State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Parminder Singh on 3 November, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.510 of 2017
Date of Institution : 03.07.2017
Order reserved on: 01.11.2017
Date of Decision : 03.11.2017
1. The New India Assurance Co. Ltd., Head Office at Building
No.87, Mahatma Gandhi Road, Fort, Mumbai, through its
manager at Regional Office SCO No.36-37, Sector 17-A,
Chandigarh
2. The New India Assurance Co. Ltd., Divisional Office
Hoshiarpur, through its Manager at Regional Office, SCO
36-37, Sector-17, Chandigarh.
.....Appellants/opposite parties
Versus
Parminder Singh S/o Sh. Jagjit Singh, R/o H. No.59, Ward No.13,
Block 8, Mahilpur, District Hoshiarpur.
.......Respondent/complainant
Appeal against order dated
19.05.2017 passed by the District
Consumer Disputes Redressal
Forum, Hoshiarpur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. P.S. Bedi, Advocate For respondent : Sh. Bhupeshwar Jaswal, Advocate ................................................ FA 510 of 2017 2 SURINDER PAL KAUR, MEMBER :-
Challenge in this appeal by appellant is to order dated 19.05.2017 of District Consumer Disputes Redressal Forum Hoshiarpur, partly accepting the complaint of respondent of this appeal and directing appellants to pay an amount of Rs.47,415/-
insured value of the vehicle along with interest at the rate of 9% p.a. from the date of filing the complaint till its realization. Further, appellants of this appeal were directed to pay an amount of Rs.10,000/- as compensation for mental harassment. Appellants of this appeal are opposite parties in the complaint and respondent of this appeal is complainant therein and they be referred, as such, hereinafter for the sake of convenience.
2. Complainant instituted complaint under Section 12 of Consumer Protection Act 1986 (in short 'Act') against OPs on the averments that on 16.08.2014, he purchased Activa (SCV110E) bearing registration No.PB-07-Z-1458(T), Engine No.JF50E71137980 and chassis No.ME4JF502GE7138370 from Punj Honada, Jalandhar and the said vehicle was hypothecated with HDFC Bank Hoshiarpur and the same was also insured with OPs, vide insurance cover note No.31/14/07985, which was valid from 15.08.2014 to 14.08.2015. On 12.12.2014, father of complainant along with Manjot Kaur came to Mahilpur from his personal work at about 06:00PM and vehicle was parked in front of Khalsa Communication shop Phagwara Road, Mahilpur. His FA 510 of 2017 3 father went inside the shop for repair of his mobile and Manjot Kaur was meanwhile looking after the vehicle in question. Some unknown person took away the vehicle from the custody of Manjot Kaur forcibly. FIR No.138 dated 17.12.2014, under Section 379 IPC was lodged by his father at PS Mahilpur District Hoshiarpur. Police investigated the matter, but failed to trace out the culprit. In the end, untraced report was sent by the Police. Complainant informed OPs regarding the fact of theft of vehicle and lodged his insurance claim, but the latter asked him to handover the untraced report of FIR. After receiving the untraced report, he approached with OPs to settle his claim, but vide letter dated 26.03.2015, OPs flatly refused to settle his claim. The above-said act of the OPs amounts to deficiency in service. Hence, he filed the complaint before the District Forum seeking following reliefs against OPs:-
i. to pay Rs.47,415/- as the price of the vehicle along with interest at the rate of 2% p.a.; ii. to pay Rs.20,000/- as compensation for mental harassment.
3. Upon notice, written reply was filed by OPs by raising the preliminary objections that father of complainant was himself negligent, while parking the vehicle outside the shop at Mahilpur. He failed to take reasonable care and caution to safeguard the vehicle and left the ignition keys in the vehicle and did not lock the vehicle. Since complainant violated the terms and conditions of FA 510 of 2017 4 insurance policy by not taking all reasonable steps to save the vehicle from loss of damage, hence, OPs are not liable to reimburse the claim to him. They rightly issued letter dated 26.03.2015, as no claim to complainant on the basis of negligence of his father in not taking proper precaution to safeguard the vehicle like a prudent man. On merits, all the preliminary objections were reiterated and all other averments made in the complaint were denied emphatically. OPs prayed for dismissal of complaint with cost.
4. The complainant tendered in evidence his affidavit Ex.C1, along with documents Ex.C-2 and Ex.C4 and closed the evidence. As against it, OPs tendered in evidence affidavit of Sh. Sh. Ashok Kumar, Divisional Manager of OPs as Ex.OP1-2/1 along with documents Ex.OP1-2/2 to Ex.OP1-2/8, and closed the evidence. On conclusion of evidence and arguments, District Forum Hoshiarpur, partly accepted the complaint of complainant, vide its order dated 19.05.2017and directing OPs to pay an amount of Rs.47,415/-, the insured value of the vehicle along with interest at the rate of 9% p.a. from the date of filing the complaint till its realization to complainant. Further, OPs were directed to pay an amount of Rs.10,000/- as compensation for mental harassment to him. Aggrieved by above order of the District Forum Hoshiarpur, OPs now appellants have filed this appeal against the same before this Commission.
FA 510 of 2017 5
5. We have heard the learned counsel for both the parties and have perused the evidence on the record. A perusal of Moto Claim Form Ex.OP1-2/5 reveals that complainant himself mentioned under the head of brief particulars of accident, which is reproduced as under:
"Insured Activa was parked in the front of Khalsa Communication Phagwara Road, Mahilpur and its keys remained entangled in the activa. Some unknown person took away the Activa."
OPs placed on record the terms and conditions of the policy Ex.OP1-2/3. Clause No.4 of the policy reads as under:-
"The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have a all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
6. The parties are strictly governed by the term and conditions of the policy. Consumer Fora cannot travel beyond the terms FA 510 of 2017 6 and conditions of the policy between the parties. This observation was also recorded by Supreme Court in judgment "General Assurance Society Ltd. Vs. Candmull Jain", 1966 AIR (SC) 1644 has observed as under:-
"In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract.
7. Complainant breached the fundamental condition of the policy by not taking proper precaution to safeguard the vehicle. Leaving ignition key in the engine of the vehicle is prima facie proof of negligence of the complainant in not taking proper care to safeguard the vehicle, thereby violating Clause No.4 of the terms and condition of the policy. When complainant himself is negligent and failed to take reasonable steps to safeguard his vehicle, as observed above, then OPs are not liable to pay the claim to him. The District Forum without considering all the facts and circumstances of the case erroneously allowed the complaint of the complainant and its order is not legally sustainable in this appeal.
8. In view of our above discussion, we accept the appeal of the OPs and set aside the order of the District Forum Hoshiarpur dated 19.05.2017 resulting into dismissal of the complaint of complainant.
FA 510 of 2017 7
9. The Appellants/OPs had deposited an amount of Rs.25,000/- with this Commission at the time of filing this appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to appellant/OPs by way of a crossed cheque/demand draft after expiry of period of 45 days from the date of receipt of copy of the order, subject to stay order, if any.
10. Arguments in this appeal were heard on 01.11.2017 and the order was reserved. Certified copies of order be communicated to the parties under rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. KLAR)
PRESIDING JUDICIAL MEMBER
November, 03 2017 (Surinder Pal Kaur)
DB MEMBER