DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.386 of 27-08-2010 Decided on 17-02-2011
M/s. Jai Pal Marketing Pvt. Ltd., Regd. Office SCF-6, Ahata Pritam Singh Sidhu, Railway Road, Bathinda, through its Managing Director Sh.Sanjay Pal Jain. .......Complainant
Versus The Oriental Insurance Company Ltd., Division No.VII, 7 Red Cross Place, Kolkatta, through its Divisional Manager. The Oriental Insurance Company Ltd., Division Office, Bank Bazar, Bathinda, through its Divisional Manager. Kotak Mahindra Primus Ltd., Shop No.49, Phase-I, Model Town, Bathinda, through its Branch Manager.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh.Amarjeet Paul, Member. Present:- For the Complainant: Sh.Rajan Singla, counsel for the complainant. For Opposite parties: Sh.Vinod Garg, counsel for opposite party Nos.1&2. Sh.Sanjay Goyal, counsel for opposite party No.3.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by Sh.Sanjay Pal Jain, Managing Director of M/s Jai Pal Marketing Pvt. Ltd. who is duly authorized to file this complaint under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as 'Act'). The brief facts of the complaint are that in the year 2006, the complainant-firm had authorized its Managing Director Sh. Sanjay Pal Jain to purchase a new Indica Car DLS Euro-II for office and private use of MD and has availed loan from Kotak Mahindra Prime Ltd. and the said car bearing No.PB-03P-1482 registered with DTO, Bathinda. The complainant had obtained comprehensive Insurance Policy for a sum assured of Rs.3,00,000/- from the opposite party No.1 bearing Policy No.2008/5731 (Cover Note No.10556) valid from 21.06.2007 to 20.06.2008 after paying the premium of Rs.9,644/-. One Mr.Yoginder Teotia, Asstt. Manager Excel Crop Care Ltd. has borrowed the abovesaid car and had parked the said car at 9.30 p.m. duly locked outside his house at 234, Bharat Nagar, Bathinda and on the next morning, at 7.00 a.m., Mr.Yogesh Teotia got up and found that the car of the complainant was missing. The complainant informed the incident to the Police Station, Kotwali, Bathinda and registered F.I.R. No.429 dated 07.08.2009 u/s 379 IPC and informed the opposite party No.1. The opposite party No.1 deputed the Investigator Ex. Capt. A.N.Chopra. On 21.02.2008, the Police Authority had closed the investigation of the said car and issued untraced report of the said case. The complainant approached the opposite party Nos.1to3 after completing all the formalities and requested them to settle his claim but till date the opposite parties have neither settled the claim of the complainant nor repudiated it. The complainant has alleged that the Investigator Ex. Capt. A.N.Chopra had compelled the complainant and Yogesh Teotia to give the statement that the vehicle in question was used as taxi instead of private car and threatened them that if they want to give the said statement, their claim would be repudiated considering it as No Claim. Hence, the complainant has filed this complaint. 2. The opposite party Nos.1&2 filed their joint written statement whereas the opposite party No.3 has filed its separate written statement. The opposite party Nos.1&2 have taken many legal objections such as the complainant-firm has sublet/leased out the vehicle to Mr.Yogesh Teotia, Assistant Manager of Excel Crop Care Limited; the said vehicle was in possession of said person on the date of loss and FIR was registered by him admitting these facts of subletting/lease. The other objection taken by the opposite party Nos.1&2 is that the vehicle has been used for commercial purpose. The opposite party Nos.1&2 further pleaded that the vehicle was financed and hypothecated with Kotak Mahindra Prime Limited. They have taken the support of law laid down in 2009 (1) CLT 95 (Supreme Court). The opposite party Nos.1&2 have further taken the legal objection that the complaint is time barred and has taken the support of law laid down in 2002 (2) CLT 105 (SC) and 2009 (2)CLT 541. The vehicle has been stolen on 06.08.2007 whereas the compliant has been filed on 27.08.2010. The other legal objection taken by the opposite party Nos.1&2 is that the complainant has no locus standi to file the present complaint as Mr.Sanjay Pal Jain has no authorization to file the present complaint. On merit, the opposite party Nos.1&2 have pleaded that when the vehicle was being stolen, it was not in the possession of the complainant-firm, the same was subletted/leased out to Excel Crop Care Limited. FIR was got registered by the official of the company. A letter dated 06.09.2007 was written by the complainant to Mr.A.N.Chopra, Investigator admitting the lease contract regarding the alleged car with M/s Excel Crop Care Ltd. The said lease has been denied by the complainant-firm. The opposite parties have also denied that the vehicle in question was borrowed by Mr. Yoginder Teotia as a friend. The complainant is corporate body and cannot have personal friends. The opposite party Nos.1&2 have denied that Mr.A.N.Chopra, Investigator had ever threatened the complainant and Mr. Yoginder Teotia to give the statements regarding use of the vehicle as taxi rather the said Investigator conducted the investigation in free and fair manner. Mr. Sanjay Pal Jain voluntarily gave the statement on the letter pad of the company. Regarding relief of the complainant, the opposite party Nos.1&2 have pleaded that its claim case may be treated as non standard case and the complainant-firm is not entitled to get more than 75% of IDV. 3. The opposite party No.3 has pleaded that the vehicle of the complainant was hypothecated with it. The complainant has not foreclosed the loan and the amount is still due towards the complainant. 4. Parties have led their evidence in support of their respective pleadings. 5. Arguments heard. Record alongwith written submissions submitted by the parties perused. 6. The learned counsel for the complainant-firm has submitted that the complainant-firm had purchased Indica Car DLS Euro-II for official and private use of MD and had got loan from Kotak Mahindra Prime Ltd. It had obtained a comprehensive insurance policy for a sum assured of Rs.3 Lacs from the opposite party No.1 bearing policy No.2008/5731 (Cover Note No.10556) valid from 21.06.2007 to 20.06.2008. The complainant-firm had paid premium of Rs.9,644/-. Mr. Yoginder Teotia, Asstt. Manager Excel Crop Care Ltd. has borrowed the abovesaid car from the complainant-firm. He had parked the car at 9.30 P.M in his premises but the next morning, at 7.00 A.M. the abovesaid vehicle was stolen. Vide Ex.C-6, FIR No.429 dated 07.08.2009 u/s 379 IPC was lodged in Police Station, Kotwali, Bathinda. The opposite party No.1 was informed who deputed Ex. Capt. A.N.Chopra as an Investigator. The said Investigator threatened the complainant and other witness i.e. Yoginder Teotia to give the statement regarding the vehicle in question was used as taxi instead of private car otherwise he would recommend the claim of the complainant as No Claim. 7. The opposite party Nos.1&2 have taken legal objections that the complainant has been plying the vehicle for commercial purposes and he has sublet/leased out the vehicle to Mr. Yoginder Teotia, Asstt. Manager of Excel Crop Care Ltd. The said vehicle was in possession of the abovesaid person on the date of theft and even FIR was registered by him admitting these facts of subletting/lease. Hence, the complainant has violated the terms and conditions of the policy. It is pertinent to mention here that theft has no nexus that the vehicle was being used as taxi/commercial purposes. For this, the support can be taken by the law laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled National Insurance Co. Ltd. Vs. Balwant Singh, 2010(1)CPC 689 (NC), wherein it has been held that :- “Consumer Protection Act, 1986 – Section 14(1)(d) – Insured car – Theft of – Private insured car was stolen – Claim was repudiated on the ground that car was being plied as a “Taxi” - Use of vehicle as Taxi has no nexus with theft of car – State Commission rightly rejected repudiation of claim – Revision petition is without any merit – Petition dismissed.” “The use of a private car even for commercial purposes in case of theft of the vehicle, cannot be construed a fundamental cause of theft, there being no nexus between theft and user of the vehicle as taxi.” The Hon'ble National Commission has relied upon the law laid down by the Hon'ble Apex Court in the case titled National Insurance Co. Ltd. Vs. Nitin Khandelwal reported in 2008 ACJ 2035 wherein identical situation arose while considering as to whether the insurance company was liable to indemnity the insured for his loss, in a case of theft of the vehicle, Hon'ble Apex Court held that “breach of terms of policy was not germane in case of theft of the vehicle. In the case under consideration before us, following theft of the vehicle, there was no trace and it had not been recovered.” Further the support can be taken by precedent laid down by the Hon'ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled Oriental Insurance Company Limited Vs. Sanjeev Kumar, 2006(1) Judicial Reports Consumer 42, wherein it has been held that :- “Insurance claim – Repudiation – Ground that vehicle was not being used for the purpose it was insured – Held that the user of the vehicle at the relevant time of theft has no nexus inter se – Claim cannot be repudiated.” Further, the support can be taken by the precedent laid down by the Hon'ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled Baldev Singh Vs. Oriental Insurance Co. Ltd. and Another, 2007(1)CPC 157, wherein it has been held that :- “ Consumer Protection Act, 1986 – Section 14 & 15 – Insurance claim – Theft of car – Complainant's friend had taken the car in question and had parked it in front of a hotel when it was stolen by someone – Claim was repudiated on the ground that car was being plied in contravention of terms of policy – Moreover, there was no evidence to prove that car had been used as a taxi – Impugned order set aside – Company directed to pay Rs.1.40 Lacs subject to deduction regarding depreciation alongwith 9% interest – Appeal allowed.” In the same judgment it has been held by the Hon'ble National Commission by taking the support of Oriental Insurance Co. Vs. Sanjeev Kumar, 1 (2006) CPJ 137 that after considering various judgments of the National Commission, we had opined that there was no nexus between the user of the car and theft. Even if it is assumed in this case that the car was being plied as a taxi, the mere plying a car as a taxi did not result in the theft of the car.” 8. The other objection taken by the opposite party Nos.1&2 is regarding that it is time barred and has taken the support of law laid down by the Hon'ble Supreme Court in 2002(2)CLT 105 and 2009(2)CLT 541. With utmost humility to the abovesaid authorities, they are distinguishable on facts and circumstances. 9. In the case in hand, the car was stolen on 07.08.2007 and FIR was lodged on the same date. The investigation report was closed on 21.02.2008 by the Police and untraceable report was issued by the Police Ex.C-9 on 21.02.2008. The same was sent to the opposite party Nos.1 to 3 but the opposite parties asked for untraced report recommended by the Hon'ble Chief Judicial Magistrate, Bathinda on 18.12.2008.The complainant as well as the Principal company M/s Excel Crop Care Ltd. has given statement in writing dated 20.02.2009 and 23.02.2009 that the vehicle was neither used as taxi nor leased out to M/s Excel Crop Care Ltd. The same was used for the official as well as private purpose. The claim of the complainant has not been settled or repudiated till date, even after the lapse of more than 36 months i.e. 3 years. Hence, the compliant is within limitation. The support can be sought by the law laid down by the National Commission, New Delhi in case titled United India Insurance Co. Vs. R.Piyare Lal Import & Export Ltd., 2010(1) CPJ 22 NC, wherein it has been held that :- “Limitation – Time barred – insurance claim – cause of action arises from the date of repudiation of claim – Complainant's case neither rejected nor accepted – cause of action continuous one – complainant not time barred – maintainable. After relying upon the Supreme Court decision the National Commission allowed the interest @ 9% P.A. on awarded amount in said decision.” 10. In the case in hand, the claim has neither been settled nor repudiated till date. Further, the opposite parties have submitted that the claim of the claimant can be settled as non standard claim and rate of interest would be given as 6% p.a. and has taken the support of the law laid down by the Hon'ble National Commission in 2009(4) CLT 404 and 2009(2) CLT 110 (NC) wherein it has been held that the rate of interest would be given @ 6% p.a. 11. In view of what has been discussed above, the use of the car for commercial purpose has not nexus with theft. The complainant-firm has given the car to one Yoginder Teotia, Asstt. Manager of Excel Crop Care Ltd. in friendly relation. Hence, the claim of the claimant cannot be repudiated on the false grounds. The objections taken by the opposite parties that FIR was lodged by Yoginder Teotia is not tenable as person from whose premises, the car has been stolen, can lodge the FIR. 12. Hence, in view of what has been discussed above, this complaint is accepted with Rs.10,000/- as cost and compensation. The opposite party Nos.1&2 are directed to pay Rs.3 Lacs IDV value of the vehicle with 6% interest p.a. from the date of filing the complaint till its realization. The vehicle of the complainant is lying hypothecated with opposite party No.3. The first right on the claimed insurance amount is of opposite party No.3. The opposite parties are directed to do as under :- The opposite party Nos.1&2 are directed to pay amount of cost and compensation to the complainant. The opposite party Nos.1&2 will pay the amount of Rs.3 Lacs to the opposite party No.3. The opposite party No.3 would pay the remaining amount to the complainant after deducting the remaining loan amount of the vehicle from IDV. The complainant will transfer the vehicle in the name of Insurance Co. i.e. will issue the letter of subrogation (i.e. second key, transfer of R.C. etc.) in the favour of Insurance company i.e. opposite party No.1. Compliance of this order be done within 45 days from the date of receipt of copy of this order. In case of non-compliance, the interest @ 6% p.a. will yield on IDV since filing of this complaint till realization.
13. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum 17-02-2011 (Vikramjit Kaur Soni) President
(Dr. Phulinder Preet) Member (Amarjeet Paul) Member | 
