Order dictated by:

Sh.S.S. Panesar, President.

1.       Sh.Daler Singh, complainant has brought the instant complaint under section 12 and 13 of  the Consumer Protection Act, 1986  on the allegations that complainant is having a Tata Truck vehicle which he is running for earning his livelihood by means of self employment bearing registration No. MP09 KD 2676. The said vehicle was insured comprehensively with the opposite party  for the risk period 17.9.2013 till 16.9.2014 by paying the consideration of Rs. 26,914/-. The copy of the policy is attached. As such the complainant is consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The insured vehicle unfortunately was stolen on 20.4.2014 night from Amritsar and the opposite party has been immediately intimated about the theft of the vehicle. FIR in this connection was also lodged with P.S. ‘B’ Division, Amritsar having FIR No. 49/14. The said truck was later traced and  found by the police authorities  but the actual tyres of the said truck alongwith battery, 2 tarpals, Tape record and tool accessories etc. were found missing/stolen. The claim to the tune of Rs. 2,58,581/- was lodged with the opposite party, who appointed surveyor for the purpose to assess the loss. The opposite party vide their letter dated 16.12.2014 which was issued after around 8 months of occurrence, repudiated the genuine claim of the complainant on the frivolous grounds that the bill of the tyres are not provided  and proved which itself seems to be frivolous excuse to repudiate the genuine claim of the complainant. The complainant has fully cooperated with the opposite party officials and provided all the bills specifically of the new tyres of the vehicle. The said act of the opposite party in repudiating the genuine claim of the complainant on frivolous ground is an act of deficiency in service, unfair trade practice and mal practice which is not sustainable in the eyes of law. The complainant has sought the following reliefs vide instant complaint :-

(i)      Opposite party be directed to pay the amount of Rs. 2,58,581/- alongwith interest @ 12% p.a from the date of loss till realization;

(ii)     Opposite party be also directed to pay compensation to the tune of Rs. 50,000/- alongwith litigation expenses.

Hence, this complaint .

2.       Upon notice, opposite party appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that complainant has not come to this Forum with clean hands as various material facts have been concealed by him from this Court. It is stated that the truck of the complainant vide registration No. MP-09KD-2676 was stolen on 20/21.4.2014 and in this regard FIR No. 49 of 2014  dated 22.4.2014  was filed by him with P.S. ‘B’ Division, Amritsar . After few days the said truck was recovered by the police of P.S. Kot Kapoora which was taken on supardari by the complainant vide Supardari DDR No. 29 dated 28.4.2014 as stated by him in the claim/intimation to the opposite party. So far as the claim filed by the complainant is concerned, it is stated that the matter was thoroughly investigated by opposite party at their  own level in routine because public money  is involved and after considering all the aspects, it was found that no loss of tyres of the vehicle etc. have been mentioned in the DDR vide No. 29 dated 28.4.2014 by which he illegally took the custody of the truck under supardari and if there had been any loss of any part of truck on recovery, the  same would be mentioned in the said DDR or in the relevant register No. 19  of concerned police station  in the case of any loss after recovery of vehicle, secondly the vehicle of the complainant is commercial vehicle  but inspite of demand, the complainant failed to produce the bills of alleged stolen tyres, thirdly the driver/cleaner of the vehicle is still absconding & possibility cannot be ruled out that the alleged theft of truck might have been caused by the driver in connivance with the complainant himself ; that  complaint of the complainant is not maintainable in the present  Form ; that no cause of action has arisen to the complainant against the opposite party as the claim has already been released under the settled terms and conditions as fully detailed above ; that complainant is estopped by his own act and conduct from filing the present complaint. On merits, facts narrated in the complaint have been specifically denied. The complainant has failed to produce the bills of the alleged stolen tyres. The driver/cleaner of the truck is still absconding and possibility cannot be ruled out  that the alleged theft of the truck might have been caused by the driver in connivance with the complainant. The claim of the complainant has rightly been repudiated. There is absolutely no deficiency in service, unfair trade practice or mal practice on the part of the opposite party rather the complainant is guilty of filing a false complaint by making concocted story to grab the public money. Each and every content of the complaint have been specifically denied and a prayer for dismissal of the complaint with cost has been made.

3.       In his bid to prove the case Sh. Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of repudiation letter Ex.C-2, copy of policy cover Ex.C-3, copy of FIR Ex.C-4, copy of recovery certificate Ex.C-5, copy of police certificate Ex.C-6 & Ex.C-7, copies of purchase bills Ex.C-8 to Ex.C-10 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.S.S.Batra,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Surinder Singh, Divisional Manager Ex.OP1, copy of Insurance policy  Ex.OP2, copy of FIR Ex.OP3, copy of letter dated 16.12.2014 Ex.OP4 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the opposite party.

6.       Ld.counsel for the opposite party has vehemently contended that  no doubt the theft of the vehicle in dispute has taken placed on the night of 20/21.4.2014 from Amritsar. The complainant had also lodged an FIR with police station ‘B’ Division Amritsar bearing FIR No.49 of 2014, copy whereof is Ex.C-4. There is also no denying the fact that the vehicle in dispute was under the insurance cover of opposite party on the basis of Insurance policy, copy whereof is Ex.C-3 which was operational during the period  the theft was stated to have taken place. On receipt of the intimation regarding the alleged theft of the truck in dispute, the opposite party appointed surveyor  to assess the loss. During the period the truck in dispute was recovered by P.S. Kot Kapoora  and the complainant obtained  the truck in dispute on supardari. It is the case of the complainant that tyres, battery, 2 tarpoline , Tape recorder and tool accessories etc were   found missing/stolen. The claim of the complainant was assessed by the surveyor. But , however, the complainant could not produce any bills regarding the purchase of alleged new tyres nor any other evidence was  adduced by him to substantiate his claim. The claim was duly considered since the money involved was public money and the same was not to be wasted, therefore, the claim of the complainant has to be rejected because the same was not sustainable. There is no force in the complaint and a prayer for dismissal of the complaint with cost was made.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that opposite party has not  produced on record report of the surveyor for the reasons best known to it. It is the case of the opposite party that  the claim of the complainant had to be rejected  because of the fact that the complainant had failed to produce the copies of the bills regarding purchase of tyres etc. But, however,  during proceedings before this Forum,the complainant has adduced on record all the relevant bills  i.e. bill for battery for an amount of  Rs. 9000/-, the original bill accounts for Ex.C-8. The complainant has also produced another receipt dated 6.6.2014 Ex.C-9 for an amount of Rs. 79,490/- regarding the accessories which were lost during the period the truck in dispute was stolen. Besides that complainant has also produced copy of the bill dated 13.6.2014 regarding the tyres of the truck in dispute which were purchased by him for an amount of Rs. 1,75,000/-, copy of the bill accounts for Ex.C-10.  It is the case of the complainant that  he has produced  all the relevant record for the purpose of getting the insurance claim from the opposite party. But , however, opposite party repudiated the claim of the complainant on false and flimsy grounds. The very fact that the opposite party has failed to adduce the report of the surveyor for the scrutiny of the court, shows that the opposite party has not approached the court with clean hands. Rather a pick and choose has been made by the opposite party when they produced on record the statement of the complainant dated 27.8.2014 allegedly recorded by the surveyor  to impress upon the Forum that the complainant stated to have purchased three pairs of tyres of Ceat company for the truck in dispute while the remaining tyres of the truck in dispute were old. It is further contended that the complainant had himself stated that the alleged tyres were purchased from J.P. dealer Jahajgarh, whereas the bill adduced on record Ex.C-10 pertained to Amritsar Tyre & Auto House, 50, 51-B, Baba Phoola Singh Market, Ghee Mandi Chowk, Amritsar. It has been contended that the claim of the complainant was totally baseless. But however, this pick and choose of the opposite party is not tenable in the absence of the report of the surveyor, appointed by the company to assess the loss of the complainant. Insurance company has tried to bring out discrepancies in the evidence of the complainant by using the previous statement of the complainant, made before the surveyor, which is of no avail. Once the Insurance company is found guilty of suppressing the surveyor report, the alleged evidence collected by the surveyor also cannot be used by the opposite party. As such we hold that opposite party has been deficient in service in repudiating the claim of the complainant.

8.       Taking into consideration the fact that the tyres were purchased on 13.6.2014 and there has been depreciation of the price of the tyres in dispute due to wear and tear. As such the complainant is entitled to 50% of the total amount of price of tyres in dispute which comes to Rs. 87,500/- , whereas loss regarding the accessories is assessed  at Rs. 44,245/- applying 50% deduction  on account of wear and tear and in all the opposite party is directed to pay Rs. 1,31,745/- in all within 30 days  from the date of receipt of copy of order ; failing which, the awarded amount shall carry interest @ 9% p.a from the date of filing of the complaint until full and final recovery. Cost of litigation is assessed at Rs. 2000/-. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 29.08.2016

/R/