District Consumer Disputes Redressal Forum, Tarn Taran.

Consumer Complaint No : 34 of 2012

Date of Institution  : 4/7/2012

Remanded back on: 16.10.2014 

Date of Decision: 09/04/2015

Gurmit Singh son of S.Harjinder Singh, resident of VPO: Kaler, District Tarn Taran.

                                                                   …Complainant

Versus

The Oriental Insurance Company Limited, Branch Office Tarn Taran, Near Satkar Palace, Amritsar Road, District Tarn Taran through its Branch Manager/ Person over al Incharge.  

…Opposite Party

Complaint Under Section 11 & 12 Consumer Protection Act, 1986.

For the Complainant         : Sh.Neeraj Brahmi, Advocate

For Opposite Party                    : Sh. P.N.Khanna, Advocate

Quorum:                Sh. S.K. Goel, President.

Sh. R.D. Sharma, Member.

Smt.Jaswinder Kaur Dolly, Member

Order dictated by Sh. R.D.Sharma, Member.

1. This consumer complaint  has been received by this Forum from Hon’ble State Commission, Punjab Chandigarh vide order dated 13.8.2014 for fresh decision of the case in accordance with law.
2. Sh.Gurmit Singh, complainant has filed the present complaint under Section 11 & 12  of the Consumer Protection Act (for short ‘the Act’) against The Oriental Insurance Company Limited, Branch Office Tarn Taran, Near Satkar Palace, Amritsar Road, District Tarn Taran through its Branch Manager/ Person over al Incharge (for short ‘opposite party’).
3. Facts emerging from the complaint are that the complainant owns a Truck make Tata LPS 4018TC Model 2007, bearing RC No.PB46-F-9695, Chassis No.447207KSZ310209, Engine No.70K62609613 by raising loan from Centurion Bank of Punjab Limited which is now merged in HDFC Bank Limited. Said vehicle was insured for a period of one year from 31.12.2009 to midnight of 30.12.2010 from opposite party for Rs.11,90,000/- vide policy No.233308/31/2010/3371 against the premium paid of Rs.26,291/-. It is averred that on 6.12.2010 at about 6.15 PM, the driver of the truck in question parked the truck in Khemkaran Mandi and went to nearby Dhaba for having dinner and when at about 7 PM, the driver came, he found that the truck was not there. All efforts were made to find out the truck, but finding no clue and in respect thereof, intimation was given to the Police Station Khemkaran whereof FIR No. 47 dated 23.9.2010 was recorded. The opposite party was informed about the theft of the truck and all the documents including a copy of FIR, untraced report, route permit, fitness certificate, copy of RC, duplicate key and other relevant documents were also supplied to the opposite party. But the opposite party did not pay any heed to the request of the complainant to settle the claim of the complainant. Hence, the present complaint is filed seeking the relief to pay Rs.11,90,000/- being the IDV value of vehicle in question to the complainant alongwith Rs.50,000/- as compensation on account of mental and physical harassment and further litigation expenses to the tune of Rs. 50,000/-
4. Upon notice, the opposite party appeared and filed written version taking preliminary objections that the complainant is estopped by his own act and conduct from filing the present complaint. It is submitted that on receipt of the intimation regarding the alleged theft of vehicle, the opposite party deputed M/s.Royal Associates to investigate the matter and the said investigator demanded certain documents from the complainant which were not supplied. However, finally the said investigator submitted his investigation report stating that in fact, switch key was left in the truck at the time of alleged theft and as such, it has facilitated the occurrence. This fact has been confirmed by the insured as well as his driver in their statement. Even one of the window glass was also left open by them. The complainant has been called upon to submit his explanation for committing this breach by the opposite party during his personal visits to Tarn Taran Branch, but till date, he has failed to submit any satisfactory explanation for the said act. It is submitted that the duty is cast upon the insured to take proper care of the insured vehicle so that any improper act related to him may not become cause of loss. In the present case, in absence of any such explanation, it is clear that the complainant has violated the said basic condition to take proper steps to safeguard the insured vehicle and as such basically he is not entitled to get any claim from the opposite party.  It is further submitted that besides the aforesaid violation of the basic concept of insurance contract, the complainant has failed to submit the requisite documents demanded from him by the opposite party and in this regard, various letters have been written and final reminder dated 20.6.2012 was also written calling upon him to submit following two documents.

(i)      Untracted Report U/s 173 Cr.PC. duly accepted by the Court/ Ilaqa Magistrate and

(ii)      Duplicate Keys of the Insured vehicle.

However, the complainant did not submit any documents, rather has preferred to file the present complaint immediately thereafter in the first week of July, 2012 and as such the complaint filed by the complainant is otherwise premature and without any cause of action. Further, the complaint filed by the complainant is bad for non joinder of necessary parties and cause of action. It is further submitted that as per averments made out in the complaint, the complainant has raised loan from the bank but has not cleared that whether any amount is still payable to the said bank. If so, then the said bank is also a proper and necessary party to the present complaint. On merits, the opposite party took almost same and similar pleas as taken by them in the preliminary objections. It is prayed that the complaint is liable to be dismissed being pre-mature and not maintainable.       

5. In order to support his case, the complainant has tendered in to evidence his affidavit Ex.CW1/A, his additional affidavit Ex.CW2/A, affidavit of Harmeet Singh Ex.CW3/A alognwoth documents i.e. copy of policy Ex.C1, copy of RC Ex.C2, copy of route permit Ex.C3, copy of fitness certificate Ex.C4, copy of complaint lodged by complainant regarding theft of vehicle and FIR Ex.C5, copy of untraced report Ex.C6, copy of report of CRO branch Ex.C7, copy of letter written by SSP to Government of India Ex.C8, copy of information regarding vehicle stolen Ex.C9, copy of DL of Harmeet Singh Ex.C10 and closed his evidence.
6. To rebut the case of the complainant, the opposite party tendered into evidence affidavit of Sh.Sandeep Thapa Ex.RW1/A, affidavit of Kashmir Singh Ex.RW2/A, statement of Harmeet Singh Ex.R3, letter written by opposite party dated 20.6.2012 and duly received by Gurmeet Singh Ex.R4, certified copy of policy alongwith terms and conditions Ex.R5and closed the evidence.
7. We have heard the arguments of learned counsel for both the parties and have gone through the record and also perused the written arguments submitted by the opposite party.
8. Admittedly, the truck make Tata LPS 4018TC Model 2007, bearing RC No.PB46-F-9695, Chassis No.447207KSZ310209, Engine No.70K62609613 was insured with opposite party for Rs.11,90,000/- being the IDV value, which was valid for the period from 31.12.2009 to midnight of 30.12.2010 vide policy No.233308/31/2010/3371 against the premium paid of Rs.26,291/- and within the validity period of insurance, on 6.12.2010 at about 6.15 PM, the driver of the truck in question parked the truck in Khem Karan Mandi and went to nearby dhaba for having dinner and when at about 7 PM, the driver came to Mandi where the truck was parked, he found that the truck was not there. All efforts were made to find out the truck, but finding no clue, intimation was given to the Police Station Khem Karan whereof FIR No. 47 dated 23.9.2010 was recorded. The opposite party was informed about the theft of the truck and all the documents including a copy of FIR, untraced report, route permit, fitness certificate, copy of RC, duplicate key and other relevant documents were also supplied to the opposite party. Further the police also investigated the matter and ultimately certified vide his report dated 16.5.2011 vide Ex.C7 that the truck in question has not been traced/ recovered. On the basis of this report, the complainant filed a claim with the opposite party. The surveyor was appointed by the opposite party and made elaborate enquiry on the complainant, driver and other concerned and also reported that the insurance claim was not admissible because the terms and conditions of the policy had not been complied with when the truck went missing. Based on the suerveyor’s report, the insurance company has not settled the claim of the complainant till filing of the present complaint as per the version of the complainant and the opposite party has also pleaded in the written reply that the claim of the complainant remained unsettled due to violation of terms and conditions of the policy viz (i) documents not supplied (ii) he did not take the requisite care to safeguard the truck in accordance with the terms of the insurance policy as he left the truck unattended with the switch key in the truck and even one of the window glass was also left open by them.     
9. On the other hand, ld.counsel for the opposite party contended that the complaint is not maintainable as no cause of action had accrued to the complainant to file the present complaint.  Further, the complainant has violated the basic condition to take proper steps to safeguard the insured vehicle and as such basically he is not entitled to get any claim from the opposite party.  It is further submitted that besides the aforesaid violation of the basic concept of insurance contract, the complainant has failed to submit the requisite documents demanded from him i.e.(i)Untracted Report U/s 173 Cr.PC. duly accepted by the Court/ Ilaqa Magistrate and (ii)Duplicate Keys of the Insured vehicle. However, the complainant did not submit any documents, rather has preferred to file the present complaint. Further, the complaint filed by the complainant is bad for non joinder of necessary parties and cause of action.
10. Ld.counsel for the complainant  further argued that the factum of theft of vehicle is established and proved more particularly keeping in view copy of FIR Ex.C-5, copy of untraced report Ex.C-6, copy of report of CRO branch Tarn Taran Ex.C-7, copy of letter written by Senior Superintendent of Police to the Govt. of India, Ministry of Home Affairs, Ex.C-8, copy of information regarding vehicle in question stolen Ex.C-9. A perusal of pleading and appraisal of the evidence brought on record established the factum regarding theft of vehicle as stated above and even otherwise the theft of vehicle is not denied and controverted in the written statement filed by the opposite party and so much so even the factum regarding  the theft of vehicle is borne out from the perusal of report of investigator deputed by opposite party which is Ex.R-1.
11. The contention of the opposite party that the vehicle was parked in an open place leaving the switch key in the truck itself and one window glass was also left open. The truck as parked in the mandi area of Khem Karan, which is normal practice of vehicles coming to Mandi for loading and unloading and there is nothing wrong in it and this a general practice and can not be avoided. It is well known act that the insurance company tried to subvert the claim of the party by raising objections, which has no value in regard to this version.
12. The next contention of opposite party is that its investigator submitted his investigation report stating therein that switch key was left in the truck at the time of theft and one window glass was also left open and this fact has been confirmed by the insured as well as his driver in their statement. But from the perusal of the record it becomes quite evident that complainant has specifically denied the factum of alleged statements placed on record by opposite party Ex.R-2 and Ex.R-3 by way of filing affidavit Ex.CW2/A and also filed affidavit of driver Ex.CW3/A and it was specifically mentioned in their affidavit Ex.CW2/A and CW3/A respectively the switch key was not left in the truck at the time of theft as alleged in the written statement much less this fact has been confirmed by the complainant as well as his driver in their statements as alleged in the written statement especially when the complainant as well as his driver have not given any alleged statement to the opposite party or the alleged investigator and even their statement were never recorded by the opposite party.  As such the switch key was not left in the truck and one of the window glass of the truck was also not left open by the complainant or his driver. On the contrary no counter affidavit has been filed by the opposite party to controvert on falsify the depositions made by the complainant and his driver in their affidavits Ex.CW2/A and Ex.CW3/A and even the opposite party has not taken any step to prove the signatures and writing of the complainant and his driver on statement Ex.R-2 and Ex.R-3 especially when the complainant and his driver has specifically denied these statements in their evidence. In our considered opinion it was incumbent upon the opposite party to have controvertered or rebutted the case of complainant to establish their case. But it was not to be so. We relied upon 2006 IV CPJ 213 wherein it has been held by Hon’ble National Commission in an appeal titled as “ Ponnusamy (Dr.) and Ans. Vs. Rama Krishnan”

13. Ld.counsel for the complainant also drew our attention of the affidavit of investigator Ex.RW2/A, who has also not controverted the specific depositions made by the complainant and his driver in their affidavit Ex.CW2/A and Ex.CW3/A.
14. The law laid down by the Hon’ble National Commission in the authority mentioned above is fully applicable to the facts of the present case. It becomes evident from the file that opposite party has neither filed by counter affidavit nor cross-examined the complainant and driver. As a result of which the specific deposition made by the complainant and his driver in their sworn affidavits remained un-controverted. The Ld. Counsel for opposite party has stated in its written arguments that in this case the surveyor gave the report that the complainant had admitted that the driver has left the switch key in the truck and one window glass was also left open. The Ld. Counsel for the complainant during arguments pointed out that the investigator has not mentioned that the statement of the complainant had been recorded without any pressure or undue influence.
15. The counsel for the complainant during arguments had however alleged that signatures had been taken on blank papers by the surveyor at the time of investigation. Moreover the opposite party has given much weight on the surveyor report Ex.R-1 but it is pertinent to mention here that the surveyor himself in the conclusion/end of report at last page No.11 has not indicated that one window glass of the truck was left open as pointed out in Para No.6 of the findings of the surveyor report which created serious doubt in the entire action taken by the opposite party. It is also alleged by the Ld. Counsel for complainant that the investigator report Ex.R-1 placed on record by the opposite party is incomplete document as various annexures forming part of investigation report more particularly statements of various peoples of locality i.e. place of theft recorded by the investigator as mentioned in the report and photographs taken by the investigator as referred in report under column “Location Of Theft Place.” Verification report of different documents and other documents etc. and even no reason has been assigned by the opposite party as to why the complete report alongwith all annexures was not filed by them and as such incomplete report may not be considered/ admitted. It is also contended by the opposite party that switch key was left in the truck at the time of theft and as such the claim is not payable keeping in view of the copy of terms and conditions. It is argued by the Ld. Counsel for the complainant that the alleged copy of the terms and conditions is just a specimen copy and actual office copy of terms and conditions have not been placed on record by the opposite party and learned counsel for complainant further argued that claim of the complainant cannot be ignored on the basis of those alleged exclusions, which were not communicated to complainant. It is specifically pleaded by the counsel of complainant that the case of complainant in Para No.1 of the complaint that no terms and conditions or any other documents containing such terms and conditions of this contract were supplied to the complainant and this fact is not specifically denied by the opposite party in the corresponding para of the written statement.
16. We agree with the counsel for the complainant that opposite party cannot defeat the claim of complainant on the basis of any alleged terms and conditions which is never formed part of the contract and even the nature of specimen copy of terms and conditions can be judged that said document is having stationary printing dated Febuary, 2007 and when as the Insurance coverage relates to period 31.12.2009 to midnight of 30.12.2010 which clearly shows that the said terms and conditions were never formed part of the contract between the parties and the same are not applicable in the impugned insurance. And it is settled law that if terms and conditions of insurance have not been supplied or communicated to complainant then only on this ground the opposite party cannot defeat the claim of complainant on the basis of any alleged terms and conditions, which is never formed party of the contract. Even otherwise from the perusal of the instance policy scheduled Ex.C-1 and Ex.R-5 the impugned insurance relates to GCCV- Public carrier other than three wheeler package policy- zone- C whereas the specimen copy of terms and conditions filed by opposite party relates to commercial vehicle  package policy and as such the same is not applicable in the impugned insurance and even the same is not forms part of the contract. Moreover the premium amount is not meager amount and the services that should have been rendered by the opposite party are not sufficient enough for the complainant to bring it within his knowledge that the terms and conditions of the  policy which have not been supplied to the complainant and that it is also the case of the complainant in Para No.1 of the complainant that no terms and conditions or any other documents containing such terms and conditions of the contract were supplied to the complainant and even this fact not specifically denied by the opposite party in the corresponding para of the written statement. Taking hefty premium of Rs.26,291/- from the complainant and without supplying the terms and conditions of the policy to the complainant and thereafter not setting the claim on this ground seems to be not justifiable. The judgments submitted by the opposite party are not fully relevant with the present complaint and therefore these authorities with due respect are distinguishable.
17. We are of the view that even if it is accepted that there has been a violated of the provisions of the motor vehicle Act on the part of complainant by breaching the terms and conditions of 5 and 8 of the policy which not safeguard of his own vehicle, even that at best, it could be termed as breach of the condition only and in these circumstances, the case should have been strengthen on non standard basis.
18. As per the guide lines issued by the GIC and amended from time to time for setting the claim on non standard basis in the chapter on procedural Manual of Motor Claims, there are several contingencies under item No.10 (II) (4). The claim should be settled by the insurer with the insured amount on 75% of the admissible claim in case of “any other breach of warranty/ condition of policy including limitation as to use.”  Though in this case the condition No.5 and 8 in the policy as mentioned in their written arguments that insured shall take all reasonable steps to safeguard the vehicle insured and also it is the duty of the insured that due observance and fulfillment of the terms, conditions and endorsement of this policy within the meaning of Motor Vehicles Act 1988 respectively. This could be said to be a violation of Motor Vehicle Act and as best it could said to be a breach of warranty/ condition. In these circumstances, the case should have been settled as non-standard claim on 75% basis. The claim as per guidelines issued by GIC itself shall amount to deficiency in services on the part of the opposite party (Insurance Company). On the other hand the counsel for opposite party filed written arguments virtually reiterating the ground for non- setting the claim of the complainant by breaching the terms and conditions of the policy, but the said written arguments have not brought out any ground which makes the said guidelines inapplicable.
19. We are fully conscious of the guidelines for setting the claim where any of the terms and conditions of the policy have not been adhered to. The said guidelines provides for settlement of such claims as non standard and the percentage are also duly indicated in clause 10 of the procedural Manual of Motor claims. We reproduce the relevant passage from the said Procedural Manual of Motor Claims, which read as under :-

(10) Non Standard Claim

        Following types of claims shall be considered as non standard and shall be settled as indicated below :-

20.     Thus the contention of the opposite party that steps were not taken to safeguard the insured vehicle by the complainant is rather not in the wider prospective. Who would not like to safeguard his vehicle and steps to get it insured is in itself a safeguard of the vehicle and that is why the insurance comes into being. Such false excuses are not valid arguments, but to subvert the claim which is otherwise admissible under the condition enumerated instructions of Non Standard Claim whereby in the present case 75% claim is admissible.

          In IV (2008) CPJ I (SC) with the title National Insurance Company Ltd.  Vs. Nitin Khandelwal, Hon’ble Apex Court was pleased to observe as under :

“Consumer Protection Act, 1986-Section 2 (1)(g)-Insurance- Vehicle stolen Terms and conditions of policy violated-claim repudiated-Settlement of claim on non standard basis directed by State Commission-Insurance Company held liable to pay 75% of claim amount- Order upheld by National Commission-Civil Appeal Filed Breach of policy condition not germane in case of theft of vehicle- Nature of use of vehicle cannot be looked into-Claim cannot be repudiated o0n that basis- Insurance Company liable to indemnify for loss caused-Order of Consumer For a upheld.”

21.   As regard the contention taken by the opposite party regarding non joinder of necessary party is of no avail as the complaint is not bad for non joinder of necessary party, as the main privity of contract is between the complainant and the insurance company and the bank was not a necessary party to be impleaded in the array of opposite party for proper adjudication of the matter in issue. Moreover, no terms and conditions of the contract showing the bank to be liable in any manner has been placed of file by the opposite party. Therefore we feel that the bank was not a necessary party.
22. In view of the above proposition of law and so relying upon the judgments by the National Commission and Supreme Court of India as stated above, in our considered view there is deficiency in services and unfair trade practice on the part of the opposite party and complainant is entitled to 75% of the insurance amount on non standard basis. Thus present complaint is accepted and on a perusal of insurance file shows that truck was insured to the tune of Rs. 11,90,000/- and opposite party is directed to pay Rs.8,92,500/- only i.e. 75% of the IDV ( Insured Declared Value) within one month from the receipt of this order as ‘non standard claim’. Further the opposite party has intentionally failed to settle the claim of the complainant as on “non standard basis” and as such complainant had suffered mentally and physically because during the said period he could not under take any such profession and the opposite party is also liable to pay Rs.5000/- only as compensation and litigation expenses, failing which, the complainant will also held entitled to interest at the rate of 8% per annum on the awarded amount from the date of filing the present complaint till realization. However, the complainant is directed to execute power of attorney, letter of subrogation ad transfer of RC of the vehicle in question in favour of the opposite party-Insurance Company. Copy of the order be given to the parties free of cost and thereafter the file be consigned to the record room.

Announced in open Forum                                 Sd/-

Dated:09.04.2015.                                             President

                                                               Sd/-                 Sd/-

   Member             Member