State Consumer Disputes Redressal Commission
New India Assurance Co. vs Sh.Bahala on 2 June, 2010
APPEAL NO: 432/2010 The New India Assurance Co. Ltd. Divisional Office Ajmer through Manager, Regional Office Jaipur. Opposite party-appellant Vs. Shri Bahala s/o Ismile r/o House no. 48 Village Lohabas P.S.Punhana, Distt. Gurgaon ( Haryana) Complainant-respondent 2.6.2010 Before: Mr.Justice Sunil Kumar Garg- President Mr.Shashi Kumar Pareek-Member
Mr.Amarnath Purohit counsel for the appellant Mr.S.P.Gandhi counsel for the respondent BY THE STATE COMMISSION This appeal has been filed by the appellant Insurance Co. against order dated 23.2.10 passed by the District 2 Forum,Ajmer in complaint no. 160/08 by which the complaint of the complainant respondent was allowed in the manner that the appellant was directed to pay to the complainant respondent 75% of the amount of Rs.9,30,750/- that comes to Rs. 6,15,563/- alongwith interest @ 9% p.a. w.e.f. 26.3.08 and further to pay a sum of Rs. 1500/- as cost of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint against the appellant before the District Forum,Ajmer on 26.3.08 inter alia stating that his Ashok Leyland Truck bearing no. HR 38/ H 9014 was got insured with the appellant Insurance Co. for the period 28.4.04 to 27.4.05 for a sum of Rs. 9,30,750/- as IDV. It was further stated in the complaint that the said vehicle was being carried on by the son of the complainant respondent on 25.4.05 and was taken by him to Kama and at night the said truck was kept near village Senjhpuri and when he came in the morning it was found that the said truck was stolen away by some one and when he went to lodge a report with Police Chowki Kethwara, he was informed that the report be lodged with the Police Station Kama and when he went to the Police Station Kama, he was told that first go to the Court. It was further stated in the complaint that that is why a complaint was filed on 27.4.05 before the Judicial Magistrate Kama and that complaint was sent under section 156 (3) CrPC by the Judicial Magistrate 3 Kama to the Police Station Kama where on 9.5.05 a FIR bearing no. 166/05 was chalked out and investigation was started and the police had submitted FR on 31.5.05 bearing FR no. 337/05 and the same was accepted by the Judicial Magistrate Kama through order dated 23.7.05 as the police had come to the conclusion that neither the vehicle was got recovered during investigation nor the culprits were apprehended. It was further stated in the complaint that information of that incident was also given by the complainant respondent to the office of the appellant Insurance Co.
It was further stated in the complaint that before filing of this complaint before the District Forum,Ajmer a complaint was filed on 20.10.05 before the District Forum,Gurgaon ( Haryana ) bearing complaint no. 689/05 but the same was dismissed through order dated 6.2.08 in the following manner-
" Admittedly, the complainant got the truck in question insured with Ajmer branch of New India Assurance Co. Ltd. The above branch has its no branch within the territorial jurisdiction of this Forum. The branch from where the complainant got the truck insured had no divisional office within the territorial jurisdiction of this Forum. The opposite party, therefore, does not voluntarily resides, carries on business or works for gain within the 4 territorial jutisdiction of this Forum. The claim was also lodged by the complainant with the opposite party at Ajmer. No cause of action or part thereof has been shown to have been arisen within the territorial jurisdiction of this Forum. This Forum, therefore, has no jurisdiction to try the present complaint. Hence, this complaint is rejected on this score alone. The delay in deciding the complaint is due to heavy pending files. File be consigned to the records aftr making due compliance."
Thereafter the present complaint was filed.
A reply was filed by the appellant Insurance Co. on 9.7.08 and it was stated in the reply that since the appellant had no information about the incident before the complaint was filed by the complainant before the District Forum Gurgaon, therefore, matter was not investigated by the appellant and from that point of view, the complainant respondent was not entitled to any relief.
It was further stated in the reply that the present complaint was time barred as the same has been filed before the District Forum, Ajmer after expiry of two years and since the term of the policy was going to expire on 27.4.05 and theft of the vehicle had taken place on 25.4.05, therefore, this creates doubt that 5 whole story of theft was under
suspicion and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Ajmer through impugned order dated 23.2.10 had considered the claim of the complainant respondent as sub-standard and had allowed the complaint of the complainant respondent as stated above inter alia holding -
(i) That the present complaint could not be treated as time barred as prior to that a regular complaint was filed by the complainant respondent before the District Forum,Gurgaon bearing no. 689/05 and the same was decided by the District Forum,Gurgaon on 6.2.08 and after that if the complaint was filed on 26.3.08, that would be within limitation.
(ii) That so far as the delay in lodging the FIR is concerned, a bare perusal of the FIR bearing no.
166/05 of Police Station Kama dated 9.5.05 clearly reveals that prior to that a complaint was filed by the complainant on 28.4.05 before the Judicial Magistrate Kama from where the complaint was sent under section 156 (3) CrPC to the Police Station Kama and thereafter a FIR was chalked out on 9.5.05 after receiving the 6 complaint and therefore, it could not be said that there was delay in lodging the report.
(iii) So far as the facts of the case are concerned , it was stated that since the police had submitted FR on 31.5.05 and the same was accepted by the Judicial Magistrate on 23.7.05 on the ground that neither the culprits were apprehended nor the truck was recovered, therefore, it could not be said that the report lodged by the complainant was false one as the police had not found the case as false one.
(iv) But on point that since the appellant was informed about the incident of theft with delay and for that claim of the complainant respondent was treated as sub-standard.
Aggrieved from the said order dated 23.2.10 passed by the District Forum,Ajmer this appeal has been filed by the appellant Insurance Co.
3. In this appeal the following contentions have been raised by the learned counsel for the appellant-
(i) That the complaint of the complainant- respondent was time barred as theft had taken place on 25.4.05 and complaint was filed before the District 7 Forum,Ajmer on 26.3.08, therefore, it was filed after more than two years.
(ii) That the District Forum,Ajmer had no jurisdiction to try the complaint as the policy in question was issued from Chennai office of the appellant Insurance Company.
(iii) That since the policy was to expire on 27.4.05 and since the alleged theft had taken place on 25.4.05, therefore, it appears that theory of theft was under
suspicion and thus there was no theft.
(iv) That theft had taken place on 25.4.05 and regular FIR was lodged with the Police Station Kama on 9.5.05, therefore, there was delay in lodging the report.
(v) That since the information of the incident of theft was given to the office of the appellant with delay, therefore, on that count the complaint should have been dismissed in toto and the District Forum was not justified in treating the claim as sub-standard and the District Forum had committed serious error and illegality in decreeing the claim of the complainant respondent. Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.8
On point of delay
4. In this appeal so far as the delay in filing the complaint is concerned, it may be stated here that when the District Forum, Gurgaon had dismissed the complaint of the complainant respondent through order dated 6.2.08 and if after that order the complaint was filed on 26.3.08, the District Forum had rightly observed that there was no delay in filing the complaint before the District Forum,Ajmer because of the simple reason that the time spent by the complainant respondent before the District Forum, Gurgaon could be sought to be exempted under section 14 of the Limitation Act in the light of the judgement of the Hon'ble Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute ( 1995) 3 SCC 583 and this point raised by the appellant stands rejected.
On point of jurisdiction
5. In our considered opinion, this argument does not carry weight because of the following reasons-
(i) That a bare perusal of the cover note reveals that it was got prepared at Beawar Camp Ajmer, meaning thereby the complainant respondent had got the vehicle insured at Beawar Camp Ajmer and it would not make any 9 difference if the cover note was issued later on by the office of the appellant at Chennai.
(ii) Apart from that when the complaint was being contested by the appellant at District Forum , Gurgaon, a preliminary objection regarding jurisdiction was raised by the office of the appellant on the ground that District Forum, Gurgaon had no jurisdiction and since the office of the appellant was at Ajmer, therefore, District Forum, Ajmer had jurisdiction and this point was considered by the District Forum, Gurgaon and complaint was dismissed on ground of jurisdiction.
6. When this being the position, now the appellant Insurance Co. is stopped from raising the point that District Forum, Ajmer had no jurisdiction and thus point of jurisdiction stands rejected.
Whether theft had taken place or not
7. Looking to the fact that in this case theft had taken place on 25.4.05 and looking to the fact that complaint was filed by the complainant before the Judicial Magistrate Kama on 27.4.05 within 2-3 days from the incident and looking to the fact that the said complaint was sent by the Judicial Magistrate Kama under section 156 (3) CrPC to the Police Station Kama where on 9.5.05 a FIR bearing no. 166/05 was chalked 10 out and investigation was started and the police had submitted FR on 31.5.05 bearing FR no. 337/05 and the same was accepted by the Judicial Magistrate Kama through order dated 23.7.05 inter alia holding that the present case was not false one but neither the vehicle was got recovered nor the culprits were apprehended, therefore, to say that no theft had taken place could not be found acceptable and this point is also rejected.
Whether there was delay in lodging the report or not
8. In this case theft had taken place on 25.4.05 but the complainant respondent had filed a complaint before the Judicial Magistrate Kama on 27.4.05 and if the same was sent by the Judicial Magistrate Kama to the Police Station Kama on 9.5.05 and if FIR was chalked out by the Police Station Kama on 9.5.05 bearing no. 166/05, it could not be said that there was delay in lodging the report.
9. No doubt FIR was chalked out on 9.5.05 but prior to that a regular complaint was filed by the complainant respondent with the Judicial Magistrate Kama on 27.4.05, therefore, it could easily be said that the complainant respondent had informed the competent authority on 27.4.05 for the theft which had taken place on 25.4.05 and thus the argument of the learned counsel for the appellant Insurance 11 Co.
that there was delay in lodging the report could not be appreciated and stands rejected.
On point of compensation
10. It may be stated here that the vehicle in question was insured with the appellant Insurance Co. for a sum of Rs.9,30,750/- as IDV and in case of theft, if the vehicle was not recovered, the complainant respondent is entitled to full amount of the insured value but since there was delay in informing the office of the appellant Insurance Co., for that if the District Forum had treated the claim as sub-standard and further no appeal for enhancement of the amount had been filed by the complainant respondent against order dated 23.2.10 of the District Forum, Ajmer therefore, we see no reason to differ with the findings recorded by the District Forum on point of compensation if the claim was being treated as sub-standard by the District Forum,Ajmer.
11. For the reasons stated above, the findings recorded by the District Forum by which complaint of the complainant respondent was allowed in the manner as stated above are liable to be confirmed one as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic 12 infirmity,illegality or perversity and this appeal deserves to be dismissed.
Accordingly, the appeal filed by the appellant is dismissed.
Member President nm