State Consumer Disputes Redressal Commission
Mukesh Kumar vs The Oriental Insurance Company Limited on 9 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1284 of 2007
Date of Institution : 19.09.2007
Date of decision : 09.08.2012
Mukesh Kumar son of Sh.Satpal, c/o Guru Rice Mills, Chheharta Road, Village
Chhidan (Khasa), Amritsar.
...Appellant
Versus
1. The Oriental Insurance Company Limited, P.O. Rayon & Silk Mills,
Opposite Coca Cola Factory, G.T.Road, Chheharta, Amritsar, through its Branch
Manager.
2. HDFC Bank Ltd., G.T. Road, near Narinder Cinema, Jalandhar, through
its Branch Manager.
...Respondents
First Appeal against the order dated 20.8.2007 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President.
Sh.Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh.Vikas Sagar, Advocate. For the respondents : Sh.Rahul Sharma, Advocate for Ms.V.A.Talwar, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT VERSION OF THE APPELLANT Mukesh Kumar appellant had purchased a car Mohindra Scorpio in June, 2004 for an amount of Rs.6,59,750/-. It was financed by the HDFC Bank Limited, Jalandhar. It was insured by respondent No.1 for the period from 4.6.2004 to 3.6.2005. It was got registered with DTO, Amritsar and its registration number was PB-02-AM-0333.
2. It was further pleaded that on 2.6.2005, the appellant had parked this car outside Bhagwati Rice Mills By Pass, G.T.Road, Chheharta, Amritsar as the appellant was one of the partners of this rice mill. The appellant had gone in the factory at about 2 PM and when he came about 3 PM, he saw the car missing and no clue of it was found.
First Appeal No.1284 of 2007 2
3. It was further pleaded that the appellant contacted Sh.Vipan Kumar, Development Officer of respondent No.1 immediately, who was dealing with the insurance matters of the appellant for the last many years. Said Vipan Kumar advised the appellant to lodge the police report and submit the claim form. The appellant contacted the police authority of Chheharta Police Station and submitted written complaint dated 2.6.2005. This complaint of the appellant was attached by the police of Police Station Chheharata with FIR No.106 of 20.5.2005 registered under Section 379 IPC. Some persons were interrogated but the car remained untraced.
4. It was further pleaded that the insurance claim was lodged with respondent No.1. Respondent No.1 had appointed M/s Lamba Associates, New Delhi to investigate into the theft. The representative of M/s Lamba Associates, New Delhi visited the factory premises of the appellant in middle of June, 2005. The appellant extended full co-operation. The documents demanded from him were given to the representative of M/s Lamba Associates. Lateron the representative demanded untraceable report from the police authority. It was also submitted that in the month of September, 2005. The untraced report was submitted by the police on 3.9.2005. M/s Lamba Associates submitted its report dated 4.1.2006 to respondent No.1.
5. It was further pleaded that the police had arrested one Pargat Singh who was challaned for the theft of trolla mentioned in the FIR No.106 of 2005, but no clue of the car of the appellant was given by him.
6. It was further pleaded that respondent No.1 had appointed another investigator in the last week of May, 2006. The investigators works under the name & style of M/s Vigilant Detective Bureau stationed at Batala, District Gurdaspur. He was not a licensed surveyor nor he was qualified to work as investigator. He was dismissed employee with serious charges against him. The insurance claim was not settled by respondent No.1 on which the appellant served legal notice dated 29.6.2006 on respondent No.1. Respondent No.1 repudiated the claim of the appellant vide letter dated 15.9.2006. Hence the First Appeal No.1284 of 2007 3 complaint for recovery of insurance claim of Rs.6,59,750/-. Compensation, interest and costs were also prayed.
VERSION OF RESPONDENT NO.1
7. Respondent No.1 filed written reply and contested the case. Preliminary objections were pleaded that the appellant was stopped by his own act and conduct from filing the present complaint; the appellant was relying upon the report of M/s Lamba Associates, but was not willing to accept the report of M/s Vigilant Detective Bureau.
8. On merits, it was admitted that the car Mohindra Scorpio was owned by the appellant and was insured with respondent No.1 for the period from 4.6.2004 to 3.6.2005. As per the version of the appellant, theft had taken place on 2.6.2003, but alleged theft had taken place after the expiry of insurance policy. No immediate intimation was given to the respondents. It was denied if any theft was taken place on 2.6.2005. If the theft had taken place on 2.6.2005, this case could not be attached with FIR No.106 of 20.5.2005. It was pleaded that claim was false and dismissal of the complaint was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM:
9. The parties produced affidavits / documents in support of their respective versions.
10. The learned District Consumer Disputes Redressal Forum, Amritsar (in short "District Forum") dismissed the complaint vide impugned judgment dated 20.8.2007.
11. Hence the appeal.
DISCUSSION:
12. The submission of learned counsel for the appellant was that the appeal be accepted; impugned judgment dated 20.8.2007 be set aside and respondent No.1 be directed to pay the insurance claim with compensation, interest and costs.
13. On the other hand, the submission of learned counsel for the respondent No.1 was that there was no merit in the present appeal and same be dismissed.
14. Record has been perused. Submissions have been considered. First Appeal No.1284 of 2007 4
15. Admittedly, the appellant was the owner of car Mohindra Scorpio which was purchased by him in June, 2004 and which was financed by HDFC Bank Limited, Jalandhar and its RC number was PB-02AM-0333. It is also admitted that it was insured with respondent No.1 for the period from 4.6.2004 to 3.6.2005.
The copy of the insurance policy has been proved as Ex.C3.
16. The appellant has alleged that the car was stolen on 2.6.2005 when he had parked the car outside Bhagwati Rice Mills By-pass, G.T. Road, Chheharta, Amritsar, of which the appellant was a partner. The appellant had entered the factory at about 2 PM after parking the car and when he came out at about 3 PM, the car was found missing and it was stolen by somebody. The complaint about the theft of car was given by the appellant to the police on 2.6.2005 itself and copy of that application has been proved as Ex.C7. On this application, even the interim order passed by the police was also recorded and this report is signed by Harmanjit Singh Incharge Police Post India Gate, Police Line Chheharata, Amritsar dated 2.6.2005. The copy of FIR No.106 of 20.5.2005 has been proved as Ex.C6 and Garinder Pal Singh ASI of Police Post India Gate vide order dated 3.9.2005 Ex.C9 reported that investigation about the theft and for recovery of car No.PB-02AM-0333 was being conducted along with FIR No.106 of 20.5.2005. It means, therefore, the appellant had given intimation to the police on the date of theft itself i.e. on 2.6.2005. It was for the police to attach with FIR registered earlier on 20.5.2005, in which the appellant has no role to play.
17. So far as the information about the theft of car to respondent No.1 is concerned, admittedly M/s Vigilant Detective Bureau were appointed by respondent No.1 as investigator. The said investigators wrote a letter to Vipin Kumar, Development Officer of Oriental Insurance Company, Chheharata (Ex.C14) to confirm if any intimation was given to him by Mukesh Kumar about the theft of car on 2.6.2005. Vipin Kumar, Development Officer reported vide endorsement dated 30.5.2006 that "Yes the party informed me on telephone that their Scorpio is stolen perhaps". It means, therefore, that the intimation was also given to respondent No.1 by the appellant without delay. First Appeal No.1284 of 2007 5
18. Although the investigator M/s Vigilant Detective Bureau had given the findings as under:-
"There is not sufficient evidence to hold that the theft of the Mahindra Scorpio under reference did really take place on 02.06.05 as alleged. Neither there is date control records i.e., DDR or FIR in this case in the P.S. nor the police station paged 55 shows that control room was informed, which information is a mandatory in such like vehicles theft cases. See detailed discussions in this regard under heading 'VISIT TO THE P.S. CHHEHARTA..30.5.06' on pages 6 & 7 of the report, further under similar heading "VISIT TO THE P.S. CHHEHARTA on page No.10 of this report."
19. The investigator made reference to his visit to Police Station Chheharta on 30.5.2006, which was reproduced by him on page 6 & 7 of his report. The report dated 30.5.2006 reads as under:-
"VISIT TO THE P.S. CHHEHARTA....30.5.06 I visited the P.S. Chheharta and met the MHC Satish Kumar and inspected the relevant records and found as under:-
1. That the MHC perused the complaint letter of Mukesh Kumar insured dated 2.6.05 and police action on the back thereof, paged 55. He identified the police action in the handwriting and undersignatures of Sh.Harmanjit Singh ASI, the then Incharge of PP India Gate.
2. As per police - action, discussed above, paged 55(back), the alleged incident of theft of vehicle of the insured Mukesh Kumar, stood clubbed with similar nature of case FIR No.106 dated 20.5.05 U/s 379 IPC of P.S.Chheharta. Copy of such FIR No.106 dated First Appeal No.1284 of 2007 6
20.5.05 U/s 379 IPC of P.S.Chh, lying in the docket on pages 102 to 104 was verified and found correct as per records inspected in the custody of MHC Satish Kumar.
After the inspection of the above records / verification, I raised following questions to the MHC Satish Kumar, which are as under:-
a) Whether any date-control proceedings had been recorded in the DDR Register which could prove that the alleged theft stood really reported and and recorded in Date-control records of the P.S.?
b) Whether information of theft of the vehicle under reference (alleged theft dated 2.6.05) was given to Control Room on telephone or wireless, enabling the Control-Room to flash message in this regard to various Police-Nakas in the State so as to trap the vehicle and at least to ensure that the vehicle should not cross the Punjab Barriers?
c) Whether the alleged occurrence (which is very much alarming having occurred during broad-day light between 2.00 p.m. to 3.00 p.m. was given to journalists/press-men as these bodies are in close-
touch with the Police authorities? If so, whether news of the alleged occurrence was published in any Newspaper, if so, in which paper?
In response to Q.(a) above, the MHC told that no date control proceeding stood carried out in the matter. In response to Q.(b), the MHC told me that it is mandatory that the I.O.(Investigating Police Officer) primely gives message in vehicle theft cases to the Control Room and accordingly mentions in the Police-action that information First Appeal No.1284 of 2007 7 of the subject matter had been given to control room on telephone or wireless. On careful perusal of the police action on the back of complaint letter of the insured, paged 55, the MHC Satish Kumar told that nothing as to information of the matter to the control room is mentioned on the police-action. At this stage, it was his opinion that there could be chances in the rarest of the rare cases that message might have been given to Control Room on wireless or telephone and in this regard INSPECTION OF THE LOG BOOK OF THE WIRELESS SECTION OF THE P.S. CHHEHARTA OR OF CONTROL ROOM, POLICE LINES, ASR, could be helpful in the matter. As it was too late in the evening and the records also being about one year old, the MHC advised me to shift onus on this issue on the shoulders of the complainant / owner of the vehicle to obtain such proof, because being owner of the vehicle & complainant of theft case, he had the first right to obtain such proof by moving written request in the matter. Regarding Q.(c) above, the MHC Satish Kumar told that news of the alleged theft in any Newspaper lacked as per records of the P.S. In a nut shell, no date- control records could be available in the Police Station Chheharta to connect the occurrence with 2.6.05, as alleged in the case. For wireless message on Nakas or Control Room, I proceeded as under:-
20. He had also made reference to visit to the Police Station Chheharta, which was reproduced on page 10 of his report. It reads as under:-
"VISIT TO THE P.S. CHHEHARTA I repeatedly visited the P.S.Chheharta's Control Room so as to inspect the Log Book of the relevant period to First Appeal No.1284 of 2007 8 know whether the wireless message to the Control Room had been given in this matter or not. I happened to contact the following Wireless - operators:-
1. Chanchal Singh,
2. Baldev Singh,
3. Mangat Ram, They used to perform duty in the Wireless room of P.S. Chheharta, rotation-wise. They had been assuring me to search the Log-book of the relevant period and to present the same before the undersigned to know the relevant information. I visited the above P.S. on 9.6.06, 13.6.06, 16.6.06 & 19.6.06. No fruitful purpose could be served despite above visits. On 19.6.06, I was informed by the MHC that the Over-all incharge of the old Log-books was Mangat Ram, who was on departmental training from 19.6.06 to 25.6.06. He, thus, advised me to visit the P.S. on or after 26.6.06 to get the needful done. I, accordingly, adjourned visit to the P.S. for 26.6.06. On 26.6.06, when I visited the P.S. Chheharta and met Mr.Mangat Ram in the Wireless Room and had detailed discussions on the subject matter. He told that the Log-books of the said period had been deposited in the Control Room, Police Lines, Amritsar. He advised me to approach the Control Room, Police Lines, Amritsar. Accordingly, I visited the Control Room Wireless Section and contacted the concerned Staff. They took details of the case i.e. vehicle number, owner's name, alleged date of theft etc. place of theft and clubbed -to F.I.R. no., etc. on 28.6.06 and First Appeal No.1284 of 2007 9 advised me to visit again for knowing the position. I visited the Control Room, Wireless Section, Police Lines, ASR on 2.07.06, 8.07.06, 10.7.06 & 14.7.06. On 14.7.06, I was informed that Wireless message did neither stand in the Log-book of P.S. Chheharta's Wireless Section, nor in the records of Control Room's log-book. They further told that if such message had been conveyed to control-room, it must have been recorded in the Police action, saying that why an I.O. (Police officer dealing with the case) would keep his proceedings without mentioning of the proceedings taken-up by him. From the above, I was fully satisfied that the theft of the vehicle would have after the expiry of the Policy i.e. after 3.6.05. The insured being influential one, managed to show theft of his vehicle in back date i.e. in 2.6.05, within the Policy ( a day before the expiry date of the policy). In such situation, the mandatory formality of information to the Control Room had been avoided so that the said information could not have been recorded in back date. So, hence, formality of information to Control Room on wireless or otherwise was given-up. My this observation is based on hard logics of police norms."
21. The investigator recommended for repudiation of the insurance claim. But this report was totally false. Particularly when the complaint about the theft of vehicle was given by the appellant to the police on the same day i.e. 2.6.2005 for which the application dated 2.6.2005 Ex.C7 has been placed on file. It bears the endorsement of SI/SHO, P.S.Chheharta dated 2.6.2005 by which he marked it to I/c PP India Gate for necessary action and report. ASI Harmanjit Singh SI / I/c PP India Gate had made endorsement on the back side of application dated 2.6.2005 Ex.C7 that it be attached along with FIR No.106 dated 20.5.2005. First Appeal No.1284 of 2007 10 Therefore, the report of the investigator is totally unbelievable. The appellant had also given information to Vipin Kumar, Development Officer of the respondent on the same day about the theft of the car which is proved on the record of the Investigator himself.
22. So far as the value of the car is concerned, M/s Lamba Associates have given the report dated 9.1.2006 in which the surveyor had concluded that "he going through the loss it seems to be a case of theft only". The IDB value of the car was mentioned as Rs.6,59,750/- and he had recommended that the claim be settled for RS.6,58,750/- after deducting excess clause.
23. The car was purchased by the appellant in June, 2004 and it was insured with respondent No.1 for the period from 4.6.2004 to 3.6.2005. The theft had taken place on 2.6.2005 i.e. about two days less than one year. Therefore, depreciation clause will also apply and the depreciation is assessed at the rate of 10% per annum. Therefore, the respondent is held to be entitled to an amount of Rs.5,92,875/- i.e. Rs.6,58,750/- minus 10% came to Rs.65,875/-. The claim of the appellant to that extent is upheld. The appellant is also held entitled to interest at the rate of 6% per annum from the date of repudiation i.e. 15.9.2006 till the date of payment.
24. Keeping in view the above discussion, the appeal is partly accepted and the impugned judgment dated 20.8.2007 is set aside.
25. The arguments in this case were heard on 1.8.2012 and the order was reserved. Now parties be communicated about the same.
26. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Justice S.N.Aggarwal) President (Baldev Singh Sekhon), Member August 09, 2012.
Davinder