and he was assured by the OP that his claim will be settled very soon and amount of insurance shall be released at the earliest. Thereafter the complainant kept on visit the OP for getting the insurance claim but the OP avoided the matter on one pretext or the other. Thereafter vide its letter dated 15.09.2016 the OP intimated the complainant regarding the repudiation of his claim with the remarks that on the report of Advocate Vinod Mehta, we have repudiated the claim and no other reason regarding the repudiation of the claim has been assigned by him to the complainant.
2. It is further submitted that repudiation of the claim by the OP vide letter dated 15.09.2016 is wrong against law and facts, merely based on conjunctures, surmises and malafide. Therefore the above said act on the part of OP amounts to deficiency and unfair trade practice in rendering service to the complainant and the complainant is entitled for insurance claim of Rs.1,14,224- on account of expensed incurred by him in getting the damaged vehicle repaired. The complainant also sought a compensation of Rs.25,000/- on account of mental agony and harassment. Hence, the present complaint.
3. On being served, the OP appeared and resisted the complaint by filing a written statement wherein various preliminary objections i.e. complaint is false and frivolous; that the matter in dispute involves complicated question of law and facts; that the complaint is no locus-standi or cause of action to file the present complaint; that the present complainant is stopped to file the present complaint by his own act and conduct have been raised.
4. On merits, it is averred by the OP that on receiving information from the complainant Sh.O.P.Chopra was deputed as surveyor, who after surveying the vehicle in question reported a loss of Rs.1,10,846/- in the vehicle. It is further submitted that the complainant is not entitled for any compensation. F.I.R. regarding the occurrence of theft in the present case was recorded on the statement of Sh.Anup Dutch. Sh. Anup Dutch in his statement before the police stated that at the time of occurrence the car in question was in his possession and the same was being driven by him. It is also inter-alia stated that at that time he had consumed alcohol and due to the influence of liquor he lost his consciousness. On account of the same he drove the vehicle on an unknown passage and reached in village Alampur, P.S. Lehra. At that time an unknown passenger was also sitting with him in the car, at about 9.00 p.m. when he stopped the vehicle in village Alampur and stepped out of the car to pass the urine. After some time when he came back and found that car was not there and the same was stolen by an unknown person.
5. It has been further submitted by the OP that in view of the statement of Anup Dutch it is established that an unknown person was sitting with him when the vehicle was stolen. It is also established that at that time Anup Dutch was under influence of liquor and Ajay Bharti the owner of the vehicle was not with him. It is further submitted by the OP that a false story has been manipulated to get the illegal compensation from the insurance company and whole circumstances create highly doubt regarding the accident of the vehicle whereas a FIR was lodged regarding theft of the vehicle. The OP in the written statement controverted all the allegations made in the complaint and further submitted that there is no deficiency on the part of OP in rendering service to the complainant ad as such the present complaint is totally baseless, without any merit and as such the same is liable to be dismissed.
6. In evidence Sh.Ajay Bharti (complainant) tendered his affidavit as Annexure CW1/A wherein the averments made in the complaint has been reaffirmed. Anup Dutch also filed an affidavit as Annexure CW2/A in support of the averments made in the complaint. The complainant also tendered in evidence documents as Ex.C1 i.e. repudiation letter, Ex.C2 i.e. copy of FIR, Ex.C3 i.e. Certificate cum policy schedule, Ex.C4 i.e. job card retail invoice, Ex.C5 i.e. certificate of registration, Ex.C6 i.e. statement under Section 161 Cr.P.C. of Ajay Bharti, Ex. C7 i.e. Superdari Order, Ex. C8 i.e. Charge-sheet, Ex.C9 i.e. report under Section 173 Cr.P.C, Ex, C10 i.e. Driving Licence of Anup Kumar, Ex. C11 and closed the evidence. On the other hand Anil Dhamija, Branch Manager filed his affidavit as Annexure R1 on behalf of OP along-with documents Annexure R2 i.e. repudiation letter, Annexure R3 i.e. motor survey report, Annexure R4 i.e. FIR, Annexure R5 i.e. affidavit of O.P.Chpora, Surveyor, Annexure R6 i.e. Policy Schedule, Annexure R8 i.e. insurance policy and closed the evidence.
7. The counsel of the complainant in his arguments reiterated the averments made in the complaint and further contended that it is not disputed that the car in question was got insured by the complainant from the OP and the insurance of the same was valid from 25.05.2015 to 24.05.2016 and as such the complainant is consumer of OP as defined in the Consumer Protection Act, 1986. It is further contended by the learned counsel that on 22.02.2016 i.e. within subsistence of the insurance policy the said car was stolen and FIR Ex.C-2 regarding the occurrence was lodged in police station, Lehra, District Sangrur. The said car was traced by the police on 13.03.2016 and the same was released on Superdari to the complainant on 15.03.2016 which is evident form Ex.C-3. It is further submitted by the learned counsel that the vehicle in question was traced in a damaged condition and as such the complainant had spent Rs.1,14,224/- for repair, painting and denting of the same. It is further contended by the learned counsel that a genuine claim of the complainant has been repudiated by the OP by passing a non-speaking order which is evident from Ex.C-1 wherein the OP has stated that on the report of Advocate Sh.V.K.Mehta we have repudiated the claim. Since the repudiation has been made without assigning any reason and as such the same is not sustainable in the eyes of law and liable to be set-aside. It is further argued that a genuine claim of the complainant cannot be repudiated merely on the opinion of an Advocate. It is also contended by the learned counsel that the contention of the OP that the driver at the time of occurrence left the key in the vehicle is without any evidence and merely based on a presumption. It is also further contended that the driver of the vehicle Sh.Anup Dutch was having valid and effective driving licence at the time of occurrence. Moreover the concerned police after investigation the matter has filed challan/ report under Section 173 Cr.P.C. before the concerned court regarding the commission of theft of car in question which is evident from Annexure R-4 and charge-sheet against the accused Lovpreet for committing of the theft the of car has been framed by the Sub-Divisional Judicial Magistrate, Moonak which is evident from Ex.C-8. The counsel also contended that damages in the car were also assessed by surveyor appointed by the OP and the surveyor has reported a net loss of Rs.1,10,846.
8. It is also further contended by the learned counsel that the insurance claim of the complainant is fully covered under the terms and conditions of the insurance policy. However the same has been repudiated by the OP on baseless ground and in an illegal manner. The learned counsel further prayed for acceptance of the complaint. In support of his case the learned counsel placed reliance on the case law cited as 1(2009) CPJ Page 556 and case law cited as 1978 CLR Vol.VI page 141.
9. On the other hand the learned counsel for the OP rebutted the arguments advance by learned counsel for the complainant and further vehemently contended that repudiation of the insurance claim of the complainant by the OP is perfectly in accordance with the terms and conditions of the policy and the same is sustainable in the eyes of law. The learned counsel further contended that from perusal of FIR which was recorded on the statement of Anup Dutch it is revealed that at the time of occurrence the vehicle in question was in his possession and the same was being driven by him. It is also stated by Sh.Anup Dutch that at that time he had consumed liquor and under the influence of liquor he lost his consciousness. Therefore the theft in the present case has occurred on account of grave negligence on the part of the driver who was under intoxication and left the key in the car while going out for passing urine. Therefore OP is not liable to pay insurance claim to the complainant. It is further contended that the case of the complainant for grant of insurance claim is not covered under the policy and as such the present complaint is liable to be dismissed. In support of his contention the learned counsel relied upon the case law cited as 2017(1) CLT Page 542 wherein the Hon’ble National Commission has held that it is well settled proposition of law that if the keys of the vehicle is left inside the ignition socket, it amount to grave negligence on the part of the complainant. The learned counsel also placed reliance on the case law cited as (1999-3) The Punjab Law Reporter page 495 (Supreme Court) and case law cited as 2002(3) Accident Compensation Judicial Reports page 3 (Punjab and Haryana High Court).
10. We have duly considered the arguments advanced by learned counsel for both the parties and have also examined the entire record placed on the file. It is not disputed that the vehicle of the complainant in question was insured with the OP no.1 vide insurance policy Ex.C-3 and the policy was valid from 25.05.2015 to 24.05.2016. It is also not disputed that FIR No.33 of 2016 regarding the theft of the vehicle was registered in P.S.Lehra, District Sangrur on 23.02.2016 i.e. during the subsistence of the insurance policy. As per report under Section 173 Cr.P.C. prepared by the P.S.Lehra the said vehicle was traced/ recovered on 13.03.2016 and a case under Section 379/411 of Indian Penal Code was registered against Lovpreet Singh @ Kalu and charges under Section 379 read with Section 411 of I.P.C. have been framed against the accused for committing theft of the vehicle in question by the court of Sub-Divisional Judicial Magistrate, Moonak. But the main issue to be decided by this Forum is as to whether keeping in view the facts and circumstances in which the theft of the car in question had occurred, the OP is liable to make payment of insurance claim to the complainant as per terms and conditions of insurance policy and provisions of Motor Vehicle Act. As per version of the complainant the vehicle in question was in possession of one Sh.Anup Dutch and was being driven by him. FIR regarding the theft of car was also recorded by Sh.Anup Dutch. In his statement for recording FIR he stated that at the time of occurrence he was driving the car in question and had consumed liquor and due to influence of liquor he lost his consciousness and on account of the same drove the vehicle on unknown passage and reached in village Alampur and stepped out of car for passing urine. At that time an unknown passenger was also sitting in the car. When he came back after passing urine the car was found stolen. So in view of the above statement of Anup Dutch given before the police it is evident that at the time of occurrence the vehicle was being driven by him and he was fully under the influence of liquor and as such the theft of the vehicle was committed on account of the negligence on the part of Anup Dutch as he was under the influence of liquor. Therefore we are of the opinion that the case of the complainant for payment of insurance claim is not covered under the policy. Section 2(c) of the policy Ex.R6/A provides as under:-
2. The company shall not be liable to make any payment in respect of :
(c) Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.
Moreover by driving the said vehicle under the influence of liquor the driver of the vehicle has violated the provisions of the Motor Vehicle Act. Moreover in the present case the complainant has sought claim for payment of Rs.1,14,224/- spent by him for repair, denting and painting of the vehicle. However there is no evidence on the record to prove that when, how and where the damages or accident has occurred. In absence of the same we are of the opinion that the OP cannot be held liable for payment of insurance claim
11. In view of the aforesaid discussion we are of the considered opinion that the complainant has failed to prove any deficiency on the part of OP in rendering service to the complainant. The judgment relied upon by the learned counsel for complainant, are not applicable to the facts and circumstances of the present case.
12 Accordingly the present complaint is hereby dismissed as no order as to cost. A copy of this order be furnished/given to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.29.11.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President DCDRF, Fatehabad
