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State Consumer Disputes Redressal Commission

Nasir Shah Bashir Shah vs United India Insurance Company Ltd on 12 September, 2013

                                      1                               FA275/2008




                                             Date of filing :13/03/2008
                                             Date of order :12/09/2013

MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. : 275 OF 2008
IN COMPLAINT CASE NO.: 170 OF 2007
DISTRICT CONSUMER FORUM : JALGAON

Nasir Shah Bashir Shah
R/o.Wakadi Tq.Jamner,
Dist.Jalgaon.                                            Appellant.

             VERSUS

1.   United India Insurance Company Ltd
     The Divisional Manager
     United India Insurance Company Ltd,
     Dist. Jalgaon Mansing Market IIne Floor,'
     Near Railway Station, Jalgaon,
     Tq & Dist.Jalgaon.

2.   Jalgaon Janata Sahakari Bank Ltd
     Jalgaon branch Jambner,
     The Branch Manager Jalgaon Janata Sahakari Bank Ltd
     Jalgaon Branch Jamner.                      Respondent.

     CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

Mrs.Uma Bora, Hon'ble Member.

Mr.K.B.Gawali, Hon`ble Member.

Present : Adv.Shri.S.A.Pradhan for the appellant.

Adv.Shri.V.R.Mundada is present for respondent No.1. Adv.Shri.Vijay Deshmukh is present for the respondent No.2.

                 O R A L      O R D E R

Per. Mrs.Uma Bora, Hon'ble Member.

1.   Shri.   Nasir    Shah   Bashir       Shah   appellant   herein/original

complainant challenges in this appeal judgment and order passed by the Dist. Forum, Jalgaon on 13/02/2008 in complaint case No. 170/2007.

2. Facts giving rise to the appeal are as under :

Complainant had purchased Jeep bearing registration No. MH- 19/J-1665 by availing loan of Rs 2,70,000/- on 08/05/2002 from Jalgaon Janata Sahakari Bank Ltd. Said vehicle was hypothecated with the bank. For said vehicle complainant had obtained insurance policy No.230500/31/05/04974 for the period 04/08/2005 to 03/08/2006. It is stated by the complainant that on 09/12/2005 the said vehicle was parked near Tondapur bus stand in the morning at 11 to 11.30 a.m. and complainant went to hotel for taking a tea. On return complainant did not find his vehicle. Therefore, he enquired with the persons near about and he came to know that one Shri.Sadik Shah took his vehicle. Therefore, he registered FIR on 19/01/2006 with Pahur Police Station and accordingly CR.No.10/2006 was registered against Shri.Sadik Shah and Smt.Hakima B Gulab Shah. Complainant informed the incident of theft to the Insurance Company but his claim was repudiated by the Insurance Company by letter dated 07/08/2006 on the ground that vehicle is not stolen but sold to one Shri.Gulab Shah therefore claim is not tenable. Therefore, complainant approached to Dist. Forum and demanded IDV of Rs 1,75,000/- with interest @ 16 % p.a. from the United Insurance Company i.e. opponent No. 1. No prayer was made against opponent No. 2 Jalgaon Janata Sahakari Bank Ltd.

3. Opponent Insurance Company appeared before the Dist. Forum and resisted the complaint. It is submitted by Insurance Company that investigator Adv.Mundada scrutinized the complaint and reported that complainant has sold the vehicle to one Shri.Gulab Shah Yasin Shah for Rs 2,45,000/- and complainant had received advance of Rs 45,000/-. Accordingly stamp paper was issued in favour of said Shri.Gulab Shah by the complainant . Therefore, claim in respect of alleged theft of vehicle is not maintainable.

4. After hearing both the parties Dist. Forum held that complainant might have received the amount from the purchaser of vehicle and might 3 FA275/2008 not have the handed over the vehicle. Therefore said purchaser might have stolen the vehicle.

5. Being aggrieved by the judgment and order original complainant came in appeal.

6. Adv.Shri.S.A.Pradhan appeared for the appellant and Adv.Shri.V.R.Mundada for the opponent No. 1 and Adv.Shri.Vijay Deshmukh appeared for the opponent No. 2. Both the counsel have submitted their written notes of arguments. It is submitted by Adv. Pradhan that complainant on the fateful day of the incident i.e. 09/05/2012 had parked his vehicle near bus stand and went in to hotel to have a tea. The incident occurred at 11.00 to 11.30 A.M. in the broad day light. Accordingly criminal case was registered against Shri.Sadik Shah and one Smt.Hakimbai but till today said Shri.Sadik Shah was not found by the police and Smt. Hakimabai was acquitted by the Civil Court. It is further submitted by Adv.Pradhan that even on 07/09/2013 police inspector from Pahoor Police Station informed the complainant that the vehicle stolen was also not recovered till today and Shri.Sadik Shah is absconding and not found till today. It is further submitted by Adv.Pradhan that Dist. Forum proceeded on assumption and presumption while dismissing the complaint by relying on the report of investigator. Insurance Company repudiated the claim but there is no evidence to prove that vehicle was sold by complainant to one Shri.Gulab Shah. It is also not the case of Insurance Company that said Shri. Gulab Shah filed the Civil Suit against the complainant for specific performs. Even otherwise on the day of incident name of complainant was seen in RC book of the vehicle but Dist. Forum by ignoring the said fact committed error while dismissing the complaint. In support of his contention he relied on National Insurance Commission -V/.s- Balwant Singh Sh.Bhagwan Dass reported in 2010 (1) CPR 1999 (NC). It is held by Hon'ble National Commission that theft of vehicle has no nexus regarding user or purpose for which vehicle was being actually plied.

7. Adv.Shri.V.R.Mundada appearing for the respondent No. 1 submitted that after getting intimation about the theft of vehicle by the complainant Insurance Company appointed Adv.P.G.Mundhra as a investigator. Shri. Mundhra investigated the matter and reported that complainant had sold his vehicle to one Shri. Gulab Shah for Rs 2,45,000/-. It is submitted by Shri. Mundada that complainant has received Rs 45,000/- in respect of said sale and as the vehicle was not delivered to the purchaser he might have stolen or seized the said vehicle. It is further submitted by Adv. Mundada that Insurance Company rightly repudiated the claim as theft of vehicle was not proved. Dist. Forum rightly considered the facts and evidence while dismissing the complaint hence, appeal be dismissed.

8. We thus heard both the counsel and considered the submission of both the counsel. It is an admitted fact that complainant had purchased vehicle taxi bearing registration NO. MH-19-J-1665. It is an admitted fact that said vehicle was insured for the period from 04/08/2005 to 03/08/2006 for insured declare value of Rs 1,75,000/-. It is the case of the complainant that vehicle was stolen by one Shri.Sadik Shah and Smt.Hakimbai Gulab Shah accordingly criminal case was filed against them. In the criminal case. Smt.Hakimbai was acquitted and Shri.Sadik Shah is still today absconding. On 07/09/2013 letter issued by police station Pahoor according to which till today vehicle is not found. In our view if as per the information of Insurance Company vehicle was sold to Shri.Gulab Shah then the said Shri.Gulab Shah would have filed the Civil Suit for specific performance against the complainant. There is nothing on record to prove the said fact. On the date of incident, name of complainant was mentioned in the RC book. If vehicle would have been sold by the complainant then the name of purchaser would have been mentioned in the R.C.book Insurance Company failed to prove that vehicle was sold by the complainant. The report of investigator is to help and assist the Insurance Company for assessment and settlement of the 5 FA275/2008 claim. Said report is not binding on us. Even otherwise affidavit of said investigator is not filed on the record by the Insurance Company. In our view Insurance Company failed to prove the sale of vehicle by the complainant Dist. Forum proceeded on assumption and presumption by holding that as complainant had not delivered the vehicle his vehicle might have been stolen by the purchaser. The order of Dist. Forum suffering from illegality and infirmity, hence required tobe quashed and set aside. Hence, order.

                   O   R    D     E   R
1.           Appeal is allowed.

2. The judgment and order passed by the Dist. Forum is hereby quashed and set aside. Respondent Insurance Company is directed to pay Rs 1,75,000/- to the complainant with interest @ 6 % from the date of complaint i.e. 11/07/2007 till realization of the amount.

3. No order as to cost.

4. Copies of the judgment and order be sent to both the parties.

K.B.Gawali                 Mrs.Uma Bora                S.M.Shembole
 Member                        Member              Presiding Judicial Member
Patil A.H.
Steno H.G.
 6   FA275/2008