DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 1291/2007
Wahid Ali S/o Sh. Nizam Ali
Presently at R-205, Ist Floor, Joga Bai Extn.
Batla House, Jamia Nagar, Okhla,
New Delhi – 110025 ….Complainant
Versus
The Oriental Insurance Co. Ltd.
Divisional Office: 23,
2/13-14, Sarai Julena,
New Delhi – 110025 .…Opposite Party
Date of Institution : 12.12.07 Date of Order : 06.09.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S. S. Fonia, Member
O R D E R
According to the Complainant, he had got his new Truck No. HR-38M-8829, Make Tata 2515, Engine No. 479508, Chasis No. 211275 insured from the OP vide Policy No. 272100/31/2007/2519 valid from 25.5.2006 to 24.5.2007 for insured value of Rs. 11,50,000/-. However, on 19.11.2006 at about 3.40 a.m. when the truck was standing/parked by the driver at Mathura Road, Near Badarpur Village, 4 persons armed with weapons came and hijacked the truck along with the driver and the helper and left the driver and the helper at an unidentified place and the culprits fled away with the truck. An FIR No. 891 dated 19.11.2006 u/s 392/34 IPC was got registered at PS Badarpur and OP was also given information. Complainant filed a complaint/claim along with all documents with the OP but the OP did not respond and failed to settle the matter. IO of the criminal case told the complainant that some accused persons had been arrested but no recovery was made. The complainant served legal notice dated 19.11.07 upon the OP through his counsel but the OP did not respond though the OP had got the matter investigated through its Investigator. Hence, the complainant has filed the present complaint for issuing directions to the OP to pay an amount of Rs. 11,50,000/- (insured value) along with interest @ 12% per annum since Nov. 2006 till realization along with adequate compensation and counsel fee.
OP has inter-alia stated that Sh. R.N. Kaul, an approved investigator investigated the matter and submitted his report dated 15.2.2007 to the OP and after making thorough enquiry into the matter the OP came to the conclusion that the claim lodged by the complainant was far away from its authenticity/legitimacy/realness/genuineness. It is stated that the entire matter was placed before the Competent Authority and the Competent Authority repudiated the claim of the complainant and sent a repudiation letter to the complainant (copy Annex. R-3). The relevant portion of the repudiation letter is reproduced as hereunder:
“i) That on receipt of claim intimidation we had appointed Sh. R.N. Kaul & Associates our approved investigators to investigate the claim. After thorough investigation they submitted their report to us in which they had inter-alia informed us as under:-
That you were plying the truck illegally on the road, by not paying the road tax. Moreover, the driver was negligent in placing the keys in the ignition point of the unlocked truck while reportedly going for sleep with the cleaner of the parked truck. That you also purposely avoided producing the key persons involved (the cleaner, the alternative driver and the two laboures traveling in the truck) during the alleged theft of the vehicle for their examinations and recordings their statements. Besides you had so far not produced the copy of the driving license of the driver, which leads us to presume that the driver was plying the truck without valid driving license. Further you have made a false story regarding the circumstances under which the vehicle was stolen.
(ii) The report of the investigation was placed before the competent authority of the company who after carefully going through the same came to the conclusion that claim lodged by you is far away from its authenticity/legitimacy/realness/genuineness.
- In addition it was further observed by competent authority that even if the loss has taken place it is entirely due to negligence. As per condition no. 5 of the insurance policy granted to you were required to take all reasonable steps to safeguard the motor vehicle from loss or damage. Further, as and when any offence is committed the same has to be thoroughly investigated by the police and the matter is reported to the concerned Metropolitan Magistrate who after satisfaction to the effect that matter has been thoroughly investigated given order for issuance of final untraced report as per provisions contained in section 173 of Criminal Procedure Code. No such report has been submitted by you and therefore you are not entitled to get your claim on this ground as well.”
It is prayed that the complaint be dismissed.
The complainant has filed a rejoinder to the written statement wherein he has inter-alia pleaded that the copy of the driver’s license is not so material because the vehicle had been hijacked when it was parked/standing and even otherwise the driver had a valid driving license at the time of incident.
The complainant has filed his own affidavit in evidence. He has also filed an affidavit of Sh. Dev Singh as CW1/2 but his affidavit is not get attested from the Notary Public or the Oath Commissioner. The said Dev Singh was employed as a driver on the truck in question on the date of incident and he has deposed about the incident and the lodging of FIR No. 891/06 at PS Badar Pur by him. These facts are not in controversy. On the other hand, affidavit of Sh. Yogesh Pandey (whose designation has not been mentioned in the affidavit) has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments of the counsel for the complainant and have also gone through the record very carefully.
Copy of the policy in question is Annex. R-1 (colly). It is a commercial vehicle insurance policy. However, to our great surprise and dismay, the OP has not taken any such plea in its reply and, therefore, we do not think it proper to go into this controversy.
The only question which now remains to be decided by this forum is, whether the repudiation of the claim of the complainant by the OP was justified and, if not, to what the relief is the complainant entitled to?
Copy of the FIR No. 891/06 dated 19.11.2006 registered by Sh. Dev Singh, Driver of the vehicle in question at PS Badar Pur in respect of the incident is Ex. CW1/5. Copy of the untraced report is Ex. CW1/11 which shows that the said criminal case had gone untraced. Even this fact has been admitted by the OP in its reply though according to the OP the complainant did not submit the copy of the said report. Copy of the newspaper report dated 7.12.06 stated to be published in the Nav Bharat Times is Ex. CW1/12. According to the complainant, the said news article is dated 7.12.06. From the perusal of the said news article it reveals that the gang of about 10 persons traveling from Mewat was involved in such type of incidents and the latest incident committed by them was dated 19.11.06 at Mathura Road in Badar Pur area. Therefore, most probably the incident in question is referred to in the said news article.
As per the affidavit of the OP’s witness, statement of the driver is Annex. R-1. We must say at once that Annex. R-1 is the copy of the policy in question and not the copy of the statement of the driver. We mark the copy of the statement of the driver as mark AA for the purposes of identification. Therefore, by filing copy of the statement of the driver by the OP itself, OP has belied its own version which is supporting the case of the complainant. The OP has caused damage to its own case. In other words, the conduct of the officers/officials of the OP has been most reprehensible and deprecable. It appears that officers and officials of the OP were determined in helping the complainant. This fact will become further clear from the below mentioned discussion.
In its reply to the complaint, the OP has relied on documents Annex. R-1, Annex R-2 (alleged copy of the investigator’s report) and Annex. R-3 (alleged copy of the repudiation letter) but, however, we are sorry and painful to note that OP has not filed the copies of Annex. R-2 & R-3. Thus, the OP has failed to show that any such investigator appointed by the OP to investigate into the matter had given a report that the claim of the complainant was far away from authenticity/legitimacy/realness/genuineness. Similarly, the OP has also failed to file the copy of the repudiation letter to show that the competent authority had considered the matter from every point of view and had come to the conclusion that the claim of the complainant was not genuine and accordingly repudiated.
The copy of the driving license of the driver Dev Singh has been placed as Ex. CW2/A which clearly proves that the driver had valid driving license [D.L. No. 1107 dated 3.1.2000 and HTV included]. The OP has not led any evidence to the contrary to prove that the said driving license is fake and hence cannot be acted upon. Therefore, we hold that on the date and time of the said incident, the driver Dev Singh of the truck in question had a valid driving license with him.
As we have stated hereinabove, there is every probability that officers/officials of the OP have helped the complainant in a clandestine manner and have, therefore, not filed the investigator’s report and the copy of the repudiation letter along with any other material. We do not have any hesitation in holding that the conduct exhibited by the officers/officials of the OP in this case rather leads to the conclusion that the officers/officials of the OP were/are in hand in gloves and collusion of the complainant for the reasons best known to them. Therefore, we hope and trust that the Chairman or the Disciplinary Authority shall initiate proper inquiry into the conduct of the concerned officers/officials of the OP Company and take necessary departmental action against them.
In view of the above discussion, we are left with no other alternative but to hold that by not passing the genuine claim of the complainant, the OP, infact, committed deficiency in service. Therefore, we allow the complaint and direct the OP to pay Rs. 11,50,000/- towards insured amount and Rs. 25,000/- for mental pain and agony including cost of litigation to the complainant within one month from the date of receipt of copy of this order failing which the OP shall become liable to pay Rs. 11,50,000/- along with interest @ 7% p.a. from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Announced on 06.09.2016.
Case No. 1291/07
06.09.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP is directed to pay Rs. 11,50,000/- towards insured amount and Rs. 25,000/- for mental pain and agony including cost of litigation to the complainant within one month from the date of receipt of copy of this order failing which the OP shall become liable to pay Rs. 11,50,000/- along with interest @ 7% p.a. from the date of filing of the complaint till realization. Let the file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
