State Consumer Disputes Redressal Commission
Machindra Tukaram Waghchoure vs The Branch Manager, Cbo, United India ... on 8 July, 2025
1 CC No.13/2019
Date of filing :08.03.2019
Date of order :08.07.2025
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
C.C. NO.: 13 OF 2019
Shri.Machindra S/o Tukaram Waghchoure, ...COMPLAINANT
R/o Flat No.A3/B Gut No.22, (Adv.K.B.Jadhav)
Krishnai Residency, Wadgaon,
Waluj, Aurangabad.
VERSUS
1. The Branch Manager, ...RESPONDENT 1
CBO, United India Insurance Co.Ltd. (Adv.M.R.Deshmukh)
Branch Office, Aurangabad,
5/5/72, New Osmanpura,
Aurangabad.
2. The Manager, ...RESPONDENT 2
Indusind Bank Ltd. (Adv.M.D.Narwadkar)
Aurangabad.
CORAM : Milind.S.Sonawane, Hon'ble Presiding Member.
Dr.Nisha.A.Chavhan, Hon'ble Member,
Nagesh.C.Kumbre, Hon'ble Member
JUDGMENT
(Delivered on 08/07/2025) Per Milind S.Sonawane, Hon'ble Presiding Member.
This is complaint filed under S.35 r/w S.47 of Consumer Protection Act, 1986( 'C.P.Act' for short). It is the case of complainant that, he had purchased a vehicle Tata Truck bearing No.MH-20EG/2711 on 30.03.2017 for the consideration of the amount of Rs.26,50,419/-. He insured that vehicle with opponent no.1 on obtaining the finance from opponent no.2. The 2 CC No.13/2019 Insured Declared Value of the same was Rs.24,90,000/-. The policy was valid from 30/03/2017 to 29/03/2018. The said vehicle was the goods carrier vehicle having National Permit and can ply through out the territory of India up to 16/05/2018. He engaged the driver namely Imran Khan S/o Iqbal Bahadur on the truck. He was having valid driving license. The driver Imran Khan driving the truck regularly on rent basis in local area in Maharashtra and other States. There was another driver working with the complainant namely Mustakim. On 26/08/2017 the driver loaded tomato from Nashik to Gorakhpur through U.P.Golden Transport, Nashik for the fair of Rs.34,000/-. After completing that delivery the driver told to him that, there are various work available to the truck in his District and sought his consent to ply that truck on rent basis there. On two occasions the driver sent deposited sum of Rs.25,000/- towards the rent.
2. It is further averred by the complainant that, on 26/09/2017 the driver was carrying soil/gitti in the truck from village Kharawan, Gauriganj to Kavrai along with Khalashi Rajan Babu. When they reached at Rajput Dhaba at 11.00 p.m. they took the dinner and started a journey again. They reached another dhaba at 1.00 a.m. and parked the truck by the side of it and they slept in it keeping the windows open. All of a sudden 4 unknown persons open the doors and entered into the truck. They threatened them that they will shoot them to death. Those persons started running the truck for one hour. Thereafter they were shifted to the Scorpio jeep. Their eyes were closed with the 'patti'. The offenders stolen the truck. Thereafter at about 4.00 3 CC No.13/2019 a.m. the offenders left the driver and khalashi in a jungle and they run away. They reported the incident to Gurubaksha Ganj Police Station, District Raibarelli at about 11.05 a.m. On the FIR police registered Crime No.219 under S.392 of the Indian Penal Code, 1860.
3. It is further averred by the complainant that, upon the information received from the driver he went to the concerned police station to trace out the vehicle and thereafter when he came back to Aurangabad he gave intimation of the theft of insured vehicle to opponent no.1 on 04/10/2017. He along with all the necessary papers lodged insurance claim with opponent no.1. However, on 09/01/2019 opponent no.1 repudiated his insurance claim on the ground that, he intimated the incident after 8 days of it occurrence whereas it was mandatory as per the terms and conditions for him to report the same within 24 hours. Secondly that , it is transpired in the investigation conducted by its officers that, the driver of the vehicle left the keys to ignition and slept in the vehicle by keeping the door unlocked. There is gross negligence and failure to take reasonable care to safeguard the vehicle from losses and it is the breach of condition no.5 of the policy. The third ground is that, he resides at Aurangabad and handed over the insured vehicle to the driver from Uttar Pradesh without having any transport business in Uttar Pradesh . No valid explanation is given in this regard by him.
4. Being aggrieved by the above repudiation of the insurance claim the complainant has filed the present complaint. It is 4 CC No.13/2019 averred that, there was immediate lodging of the FIR with the police. The theft of the insured vehicle was intimated belatedly within 8 days as he was required to go to Uttar Pradesh to know the exact happenings and trace out the vehicle. The robbers took away the original papers and keys along with the insured vehicle. He explained all these facts to opponent no.1 but still his insurance claim has been repudiated without any valid reason. Claiming it to be deficiency in service, the complainant has prayed that, opponent no.1 may kindly be directed to pay sum of Rs.26,50,419/- towards the theft claim of the insured vehicle. Opponent no.1 further may kindly be directed to pay sum of Rs.1,00,000/- for mental and physical harassment. Opponent no.2 be directed not to take coercive or adverse action against him for the repayment of the loan amount. The respondents further may kindly be directed to pay Rs.25,000/- each to him for fine and expenses.
5. The complainant along with list filed copy of sale certificate and tax invoice, copy of premium receipt, copy of the insurance policy, R.C.book , fitness certificate, driving license of the driver and documents relating to his residence, copies of rent receipt, bank entry of pass book, Copy of FIR, intimation letter to opponent no.1, repudiation letter, copy of legal notice, evidence affidavit to support his complaint.
6. Opponent no.1 appeared and resisted the claim of the complainant by filing its written version. It is contended that, the complainant resides at Aurangabad and purchased the insured 5 CC No.13/2019 vehicle in Aurangabad registered it with R.T.O.Aurangabad. He has no concern with the Uttar Pradesh. The story of engaging the drivers and keeping them in possession of the insured vehicle in Uttar Pradesh is unacceptable. There was no written agreement to that effect between the complainant and the driver. Vehicle was never used in Maharashtra. The intention of the complainant therefore appears to be otherwise. The incident of theft took place within 6 months of the purchase of the vehicle. For the entire period it was plying in or around State of Uttar Pradesh only. The complainant has not furnished the original registration certificate, original keys of the vehicle and other relevant documents. The incident of robbery appears to be planted. In collusion of the driver the complainant might have sold the vehicle to third party to earn money in the transaction.
6. It is further contended by opponent no.1 that, the incident alleged to have been taken place on 26/09/2017 and the intimation of the same, which was required to be given within 24 hours to them by the complainant, but the same is given on 04/10/2017 and there is delay of 10 days in it. There is no valid explanation offered by the complainant for this delay. Thus, there is breach of condition no.1 by the complainant. After the receipt of the intimation of the incident 17 documents were demanded from the complainant but he failed to furnish the same along with the original keys of the vehicle. Opponent no.1 also stated that two different surveyors to investigate the matter, namely Sanjay Bajpayee and surveyor agency Lustrous Manifold Services India Pvt. Ltd. were appointed. During the investigation 6 CC No.13/2019 the statement of the driver was recorded. It is transpired that, the driver inserted the key to ignition and left it as it is and slept in the vehicle keeping the windows open. This shows that there is negligence on the part of the driver and it permitted the entry to the thieves without use of any force. It is also transpired that the vehicle was parked in front of small dhaba not surrounded by human abode. It was an isolated place. This also suggest the negligence on the part of the driver of the complainant. In the back ground of the above facts the insurance claim of the complainant has rightly been repudiated and there is no deficiency in service on their part. As such it is prayed by opponent no.1 that, the complaint filed by the complainant may kindly be dismissed with cost.
7. Along with evidence affidavit opponent no.1 has filed copy of the claim intimation, claim form, letter demanding 17 documents, copy of the policy, statement of the driver recorded by the investigator of opponent no.1, report of surveyor Sanjay Bajpayee, tax invoices, investigation report by Lustrous Manifold Services Pvt. Ltd., to support their contentions.
8. Opponent no.2 who is the financer of the insured vehicle filed written version and contended that, they have financed the vehicle which is alleged to have been stolen . Merely because of the theft of the financed vehicle the complainant cannot ask for prohibiting them from the recovery of the loan amount. On the contrary, in the event that, the complaint of the complainant is allowed against the opponent no.1, the amount of insurance 7 CC No.13/2019 claim may kindly be paid to them towards the repayment of outstanding loan amount.
8. So as to support the above contentions opponent no.2 has filed the statement of loan account and evidence affidavit.
9. We heard all learned Adv.K.B.Jadhav for the complainant , Adv.M.R.Deshmukh for opponent no.1 and Adv.M.D.Narwadkar for opponent no.2.
10. The points for determination along with our findings thereon are as follows.
Sr.No Points Findings
1. Whether there is deficiency in service to ...Yes, as to the complainant by the opponents? opponent no.1.
2. What order? As per final order REASONS As to Point No.1 :
11. So far as deficiency in service is concerned, it needs to be stated at the outset that, opponent no.2 who is the financer of the insured vehicle has not played any role in the repudiation of the insurance claim . There is no allegation against it to indicate that it is also deficient in service. Therefore there is no question 8 CC No.13/2019 of discussing anything regarding opponent no.2 relating to the deficiency in service.
12. Adv.Deshmukh for opponent no.1 firstly argued that, after the intimation of the theft of the insured vehicle 17 documents were demanded from the complainant including the original keys of the vehicle. The documents especially required were the original R.C.book, motor driving license , purchase bills, copy of the FIR, final report of the police, statement of the witnesses, letter to R.T.O. and financer etc. But the complainant failed to submit them. In an answer it is argued by Adv.Jadhav for the complainant that, the original documents relating to insured vehicle and the keys were stolen with the vehicle as those were kept in the vehicle. Rest of the documents which were sought by opponent no.1 have been furnished by the passage of the time.
The complainant has offered valid reason for non-production of the documents and keys but opponent no.1 not considered it to be satisfactory. In the background of these contrary submissions, according to us the explanation given by the complainant in this regard is quite satisfactory and should not have been questioned by opponent no.1 in the given circumstances. As such, the point argued by opponent no.1 in this regard cannot be accepted.
13. The second point of argument of Adv.Deshmukh is that , the insured vehicle purchased at Aurangabad and the complainant also is the resident of Aurangabad. The vehicle registered with R.T.O.Aurangabad. The complainant has not produced any 9 CC No.13/2019 evidence to show that he was having the business of transportation . In such circumstances, it is unacceptable that, he handed over the insured vehicle to driver Imran and Mustkim to ply the vehicle in Uttar Pradesh to do the business. There was no agreement between the complainant and the driver regarding the same. Thus, it is clear that , the complainant put the insured vehicle in unsafe hands and failed to take the proper care of it. For the reasons stated above, the story of the theft of insured vehicle does not appears to be genuine and acceptable. Further the investigator transpired in their investigation that, the vehicle was parked in front of a small dhaba in an isolated place. The driver and the khalashi kept the windows open living the key to the ignition in the midnight allowing the so called culprits to stole the vehicle without using any force. This also indicates that, no proper care and caution has been taken by the concerns for avoiding the theft of the insured vehicle . On the other hand, it is argued by Adv.Jadhav for the complainant on this issue that, the insured vehicle was having the National Permit to do the business of transportation through out the territory of the India up to 16/05/2018. Since the complainant was having affectionate relationship with both the drivers and they are acquainted with each other the insured vehicle was handed over to them for the business purpose. In such situations, it is not justified for opponent no.1 to view all these things with suspiction. There is no evidence procured by the investigators to raise such suspiction and it is baseless.
10 CC No.13/201914. We agree with the above submissions of Adv.Jadhav for the complainant. The main reason behind this is that, since the insured vehicle was the commercial vehicle having huge finance on it, it is quite possible in a natural course for the complainant to get the more business out of it by operating it on a long route for transportation. The complainant has stated on affidavit that, on 26/08/2017 the insured vehicle was taken to Gorakhpur from Nashik for tomato delivery through U.P. Golden Transport, Nashik for the fare of Rs.34,000/- and thereafter he got the business over there and insured vehicle was engaged through the drivers for the rent of Rs.25,000/- . On two occasion the drivers deposited sum of Rs.25,000/-. This version of the complainant has not been rebutted by opponent no.1 by any evidence. These facts tends to show that, there is no room for any suspiction for anyone that, why for the vehicle of the Maharashtra is plying in the Uttar Pradesh for a business. We don't see any abnormality in such kind of business. Thus, the second argument made on behalf of opponent no.1 also cannot be accepted.
15. So far as the argument regarding the negligence on the part of driver and khalashi on the date of the incident that they slept in the vehicle parked in an isolated place near small dhaba at about 1.00 a.m. leaving the windows open and key to the ignition is concerned, the recitals of the FIR shows that, after a long journey the driver and khalashi parked that vehicle as such. Further because of the night period they took the sleep for a while which is quite natural and also essential to avoid any 11 CC No.13/2019 accident or loss to the insured vehicle, which is also in the interest of opponent no.1. They kept the windows open while sleeping is also obvious to avoid the suffocation and allowing the ventilation. The conduct on the part of driver and khalashi appears to be quite obvious in the natural course and considering the human conduct. It cannot be ignored that, the thieves were 4 in number and they threatened the driver and the khalashi not to oppose the theft of the vehicle. In fact they used the force on the driver and the khalashi and travelled with them to a fair distance and thereafter shifted them in another vehicle and dropped them in a jungle. All these facts alleged to have been taken place clearly shows that, the theft of the vehicle is an aggravated form of theft which is a robbery. We are of the view that, in the given set of facts before us there cannot be any negligence on the part of driver and the khalashi. On the contrary, they immediately reported the incident to the police next day morning at 11.05 a.m. The contentions of opponent no.1 in this regard therefore cannot be accepted.
16. Adv.Deshmukh while placing reliance on the judgment of the Hon'ble Supreme Court in case of Kanwarjit Singh Kang - vs- ICICI Lombard General Insurance Co.Ltd. and another, Special Leave Petition No.65/2018 decided on 29/03/2022 argued that , the delay of 10 days in giving the intimation of the theft is the valid ground for the repudiation of the insurance claim of the complainant. The ratio laid down by the Hon'ble Supreme Court in the above case is applicable to the present case. On the other hand, Adv.Jadhav for the complainant relied 12 CC No.13/2019 on the judgment of Hon'ble Supreme Court in case of Omprakash -Vs- Reliance General Insurance and another , Civil Appeal No.15611/2017 decided on 04/10/2017 and argued that, the ratio laid down by Hon'ble Supreme Court in this judgment squarely applies to the present case, as in a case before Hon'ble Supreme Court there was a question that whether the delay of 8 days in giving intimation of the theft of the insured vehicle is the valid reason for the repudiation of the insurance claim or not? Hon'ble Supreme Court held that, if the delay is satisfactorily explained then such a delay could not be valid ground for the repudiation. It is his further submission that, it is observed by the Hon'ble Supreme Court in that case that the owner of the truck in question has to travel from Hariyana to Rajasthan after he has received the information of the theft of the truck. He and his driver were to assist and help the police in tracing out the stolen vehicle and to visit several places. He has also to collect the necessary documents, and when he back to his home he gave the intimation to the insurance company. Such reasons given for the delay intimation has been accepted by the Hon'ble Supreme Court . In the present matter also similar situation is there and exactly 8 days of delay in intimation is caused.
17. In the background of the above submissions, it is noticed that, Hon'ble Supreme Court in case of Kanwarjit Singh (Supra) held that, if there is no delay in lodging the FIR the ratio laid down by the Hon'ble Supreme Court in case of Gurushinder Singh -vs- Shriram General Insurance Co.Ltd. and another 13 CC No.13/2019 (2020) 11 SCC 612 which is given by the 3 judges bench of the Hon'ble Supreme Court could be followed . Hon'ble Supreme Court in case of Gurushinder Singh (Supra) endorsed its own view taken in case of Om Prakash (Supra) and held that, when an insured has lodged FIR immediately after the theft of the vehicle the genuine claim of the insured cannot be repudiated by the insurance company merely on the ground of delayed intimation.
18. In the present case , the FIR was promptly lodged and the delay of 8 days is reasonably been explained . As such, in view of the aforesaid holding of the Hon'ble Supreme Court we are of the considered view that, there was no valid ground for opponent no.1 to repudiate the insurance claim of the complainant. Hence we answer point no.1 in affirmative only against opponent no.1 as opponent no.2 has no role to play in the repudiation. Opponent no.2 has also not done anything otherwise which can be termed as deficient service.
As to Point No.2:
19. In view of our findings as to point no.1 in affirmative against opponent no.1 only, it has become clear that, there has been deficiency in service given to the complainant by opponent no.1. The complainant has prayed that he shall be given the insurance claim of Rs.26,50,419/- along with interest @12 p.a. from the 'date of theft' of the vehicle along with sum of Rs.1 lakh for mental and physical harassment and Rs.25,000/- for fine and 14 CC No.13/2019 expenses. However, on perusal of insurance policy it is clear that, the Insured Declared Value of the vehicle is Rs.24,90,000/-. Therefore , the complainant is entitled to get Rs.24,90,000/- along with interest @ 9% p.a. from the date of the repudiation i.e. 09/01/2019 and not from the date of theft of the insured vehicle. In the facts and circumstances of the present case it will be just to grant the complainant sum of Rs.50,000/- for mental and physical harassment and Rs.10,000/- as the cost of the proceedings. The complaint against opponent no.2 will have to be dismissed. Hence we pass the following order.
ORDER
1. Opponent no.1 is directed to pay to the complainant sum of Rs.24,90,000/- along with interest @ 9% p.a. from the date of the repudiation i.e. 09/01/2019.
2. Opponent no.1 is directed to pay to the complainant sum of Rs.50,000/- for mental and physical harassment along with Rs.10,000/- as the cost of the proceedings.
3. The complaint against opponent no.2 is dismissed.
4. Copy of this judgment be furnished to both sides free of cost.
N.C.Kumbre Dr.N.A.Chavhan M.S.Sonawane
Member Member Presiding Member
MBM