State Consumer Disputes Redressal Commission
Tilak Raj Darshan Lal Matta vs The Branch Manager, The Oriental ... on 3 March, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1360 of 2011
Date of Institution: 08.09.2011.
Date of Decision: 03.03.2015.
Tilak Raj Darshan Lal Matta, through its partner Kamal Kumar, Loha
Mandi Road, Phagwara.
.....Appellant/complainant.
Versus
1. The Branch Manager, The Oriental Insurance Company Ltd.,
Branch Office, Loha Bazar, Mandi Gobindgarh.
2. The Chief Manager, The Oriental Insurance Company Ltd.,
Oriental House, P.B.No.7037, A-25/27, Asaf Ali Road, New
Delhi.
....Respondents/opposite parties
First Appeal against order dated
13.07.2011 passed by the District
Consumer Disputes Redressal
Forum, Kapurthala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the appellant : Sh. P.K. Mutneja, Advocate
For respondents : Sh. Rajesh Verma, Advocate
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (the complainant in the complaint) has directed this appeal against the respondents (the opposite parties in the complaint), assailing the order dated 13.07.2011 passed by the First Appeal No.1360 of 2011 2 District Consumer Disputes Redressal Forum Kapurthala (in short, "the District Forum"), vide which, the complaint of the complainant now appellant was dismissed. The instant appeal has been preferred against the same by the complainant now appellant.
2. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he is a partnership concern and Sh. Kamal Kumar is one of the partners of it. That complainant is owner of a Santo car bearing number PB-36-D-1366, in the name of Tilak Raj Darshan Lal Matta and it was duly insured with the OPs, vide policy number 233603/31/2009/6701 for the period from 09.10.2008 to 08.10.2009. That car of the complainant was stolen on 09.11.2008, from outside the house of Kamal Kumar at Kathy no.66-C, Model Town, Phagwara. The intimation of theft of the vehicle was given to the OP no.1 forthwith, vide letter dated 10.11.2008. That OPs, vide letter dated 20.07.2009, demanded non- traceable report from the complainant, but the same was already sent to the OPs by the complainant. The complainant approached the OPs on receipt of letter dated 20.07.2009, who assured the receipt of non-traceable report and to settle the insurance claim. That an investigator M/s Royal Associates was appointed by the OPs, who approached the complainant and took the duplicate keys from him assuring that the claim, would be settled at the earliest. First Appeal No.1360 of 2011 3 That complainant also wrote letters dated 21.08.2009 and 30.08.2010 to the OPs to settle his claim at earliest, but no response was given thereto. That OPs have failed to give reply to the legal notice sent by the complainant on 23.10.2010. The complainant got the car financed from ICICI Bank against loan. The complainant suffered loss of Rs.1,50,000/- and OPs are liable to indemnify the complainant. The complainant has filed the complaint directing the OPs to pay the sum of Rs.2,25,000/-, the assured amount of the vehicle to the complainant, the amount of Rs.1,50,000/- as loss suffered by him, Rs.1,00,000/- as damages for unfair trade practice and deficiency in service besides Rs.22,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and raised the preliminary objections that complaint is not maintainable. That they rightly repudiated the insurance claim of the complainant, as he had submitted a fake pre-inspection report at the time of getting the insurance of the vehicle. It was admitted that complainant was owner of the vehicle, which was insured with the OPs. The OPs pleaded that complainant submitted fake pre-inspection report of the vehicle in question, alleged to have been issued by Auto Risk Manager Service Pvt. Ltd., which was never issued by it. That the pre-inspection report of the vehicle was required, as there was break in the continuity of insurance of the vehicle and no previous record of insurance was given. That on the basis of the report of investigator First Appeal No.1360 of 2011 4 M/s Royal Associates that the pre-inspection report dated 21.07.2010, which was submitted by the complainant was fictitious for insurance of the vehicle. The OPs prayed for dismissal of the complaint of the complainant.
4. The complainant tendered in evidence affidavits of Kamal Kumar Ex.C-A and Ex.C-1 along with documents Ex.C-2 to C-11 and closed the evidence. As against it, the OPs tendered in evidence affidavit of Kashmir Singh proprietor of M/s Royal Associates Ex.R-A, affidavit of Manjit Singh franchisee of Auto Risk Management Services Pvt. Ltd. Ex.R-B, affidavit of Som Dev, Sr. Div. Manager of OPs Ex.R-C along with documents Ex.R-1 and R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Kapurthala dismissed the complaint of the complainant, by virtue of order dated 13.07.2011 under challenge in this appeal. Dissatisfied with the order of District Forum Kapurthala, the complainant now appellant has preferred this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the record of the case. The insurance claim of the complainant has been repudiated by the OPs primarily on the ground that since there was break in the continuity of insurance policy, therefore, for obtaining insurance policy of the vehicle, the complainant submitted fake pre-inspection report of the vehicle at First Appeal No.1360 of 2011 5 the time of getting the vehicle insured by virtue of the insurance policy for the period from 09.10.2008 to 08.10.2009. This is the only point, on which, the insurance claim of the complainant has been rejected by the OPs. We have to examine the evidence on the record to settle the controversy between the parties. Affidavit of Kamal Kumar complainant is Ex.C-A on the record in support of his averments, as pleaded in the complaint. Ex.C-2 is the letter sent to the OPs by the complainant on 30.08.2010. Ex.C-3 is the partnership deed. Ex.C-4 is the legal notice dated 23.10.2010 and Ex.C-5 is the postal receipt thereof. Ex.C-6 is the copy of F.I.R. no.344 dated 09.11.2008 lodged at police station Phagwara City, regarding the theft of the vehicle by Kamal Kumar. Ex.C-7 is the statement of accounts of the complainant maintained by ICICI Bank. Ex.C-8 is the policy terms and conditions. Ex.C-9 is the demand for non-traceable report issued by Magistrate of ILAQUA, Ex.C10 is the order of Judicial Magistrate (Ist Class). Ex.C-11 is the Photostat copy of registration certificate.
6. To rebut this evidence, the OPs placed on record, the affidavit of Kashmir Singh proprietor of M/s Royal Associates Ex.R-A. He swore in this affidavit that he investigated the matter, lodged by the complainant for insurance claim and he inquired about the pre-inspection report dated 07.10.2008. That it was intimated to him that the pre-inspection report dated 07.08.2010 is a fake First Appeal No.1360 of 2011 6 document. That he submitted his report to Chief Regional Manager, Oriental Insurance Company Ltd., in this regard. Affidavit of Manjit Singh is Ex.R-B on the record. He swore in this affidavit that he is having franchisee of Auto Risk Management Services Pvt. Ltd. He has neither done nor issued any pre-inspection report dated 07.10.2008 in respect of car no.PB-36-D-1366, which is the car in this case. The affidavit of Manjit Singh Ex.R-B is on the record. It is proved fact that the car in question was not examined by Auto Risk Manager Services Pvt. Ltd. Jalandhar and pre-inspection report dated 07.10.2008 is not issued by it. It proves that complainant submitted a fake pre-inspection report to the OPs, just to get the vehicle insured, as there was a break period in the insurance of the vehicle or the previous insurance documents thereof were not available. The affidavit of Som Dev, Sr. Div. Manager of OPs Ex.R-C is on the record to the effect that complainant submitted fake pre- inspection report under the lead head of Auto Risk Management Services Pvt. Ltd. Jalandhar, just to get the vehicle insured. That it was discovered by the investigator M/s Royal Associates in the investigation report that pre-inspection report of the vehicle, vide Ex.R-1 is fake. This document was submitted by the complainant fakely for getting the vehicle insured. Investigation report Ex.R-2 is on the record.
First Appeal No.1360 of 2011 7
7. We have, thus, come to this conclusion that complainant submitted a forged pre-inspection report because the previous insurance policy of the vehicle was not available, just to get the vehicle insured. In addition to that, we further find that the OPs demanded the untraced report of the police regarding this vehicle from the complainant. The complainant submitted the document Ex.C-10 on the record. We find that complainant again tried to be over-smart in this matter with the OPs just to bamboozle them. We find that, as per Ex.C-6, the complainant lodged the report of theft of vehicle at police station city Phagwara, vide FIR No.344 dated 09.11.2008. It is evident from perusal of photo copy of order Ex.C-10, that this order has been passed by Judicial Magistrate (Ist Class) Ludhiana, which pertains to FIR no.170/07, under Section 379 IPC. We find that the untraced report Ex.C-10, does not pertain to this vehicle at all and complainant submitted this order again to the OP, just to pull the wool over the eyes of the OPs to have an axe to grind. Consequently, we find that the conduct of the complainant is not based on utmost good faith, which is the basis for the contract of insurance and is expected from the parties. The District Forum rightly dismissed the complaint of the complainant on the above referred counts. We do not find any ground to disagree with the view taken by the District Forum Kapurthala in this case. First Appeal No.1360 of 2011 8
8. As sequitur of our above discussions, we find no merit in this appeal and the same is hereby dismissed.
9. Arguments in this appeal were heard on 26.02.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER March 3, 2015.
(MM)