State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Uee Electricals Engineers Pvt. Ltd. on 30 January, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1986 of 2010.
Date of Institution: 22.11.2010.
Date of Decision: 30.01.2014.
United India Insurance Company Limited, Regional Office, SCO
No.123-124, Sector 17-B, Chandigarh, through Sh. Anil Kakkar, Deputy
Manager.
.....Appellant.
Versus
UEE Electricals Engineers Pvt. Ltd., through Dr. Ashwani Sehgal, its
Director, Regd. Office, 3rd Floor, Shardhanand Marg (G.B. Road), Delhi-
110006.
...Respondent.
First Appeal against the order dated
29.09.2010 passed by the District
Consumer Disputes Redressal Forum,
Gurdaspur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. B.J. Singh, Advocate for Sh. D.P. Gupta, Advocate, counsel for the appellant.
Sh. R.D. Sharma, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
United India Insurance Company Limited, appellant/ opposite party (In short "the appellant") has filed this appeal against the order dated 29.09.2010 passed by the learned District Consumer Disputes Redressal Forum, Gurdaspur (in short "the District Forum"). First Appeal No.1986 of 2010 2
2. Facts in brief are that M/s UEE Electricals Engineers Pvt. Ltd., through Dr. Ashwani Sehgal its Director, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, making the assertions that the respondent is registered owner of Honda City car bearing registration no.DL-3-CAK-1769, having Chassis No.MAKGD851A5N113620 and Engine No.L15A30036021. The said car was used by one of the directors of the respondent, namely Sh. Ashok Sehgal for his personal use and was insured with the appellant vide policy No.111100/31/09/01/00000636 w.e.f. 24.05.2009 to 23.05.2010 and a premium of Rs.11,338/- was paid.
3. On 25.08.2009 at about 10.00 A.M., Sh. Ashok Sehgal, Director of the respondent parked the car in question in the parking area of Gate No.2, Patiala House Courts Parking, New Delhi and obtained the parking slip from the attendant and the keys were handed over to the attendant, as the same are taken by the attendant for shifting the vehicle from one place to other place within the parking area, for making space for other vehicles. Sh. Ashok Sehgal came back at about 12.00 Noon and was shocked to find that the vehicle was missing and inquired about the attendant, but the attendant, who had taken the keys, was also not available. Sh. Ashok Sehgal immediately informed the police regarding the theft and a written complaint was made and FIR No.210 dated 26.08.2009 U/s 406 IPC was registered at Police Station, Tilak Nagar, New Delhi. The police authorities arrested the accused involved in the theft of the said car, but the said car could not be traced and the police submitted the Untraced Report and filed the charge-sheet and the trial is pending. The intimation regarding the First Appeal No.1986 of 2010 3 theft of the vehicle was given telephonically at the Regional Office of the appellant at Kasturba Gandhi Marg, New Delhi and a written intimation was given on 31.08.2009 at Pathankot. The appellant deputed Sh. Atul Tyagi & Associates as surveyor to assess the loss on account of theft of the car in question and the respondent submitted all the documents, but more than seven months have passed, the appellant has not settled the claim. Despite personal visits, the claim was not settled and the claim amount i.e. the sum assured of Rs.4.00 lacs has not been paid. The appellant was under legal obligation to settle the claim within three months from the date of intimation i.e. 31.08.2009 and non-settlement of the claim amounts to deficiency in service and unfair trade practice. The respondent suffered mental tensional and harassment and is entitled to harassment.
4. It was prayed that the appellant may be directed to pay Rs.4.00 lacs alongwith interest @ 12% p.a. w.e.f. 25.08.2009 till realization and to pay Rs.50,000/- as compensation and Rs.15,000/- as litigation expenses.
5. In the written version filed on behalf of the appellant, preliminary objections were taken that the respondent has no locus standi to file the complaint. After receiving the intimation, the appellant deputed Sh. Atul Tyagi & Associates to investigate the case and the report dated 21.02.2010 was submitted and it was suggested that FIR of the incident was registered U/s 406 IPC which is for criminal breach of trust and the policy covers the loss or damage to vehicle by burglary, house-breaking or the theft. Criminal breach of trust is not covered. In the present case, the vehicle was stolen by the attendant of the parking and it is criminal breach of trust and the appellant has no liability. The surveyor has assessed the loss to the tune of Rs.3.90 lacs vide report First Appeal No.1986 of 2010 4 dated 27.04.2010. The appellant deputed Sh. Atul Tyagi & Associates and after receiving investigation reports of both the surveyors, the case was sent to higher authorities and the matter is under consideration and the complaint is pre-mature. The complaint is bad for non-joinder of necessary parties.
6. On merits, similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the car was taken out of possession of the respondent and it will be taken as a case of theft. The same has not been recovered although the accused were nabbed. The company is liable to make good the loss. The appellant was directed to process the claim and settle it and indemnify the loss assessed by Sh. Arun Kumar and Company, Surveyor and Loss Assessor vide order dated 27.04.2010 Ex.R-2.
9. Aggrieved by the impugned order dated 29.09.2010, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties as well as perused the written arguments submitted on behalf of the appellant.
11. The appeal was filed on the grounds that the complaint is pre-mature and the claim is not payable as the case was registered u/s 406 IPC which is a breach of trust and is not covered under the policy. First Appeal No.1986 of 2010 5 The vehicle was handed over by the Director of the respondent to the person of the parking contractor. The Director gave the car to unkown person which facilitated the loss. The Director should have not given the keys to the attendant and leaving the keys of the car is an act which amounts to lack of reasonable care. The District Forum ought to have given directions that before payment of the claim, the respondent should get the vehicle transferred in favour of the appellant and to execute the require documents. It was prayed that the impugned order may be set aside by allowing the appeal.
12. In the written arguments filed on behalf of the appellant, similar pleas as taken in grounds of appeal were repeated.
13. On behalf of the respondent, it was contended that the vehicle was parked at the parking place and as per the procedure, the keys were given to the attendant, so that the vehicle could be moved for adjusting and making space for other vehicles, which come for parking. Section 406 IPC is not applicable as the car was taken away by the person, who was present in the parking area. The District Forum has only given the directions to settle the claim and indemnify the loss as per the survey report. The appellant has not even complied with that order and the appeal deserves dismissal.
14. We have considered the respective version/submissions of the parties and have thoroughly screened the entire record.
15. The vehicle in question, belonging to the respondent, was insured with the appellant for the period 24.05.2009 to 23.05.2010 and on 25.08.2009, it was parked and the keys were given to the attendant, but the attendant has taken away the vehicle. The police has registered the FIR Ex.C-5 on the complaint Ex.C-3 on 26.08.2009. Ex.C-8 is the certificate of insurance. The appellant, in order to rebut the evidence of First Appeal No.1986 of 2010 6 the respondent, has filed affidavit of Sh. P.S. Kler, its Divisional Manager Ex.R-1. Similar pleas as taken in the written version were repeated and it was stated that the matter is still under consideration. Ex.R-2 is the report of Arun Kumar & Company, Surveyor and in the said report, he has given the market value of the vehicle as Rs.3.90 lacs. Ex.R-3 is the investigation report of Atul Tyagi & Associates and the facts which came to light during investigation were detailed at page- 2 of the report and it was categorically mentioned at Point-D as follows:-
"The spot where this incident took place was an NDMC authorized parking space, naturally parking there was not on owner's risk as its safety is the duty & responsibility of parking contractor."
16. Under head "Observations and Findings", it was concluded that the case was registered U/s 406 IPC and it is a breach of trust and is not covered.
17. This observation of the investigation that the case in hand was covered u/s 406 IPC is not tenable, because the parking of the vehicle in an authorized parking space cannot be termed as entrustment. The NDMC must have given this authorized space to a contractor to maintain the parking of the cars and the attendant employed by the contractor took away the vehicle and it falls within the definition of theft. The appellant itself has stated that the case is pre- mature and the claim was under consideration and the District Forum has only directed the appellant to consider the case as per the survey report, but that has not been considered. There is no illegality or infirmity in the order passed by the District Forum. First Appeal No.1986 of 2010 7
18. In view of above discussion, the appeal is dismissed and the impugned order under appeal dated 29.09.2010 passed by the District Forum is affirmed and upheld. No order as to costs.
19. The appellant shall comply the order passed by the District Forum within 45 days of receipt of copy of the order.
20. The arguments in this appeal were heard on 20.01.2014 and the order was reserved. Now the order be communicated to the parties.
21. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member January 30, 2014.
(Gurmeet S)