State Consumer Disputes Redressal Commission
Oriental Insurance Co. vs Sabbir on 31 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal Nos: 977 & 1108 of 2016 Date of Institution: 06.10.2016 & 21.11.2016 Date of Decision: 31.08.2017 Appeal No.977 of 2016 The Oriental Insurance Company Limited, Old G.T. Road, Palwal, now through its Regional Manager, Sector 17, Chandigarh. Appellant-Opposite Party No.1 Versus 1. Mr. Sabbir s/o Sh. Jamil, Resident of House No.76, Village Balai, Tehsil Firozpur, Jhirkha, District Mewat. Respondent-Complainant 2. Shriram General Insurance Company Limited, near Bus Stand Sohna, District Gurgaon, through its Manager. Respondent-Opposite Party No.2 Appeal No.1108 of 2016 Mr. Sabbir s/o Sh. Jamil, Resident of House No.76, Village Balai, Tehsil Firozpur, Jhirkha, District Mewat. Appellant-Complainant Versus 1. The Oriental Insurance Company Limited, Branch Office, Kalra Niwas, Old G.T. Road, Palwal through its Manager. 2. Shriram General Insurance Company Limited, near Bus Stand Sohna, District Gurgaon, through its Manager. Respondents-Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri M.D. Khan, Advocate for complainant-Sabbir Ahmed. Shri Vinod Chaudhri, Advocate for Oriental Insurance Company Limited. Service of Opposite Party No.2 dispensed with. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This order shall dispose of afore-mentioned two appeals bearing No.977 and 1108 of 2016 having arisen out of common order dated July 21st, 2016 passed by District Consumer Disputes Redressal Forum, Palwal (for short the 'District Forum'), in complaint No.10 of 2016 filed by Sabbir-Complainant.
2. Sabbir, Resident of Village Balai, Tehsil Firozpur Jhirka, District Mewat (complainant), registered owner of vehicle bearing registration No.HR-55-m-2485, was provided an Insurance Policy bearing No.272401/31/2014/4814 (Annexure-H) by The Oriental Insurance Company Limited-opposite party (for short 'the Insurance Company') regarding the period from February 07th, 2014 up to February 06th, 2015 mentioning Insured Declared Value (IDV) as Rs.17,50,000/-. On May 04th, 2014, the complainant parked the above mentioned vehicle near Omax City, Palwal from where the vehicle was stolen by some unknown person. Information regarding theft of the vehicle was given immediately to the Insurance Company as well as the Police. A criminal case under Section 379 of the Indian Penal Code (IPC) was registered under First Information Report (FIR) No.213 on May 04th, 2014 at Police Station: Camp Palwal (Annexure-C). The vehicle could not be recovered in the criminal case and ultimately untraced report was submitted by the Station House Officer (SHO) before the learned Ilaqa Magistrate, Palwal (Annexure-D) on September 04th, 2014. The complainant submitted his insurance claim along with relevant documents to the Insurance Company but despite that the Insurance Company rejected the claim.
3. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 praying that complaint be allowed and the Insurance Company be directed to pay an amount of Rs.9,37,000/- as compensation with interest at the rate of 24% per annum being Insured Declare Value of the insured stolen vehicle; an amount of Rs.50,000/- on account of un-necessary harassment and mental agony and an amount of Rs.15,000/- as litigation expenses.
4. Shriram General Insurance Company Limited-Opposite Party No.2 was given up being un-necessary. The Oriental Insurance Company Limited-Opposite Party No.1 in its written version has taken plea that the complaint is not maintainable in the present form; that the complaint is bad for non-joinder of necessary parties and that the complainant has not appeared before the District Forum with clean hands and has suppressed the true and correct facts. After receiving information regarding theft of the vehicle, Royal Associates was deputed as surveyor for investigation of the matter. During investigation, Abdul son of Isha, who was driving the car vehicle, disclosed before the surveyor that at the time of theft, the vehicle was unlocked. As per version of the opposite parties, the complainant concealed this fact and mentioned in his statement before the Police that the car vehicle was locked before commitment of theft. The complainant did not submit reply of the quarry put by the surveyor in this regard. The complainant did not properly take care of the vehicle as the vehicle was parked unlocked by Abdul-driver before the time of commitment of theft of the vehicle. The complainant has violated the terms and conditions of the insurance policy. Moreover, original ignition key of the vehicle is also not with the complainant. The complainant did not provide the original documents as well as the original ignition key of the stolen vehicle to the Insurance Company. Due to the above mentioned reasons, claim of the complainant was repudiated. The opposite party No.1 -Insurance Company prayed that the complaint filed by the complainant be dismissed with costs.
5. After hearing arguments, vide impugned order dated July 21st, 2016 passed by the learned District Forum, Palwal, the complaint filed by the complainant was allowed directing the opposite party No.1 - Insurance Company to pay an amount of Rs.9,37,000/- to the complainant with interest at the rate of 12% per annum from the date of filing of the complaint; to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.5500/- as litigation expenses. In case, the opposite party No.1 fails to make compliance of the directions within 45 days from the date of receipt of the copy of the impugned order, in that eventuality the opposite party No.1 shall pay an amount of Rs.20,000/- more to the complainant.
6. Aggrieved with the impugned order dated July 21st, 2016 passed by the learned District Forum, the complainant filed First Appeal No.1108 of 2016 with a prayer to modify the impugned order and to direct the opposite party No.1 to pay an amount of Rs.20.00 lacs to the complainant which includes an amount of Rs.17,50,000/- being IDV of the vehicle. The IDV of the vehicle is Rs.17,50,000/-, as mentioned in the insurance policy (Annexure-H). The complainant has prayed that he be allowed the relief as claimed in the complaint.
7. The Opposite Party No.1-Insurance Company has filed First Appeal No.977 of 20177 with a prayer to set aside the impugned order dated July 21st, 2016 passed by the learned District Forum, and prayed that the complaint filed by the complainant be dismissed.
8. We have heard learned counsel for the parties and have perused the case file.
9. Vehicle bearing registration No.HR-55M-2485 owned by the complainant was insured with the opposite party No.1 - Insurance Company regarding the period from February 07th, 2014 up to February 06th, 2015 vide Insurance Policy Annexure-H, mentioning IDV as Rs.17,50,000/-. On May 04th, 2014 the driver of the vehicle namely Abdul, parked the vehicle near Omax City, Palwal and went to answer the call of nature. When the driver of the vehicle came at the parking place, the vehicle was found stolen by some unknown person. Intimation was given to the Police immediately vide application (Annexure-B). A criminal case under F.I.R. No.213 (Annexure-C) was registered on May 04th, 2014 under Section 379 of the Indian Penal Code at Police Station: Camp Palwal. It is evident from the copy of the Final Report under Section 173 Cr.P.C. (Annexure-D) that the vehicle could not be traced and untraced report was submitted by the Police before the Ilaqa Magistrate. In this way, there is sufficient evidence on the file that the vehicle owned by the complainant was stolen when the same was parked near Omax City, Palwal. The IDV of the vehicle has been mentioned in the insurance policy (Annexure-H) as Rs.17,50,000/-.
10. As per version of the complainant, theft of the vehicle took place during the subsistence of the policy and theft is covered under the insurance policy Annexure-H. In this way, the complainant is entitled to receive the total IDV of the vehicle. On the other side, version of the opposite party No.1 - Insurance Company is that the complainant is not entitled to receive any amount as compensation as the theft of the vehicle could be possible due to negligence on the part of the complainant/driver of the vehicle. The insured was required to keep proper arrangements for safety of the vehicle. In this case, theft of the vehicle could be possible as the driver of the vehicle left the vehicle unattended and unlocked while going to answer the call of nature. The complainant could not produce the second ignition key of the vehicle also. If the driver of the vehicle would have locked the vehicle, there were no possibilities of commitment of theft of the vehicle.
11. It will be pertinent to mention here that FIR in this case was lodged on the basis of statement (Annexure-B) of the complainant Sabbir, wherein it is mentioned in clear words that the driver of the vehicle had locked the vehicle before he left to answer the call of nature. In the FIR also, there is mention like this. Version of the opposite party No.1 - Insurance Company is that during investigation by the surveyor of the Insurance Company, the driver of the vehicle Abdul disclosed that the vehicle was unlocked at that time. Photo copy of statement of Abdul-driver of the vehicle recorded by the surveyor is adduced in evidence as Exhibit R-1. In this statement, it is mentioned that the vehicle was unlocked but ignition key of the vehicle (Dumper) was with the driver when the driver had gone to answer the call of nature. On the basis of this statement, the Insurance Company wants that the insurance claim of the complainant should be declined as the complainant has violated the terms and conditions of the insurance policy. In the statement of the complainant at the time of recording FIR and in the statement of Abdul-driver recorded before the surveyor, it is mentioned that the ignition key was with the driver. The opposite party No.1 -Insurance Company based it version on the statement of Abdul-driver but neither Abdul has been examined in this case nor his affidavit has been tendered in evidence to prove the version of the Insurance Company.
12. Learned counsel for the complainant has stated that the surveyor might have got recorded statement of the driver with the allurement that the compensation amount would be possible after giving such like statement. In our view, the version of the complainant at the time of recording FIR appears to be plausible as FIR was lodged immediately on the date of accident after few hours. On the basis of evidence and pleadings on the file, findings can be safely given that the driver of the vehicle took all possible precautions. He kept the ignition key before he had to go to a nearby field to answer the call of nature. Even if for the sake of arguments, findings are given that the vehicle was not locked, even then we feel that the findings should not be given that the complainant has violated the terms and conditions of the Insurance Policy.
13. Moreover, in this case only Insurance Certificate cum Policy Schedule (Exhibit R-4) has been adduced in evidence. The terms and conditions of the insurance policy have not been adduced in evidence to make it clear that what particular type of precautions, the complainant and the driver were required to take to save the vehicle from commitment of theft or burglary. Moreover, the driver of the vehicle parked the vehicle on road side near Omax City, Palwal under compelling circumstances as he was in a hurry to go to answer the call of the nature in a nearby field. In such a situation, a man is always found in haste and hurry. There is no controversy of any type that Ignition Key was with the driver. Moreover, the occurrence also took place in broad day light at a place where so many public persons and vehicles were available on that road and near the road where the vehicle was parked. In such circumstances, it cannot be expected that the offender will show so much courage to commit theft of the vehicle by using duplicate keys or other tactics and technology. It appears that the driver of the vehicle had taken necessary precautions at the time of parking of the vehicle, as expected from a man of ordinary prudent. A man of ordinary prudent cannot be expected to think that in such a situation there is expectation of commitment of theft of the vehicle. Moreover, only due to this reason, findings cannot be given that theft of the vehicle could be possible only because the vehicle was unlocked. Frankly speaking, professional persons involved in cases of theft do not need original ignition keys for opening lock of the vehicle for commitment of theft because for them it is not an impossible task to prepare duplicate master keys and to use other technology to commit theft of vehicles. In these circumstances, from any angle findings cannot be given in this case that cause of commitment of theft of the vehicle was negligence or of not using precautions by the complainant and his driver. On this point of controversy, case law cited as National Insurance Company Limited versus Nitin Khandelwal, 2008(3) CPC 559 and Civil Writ Petition No.23209 of 2011 Reliance General Insurance Company Limited and another versus Rajesh Kumar, decided on 14th December, 2011 (Punjab and Haryana High Court), also support the version of the complainant. Resultantly, findings are given that on this ground the insurance claim of the complainant cannot be declined.
14. During the course of arguments, learned counsel for the complainant contended that appeal filed by the complainant should be allowed and the impugned order passed by the learned District Forum should be modified. Learned counsel for the complainant argued that direction be given to the Insurance Company to pay an amount of Rs.20.00 lacs as compensation on account of loss of vehicle with interest which includes IDV of the vehicle as mentioned in the insurance policy as Rs.17,50,000/-. It is admitted fact and rather mentioned in clear words in the insurance policy (Annexure-H) that IDV of the stolen vehicle was Rs.17,50,000/- when the insurance policy was provided. The District Forum has also mentioned in its order that IDV of the vehicle is Rs.17,50,000/- but claim of the complainant is being allowed only to the tune of Rs.9,37,000/- as the complainant has claimed in his complaint only an amount of Rs.9,37,000/-. It is true that the IDV of the stolen vehicle was Rs.17,50,000/-. It is also true that inadvertently the complainant has mentioned in the prayer clause an amount of Rs.9,37,000/- as compensation on account of total loss caused, with interest. In fact, it is an inadvertent mistake on the part of the learned counsel for the complainant. In the prayer clause, it has been prayed that the Insurance Company be directed to pay an amount of Rs.9,37,000/- as compensation amount to the complainant as per insurance policy/insured amount along with interest at the rate of 24% per annum from the date of filing of the complaint.
15. In our view, after going through the prayer clause of the complaint also, it is clear that the complainant has claimed the total insured amount from the insurance company. However, due to inadvertent and clerical mistake, the amount claimed has been mentioned as Rs.9,37,000/-. The complainant filed Appeal No.1108 of 2016 against the impugned order claiming an amount of Rs.20.00 lacs from the Insurance Company which includes the IDV of the vehicle Rs.17,50,000/-. After going through the contents of the complaint, Memorandum of appeal, the insurance policy and the other record on the file, it is clear that IDV of the vehicle was Rs.17,50,000/- and the complainant is also claiming time and again the total IDV of the vehicle as compensation on account of theft of the vehicle.
16. From any angle, case of the complainant throughout is that he wants claim of the total IDV of the vehicle but due to inadvertent and bonafide mistake on the part of complainant's counsel, in the prayer clause claimed amount has been mentioned as Rs.9,37,000/-. This inadvertent/clerical mistake cannot be taken so seriously because in prayer clause the complainant has also claimed the total insured amount of the vehicle which is Rs.17,50,000/-.
17. We feel due to any bonafide and inadvertent mistake on the part of complainant and his counsel, the complainant cannot be allowed to suffer. Moreover, during pendency of the complaint before the District Forum as well as before this Commission, the complainant has claimed total insured amount of the vehicle as compensation. Keeping in mind all these circumstances, it will be justified to direct the Insurance Company-Opposite Party No.1 to pay an amount of Rs.17,50,000/- as compensation with interest at the rate of 9% per annum from the date of filing of the complaint instead of the amount of Rs.9,37,000/- awarded by the District Forum. In our view, findings of the learned District Forum regarding rate of interest and compensation amount on account of unnecessary harassment and litigation expenses etc, appears to be justified and are hereby affirmed.
18. Keeping in mind the above mentioned circumstances, we feel in this situation when everybody in public life is facing such type of difficulties, it becomes the duty of the court as well as of this Commission also to pass some effective, meaningful, relief giving and purposeful orders which should be based on equity and helpful for providing justice that is also natural justice. We feel courts as well as this Commission should pass orders as the situation demands and should not hesitate to come out a little out of the tight cordon of rules and procedure also if the situation so demands. Under the provisions of Consumer Protection Act, 1986 it is purposely provided that provisions of the Civil Procedure Code and Indian Evidence Act shall not be strictly applicable in the proceedings of complaint under this Act and complaint shall be decided summarily.
19. As per discussions above in detail, we find no merit in the First Appeal No.977 of 2016 filed by the opposite party No.1 - Insurance Company and the same stands dismissed. Appeal No.1108 of 2016 filed by the complainant stands allowed and the impugned order dated July 21st, 2016 passed by the learned District Forum stands modified. The Oriental Insurance Company Limited-Opposite Party No.1 is directed to pay an amount of Rs.17,50,000/- as compensation on account of total loss caused to the complainant due to theft of his vehicle with interest at the rate of 12% per annum from the date of filing of the complaint till the date of its realization. The impugned order dated July 21st, 2016 passed by the learned District Forum stands modified to this extent only and findings given regarding the remaining claim of the complainant stand affirmed. Apart from the above mentioned amount, the complainant also shall be entitled to receive an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.5500/- as litigation expenses as findings of the learned District Forum in this regard have been affirmed.
20. The statutory amount of Rs.25,000/- deposited at the time of filing First Appeal No.977 of 2016, be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.
Announced:
31.08.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL