State Consumer Disputes Redressal Commission
Vijay Kumar vs Bajaj Allianz General Insurance ... on 26 September, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1036 of 2009.
Date of Institution: 22.07.2009.
Date of Decision: 26.09.2013.
Vijay Kumar, aged about 37 years, S/o Sh. Prem Shanker Dubey, R/o
VPO Nainowal Jattan, District Hoshiarpur.
.....Appellant.
Versus
1. Bajaj Allianz General Insurance Company Limited, Court Road,
Hoshiarpur.
2. Bajaj Allianz General Insurance Company Limited, Rampa
Tower, 5th Floor, Circuit House, Civil Lines, Jalandhar through its
Manager.
3. Bajaj Allianz General Insurance Company Limited, G.E. Plaza,
Airport Road, Yerawada, Pune.
4. Punjab & Sind Bank, Bullowal, District Hoshiarpur, through its
Branch Manager.
...Respondents.
First Appeal against the order dated
08.06.2009 passed by the District
Consumer Disputes Redressal Forum,
Hoshiarpur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:- Sh. S.K. Mahajan, Advocate, counsel for the appellant.
Respondents no.1 to 3 exparte.
Sh. Rohit Sapra, Advocate, counsel for respondent no.4.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Vijay Kumar, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 08.06.2009 First Appeal No.1036 of 2009 2 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), pleading that he is owner of tractor bearing registration No.,PB-07-N-4509, having Chassis No.040ZZC 41161 and Engine No.3100FL42B41429, Sonalika DI 745IIISC. The said tractor was hypothecated with respondent no.4 and the same was purchased from Hoshiarpur Tractors, Hoshiarpur on 09.06.2004 for a total sale consideration of Rs.3,62,900/-. The said tractor was insured with respondents no.1 to 3 and respondent no.4 was responsible to get the same insured and the charges of insurance were deducted by respondent no.4 from the account of the appellant, maintained with respondent no.4.
3. The tractor in question met with an accident on 12.03.2007 by Rehankala Chalser, P.S. Agamtpur, District Agra (UP) and a person died in that accident. FIR No.186/2007 u/s 279/337/338/304-A IPC was registered. FIR dated 16.03.2007 was sent to the respondents regarding the said accident along with all documents, but till date the claim has not been settled.
4. The said tractor was taken on 'spurdari' by the appellant and the same was stolen on 05.01.2008 along with trolley at Balesar, P.S. Agamtpur, District Agra and FIR was registered on 15.01.2008 by the police, but the tractor and trolley were not traceable. The intimation was also sent in this regard to the respondents. The appellant requested the respondents to settle the claim, as the tractor/ trolley was fully insured by respondents no.1 to 3 and respondent no.4 was liable First Appeal No.1036 of 2009 3 to pay the charges to be deducted from the bank account of the appellant. The appellant did not receive any intimation and has suffered a lot of mental tension and harassment. The respondents are deficient in service and the appellant is entitled to recover Rs.3,62,900/- as the value of the tractor, Rs.70,000/- as value of the trolley, Rs.50,000/- as compensation and Rs.5,000/- as litigation expenses along with interest. Accordingly, the prayer was made.
5. In the written version filed on behalf of respondents no.1 to 3, preliminary objections were taken that the complaint is not maintainable and the District Forum has no jurisdiction. The appellant is estoped by his act and conduct to file the complaint. The complaint is bad for non-joinder of necessary parties. Intricate questions of law and facts are involved and the civil court is competent. The tractor of the appellant was insured to cover the risk of third party, for agriculture purpose only and no premium was paid to cover the risk of theft or own damage as there was no liability. No intimation regarding the said theft or the accident was given to the answering respondent Insurance Company, nor the tractor of the appellant was comprehensively insured. There is no deficiency in service and the appellant has not approached the District Forum with clean hands.
6. On merits, it was admitted that the appellant is owner of the tractor in question. The said tractor was insured with the answering respondent insurance company. The appellant has not given the intimation regarding the accident or the theft. The trolley was not covered. The answering respondents moved an application on 18.12.2008 before the District Forum, to supply the documentary proof of the intimation given to respondents no.1 to 3 regarding theft and the insurance policy, covering the risk of theft, but no reply to the First Appeal No.1036 of 2009 4 application was filed nor the required documents were supplied to the answering respondents. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
7. In the written version filed on behalf of respondent no.4, preliminary objections were taken that there is no relationship of consumer and service provider between the parties and the District Forum has no jurisdiction. Similar other preliminary objection as taken by respondents no.1 to 3 were repeated.
8. On merits, it was admitted that the appellant applied for loan for purchase of Sonalika DI-745 tractor and the loan was sanctioned for Rs.2.70 lacs and the said tractor was duly hypothecated with the bank. One Vipin Savroop stood as guarantor for repayment of the loan. The appellant signed various loan documents in favour of the bank and also executed an agreement of hypothecation and as per this, the appellant was to insure the tractor. The appellant is defaulter of the bank. The loan was advanced to the appellant with the condition that the appellant, being borrower, is residing at village Nainowal Jattan and the tractor will remain hypothecated with the bank and will be the security for the payment of the amount due to the bank and the borrower shall permit the bank or its official to inspect the same from time to time. The appellant has taken away the tractor to District Agra without the prior permission and consent of the bank officials and committed the breach of the conditions of the loan. The answering respondent was never responsible for the insurance of the tractor in any manner, nor it gave any such undertaking. The matter is purely between the appellant and respondents no.1 to 3, but the appellant never obtained the policy for theft or loss. The appellant obtained the policy under the 'Tractor Welfare Funds Subscription' and not otherwise First Appeal No.1036 of 2009 5 and it gave coverage only to owner, driver, paid driver and third party under 'Farmer Package Policy'. The appellant never obtained the policy against theft, riot, civil commotion or for any other type of insurance risk, nor paid any such premium. No premium was ever deducted from the bank account of the appellant. There is no deficiency in service on the part of respondent no.4. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum relying upon Clause-7 of the hypothecation agreement Ex.OP-12, dismissed the complaint.
11. Aggrieved by the impugned order dated 08.06.2009, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant and perused the written arguments filed on behalf of respondent no.4.
13. Respondents no.1 to 3 have not contested the appeal and were proceeded against exparte.
14. The appeal was filed on the grounds that the District Forum has not appreciated the documentary evidence produced by the appellant. The tractor in question was earlier got insured by respondent no.4, but thereafter, it failed to get the insurance of the tractor in question despite deduction of the amount from the account of the appellant. No intimation was given to the appellant for not insuring the tractor by respondent no.4 bank. The District Forum has overlooked all First Appeal No.1036 of 2009 6 these documents. The District Forum has wrongly relied upon the authorities and as per the law laid down in case "Corporation Bank Vs Sandhya Shenoy & Anr.", 2009 (2) CLT-68, respondent no.4 bank was liable.
15. In the written arguments filed on behalf of respondent no.4, pleadings were repeated. It was further submitted that the appellant took the loan for the purchase of the tractor and the same was hypothecated with the respondent bank. As per clause-7 of the Hypothecation Agreement Ex.OP-12, the hypothecated tractor was required to be insured by the appellant against fire, theft and other risk and in case he failed to insure the tractor, then respondent no.4 was at liberty to get the aforesaid insurance at the risk and expenses of the appellant. The said right in the nature of a liberty to respondent no.4 bank, without being bound to do so. It is not a case where the insurance policy was not taken, but it is a case where the policy covering only third party risk and not covering the risk of theft, was taken. The appellant himself has been taking the insurance policy by paying the premium from his loan account. The original policy was in also in his possession. The appellant could not have lodged the claim with the respondent insurance company in the absence of the insurance policy. In the application dated 18.12.2008 filed by respondents no.1 to 3 for supply of the documents, it was specifically pleaded that the policy supplied by the appellant to the insurance company is a third party policy and was not covering the risk of theft. The appellant has set up a new case and the judgment relied upon by him of the Hon'ble National Commission is not applicable, whereas the judgments in cases "UCO Bank Vs Gadadhar Mahapatra", 2007-(1) CPJ-29 (NC); "Haryana First Appeal No.1036 of 2009 7 Pesticides Vs Bank of Rajasthan", AIR 2004 P & H-83 are applicable and the appeal is liable to be dismissed.
16. We have considered the respective version/written submissions of the parties and have minutely scrutinized the entire record.
17. The appellant purchased the tractor in question on 09.06.2004 for a total sale consideration of Rs.3,62,900/-. The said tractor was insured with respondents no.1 to 3 and it met with an accident on 12.03.2007 at Rehankala Chalser, P.S. Agamtpur, District Agra (UP) and when it was taken on 'spurdari' by the appellant, the same was stolen on 05.01.2008. The appellant has claimed the insurance amount along with compensation and cost of litigation.
18. The only question to be decided in the present case is whether the tractor in question was insured against theft or not?
19. The policy schedule issued by the respondent insurance company is Ex.OP/18 and the period of insurance was from 15.06.2007 to 14.06.2008 and under the head 'Description' and 'Sum Insured', it is mentioned as follows:-
Description Sum Insured (Rs.) Third party cover for agricultural tractor 1 including coverage to owner driver & paid driver:-Engine No.3100FL42B41429, Chassis No.402ZC41161,Make/Mode-Sonalika DI 745, YOM-2004 Fire, Earthquake & Terrorism Coverage for 50,000/- Building (Kucha Construction)
20. Ex.OP-4/24 is the statement of account of respondent no.4 bank and insured premium was being deducted by respondent no.4 and an amount of Rs.1315/- was deducted as insurance premium on 08.06.2007 and thereafter on 23.06.2008. Thus, the premium was paid First Appeal No.1036 of 2009 8 by respondent no.4, but as stated above, it was third party cover for agriculture tractor including coverage to owner, driver and paid driver. The said tractor was hypothecated with respondent no.4.
21. From the above discussion, it is clear that the tractor in question was never insured against theft and, as such, the appellant is not entitled to recover any amount from the respondent insurance company and the claim of the appellant was rightly repudiated. The order passed by the District Forum is detailed and speaking and there is no ground to interfere with the same.
22. Accordingly, the appeal filed by the appellant is dismissed and the impugned order under appeal dated 08.06.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
23. The arguments in this appeal were heard on 18.09.2013 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member September 26, 2013.
(Gurmeet S)