DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 412/08 (old)
Case No.145/2011 (new)
Sh. Pradeep Kumar Sharma
S/o Sh. Raghu Prasad Sharma
R/o 1/3449, Ram Nagar,
Shahadra, New Delhi-110032 ……Complainant
Versus
United India Insurance Co. Ltd.
Through its Manager
Regional Office No.XII, 42-C, 3rd Floor,
Moolchand Commercial Complex,
New Delhi-110024 ……Opposite Party
Date of Institution: 26.04.11 Date of Order : 24.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Vide exparte order dated 15.01.11 passed in old case No. 412/08 our predecessors held the OP guilty of deficiency in service, allowed the complaint and directed the OP to pay to the complainant Rs.2,64,000/- towards the value of the amount “assessed by the OP and on which the premium charged by the OP from the complainant”, to pay compensation of Rs.50,000/- for causing harassment and mental agony and Rs.5,000/- as litigation charges to the complainant.
The OP filed First Appeal No.175/12 before the Delhi State Commission and vide order dated 02.12.15 exparte order dated 15.01.2011 was set-aside and the OP was allowed to file its evidence with the direction to this forum to proceed further in the matter in accordance with law. That is how the complaint is again before us.
Case of the complainant, in nutshell, is that he had purchased a Toyota Qualis car having registration No.DL5CB 4062 from one Ajay Kr. Tayal and got the same insured with the OP vide policy No.027854 dated 30.03.05 for a total amount of Rs.2,64,000/-; that the said vehicle was transferred in the name of the complainant on 16.05.05 and the insurance policy was also transferred in his name. On 07.06.05 the driver took away the vehicle on some pretext and when he did not return ultimately the complainant lodged a missing report of the driver of the said vehicle at P.S. Masarovar Park vide DD No.5A which ultimately was converted into FIR No.237/05 dated 13.06.05 registered under section 365 IPC. Thus, according to the complainant, the vehicle in question was taken away/stolen on 07.06.05. It is stated that one Delta Detectives served a notice dated 09.07.05 on the complainant and asked him to furnish the requisite documents and as per its demand the requisite documents were handed over to the Delta Detectives but no information was given to the complainant. According to the complainant, he had got the vehicle in question financed with HDFC Bank and vide his letter dated 17.06.05 the complainant through his counsel had informed the OP as well as the Manager of HDFC Bank that the Manager of HDFC Bank was at liberty to claim the insurance from the OP; that as per the practice adopted by the financing companies undated cheques used to be taken by them and as such HDFC Bank had also taken undated cheques against finance of the said vehicle; that on 30.05.08 the complainant received a court notice under section 138 N.I. Act on which he came to know that the HDFC Bank was not interested to take the claim regarding the insured vehicle. The complainant sent a legal notice dated 02.06.08 to the OP and he had also personally visited the office of the OP to release the compensation amount but to no effect. Hence, pleading deficiency in service on the part of OP, the complainant has filed the present complaint for issuing directions to the OP to release the insured amount of Rs.2,64,000/- alongwith interest @ 24% per annum, to pay Rs.50,000/- as compensation and also litigation charges.
In the written statement OP has inter-alia taken a preliminary objection that the alleged theft of the vehicle in question had taken place on 16.06.05 while the complainant has filed the present complaint in the month of July, 2008 and as such the complaint is not maintainable under the Consumer Protection Act. It is inter-alia stated that the matter was thoroughly investigated by the Delta Detectives who opined that the vehicle was used for commercial purpose as taxi and all the neighbourers in the locality of the complainant had also stated that the use of the said vehicle as taxi and, thus, this was in violation of the terms & conditions of the policy. It is denied that there is any deficiency in service on the part of OP. It is prayed that the complaint be dismissed.
In the rejoinder, the complainant has inter-alia stated that on the date of theft and before filing of the present complaint the complainant had waited for the investigation being carried out by the local police and thereafter sent a legal notice to the OP. He has denied that he has violated the terms & conditions of the policy. It is denied that the vehicle was being used for commercial purpose.
Complainant has filed his own affidavit in evidence as CW-1 and thereafter the OP was proceeded exparte.
As stated hereinabove, exparte order dated 15.01.11 passed by our Predecessors was set-aside by Delhi State Commission vide its order dated 02.12.15.
Now the OP has filed the affidavit of Sh. Satish Jagga, Sr. Divisional Manager in evidence.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments of the complainant but no oral arguments have been advanced on behalf of the OP despite opportunities given in this behalf.
As per the averments made in the complaint and affidavit of the complainant the vehicle had been allegedly taken away/stolen by his driver on 07.06.05 but, however, he sent the information to the OP and the Manager of HDFC Bank for the first time vide letter dated 17.06.05 which is marked as Ex. CW-1/6. Vide the said letter the complainant had asked the Manager of HDFC Bank not to present the post dated cheques in the bank and to recover the balance amount from the OP. The OP and the Manager of the HDFC Bank were informed that the driver of the complainant had taken the vehicle with his permission on 07.06.05 at about 5 p.m. but he did return till the date of said letter dated 17.06.05. Thus, there is no evidence on the record to prove that the complainant had informed the OP about the theft/taken away of the vehicle by the driver immediately after 07.06.05.
Copy of DD No.5A dated 09.06.05 recorded at P.S. Masarovar Park is Ex.CW1/3. Vide this report, the complainant had reported to the police that the driver alongwith the vehicle in question was missing since 07.06.05 (4 pm). Copy of the FIR has been filed on behalf of the complainant which is not legible. Copy of the legible FIR has been got filed by us on 30.03.17 which we mark as Mark ‘AA' for the purposes of identification. The FIR was got recorded on 13.06.05 by one Smt. Salma W/o Zubair wherein she stated that his husband had been working with the complainant Pradeep Kumar as driver on the latter’s car No.DL5CB 4062; that on 07.06.07 at 4 p.m. Pradeep came to their house and took her husband Zubair but before going her husband told her that according to Pradeep he had taken a booking for Bareilly and hence he (Zubair) will come by the morning of 08.06.05; that after 1-1½ hours Pradeep again came to our house and asked about Zubair on which she told that Zubair had gone with Pradeep. Therefore, it is clear that the said FIR was got recorded by the wife of driver and not by the complainant and that the vehicle in question was infact being used for commercial purpose. It demolishes the case of the complainant that on 07.06.05 his driver Zubair had taken away his vehicle on the pretext that he required the same for his urgent work.
Copy of the Final report under section 173 Cr.P.C , if any, is not filed on the record. In other words, it can be said that we are in dark so far as fate of the criminal case registered vide FIR No.237 dated 13.06.05 under section 365 IPC at P.S. M.S. Park is concerned.
According to the OP, Delta Detectives had sent a notice dated 09.07.05 vide code No. DD/OD/theft/118/2005 to the complainant asking him to provide the certified copy of the FIR and to serve the Vehicle recovery status from NCRB, both keys alongwith other documents as mentioned in the OP notice and after the detailed investigation Delta Detectives had submitted a reported dated 23.12.05 copy of which is Ex. RW1/2. Report Ex. RW1/2 is a very detailed report which runs into as many as 7 pages. Each and every aspect of the matter including use of the vehicle in question for commercial purposes and contradiction in the statement of insured recorded by the investigator and the police has been discussed in the report. The said investigation report has further highlighted that the insured Pradeep (complainant herein) was suspected to be involved in the crime and he had not cooperated and joined the investigation many times whenever required and that he had moved an application for anticipatory bail. The police had come to a conclusion that the vehicle had never been stolen and Sh. Pradeep (complainant herein) was having a hand in the said episode. Therefore, the theft of the vehicle in question by Zubair or by any other person is ruled out. Moreover, the complainant had never lodged his claim with the OP and rather had preferred to send a notice to the OP and the Manager of HDFC Bank to asking the Manager of HDFC Bank not to present the post dated cheques and to recover the amount from the OP which in the facts and circumstance of the present case cannot be said to be a claim lodged with the OP. Therefore, in view of the above discussion, we are of the considered opinion that the complainant has failed to prove that the vehicle in question had infact been stolen by anyone. The FIR was, on the other hand, got registered under section 365 IPC which deals with abduction/kidnapping.
In view of the above discussion, we hold that the complainant has failed to prove any deficiency in service on the part of OP. Accordingly, we dismiss the complaint with no order as to costs.
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.
Announced on 24.04.18.
