New Complaint No.218 of 2023.
Date of Institution:26.10.2023.
Old Complaint No:231 of 2018.
Date of Institution:18.05.2018.
Date of order:14.12.2023.
M/s Gauri Mal Faqir Chand Goods Carrier Near Town Hall, Gurdaspur Tehsil & District Gurdaspur, through its Partner Vipan Kumar Son of Sh. Faqir Chand resident of Geeta Bhawan Road, Gurdaspur Tehsil and District Gurdaspur.
….......Complainant.
VERSUS
1. The Oriental Insurance Co. Ltd. Divisional Office Dalhousie Road, Opposite SDM Court, Pathankot Tehsil & District Pathankot, through its Divisional Manager.
2. The Oriental Insurance Co. Ltd. Branch Office G.T. Road, Batala, Tehsil Batala District Gurdaspur – 143505, through its Branch Manager.
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Munishwar Nagpal, Advocate.
For the Opposite Parties: Sh.S.J.S Bajwa, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Vipan Kumar, Complainant (Partner of M/s Gauri Mal Faqir Chand Goods Carrier), (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The Oriental Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant got comprehensively insured his Truck-Tralla through Sh. Rakesh Kumar having Agent Code No.BA0000134834 baring registration No.PB-06-K-2469 Make Tata Model LPT-2515 (2010) from the opposite parties and paid the premium of Rs.32,933/-. It is pleaded that the opposite parties issued Motor Insurance Certificate-cum-policy Schedule GCCV-PUBLIC CARRIERS OTHER THAN-THREE WHEELERS PACKAGE POLICY, ZONE-C having No. 233804/31/2017/3578, valid from 16.01.2017 to Midnight 15.01.2018. It is further pleaded that the above mentioned Truck of the complainant was stolen in between the night of 2/3.07.2017 and to this effect the complainant lodged a complaint with the police of Police Station City Gurdaspur in the morning of 03.07.2017. The police of Police Station City Gurdaspur added this theft in FIR No. 090 of Police Station City Gurdaspur dated 24.05.2017, registered by Shekher Mahajan son of Ramesh Kumar. It is further pleaded that after sometime on 03.07.2017 on enquiry/searching the complainant found their truck standing near poultry Form Pandori Road Gurdaspur without tyres. The culprits had removed all the eight tyres with rims and took away all the documents i.e. R.C. Insurance Policy, Route Permit, National permit, Jack, Jack rod, spanners, wheel Pana, tool kit, Assembly Nuts. It is further pleaded that the complainant immediately intimated the theft to the opposite parties and the opposite parties appointed their surveyor Mr. Bedi of Gurdaspur to access the loss of the stolen vehicle, who submitted his report with the opposite parties. It is further pleaded that complainant submitted all the documents as and when required to the opposite parties. It is further pleaded that the complainant spent Rs.1,28,755/- for eight tyres and Rs.50,850/- for tyre rims, hydraulic jack, jack rod, wheel Panna, Tool kit, assembly nuts. It is further pleaded that complainant also spent Rs.20,000/- to get prepared all the duplicate documents related to the above mentioned stolen vehicle. It is further pleaded that to the utter surprise of the complainant, the complainant received a letter dated 20.03.2018 repudiating the genuine claim of the complainant. It is further pleaded that opposite parties repudiated the claim of the complainant after the expiry of 10 months. It is further pleaded that the complainant is having IMT Endorsement on the policy for which the opposite parties charged extra premium. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.1,79,605/- alongwith interest @ 18% per annum from the date of theft till its realization. The opposite parties may also be burdened with Rs.1,00,000/- on account of harassment, mental agony and financial loss to the complainant alongwith Rs.30,000/- as litigation expenses in the interest of justice. Any other relief which this Hon'ble Commission may deem fit may also be passed in favour of the complainant, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that as per terms and conditions of the policy, company is not liable to make any payment in respect of damage to accessories by Burglary, housebreaking or theft unless such insured vehicle is stolen at the same time. It is further pleaded that Liability of Insurance Co. for damages to tyres and tubes shall be limited to 50% of cost of replacement provided the vehicle is damaged at the same time. It is pleaded that the complaint is not maintainable and is liable to be dismissed as there is no deficiency in service on the part of the opposite parties / insurance company. It is further pleaded that the insurance company has rightly and legally repudiated the claim of the complainant vide letter dated 20.03.2018 as per terms and conditions of the policy on the ground that the company is not liable to make of damage to any payment in respect of damage to accessories by Burglary, housebreaking or theft unless such insured vehicle is stolen at the same time. It is further pleaded that the Liability of the insurance company for damages to tyres and tubes shall be limited to 50% of cost of replacement provided the vehicle is damaged at the same time. It is further pleaded that in the present case neither the truck has been stolen nor damaged & only as per the version of the complainant 8 tyres, tubes, rims, Jack, hack rod, tool Kit and documents of the vehicle were stolen. Therefore, the opposite parties are not liable to pay any claim to the complainant. It is further pleaded that there is no deficiency in services and unfair trade practices on the part of the opposite parties. It is further pleaded that after scrutinizing all the documents submitted by the complainant, the claim of the complainant has rightly and legally been repudiated.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Vipan Kumar, (Complainant), (Partner of M/s Gauri Mal Faqir Chand Goods Carrier, Gurdaspur) as Ex.CW-1 alongwith other documents as Ex.C-1 to Ex.C-8.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Daulat Ram, (Incharge of Oriental Ins. Co. Ltd., Gurdaspur) as Ex.OP-1 alongwith other documents as Ex.OP-1,2/2 to Ex.OP-1,2/4.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that truck owned by the complainant's firm was insured with the opposite parties insurance company and the said truck was stolen in the midnight of 02/03.07.2017 and intimation was given to the police station City Gurdaspur and this theft was added in FIR No.0090 dated 24.05.2017 got registered by one Shekher Mahajan. It is further argued that on search of the vehicle, the same was found parked near poultry farm Pandori Road Gurdaspur and the thieves had removed all the eight tyres with rims and had taken away all the documents i.e. R.C., insurance policy, route permit, national permit, jack, jack rod, spanners, wheel pana, tool kit and assembly nuts. On intimation the claim was repudiated by the opposite parties on false and flimsy grounds. Counsel for the complainant has also relied upon judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Bal Krishan Gupta. Vs. National Insurance Co. Ltd. decided on 11.01.2008.
9. On the other hand counsel for the opposite parties has argued that company is not liable to make any payment in respect of damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time and the liability for damages to tyres and tubes shall be 50% of cost of replacement and there is no deficiency in service on the part of the opposite parties.
10. We have heard the Ld. counsels for the and gone through the record.
11. It is admitted fact that complainant firm is registered owner of truck bearing registration No.PB-06-K-2469 and the said truck was insured with the opposite party No.2 vide policy of insurance valid from 16.01.2017 to 15.01.2018. It is further admitted fact that on the midnight of 02/03.07.2017 thieves had removed all the eight tyres, accessories and documents. It is further admitted fact that complainant had spent amount for affixation of tyres, rims and other stolen items. It is further admitted fact that opposite parties have repudiated the claim vide letter dated 20.03.2018. The only question for adjudication before this Commission is whether the repudiation of the claim was justified or not. Perusal of standard form for commercial vehicle package policy shows that company shall not be liable to make payment in respect of "(a) consequential loss, depreciation, wear and tere, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time. (b) damage to Tyres and Tubes unless the vehicle insured is damaged at the same time in which case the liability of the company shall be limited to 50% of the cost of replacement. (c) any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence or intoxicating, liquor or drugs". The plea of the counsel for the opposite parties that the truck was infact not stolen at the same time is falsified from the perusal of facts mentioned in the report Ex.C4 as per which it is clearly written that the truck was parked by the driver and in the morning the truck was not found at the place of its parking and on search the truck was found standing little ahead meaning thereby that the truck was first stolen and then moved from the place of parking and thereafter eight tyres with rims, accessories and documents were stolen. As such repudiation of the claim said ground is not justified.
12. The second issue for adjudication is regarding liability of the company in case of damages to the tyres, rims and accessories, documents. However, perusal of clause 'B' shows that 50% liability of cost of replacement is in case of damage to the tyres is covered. However, in the present case the tyres with rims were removed and stolen from the truck. Perusal of record shows that complainant had spent Rs.1,28,755/- for replacement of tyres and tubes vide bill Ex.C5 and besides above complainant has also placed on record bill Ex.C6 in respect of accessories purchased by the complainant but we are of the view that since as per terms and conditions the accessories are not covered. As such complainant is only entitled to receive compensation regarding theft of tyres, tubes and rims as mentioned in bill Ex.C5 and Ex C6. More over the complainant has not placed on record any bill regarding expences incurred for getting new documents issued as such cliam regarding documents is also declined.
13. As far as items mentioned in bill Ex.C6 are concerned items at serial numbers 2 to 6 are accessories and claim in respect of accessories is not payable. Accordingly, complainant is only entitled to compensation in respect of item No.1 i.e. wheel rim worth Rs.43,600/-. We are of the view that since the tyres and tubes which were stolen from the truck had must been used by the complainant. Accordingly, complainant is held entitled to receive the amount mentioned in bill Ex.C5 after deduction of 15% as depreciation i.e. Rs.1,09,441/-.
14. Accordingly, present complaint is partly allowed and opposite parties are direct to pay Rs.1,09,441/- i.e. out of bill Ex.C5 after deducting 15% as depreciation out of total amount and Rs.43,600/- as cost of wheel rim mentioned in bill Ex.C6. The above amounts shall carry interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties are further directed to pay compensation of Rs.5,000/- to the complainant for mental tension, harassment and cost of litigation. The entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Dec. 14, 2023 Member
*YP*
