State Consumer Disputes Redressal Commission
Smt. Jasvinder Kaur vs Manager, The Oriental Insurance ... on 2 January, 2023
Appeal No. Smt. Jasvinder Kaur 02.01.2023
216 of 2016 Vs.
Manager,
The Oriental Ins. Co. Ltd and anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 08.03.2022
Date of Final Hearing: 07.12.2022
Date of Pronouncement: 02.01.2023
First Appeal No. 216 / 2016
Smt. Jasvinder Kaur W/o Sh. Balvinder Singh
R/o Ishwar Colony, Rudrapur
Thana and Tehsil Rudrapur, Udham Singh Nagar
(Through: Sh. V.K. Srivastava, Advocate)
.....Appellant
VERSUS
1. Manager
The Oriental Insurance Co. Ltd.
N.C.R. Plaza, 25A, Third Floor
New Cantt Road, Dehradun
2. Branch Manager
Branch Office:
The Oriental Insurance Co. Ltd.
Rudrapur, District Udham Singh Nagar
(Through: Sh. Suresh Gautam, Advocate)
.....Respondents
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been directed against the judgment and order dated 15.09.2016 passed by the learned District Consumer Disputes Redressal Forum, Udham Singh Nagar (hereinafter to be referred as the District 1 Appeal No. Smt. Jasvinder Kaur 02.01.2023 216 of 2016 Vs. Manager, The Oriental Ins. Co. Ltd and anr.
Commission) in consumer complaint No. 87 of 2014 styled as Smt. Jasvinder Kaur Vs. Manager, Oriental Insurance Co. Ltd. and Another, whereby and wherein complaint was dismissed.
2. The facts giving rise to the present appeal, in brief, are as such that the Bolero Jeep bearing registration No. UK06-N-5116 was owned by the complainant at an IDV of Rs. 5,62,400/-. It is averred in the complaint that unfortunately the subject vehicle was stolen on 06.05.2010 in the midnight; A FIR was lodged in P.S. Rudrapur on 07.05.2010, which was registered as Crime Number 243 of 2010. The matter was investigated by the police and the police succeeded in arresting the culprits / accused persons, wherein a charge-sheet No. 259 of 2010 dated 18.10.2010 was submitted against the accused persons namely - Firoz, Momin, Shahnawaj, Sanjay and Shivshankar Sharma under Section 379 IPC on 18.10.2010, but the police had been unable to recover the stolen property. The complainant submitted the relevant papers of stolen vehicle with the insurance company, but the appellant has not been granted the insurance claim, then the appellant- complainant filed consumer complaint No. 58 of 2012, which was decided on 04.07.2014, wherein by the judgment, the District Commission directed the opposite party to decide the claim and also awarded costs of litigation to the complainant, subsequently, the opposite party repudiated her claim vide letter No. 17.09.2014, and it was not intimated to the complainant by the opposite party. The complainant obtained the repudiation letter from the appellant's office on dated 25.10.2014. It is also averred by the insurance company that the financial loss has been undone by the police and our role as insured ends. It is also averred that it is possible that the culprits might dismantle the vehicle and separated its parts for selling to various buyers, in such circumstances, the stolen vehicle was not possible to be recovered by the police. It is further averred that there is no such terms and conditions of the insurance not to indemnify the claim in case if 2 Appeal No. Smt. Jasvinder Kaur 02.01.2023 216 of 2016 Vs. Manager, The Oriental Ins. Co. Ltd and anr.
the stolen property is not recovered by the police in the theft incident. The complainant filed the complaint before the District Commission to get the insured amount from the insurance company.
3. In the written statement, the insurance company has averred that the complainant has informed about the theft alleging that the police had arrested some accused persons and the matter is pending in the Criminal Court. The husband of the complainant has also informed the insurance company that the stolen property has been recovered, which was sold to some Sh. Shiv Shankar Sharma for consideration of Rs. 50,000/-, but it was further sold to Sh. Subhash Yadav, a gangster, under the pressure of police and local panchayat, but the police had been unable to recover the vehicle from Sh. Subhash Yadav. The police has highlighted the case, but the matter pertains to the law and order, therefore, the answering opposite party is not responsible to pay the claim amount to the appellant-complainant.
4. It is further averred in the written statement that earlier a complaint No. 58 of 2012 was also filed by the complainant, wherein the Commission has ordered to decide the claim. Subsequently, the claim has become not payable due to the trace of the stolen property. Now the matter relates to get the possession of the stolen of property, and the police is responsible for it. In such circumstances, answering opposite party cannot be held responsible to pay the insured amount to the complainant, hence, the complaint is liable to be dismissed.
5. After hearing both the parties and after perusing the record, the learned District Commission passed the impugned judgment on 15.09.2016 wherein it is held as under:-
"ifjoknh dk ifjokn i= fujLr fd;k tkrk gSA i{kdkj viuk&viuk [kpkZ Lo;a ogu djasA"3
Appeal No. Smt. Jasvinder Kaur 02.01.2023
216 of 2016 Vs.
Manager,
The Oriental Ins. Co. Ltd and anr.
6. On having been aggrieved by the aforesaid judgment and order of the District Commission, the appellant has preferred the present appeal alleging that the District Commission has ignored the facts, evidence and merits of the case and has failed to pass the impugned judgment without appreciating the evidence available on record. It is also pleaded that the appellant has earlier filed a consumer complaint bearing No. 58 of 2012, which was decided on 04.07.2014 with costs of Rs. 2,000/- payable to the appellant with the direction to the insurer to decide the claim within a month, but the opposite party did not comply with the above direction, therefore, the appellant was compelled to file again a consumer complaint No. 87 of 2014 styled as Smt. Jasvinder Kaur Vs. Manager, Oriental Insurance Company Ltd. praying to the Commission to award Rs. 5,62,400/- to the complainant. The District Commission has observed that the stolen vehicle is in the possession of Sh. Subhash Yadav S/o Sh. Prempal Yadav, therefore, no question has arisen before the insurer to indemnify it, thereby the District Commission has passed illegal judgment in unjustified manner, therefore, the impugned judgment is not in accordance with law and liable to be set aside.
7. We have heard learned counsel for both the sides and perused the record available before us.
8. In the grounds of appeal, the appellant - complainant has averred that the subject vehicle Bolero Jeep bearing registration No. UK06-N-5116 was insured with the respondent - opposite party, which was stolen in the intervening night of 06.05.2010 from the house of the complainant about which FIR Number 243 of 2010 on 07.05.2010 was registered in the Police Station, Rudrapur; the police of the Rudrapur could have been successful 4 Appeal No. Smt. Jasvinder Kaur 02.01.2023 216 of 2016 Vs. Manager, The Oriental Ins. Co. Ltd and anr.
to arrest the real culprits, but could not recover the stolen vehicle from the possession of the accused persons. The accused persons namely - Firoz, Momin, Shahnawaj, Sanjay and Shivshankar Sharma were shown the real culprits during the investigation against whom the charge-sheet number 259 of 2010 dated 18.10.2010 under Section 379 IPC was filed before the Chief Judicial Magistrate, Rudrapur, but the police could not recover the vehicle from their possession. Thereafter, appellant-complainant has submitted her claim before the insurer alongwith all relevant papers after completing all the formalities to this effect and requested the company to award the claim, but the insurance company has not awarded the insured amount to the complainant till 16.02.2012, therefore, she filed the complaint No. 58 of 2012 before the District Commission, but in that complaint case, the District Commission has only awarded costs of litigation directing the insurer to decide the claim within a period of one month. Thereafter, the insurer repudiated her claim vide letter dated 17.09.2014 and it was not intimated to the complainant, thereafter the complainant has again filed a complaint case alleging to award a claim of Rs. 5,62,400/- from the insurer before the District Commission.
9. In the appeal, it is also averred on behalf of the appellant - complainant that it is possible that the accused persons could have dismantled the subject vehicle and sold its parts to several persons. so it is not possible to the police to recover it from the culprits; in such circumstances the insurer is liable to pay the insured amount to the appellant.
10. It is admitted fact that the insured vehicle was owned by the appellant. It is also not disputed that on the date of occurrence of theft of 5 Appeal No. Smt. Jasvinder Kaur 02.01.2023 216 of 2016 Vs. Manager, The Oriental Ins. Co. Ltd and anr.
the subject vehicle, it was insured with the opposite party - respondent- insurance company. It is also not disputed that the vehicle was not stolen.
11. During the course of arguments, it is averred by both the parties that the complainant has not submitted all the papers regarding the criminal case, such as FIR, Charge-sheet, Police report etc. in the District Commission, hence, the same could have not been proved in Commission below, therefore, it is just and proper to remand the file for hearing it afresh before the District Commission, so that the appellant-complainant may be able to file all the relevant papers of the Criminal case and of the stolen property and to prove her complaint in appropriate way.
12. It is pertinent to mention that in the impugned judgment, the District Commission has not referred any such police papers upon which the complainant is relying upon. Some papers have been filed during the appellate stage, out of which some are photocopies, which are not duly proved.
13. In such circumstances, it is proper and appropriate to remand the matter before the District Commission, so that all the relevant papers regarding the Criminal Case, charge-sheet and stolen property may be submitted by the appellant - complainant. Therefore, we are of the opinion that the impugned judgment is liable to be set aside and the appeal should be allowed.
14. Accordingly, the appeal is allowed and the impugned judgment passed by the District Commission, Udham Singh Nagar is hereby set aside. The file is remanded to the District Commission concerned with the 6 Appeal No. Smt. Jasvinder Kaur 02.01.2023 216 of 2016 Vs. Manager, The Oriental Ins. Co. Ltd and anr.
direction for its hearing afresh after giving proper opportunity to both the parties to file their relevant evidence, so that the real controversy may be adjudicated and decided on merits. Both the parties shall appear before the District Commission concerned within one month, i.e. 02.02.2023 from the date of this order.
15. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order be sent to the concerned District Commission for record and necessary information.
16. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 02.01.2023 7