State Consumer Disputes Redressal Commission
New India Assurance Co.Ltd. Etc. vs Boparai Construction Company on 12 August, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.1113 of 2022
Date of Institution : 19.12.2022
Reserved on : 05.08.2024
Date of Decision : 12.08.2024
The New India Assurance Company Limited, Jalandhar BMC Branch,
1st Floor Nirmal Complex, Near City Squar and BMC Chowk, above
BMC Bank, GT Road, BMC Chowk, Jalandhar, through its Branch
Office Nangal Chowk Ropar, Tehsil & District Rupnagar now through
the Authorized Signatory of Chandigarh Regional Office, SCO 36-37,
Sector 17A, Chandigarh.
........Appellant/Opposite Party No.1
Versus
1. Boparai Construction Company, Village Rajuwal Naushera
Majja Singh, through its Sole proprietor Barjinder Boparai S/o
Harjit Singh, office cum R/o House No.293, Garden Colony,
Ropar, Tehsil & District Rupnagar.
.....Respondent No.1/Complainant
2. Tata Motors Finance Limited, Unit 3, Central Mall, 32, Mall
Road, Amritsar, through its proprietor or Branch Manager.
.....Respondent No.2/Opposite Party No.2
Appeal under Section 41 of the Consumer
Protection Act, 2019 to challenge the
order dated 21.10.2022 passed by the
District Consumer Disputes Redressal
Commission, Rupnagar in C.C. No.101 of
2022.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
2 First Appeal No.1113 of 2022 Present:-
For the Appellant : Sh. R.C. Gupta, Advocate For Respondent No.1 : Sh. Amandeep Singh Saini, Advocate For Respondent No.2 : Sh. Sanjeev Goyal, Advocate
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellant/OP No.1 i.e. New India Assurance Company Reliance General Insurance Co. Limited, through its Authorized Signatory has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019, (in short the 'Act') to challenge the impugned order dated 21.10.2022 passed by the District Consumer Disputes Redressal Commission, Rupnagar (herein after referred as the "District Commission") in C.C. No.101 of 2022, whereby the Complaint filed by the Respondent/Complainant had been allowed against the Appellant/OP No.1.
2. Briefly, the facts of the case which are necessary for disposal of the present Appeal are that the Complainant Company purchased one new Tipper bearing temporary registration No.PB2021-TR-5969 B Sigma 2823 TK BS VI 39 WHD. Said vehicle was got financed by Tata Motors Finance Limited OP No.2/Respondent No.2. The monthly installment was fixed of Rs.84,210/- and the Complainant was required to pay the 3 First Appeal No.1113 of 2022 installments of said vehicle upto 15.04.2025. Said vehicle was insured against policy No.3609013121030000218. The Complainant had paid the premium of the Insurance to OP No.1. The price of tipper was more than Rs.41,00,000/-. On 11/12 June, 2021, the truck was parked at the HP Petrol Pump situated at Pal Gokhuwal Highway behind 1 KM of Gurdaspur side by the driver Harmanpreet Singh and Helper Mitter Masih. Both of them had left the place by locking the truck from inside. The vehicle was found misplaced on the next morning at 7.30 am. As per the versions of the Complainant, the efforts were made but still it was not traced out. FIR was registered under Section 397 IPC on 12.06.2021. As per the version of the Complainant, the installments of loan were paid to OP No.2 regularly. Intimation regarding theft was given to the Appellant/Insurance Company. Further, it was mentioned that the Complainant had submitted all the relevant documents for getting the claim of the vehicle but on one pretext or the other, the claim was not decided and the Complainant was unnecessarily harassed. A number of requests were made to the Insurance Company to pay the claim of the vehicle but no attention was given to the request made by the Complainant. The Complainant was not having any option except to approach the District Commission by way of filing the Complaint. The Complaint was filed with the following prayer:-
1. To pay the claim amount along with interest @25% per annum from the date of theft.4
First Appeal No.1113 of 2022
2. To pay Rs.5,00,000/- as compensation on account of mental agony and physical harassment suffered by the Complainant.
3. To pay Rs.1,00,000/- as other expenses.
4. To pay the litigation expenses which this Hon'ble Commission deems fit just and proper for the filing and pursuing the present Complaint against the OPs.
3. Upon issuing notice in the Complaint to the OPs, they appeared before the District Commission and OP No.1 filed the written version wherein certain preliminary objections were raised by the Appellant/Insurance Company and other averments made in the Complaint were controverted. Similarly reply was also filed by OP No.2.
4. By considering the averments made in the Complaint and reply thereof filed by both the OPs and also by hearing the oral arguments raised by Counsel representing both the parties, the Complaint filed by the Complainant was allowed vide order dated 21.10.2022. Said order passed by the District Commission has been challenged in the Appeal. The relevant portion of said order as mentioned in para No.10 is reproduced as under :-
"10. In view of our above discussion, we allow the present Complaint with the direction to the OP No.1 to pay the Claim amount of Rs.36,10,000/- (as insurance value of the vehicle in question as per the Insurance Policy) to the Complainant. The 5 First Appeal No.1113 of 2022 excess clause of Rs.1500/- as mentioned in the policy is liable to be deducted from the said amount i.e. Rs.36,08,500/- and the said amount is liable to be paid with interest @7% per annum from the date of theft of the vehicle in question along with cost of Rs.1,00,000/- as compensation. The Complainant is also entitled Rs.25,000/- as litigation expenses. It is made clear that OP No.2 will deduct the financed amount from the above said amount without any penalty or penal interest as the case being treated as theft case and theft on account of the reasons beyond the control of the Complainant. The OP No.1 is further directed to pay the compensation and litigation amount directly to the Complainant. The OP No.2 is also directed to pay the remaining amount after deducting of his own payment without any penal interest or penalty to the Complainant. Free certified copies of this order be supplied to the parties, as per rules. The file be consigned to the Record Room."
Said order dated 21.10.2022 passed by the District Commission is subject matter of challenge before this Commission in the Appeal filed by OP No.1/Insurance Company.
5. Mr. R.C. Gupta Advocate, learned Counsel for the Appellant has submitted that the District Commission has passed the order while allowing the Complaint without taking into consideration a material fact that no due and reasonable care was taken while parking the vehicle at a place which was not proper. The vehicle was 6 First Appeal No.1113 of 2022 kept unattended as driver as well as helper left the place by parking the vehicle. Learned Counsel has further submitted that the Complainant had failed to place on record any affidavit of the persons that it was duly locked and due and reasonable care was taken. Further it has been submitted that in absence of any such pleadings and supporting evidence, it is a clear cut case of non-observance of due reasonable care. Moreover required documents i.e. registration certificate, route permit, etc. were not submitted by the Complainant. It is a case of fundamental breach of terms and conditions of the Contract of Insurance as well as provisions of Motor Vehicles Act as has been held in the judgment of Hon'ble Supreme Court of India of case New India Assurance Vs. Narinder Singh. Learned Counsel has further submitted that the alleged incident had taken placed on 11/12 of June 2021 whereas the intimation should have been given without any delay but it was given on 29.07.2021 which was after a period of 48 days of the alleged theft and that too without giving any justified reasons. This act on the part of the Complainant is violative of condition No.1 of the policy. Learned Counsel has further submitted that the District Commission had relied upon the notification dated 26th March, 2021 issued by the Ministry of Surface and Transport during the period of Covid 19 but said period had already expired much earlier but still it has been wrongly applied whereas it was not applicable in the present case. Learned Counsel has further submitted that the District Commission had also failed to appreciate the material fact that in theft cases, an untraced report 7 First Appeal No.1113 of 2022 with judicial order of Illaqua Magistrate is necessary whereas no such untraced report was placed on record before the District Commission and Complaint should have been dismissed on this ground alone. Learned Counsel has further submitted that the District Commission has failed to appreciate a material fact that while passing the impugned order, once a direction was issued to the Insurance Company to pay the amount of IDV of the vehicle to the extent of Rs.36,10,000/- in such situation the District Commission should have directed the Respondent No.1/Complainant to handover the ownership of the vehicle by transferring in the name of Insurance Company so that in future, in case of recovery of vehicle, the same could be claimed by the Insurance Company from the Court of law. Learned Counsel has further submitted that the District Commission had awarded Rs.1,00,000/- as cost and Rs.25,000/- as compensation which are not reasonable. The District Commission had exercised its discretion by awarding unreasonable amount of cost and compensation. Learned Counsel has relied upon judgment of the Hon'ble Supreme Court of case titled as "New India Vs. Narinder" in support of his arguments that Insurance Company could have repudiated the claim in case no valid and effective registration of the vehicle was submitted.
6. Mr. Amandeep Singh Saini Advocate, learned Counsel for Respondent No.1/Complainant has submitted that the District Commission has passed the order by considering the averments of the Complaint as well as the reply of the OPs and also the oral 8 First Appeal No.1113 of 2022 arguments. A detailed order has been passed by considering the stand of both the parties. Learned Counsel has further submitted that after lodging of the claim, the Appellant had deputed the Investigator to investigate the loss of the Complainant and asked to provide registration certificate and also the route permit of the tipper which was purchased during Covid-19 period and only the temporary registration certificate was provided. During said period, an exemption of the permanent RC and other documents was given as per the notification dated 26.03.2021, bearing No.RT-11036/35/2020- MVL, issued by the Ministry of Roadways and Transport. Said extension/exemption was upto 30.06.2021. Learned Counsel has further submitted that the vehicle was stolen on 11.06.2021 and FIR was registered immediately and thereafter the claim was immediately lodged with Appellant/Insurance Company and the same had already admitted in their written statement.
7. Mr. Sanjeev Goyal Advocate, learned Counsel for Respondent No.2/OP No.2 has submitted that OP No.2 had financed the said vehicle and as such there was no role to play of it in disbursing the claim amount to the Complainant.
8. Facts relating to filing of the Complaint by the Complainant, reply thereof filed by the OPs and thereafter allowing the Complaint in favour of the Complainant by the District Commission and further to challenge the order passed by the District Commission before this Commission are not in dispute. 9 First Appeal No.1113 of 2022
9. As per the arguments raised by learned Counsel for the Appellant, no due and reasonable care was taken while parking the vehicle at a safe and proper place and was not properly guarded due to which theft had taken place. As per version of the Complainant, the driver Harmanpreet Singh and helper Miter Masih had parked the tipper at HP Petrol Pump situated at Pal Gokhuwal Highway after locking the same. From the report of the Investigator dated 13.05.2022, it is apparent that there was a tracking device in the said tipper to trace the vehicle in case of theft. Both keys of the truck were handed over to the Investigator by the Complainant. The truck was parked at Petrol Pump by the driver and helper after locking the same and they left for their house. Tracking device was also there in the tipper. In view of this, it cannot be said the vehicle was left unattended.
10. As per the versions of the Appellant/OP No.1, neither a satisfactory reply was submitted nor requisite documents were supplied i.e. R.C., route permit, etc. Plying of vehicle without a valid registration certificate is a fundamental breach of the terms and conditions of contract of Insurance as well as provisions of Motor Vehicles Act. Learned Counsel for the Respondent No.1/Complainant has relied upon Notification dated 26.03.2021, bearing No.RT- 11036/35/2020-MVL, issued by the Ministry of Roadways and Transport for extension of the validity of the documents related to the Motor Vehicle Act, 1988 and Central Motor Vehicle Rules, 1989 and further to consider relaxation in Permit-Fees/Taxes etc. It is pertinent 10 First Appeal No.1113 of 2022 to mention here that the Investigator had put the same query to the Complainant that Why he didn't produce route permit, fitness and registration certificate of the stolen truck? The Complainant had submitted the said Notification dated 26.03.2021 in answer to said query and no negative comment was there in the report of the Investigator. The Investigator had found the theft of insured vehicle as genuine, subject to policy terms and conditions.
11. The Investigator had pointed out that the Complainant had sent the letter dated 12.06.2021 on whatsapp to the Insurance Agent-Mr. Harsimran Singh of Batala, who had insured his tipper. The Investigator had not made any negative comment in this regard in his report. As such it cannot be said there was no delay and the agent of the Insurance Company was timely informed as is clear from the report of the Investigator.
12. The Investigator has further pointed out that during the enquiry at Police Station, it was gathered that the stolen truck could not be traced by the Police and untraced report was filed on 30.08.2021 before the Court. The Court had accepted the same on 13.12.2021 as is clear from report of the Investigator.
13. As per the versions of the Appellant/OP No.1, the District Commission should have directed the Complainant to transfer the ownership of the vehicle in the name of Insurance Company. We have perused the impugned order dated 21.10.2022 and find that no such observation in this regard had been made while allowing the Complaint in favour of the Complainant, whereas the Complainant 11 First Appeal No.1113 of 2022 was bound to submit letter of subrogation and other requisite documents in favour of the Insurance Company. It has further been argued that the District Commission has awarded unjustified amount of cost and compensation. On perusal of directions issued by the District Commission, it is apparent that the District Commission has granted Rs.1,00,000/- as cost and Rs.25,000/- as compensation. The amount of cost of Rs.1,00,000/- appears to be on the higher side and the same needs to be reduced. The amount of compensation i.e. Rs.25,000/- as awarded by the District Commission appears to be justified. It is pertinent to mention that OP No.2 had financed the said vehicle and OP No.2 was having lien on the claim of Rs.36,10,000/-. In view of facts and circumstances of the case, some modification is required in the impugned order passed by the District Commission.
14. In view of above detailed discussion, we partly allow the Appeal and the Appellant/OP No.1 is directed to pay the cost of Rs.50,000/- to the Complainant instead of Rs.1,00,000/-. The Complainant is directed to transfer the RC and other relevant papers/documents as well as to execute the subrogation letter in favour of OPs.
It is also made clear that since the OP No.2 had financed the said Vehicle and he has first lien over the claim amount. Accordingly, OP No.1 is directed to pay the claim amount of Rs.36,08,500/- to OP No.2 alongwith interest @ 7% per annum from the date of theft of the vehicle till its realization. The order of the District Commission is modified to this extent only and the remaining part of impugned order 12 First Appeal No.1113 of 2022 shall remain the same and the direction as issued to OP No.2 shall also remain intact.
15. The Appellant had deposited an amount of Rs.20,31,675/- and Rs.24,522/- at the time of filing of the Appeal with this Commission. Said amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Respondent No.2/OP No.2 and Respondent No.1/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
16. Since the main case is decided, the pending applications, if any, are also disposed of.
17. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER August 12, 2024 (MM)