DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 953/2017
D.No._______________________ Date: __________________
IN THE MATTER OF:
RAJ NARAYAN MAHTO S/o SH. MUNESHWAR MAHTO,
R/o H. No.-23, 3rd FLOOR, DHANI RAM COLONY,
VILLAGE-BADLI, LIBASPUR, DELHI-110042. … COMPLAINANT
Versus
1. THUKRAL ELECTRIC BIKES PVT. LTD.,
THROUGH ITS MANAGER,
A-18, RAJAN BABU ROAD,
SWARN SINGH ROAD, ADARSH NAGAR,
NEW DELHI-110033.
2. THE ORIENTAL INS. Co. LTD.,
THROUGH ITS BRANCH MANAGER,
2E/16, SWAMI RAM TIRATH NAGAR,
JHANDEWALAN EXTN., NEW DELHI-55. … OPPOSITE PARTY (ies)
CORAM: SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 28.11.2017
Date of decision: 16.03.2020
MS. USHA KHANNA, MEMBER
ORDER
1. The complainant has filed the present complaint against OPs under Section 12 of the Consumer Protection Act, 1986 thereby alleging that on 02.11.2016, the complainant purchased E-Rickshaw bearing Regn. No. DL-11-ER-1869 from OP-1 and paid
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Rs.1,13,000/- and the complainant purchased the said vehicle for earning his livelihood by means of self-employment. Thereafter, OP-1 raised the bill dated 02.11.2016 of Rs.1,13,000/- (Rs.98,267/- for E-Rickshaw with battery and its charger, Rs.4,913.35 as VAT, Rs.5,376/- as insurance charges, Rs.4,444/- as road tax, registration fee & other charges) and the said E-Rickshaw is insured with OP-2 bearing policy no. 272302/31/ 2017/2782 and cover note no. 2700002016694689 for the period from 02.11.2016 to 01.11.2017 (mid-night) and the IDV of Rs.1,03,180/- and the complainant is having driving license for the said E-Rickshaw. The complainant further alleged that the above said E-Rickshaw was stolen on 21.02.2017 at around 3:00 PM, passengers came at Rohini, Sec.-18, Metro Station, Delhi and asked the complainant to take them to Prashant Vihar, Vaishno Devi Mandir, Delhi and there the passenger gave Parsad/Sweet to the complainant and the complainant ate the said sweet/parsad and after few minutes, the complainant was unconscious and next day i.e. on 22.02.2017, the complainant found himself in Hospital i.e. Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi and after treatment the complainant was discharged on 24.02.2017 from the hospital and the family member made complaint to Police department for missing of the complainant with E-Rickshaw vide DD bearing No.051A dated 21.02.2017. In this regard, a FIR no. 0185 was also made and the police department gave untraced
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report and the Hon’ble MM Rohini Court accepted the untraced report and the said Court passed an order dated 21.08.2017 and due to the mis-happening/theft of the said vehicle, the complainant and family members are mentally disturbed. After few days of discharge from the hospital, the complainant/family members approached OP for theft claim of the said E-Rickshaw and after this mis-happening, the complainant approached OP several times for theft claim of the said vehicle but there is no proper response from OP and also not releasing the theft claim of the said vehicle vide letter dated 03.03.2017. The complainant further alleged that the complainant supplied all the required documents to OP-2 as demanded by OP, then also OP-2 is not releasing the theft claim nor giving any response and all the promises by OPs for the prompt and honest services are demolished by their own acts as the genuine claim of stolen vehicle is not released as yet which clearly shows deficiency in service on the part of OPs.
2. On these allegations the complainant has filed the complaint praying for direction to OPs to release the theft claim of the stolen vehicle i.e. Rs.1,03,180/- of the complainant alongwith interest @ 18% p.a. till its realization as well as compensation of Rs.3,00,000/- for causing mental, physical pain, agony and harassment and delay and has also sought Rs.15,000/- towards cost of litigation.
3. Notices were issued to OP-1 through speed post for appearance on
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14.03.2018, 24.09.2018 & 31.10.2018 but none has appeared on behalf of OP-1 on 14.03.2018, 23.05.2018, 24.09.2018, 31.10.2018 & 03.12.2018 and as such OP-1 was proceeded ex-parte vide order dated 03.12.2018.
4. Only OP-2 has been contesting the case and filed its written statement and submitted that an E-Rickshaw make Thukral Electric Bikes Pvt. Ltd. vide Regn. No. DL-11-ER-1869 was insured as a new vehicle with OP-1 through an E-Rickshaw PCCV-3 wheelers carrying passengers (passenger carrying commercial vehicle) package policy bearing no. 272302/31/2017/ 2782 for an IDV of Rs.1,03,180/- subject to excess clause of 10% of the IDV on theft claim only, in addition to compulsory excess/compulsory deductible Rs.500/- for the period of one year only w.e.f. 02.11.2016 to 01.11.2017 in the name of the complainant and the said insurance was subject to terms, conditions, exceptions and the law applicable thereto. OP-2 further submitted that a claim was intimated by the complainant to OP belatedly on 03.03.2017 about the snatching/theft of the vehicle no. DL-11-ER-1869 after the delay about 09-10 days allegedly in an incidence occurred on 21.02.2017, whereas, the police was intimated only on 28.02.2017 after the delay of about 7 days vide FIR no. 0185/2017 registered with P.S. Samaipur Badli, Delhi u/s 328/379/34 IPC and OP deputed an independent investigator Sh. Mahesh S. Bisht (claims investigator) to ascertain the facts and to do all that was necessary.
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However, the DL bearing no. DL-11/LL/ 24034/16-17, as provided by the complainant/insured got verified by OP from the Licensing Authority, North-West-2, Rohini, New Delhi and the same was found “Learning License” thus, admittedly the complainant was driving the vehicle in question for carrying passengers as commercial use in contravention of the provision of Rule-3 of the Central Motor vehicle Rules, 1989. OP-2 accordingly submitted that the complaint is not maintainable and is liable to be dismissed and further submitted that there is no deficiency in service on their part.
5. The complainant filed rejoinder to written statement of OP-2 and denied the submissions of OP-2 and re-affirmed allegations in the complaint.
6. In order to prove his case, the complainant filed his affidavit in evidence and has also filed written arguments. The complainant also placed on record copy of invoice no. TEBPL/HO/201617/1660 dated 02.11.2016 of Rs.1,13,000/- issued by OP-1, copy of insurance policy issued by OP-2, copy of issue of Learner’s License alongwith copy of receipt dated 04.08.2016, copy of R.C., copy of complaint/general diary no.051A dated 21.02.2017 lodged by P.S. Badli, Delhi, copy of complaint DD No. 68-B lodged by the complainant to P.S. Badly, Delhi, copy of discharge summary issued by Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi, copy
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of FIR no. 0185 dated 28.02.2017, copy of untraced report dated 21.08.2017 issued by MM-02 (North), Rohini Courts, Delhi and copy of Theft Claim Intimation Letter dated 03.03.2017.
7. On the other hand, Sh. Mahesh Mahato, Assist. Manager of OP-2 filed his affidavit in evidence which is as per defence taken by OP-2 in the written statement. OP-2 also filed copy of repudiation letter dated 07.11.2017. OP-2 also filed written arguments.
8. This forum has considered the case of the complainant in the light of evidence and documents placed on record by the parties. The case of the complainant has remained consistent throughout and there is nothing on record to disbelieve the case of the complainant. Moreover, OP-2 has failed to prove its defence and it shows that the defence taken by OP-2 in the reply is a sham and bogus defence and cannot be considered. Furthermore, OP-2 has not disputed the factum of theft of the vehicle in its pleadings and evidence. The fact that the complainant was having a Learner’s Driving License at the time of theft of the said vehicle has no bearing on the fact of theft and OP-2 being the Insurance Company cannot escape its liability. Thus, the defense taken by OP-2 has no merits and OP-2 ought not to have repudiated the claim of the complainant and this action of OP-2 amounts to deficiency in service and unfair trade practice and OP-2 ought to have passed the claim of the complainant and failure on the part of OP-2 to pay to the complainant its genuine claim amounts to deficiency in service. Thus, OP-2 is held guilty of unfair
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trade practice and deficiency in service.
9. Thus, holding guilty for the same, we direct OP-2 to:
i) To pay to the complainant an amount of Rs.1,03,180/- being the IDV of the vehicle and the complainant to return original booking receipt, invoice and to sign transfer papers.
ii) To pay to the complainant an amount of Rs.40,000/- as compensation for harassment and mental agony suffered.
iii) To pay to the complainant an amount of Rs.10,000/- as cost of litigation.
10. The above amount shall be paid by OP-2 to the complainant within 30 days from the date of this order failing which OP-2 shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of this order till the date of payment. If OP-2 fails to comply with the order within 30 days from the date of receiving of this order, the complainant may approach this Forum u/s 25/27 of the Consumer Protection Act, 1986.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 16th day of March, 2020.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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UPLOADED BY : SATYENDRA JEET
