State Consumer Disputes Redressal Commission
Icici Lombard Gen. Insurance Co. Ltd. vs Smt. Janki Tiwari on 23 March, 2023
Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023
48 of 2012 Vs.
Smt. Janki Tiwari
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 02.04.2012
Date of Final Hearing: 16.03.2023
Date of Pronouncement: 23.03.2023
First Appeal No. 48 / 2012
ICICI Lombard Gen. Insurance Co. Ltd.
Regd. Office: ICICI Towers Bandra Kurla Complex, Mumbai
Branch Office: Municipal No. 447, IIIrd Floor
Opp. Great Value Hotel, Rajpur Road, Dehradun
Through Authorized Representative Sh. Vivek Negi
(Through: Sh. Yogesh Sethi alongwith
Sh. Chitradeep Rana, Advocates)
.....Appellant
VERSUS
Smt. Janki Tiwari W/o Sh. Naveen Chandra Tiwari
R/o Kunwarpur, Jawalapur, P.S. Haldwani, Nainital
.....None for Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 25.02.2012 passed by the District Consumer Disputes Redressal Forum, Nainital (hereinafter to be referred as the District Commission) in consumer complaint No. 136 of 2010 styled as Smt. Janki Tiwari Vs. ICICI Lombard Gen. Insurance Co. Ltd., wherein and whereby the consumer complaint was allowed.1
Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari
2. The facts giving rise to the present appeal, in brief, are as such that that the complainant had filed a complaint No. 136 of 2010 against the opposite party alleging deficiency of service in repudiation the claim of the complainant. Complainant had claimed to be registered owner of Alto Car bearing registration No. UA04-E-3721 which was insured for the period from 04.08.2009 to 03.08.2010. It is further alleged by the complainant that the above insured car was robbed in Vilaspur, Rudrapur about which an FIR was lodged in the P.S. Vilaspur, Rudrapur. The opposite party did not pay the insured amount inspite of the information about the incident thereby the complainant has suffered mental agony and financial loss not awarding the compensation of the insured vehicle to the complainant. In such circumstances the present complaint has been filed by the complainant with the request to direct the opposite party to pay the insured amount to the tune of Rs. 2,15,250/- with Rs. 50,000/- for mental agony alongwith costs of suit Rs. 5,000/-.
3. The opposite party has averred in its written statement that the complaint was filed with concocted and false and imaginary facts. It is the burden of the complainant to prove her case, but the complainant has not submitted the requisite documents to the office of the opposite party and on account of which the claim of the complainant was repudiated. That the incident occurred due to the negligence of the complainant, therefore, the liability fastened to the opposite party is wrong, hence the complaint is liable to be dismissed.
4. After hearing both the parties and after perusing the record, the learned District Commission passed the impugned judgment on 25.02.2012 wherein it is held as under:-
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5. Aggrieved by the aforesaid judgment and order of the District Commission, the appellant - opposite party has preferred the present appeal contending that the impugned judgment is illegal, unsustainable and the District Commission has not exercised its jurisdiction vested in it; the District Commission has exercised its jurisdiction with material illegality and irregularity vested in it by law. It is further averred that the complainant has not come with clean hands which can be gathered from the following facts; that the claim was reported after the delay of 180 days; the FIR was lodged by one Sh. Nazim S/o Sh. Banne. In the FIR Sh. Nazim alleged that 3 Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari car was owned by one Sh. Sartaj; the incident in the FIR has been alleged to have occurred at 6:00P.M. whereas all other correspondence the incident has taken place at 8:00P.M. Apart from it, Sh. Nazim has conceded that the car was being used for commercial purpose in carrying passengers, which is contradictory to the terms of the policy. As per the investigation of the police it was found that no theft has ever taken place. Thereby the police investigation was closed and the final report was submitted indicating the fact that the FIR was fake. In such circumstances, the District Commission has committed a manifest error in relying upon the FIR which has itself revealed that there has been breach of policy condition. Therefore, the Commission be pleased to set aside the impugned judgment and allow the appeal.
6. We have heard learned counsel for the appellant. A perusal of the order sheet has revealed that the complainant did not appear to submit her argument, hence in the absence of the complainant, the appeal is being heard ex-parte as per the order dated 03.02.2023.
7. The main contention on behalf of the appellant is that the insured car is not owned by the registered owner. We have perused the original record summoned from the District Commission. The complainant has submitted a copy of FIR before the District Commission which is paper No. 4/2 of the District Commission, wherein Sh. Nazim has reported the matter to the S.O., Vilaspur, District Rudrapur alleging that he is the driver of Alto Car (white color) bearing registration No. UA04-E-2721 which is owned by the owner Sh. Sartaj S/o Sh. Mumtaj R/o Banphoolpura, Line No. 8, Haldwani. (Here, the registration number of the vehicle in question is different as per the complaint case), On dated 18.03.2010, two persons came and booked the insured vehicle from the taxi stand for Rudrapur and has taken the vehicle at 6'O clock in the evening deceiving him. On reaching 4 Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari Rudrapur, the alleged two persons had stated to him that they had some urgent work, therefore, the driver would left them nearby Railway Crossing. Whenever, the car reached nearby Railway Crossing, the alleged two persons left him there and has taken away the car from that place and fled from there. Thus, in the FIR the driver has shown the owner of the vehicle Sh. Sartaj. In the survey report, the same facts have been averred by the surveyor of the company Sh. Salauhddin & Associate "That the insured had a Maruti Alto Car No. UA04/E-3721 for commercial use. She had sold the vehicle to one Mr. Chandan Singh on 01-02-2010 who had further sold the vehicle to Mr. Mohd. Sartaz of Haldwani. On 18-03-2010 at about 6.00P.M. two unknown persons came while the driver was waiting for booking at Haldwani taxi stand and booked the vehicle for Rudrapur. At about 8.00P.M. the driver reached Rudrapur but the persons who had booked the vehicle told him to drop them to little bit ahead to Rudrapur. When the driver drove the vehicle 7-8Km. ahead to Rudrapur, the passengers hit him by a beer bottle and then looted the car on gun point. The driver sustained head injury; when regained his conscience he informed the owner and FIR was lodged accordingly."
8. The surveyor has also submitted documentary evidence alongwith survey report. The letter of Smt. Janki Tiwari is available on record, who has clearly shown and proved that the vehicle in question was sold by her to some Chandan Singh for consideration of Rs. 1,20,000/- and her statement was recorded by the surveyor on 08.10.2010. There is also an agreement written on Rs. 10/- stamp paper available on record of the District Commission which bears paper No. 11/22, wherein the same facts have been averred. Sh. Chandan Singh has also given his written statement on 08.10.2010 to the surveyor alleging that he has purchased the insured vehicle for consideration of Rs. 1,20,000/- from Smt. Janki Tiwari and thereafter he further sold the vehicle in question for consideration of 5 Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari Rs. 1,40,000/- to Sh. Sartaj. Sh. Shartaj has also given his written statement to the surveyor on 08.10.2010 alleging that he is the owner of the Alto Car and it is in his custody; it is being run in his custody as a taxi. He has further stated that two persons have booked the vehicle in question as taxi by paying Rs. 600/- when the vehicle reached at Vilaspur, these two persons kept a tamancha (Revolver) on the head of the driver and broke the beer bottle on the head of the driver thereby they snatched the car and went away from there. The driver Sh. Nazim has also given the written statement to the surveyor wherein he has narrated the same averment as averred by Sh. Sartaj alleging that the insured car was booked at the taxi stand for Rudrapur by two persons and when the car reached Rudrapur; these two persons have alleged that they have to go 7Km. forward from Rudrapur; when they reached there, they requested him to leave them ahead, then the driver took the vehicle at Railway Crossing where both the persons broke the beer bottle on his head and snatched the vehicle showing their tamancha. He became unconscious and both the miscreants fled away from there. He also informed the incident to the owner Sh. Sartaj and also intimated the P.S. Vilaspur, Rudrapur.
9. As per the documentary evidence it is revealed that the vehicle in question was already sold by the registered owner Smt. Janki Tiwari to Sh. Chandan Singh, who further sold the same to Sh. Sartaj, whose driver Sh. Nazim has reported the matter to the P.S. Vilaspur.
10. The surveyor has also found in his investigation that the caption vehicle of the insured is alleged to have looted by some unidentified miscreants at Haldwani. It is further alleged by the appellant that the insured has already sold the vehicle earlier, hence the complainant had no insurable interest.
6Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari
11. Complainant has not submitted any evidence contrary to the surveyor report in order to show that the insured vehicle was never sold to Sh. Chandan Singh by its registered owner Smt. Janki Tiwari, then further by Sh. Chandan Singh to Sh. Sartaj. It is established in the several cited case law when the vehicle has already been sold to some other person by the registered owner before the occurrence of theft, then the insured is not entitled to get the claim on account of not having insurable interest in the subject vehicle.
12. According to the statement of the driver Sh. Nazim (first informant of FIR) it is proved that the vehicle was being used as Taxi at the time of incident. Sh. Sartaj, who purchased the insured vehicle from Sh. Chandan Singh has clearly conceded the fact in his written statement given to the surveyor that at the time of incident, the vehicle was being run as a Taxi.
13. Apart from it, the driver has clearly stated that the two persons / miscreants came to the taxi stand and they booked the car by paying Rs. 600/- as taxi fare to travel from Haldwani to Rudrapur. Thus, the surveyor report and statement of Sh. Nazim and Sh. Sartaj have fully proved that at the time of occurrence, the insured vehicle was being run and plied by the driver as Taxi.
14. In the complaint, it is nowhere alleged that the vehicle in question was being run as taxi for the sole livelihood of the insured. Hence, in the absence of such plea, it shall be presumed that the vehicle in question was being used for commercial purpose as a taxi at the time of incident.
15. As per the Consumer Protection Act, 1986, the commercial matter does not come within the definition of the consumer. Hence, the matter is 7 Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari not entertainable at all within the purview of Consumer Protection Act, 1986.
16. On record there is a copy of Final Report (F.R.) (paper No. 11/18 on the record of District Commission). It is proved that after registration of the incident in the P.S. Vilaspur, Rudrapur, the investigation took place and the police after investigating into the matter submitted the Final Report before the competent court vide paper No. 11/18.
17. It is proved that the police did not find the vehicle in question to have been looted on gun point by some unidentified miscreants, who booked it from Haldwani to Rudrapur and the incident was found as fake; the police submitted Final Report before the competent court stating that the said vehicle in question was never looted and as per the locals also the incident of the loot of the vehicle did not take place.
18. Thus, as per the copy of Final Report of the policy, it is proved that the incident of loot has never taken place as alleged by the driver in his report.
19. The registered owner / complainant has not submitted any such document that the Final Report submitted by the police was rejected on the submission of his protest application.
20. Learned counsel for the appellant has averred that the District Commission has wrongly passed the impugned judgment because the incident in the FIR has been alleged to have occurred at 6:00P.M. whereas in other correspondence incident took place at 8:00P.M. 8 Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari
21. We have perused the documents. In the Chik FIR, the incident is alleged to have happened at 6:00P.M. whereas Sh. Sartaj in his written statement submitted before the surveyor has averred that the incident took place at 8:30P.M. The driver Sh. Nazim before the surveyor has stated that the incident took place at 8:00P.M. nearby Railway Crossing. Thus, after perusing the above statements, the time of the occurrence is found different from one another.
22. It is also proved that the first informant Sh. Nazim driver of the vehicle in question in FIR has admitted that the car was being used for commercial purpose in carrying passengers.
23. Considering the documentary evidence enclosed with the surveyor investigation, it is proved that the insured vehicle was sold by the registered owner Smt. Janki Tiwari to some Chandan Singh and thereafter the subsequent purchaser Sh. Chandan Singh further sold it to Sh. Sartaj, who has admitted before the surveyor that the vehicle was being used as Taxi.
24. As per the police investigation, the theft incident of the insured vehicle was found fake. Thus, we have found that the District Commission has committed a manifest error relying upon the version of FIR which itself revealed that there had been breach of terms and conditions of the insurance policy. It is also clearly proved that the vehicle in question was being used at the time of theft as taxi and the District Commission has committed a manifest error in considering the complainant as consumer.
25. In such circumstances, we are of the definite opinion that the repudiation order of the insurance company seems to be just as the claim has breached the terms and conditions of the insurance policy.
9Appeal No. ICICI Lombard Gen. Ins. Co. Ltd.. 23.03.2023 48 of 2012 Vs. Smt. Janki Tiwari
26. We are of the definite view that the District Commission has failed to consider all the facts available on record and has exercised its jurisdiction with material illegality and irregularity and has committed a gross error while passing the impugned judgment.
27. We found that the impugned judgment is perverse, hence it is liable to be set aside. Accordingly, the appeal is liable to be allowed.
28. Appeal is allowed. Impugned judgment passed by the District Commission is hereby set aside and the consumer complaint is dismissed. No order as to costs.
29. Statutory amount deposited by the appellant be returned to the appellant.
30. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The original record of the District Commission concerned be sent alongwith copy of this order to the concerned District Commission for record and necessary information.
31. File be consigned to the record room alongwith copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 23.03.2023 10