State Consumer Disputes Redressal Commission
Ashaji D Vanzara vs The New India Ins Co Ltd on 15 July, 2022
Details DD MM YY
Date of Judgment 15 07 2022
Date of filling 24 04 2013
Duration 21 02 09
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
Complaint NO. 17 of 2013 Dt: 15.07.2022
Mr. Ashaji Devaji Vanzara
66, Kasbo, At & Post Chhatral,
Ta: Kalol, Dist: Gandhinagar. ...Complainant
Vs.
The New India Assurance Co. Ltd.
104, 105, Dev Arc, Iskon Circle,
Opp. Big Bazar, S. G. Highway,
Ahemdabad. ...Opponent
Appearance: Mr. K. A. Vyas, Ld. Advocate for the Complainant
Mr. A. G. Thakor, Ld. Advocate for the Opponent
Coram: (Shri S. N. Vakil, Judicial Member)
(Smt. J. Y. Shukla, Member)
Order by Shri S. N. Vakil, Judicial Member
1. This is for Insurance claim for the vehicle stolen.
2. The complainant - Mr. Ashaji Devaji Vanzara has filed this complaint against The New India Assurance Co. Ltd. stating that he purchased a truck for Rs. 24,39,107/-, was higher purchased from India Bulls Finance Company, was registered at Gandhinagar R.T.O. bearing No. GJ-18AU-9435 and was insured with the opponent vide policy No. 1214043112010000940 for the period from 3.05.2012 to 2.05.2013. The truck was being run for dumping clave and was driven by the Kailashji Jethaji. The truck was parked K.S.P CC-13-17 Page 1 of 11 near to Haridarshan society after applying the lock on 05.06.2012 at about 3 O'clock in the morning. That around 7 o'clock in the morning, the truck was not found at this spot, therefore the complainant called to the driver and asked about the truck. That the driver informed that he had parked the truck at night on the place with applying lock. The complainant along with the driver tried to find out the truck in nearby areas, but it could not be found anywhere. The complainant immediately lodged a complaint being FIR No. I-CR No. 119 of 2012 to the Kalol Police station on 05.06.2012. The complainant also intimated the opponent insurance company through online on 12.06.2013. The ticket No. whereof was given as 12140431121720000179. He informed to the opponent Insurance Company in writing about the fact of the theft. The insurance company asked to submit the documents in support of the claim. The Police Inspector of Kalol Police station received information from Guddamali Police station, Rajasthan that one (truck) dumber was recovered by the Guddamali Police officer. The complainant went along with the police officer of Kalol Police Station to Guddamali Police Station to identify the vehicle. It was damaged in such a condition that the vehicle could not be identified, even chassis and engine number were also damaged therefore the same could not be identified also. As the vehicle was not traceable nor any information was received, the complainant submitted a complaint before the National Crime Bureau department, pursuant to which the complainant received a K.S.P CC-13-17 Page 2 of 11 communication dated 21.08.2012 that CBI had processed with the computerized stolen database but the same could not be linked till date. As the vehicle could not be found after more than 90 days, the investigation officer had submit report of "A" summery to the Ld. Magistrate Court at Kalol on 08.09.2012 stating that "there shall be no possibility to find out the vehicle in future". The investigation officer of Kalol Police station had also tried to gather information from Gudamalan Police Station at Rajsthan and found from the report that the registration number of the seized truck was RJ-19- GC-3838, different from complainant's lost vehicle bearing registration No. GJ-18AU-9435. The complainant brought this fact to the opponent company which intentionally stated that "The vehicle of similar make is traced, and Engine and Chassis number traced vehicle are not legible, hence the above requirements are required." on 4.03.2013 and thereby the deliberately tried to establish the fact that the vehicle recovered by Guddamalini Police station is the same vehicle as has been narrated in the FIR. The complainant replied to the insurance company stating that the truck seized is different from the one stolen from the possession of the complainant and that their registration numbers are different and the Kalol Police Station had also submitted "A" summary report. The insurance company deliberately denied to sanction the claim. The finance company also gave "No detain" certificate stating that the vehicle is not repossessed by it vide letter dated 19.12.2012. The claim was being delayed, and hence stating that K.S.P CC-13-17 Page 3 of 11 due to getting delay in sanctioning the claim amount, the finance company gave legal notice for due payment. The complainant requested the insurance company to sanction the claim amount. Then it was communicated to the complainant on 4.03.2013 that "
the front axle, cabin serial number, battery no, intercooler and radiator serial number, fuel pump number are found, and since vehicle similar make is traced and engine as well as chases number are not legible hence the above requirements are required" and tried to escape from the liability. It is the duty of the insurance company to find out whether the vehicle is same or not. But it had failed even to make spot survey and is delaying the process. The complainant gave legal notice to the opponent which was replied by it on 19.03.2013 that the company had received mail that the vehicle has been recovered by Guddmalini police station and informed complainant's advocate to give advised to the complainant to take possession of the vehicle from the Guddamalini Police station. The complainant replied it on 21.03.2013 that the vehicle which was recovered by the Gudamalini Police station, is still not indentified by competent authority and is with the possession of the competent court and till it is indentified, it cannot be given by the court. It amounts to nothing but clear cut denial of the claim. For this deficiency the complainant claims Rs. 23,17,153/- with interest at the rate of 12%, Rs. 20,000/- towards costs.
3. The defence of the opponent vide written version is of total denial. The policy was issued for IDV of Rs. 23,17,153/-. Theft of the truck K.S.P CC-13-17 Page 4 of 11 and police compliant is not disputed. Further the complainant has stated the date of theft as 05.06.2012 in the present complaint, but it does not tally with the FIR. Intimation to the insurance company is not true and not admitted. It is denied that the insured had lodged claim intimation on 12.06.2013. He had not given intimation of loss to the insurance company at the earliest opportunity, but gave late intimation. It is denied that he had submitted all the supporting documents with the claim form. It is denied that the truck sized by the Guddamali police station was damaged in such condition that it could not be identified. The complainant has wrongly stated that in absence of engine, chassis number the vehicle could not be identified. The documentary evidence produced by the complainant states that the complainant had informed the Kalol police on 9.07.2012 that his stolen vehicle was recovered by Guddamalani police station of Rajasthan. It is not disputed that the Kalol police has filed 'A' summary after investigation. However it is denied that the investigating officer has mentioned in his report that, "There shall be no possibility to find out the vehicle in future".
It is not true that the vehicle recovered by the Guddamalani Police Station was bearing registration No. RJ-19-GC-3838 or that it was different from the vehicle stolen from the complainant's possession. It is submitted that the culprit or his accomplice will not use the correct number plate of stolen vehicle. Hence at the time of recovery of vehicle the false number plate proves that the vehicle is a stolen vehicle. The company has not deliberately denied to sanction the K.S.P CC-13-17 Page 5 of 11 claim. The insurance company had appointed Jagdish L. Gogiya investigator to investigate the facts of the case. His report dated 3.10.2012 is that the incident of theft is correct. The insurance company had appointed independent professional surveyor Vijay C. Panchal for survey and investigation regarding the loss and true facts regarding the vehicle damaged. He submitted his report dated 23.02.2013. In absence of engine chasis number the surveyor had verified the numbers of battery, excel, fuel pump number, and serial number of tyre. The surveyor has obtained the copy of chassis aggrigate register from Cargo Motors (dealer of Tata Motors who sold the vehicle to the insured) regarding the vehicle purchased by the complainant, checked minutely and tallied all serial numbers from the register and found that numbers of battery, excle, fule pump and tyres tallied with the register. The make and model of truck Tata LPK2518C TIPPER also match with the stolen vehicle. After receiving the summary and investigation report of Vijay C. Panchal the opponent insurance company processed the claim with due diligence. The economic stake involved required approval from the head office which examined the claim file with due diligence and found that investigation report by Vijay C. Panchal states that the vehicle recovered by the Guddamalani police station is insured's stolen vehicle. The insured himself had gone to Gudamalani police station to verify the vehicle and he has not denied the identification of the vehicle with regard to it's model, make, colour and/or interior of driver's cabin. This K.S.P CC-13-17 Page 6 of 11 aspect is significant to identify the vehicle by the owner himself. The head office has concurred with the conclusion arrived at by the surveyor Vijay C. Panchal and therefore directed the regional office not to settle the claim on total loss (theft) basis and asked Regional Office to instruct the complainant to take possession of the vehicle from the police station, necessary repairs may be done, and he may lodge the claim to the insurance company on repair basis. This decision was communicated to the insured. There is no negligence or deficiency in service. The complaint deserves to be decided by the Civil Court. Rest is denied.
4. Heard Ld. Advocate Shri K. A. Vyas, for the complainant and Ld. Advocate Shri A. G. Thakore, for the opponent New India Assurance Co. Ltd. Read their written submissions.
5. The complainant has filed affidavit in evidence. As also Mr. Vijay C. Panchal, surveyor cum investigator whose cross-examination was permitted by interrogatories but no such interrogatories have been submitted.
6. The complainant shows that complainant's Tata Company Hydroelectric truck of green color bearing registration No. GJ-18- Au-9435 was stolen between 8:00 p.m. of 4.06.2012 and 4:00 a.m. of 5.06.2012, and the offences was declared before the Kalol Police Station on 5.06.2012 at 22:30 p.m. The complainant intimated online on 12.06.2012 at 18:47 and was given claim No. 12140431121720000179. Police Officer of Gudamalani police station Dist: Badmer, Rajasthan received telephone on 1.07.2012 at K.S.P CC-13-17 Page 7 of 11 4:00 a.m. that a dumper has overturned in Alapur on Mega Highway skirt. They found it loaded with liquor cartoons, and with the number plate bearing registration No. RJ-19-GC-3838. Other truck number plates GJ-12-AU-4921 and RJ-10-G_-1578 were also found in the truck. Registration certificate and insurance of number plate GJ-12-AU-4921 was also found, chesis and engine number were absolutely scratched and found unreadable. The truck was confiscated there being no permit licence of liquor. It reads that the dumper having overturned and in accidental condition was not in a position to be driven and FSL team be called for. National Crime Records Bureau intimated the complainant in reference to his inquiry about the recovery status of registration No. GJ-18-AU-4935 that as desired the particulars of motor vehicle mentioned have been processed with computerized stolen recovered vehicles data base but the same vehicle could not be linked till date. Kalol Police Station submitted report on 8.09.2012 under Section 173 (1) (b) Cr.Pc with respect to Cr. I No.119/12 that the complainant informed on 9.07.2012 that he having received information that the stolen dumper has been found with Gudamalani police station Rajasthan went there and gave RC book etc., chesis and engine numbers were rubbed out and could not be read and after investigation by FSL they would let him know; the said police station informed the Kalol Police Station that after verification of engine, chesis number thereof, ownership can be decided and till date FSL verification has not been completed; and K.S.P CC-13-17 Page 8 of 11 sought permission from the court to approve "A" summary with a condition to remain in investigation. Now, this makes it clear that the complainant himself came to know of the truck having been found by the Gudamalani police station and consequently informed the Kalol Police Station. India Bulls Certificate is that it is not repossessed by it or any of its agencies.
7. Report of surveyor and investigator for the insurance company Mr. Vijay C. Panchal dated 23.02.2013 shows that he visited the dumper, subject matter of FIR No. 114/2012 of Gudamalani police station and verified Chassis No., Engine No., Cab No., Battery, Front Axle, Differential, Steering Gear Box, Fuel Pump, Kilometer, Air valve release, Gear box, Radiator, Intercooler, Turbo Charger etc. and concluded that a Tata LPK 2518 c Tipper recovered by Gudamalani police station, said vehicle was detained and en trapped under an offence to carry out liquore without remittance of exide duty under Act 1950, for which, FIR lodged at Gudamalani police station vide CR No.114/2012, Coptioned vehicle is entrapped/repossed from Mega highway in jurisdiction of Gudamalan police station in accidented un identified condition with registration no. RJ19GC3838, Chassis & engine no. are scratched and rubbed out, identity of the vehicle shall be established after report from FSL, as informed by Gudamalani police, no person reported injured in accident at hospital of Gudamalani, FSL report is awaited in the matter. Therefore, under the circumstances, the insurance company has pleaded in defence that the head office K.S.P CC-13-17 Page 9 of 11 concurred with the conclusion arrieved at by the surveyor and has directed the Regional Office not to settle the claim on total loss (theft) basis and instructed to instruct the complainant to take the possession of the vehicle from police station and necessary repairs may be done and he may lodge claim on insurance company on repair basis, and that this decision was communicated to the insured.
8. The dumper has been insured under commercial vehicle package policy, condition No.4 whereof is: "The company may at its own option repair reinstate or replace the vehicle insured or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed: (a) for total loss/ constructive total loss of the vehicle - the insured's declared value (IDV) of the vehicle (including accessories thereon) as specified in the Schedule less the value of the wreck. (b) for partial losses, i.e. losses other than total loss/constructive total loss of the vehicle - actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified." It is clear that theft of vehicle is total loss. This condition does not say that the complainant must accept the stolen vehicle found in damage condition, get it repair by himself and the insurance company would then only reimburse. Therefore, the insistence of the insurance company is not proved to be as per the terms and condition of the policy, and accordingly the insurance company must be held and is found to be liable for deficiency in K.S.P CC-13-17 Page 10 of 11 service. IDV of the vehicle is Rs. 23,17,153/-. India bulls has certified that the loan agreement between the India Bulls Financial Services Ltd. and the customer Mr. Ashaji D. Vanzara has been terminated, mentioning its registration No. GJ-18-AU-9435, chassis, Engine No., make and model also, which tally with the policy schedule.
9. Accordingly, the compliant deserves to be allowed, for which following final order is passed.
FINAL ORDER
i) Complaint No. 17 of 2013 is allowed.
ii) The Opponent No.1 -New India Assurance Co. Ltd. do pay the Complainant - Ashaji D. Vanzara Rs. 23,17,153/- (Rupees twenty three lakhs seventeen thousand one hundred fifty-three only) with interest at the rate of 07% (seven percent) from the date of complaint 24.04.2013 till realization, Rs. 3,000/- (three thousand) towards mental pain and Rs. 5,000/- (five thousand) towards costs.
iii) Considering the time lapsed thus for, the insurance company shall be entitled to the wreck to be disposed of as it wishes.
iv) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 15th day of July, 2022.
(J.Y.Shukla) (S.N.Vakil)
Member Judicial Member
K.S.P CC-13-17 Page 11 of 11