STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 20.12.2016
Date of final hearing: 21.04.2023
Date of pronouncement: 02.05.2023
CONSUMER COMPLAINT NO. 411 OF 2016
IN THE MATTER OF
Kavita Nain wife of Dilbagh Singh, resident of H. No. 841, Ward No. 19, Sector 12/A, Panchkula.
…..Complainant
Versus
1. ICICI Lombard General Insurance Company Limited through its Managing Director, ICICI Lombard House, 414, Vir Shavarkar Marg, Near Sidhi Vinayak Temple, Prabha Devi, Mumbai, Maharashtra-400025.
2. ICICI Lombard General Insurance Company Limited through its Manager, Plot No. 149, Fourth Floor, Industrial Area, Phase-I, next of Hometel Hotel, Chandigarh-160002.
3. EM PEE Motors Ltd. through its Manager, Plot No. 71, Industrial Area, Phase-I, Chandigarh.
…..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Present:- Sh. Naresh Kumar, counsel for the complainant.
Sh. N.K. Setia, counsel for the opposite parties No. 1 and 2.
Presence of opposite party No.3 already dispensed with.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
On 08.08.2014, complainant purchased Toyota Fortuner 3.0L, Colour off white bearing No. HR-14K-0007, Chasis No. MJJIIIJV-6104031545, Engine No. IKDU594393, Model-2014 amounting to Rs.23,48,032,66/-. Vehicle was registered in the name of complainant at address H.No. 841, Ward No. 19, Panchkula, Haryana. Vehicle was stolen by some unknown person from front of house of complainant on 18.06.2016. FIR No. 133 dated 18.06.2016 under sections 379, 380, 411, 420, 468, 471 IPC was got registered at Police Station Sector-14, Panchkula (Annexure C-3). During the course of investigation, police recovered the vehicle on 30.08.2016 i.e. after two and half months of occurrence. The vehicle was found to be totally damaged/loss, even chasis number and engine number were found tempered. This fact is fortified from the report of Forensic Science (Annexure C-4). The recovered vehicle is lying in the premises of CIA-1, Sector-16, Panchkula. It is pleaded that vehicle was fully insured with opposite party (OP) No. 1 and all requisite documents pertaining to policy of the vehicle were submitted to it. Annexure C-5 is the insurance policy of the vehicle in question for the year 2014-15 & 2015-16. Complainant approached OP No. 1 by way of filing of application and sought claim of missing vehicle, but till date, no meaningful response has been received from OPs. It has been further pleaded that value of the vehicle is Rs.23,48,032/-, Registration Charges of Rs.2,22,946/-, premium paid for the insurance policies for the year 2014-2015, 2015-2016 is Rs.86,092/- & Rs.77,857/- respectively which includes extra amount of Rs.18,200 & Rs.17,993/- paid for “add on services” and RTI premium. Complainant pleaded that total amount spent on the vehicle is Rs.28.00 lacs approximately. Vehicle of the complainant was insured with OP No. 1, who is liable to give claim with interest. By alleging deficiency in service of OPs and asserting cause of action; complainant has filed this complaint thereby seeking full payment of value of vehicle i.e. Rs.23,48,032/- with 18% interest p.a. from the date of missing of vehicle i.e. 18.06.2016 and Rs.2,22,946/- on account of registration charges of vehicle with 18% interest p.a. from the date of missing of vehicle i.e. 18.06.2016. She has also claimed Rs.1,00,000/- towards mental torture, agony and pain allegedly suffered by her and Rs.55,000/- for litigation expenses.
2. Notice was issued to OPs. Ops No. 1 & 2 filed their written statement, wherein they have raised preliminary objections with regard to maintainability of complaint, complainant having not preferred any own damage claim and no cause of action. Vehicle allegedly stolen on 18.06.2014, had been recovered by police on 30.08.2016 and on 01.09.2016 insurance company informed complainant that he can have possession of vehicle. On merits, OPs No.1 and 2 have submitted that after the vehicle had been recovered; a fresh motor own damage claim had to be filed, in case, there was any damage. Complainant has not preferred any own damage claim with company. Damage cannot be presumed by company on the saying of complainant. There is proper procedure prescribed which company and insured has to adhere, under terms and conditions of policy. Company is ready and willing to deal with the claim as per law, only in case, claim is lodged by complainant in the event of any damage to vehicle. OPs No. 1 and 2 have admitted that vehicle was insured with them. Other averments were denied and dismissal of compliant has been prayed. Alternatively, OP No. 1 & 2 have prayed that they be allowed to appoint surveyor and investigator to assess the extent of damage and actual loss.
3. Service of OP No. 3 has been dispensed with vide order dated 05.04.2017 of this Commission.
4. Parties led evidence. Complainant filed his duly sworn affidavit Ex.CW-1 towards her affirmative statement on oath. Surjit Singh CW-2 and Harpreet Singh CW-3, have also examined. Complainant have relied upon documents viz. Ex.C-1 to Ex.C-4, and Annexure C-1 to Annexure C-5. OPs No. 1 & 2 have relied upon written statement dated 27.09.2017 (Annexure OPA) besides relying upon letter (Annexure R-1) as Ex.OP-1.
5. Arguments were heard on 21.04.2023. Learned counsel for complainant has urged that appropriate relief as prayed in complaint be granted to her on given facts which have been substantiated by oral and documentary evidence. IDV of stolen vehicle is Rs.22,30,631/- as per Insurance Policy Annexure C-5. There is no denying fact that stolen vehicle was insured with OPs No.1 and 2 on the day of its theft. It is urged that prompt FIR was lodged with Police after incident of theft. As per contention; once police has recovered the stolen vehicle in totally damaged condition, then insurance policy would begin to operate and complainant would be entitled to full road price value of the vehicle which is Rs.25,98,033/- as per Insurance Policy Annexure C-5, besides other charges spent thereon. It is urged that insurer has appointed its surveyor who reported that vehicle was recovered in totally damaged condition. Thereafter, during the proceedings of complaint before this Commission; Hon’ble Commission vide order dated 13.05.2019 has again directed the insurance company to inspect the vehicle and prepare report regarding damaged caused, to it as to whether; from the damage so-caused, it can be said that it was a case of total loss. It is urged that no fresh report of surveyor is forthcoming. On these submissions, learned counsel for the complainant has urged that complaint merits acceptance of prayers made therein.
6. Controverting the contentions; learned counsel appearing for OPs No. 1 & 2 has urged that identity of vehicle and complainant’s ownership are not disputed. Theft of vehicle had resulted on 18.06.2016 and vehicle was eventually recovered on 30.08.2016 i.e. after gap of nearly two and half months. It is also urged that when the vehicle was recovered; it was in a state of repairable condition. It cannot be said that damaged so caused to the vehicle will make a case of total loss. It is urged that even from the surveyor’s report dated 04.11.2016 it is deciphered that vehicle is in repairable condition. Further it is contended that insurer, as a bonafide gesture, is still willing to deal with loss suffered by complainant, by bearing the cost of repairs upon vehicle, as visible in Surveyor’s report, dated 04.11.2016.
7. Kavita Jain-complainant has testified before this Commission on 29.05.2018 in following terms:-
“On 08th August, 2014, I had purchased Toyota Fortuner bearing registration No. HR-14K-0007 for about Rs.25 lacs. On 18th June, 2016, the car was stolen while parked in the house. The police and insurance company were immediately informed. FIR No. 133 was registered in P.S. Sector 14, Panchkula. On 30th August, 2016, the car was got recovered by the police from Uttar Pradesh. Since, then the car is lying parked in the premises of CIA-I, Sector-16, Panchkula. The car was fully insured with ICICI Lombard General Insurance Company Limited-opposite parties (for short ‘Insurance Company’) for the period August 08th, 2014 to August 08th, 2015. During the period of insurance, it was stolen. The Insured Declared Value (IDV) of the vehicle was 25,98,000/-.”
In her cross-examination conducted on 23.08.2018 she has deposed that after recovery of vehicle; own damage claim form was not submitted by her because she did not know about this.
8. Surjit Singh, Sub-Inspector, appeared as CW-2. Affirmatively, he has deposed that on 18.06.2016 he investigated the theft case of SUV Fortuner bearing No. HR-14K-0007 of Kavita Nain-complainant who registered FIR No. 133 dated 18.06.2016 in Police Station Sector-14, Panchkula. He was entrusted the investigation by Deputy Commissioner of Police, Panchkula. On 25.08.2016 police received information that car with fake No. HR-99UX-5226 was lying abandoned in the area of Police Station, Katra, District Sahajanpur, Uttar Pradesh. On 27.08.2016 he along with Dilbagh Singh-husband of complainant reached police station Katra and took the car in possession, which was already taken into possession by police of Police Station, Katra. Vehicle was identified by Dlibagh Singh vide recovery memorandum (Ex.C-1). With regard to recovery of vehicle by police station Katra; DDR No. 31 dated 25.08.2016 was registered. He deposed that vehicle was found to be totally damaged. Since the date of recover of vehicle, it is lying in Police Station Sector 14 Panchkula. It was also mentioned in recovery memorandum Ex.C-2 that vehicle was damaged.
9. Harpreet Singh, Assistant Manager, Globe Automobiles Private Limited appeared as CW-3 and testified that he investigated the vehicle lying parked in Police Station Sector 14 in damaged condition. As per his estimated report total loss was Rs.17,08,864.72 without tax and vehicle was beyond repair. Globe Automobile Pvt. Ltd. charged Rs.5,000/- as fee from complainant cash receipt is Ex.C-4.
10. Ex.R-1 is the communication dated 01.09.2016 addressed to complainant. Through this letter, it has been conveyed to her that vehicle has been recovered by CIA Staff Police Station, Panchkula. She is requested to take its possession from the police station. If the vehicle in question has incur any damage she may lodge fresh motor own damage claim. Kiran Kumar is the Surveyor, whose Motor INTERIM Survey Report is dated 04.11.2016.
11. The evidence reproduced above have been subjectively and critically analyzed by this Commission, in the light of submissions of learned counsel appearing for parties.
12. Undisputedly, vehicle No. HR-14K-0007 was stolen on 18.06.2016 from Panchkula (in front of house of complainant) and prompt FIR was registered on same day at Police Station, Sector-14 Panchkula. Admittedly, this stolen vehicle with fake registration No. HR-99UX-5226 was found lying abandoned in area of Police Station: Katra, District Sahajanpur (UP) was recovered by police during investigation in total damage/loss condition. It was taken in possession by Police of Police Station Panchkula from Police of Police Station Katra on 27.08.2016, vide Memo Ex.C-1. Complainant’s husband Dilbagh Singh identified the same. As per surveyor report dated 04.11.2016 insurance police of vehicle was live and effective on the day of theft, as period of insurance was 08.08.2015 to 07.08.2016. IDV of the vehicle in surveyor’s report is Rs.18,78,426/-. Since theft took place, about 2 years of its purchase, therefore, genuinely its IDV has been mentioned as Rs.18,78,426/- in Surveyor Report dated 04.11.2016. Moreso, Insurer’s Surveyor Report is dated 04.11.2016. It runs in close proximity to the date, when Police of Police Station Panchkula, took the possession of stolen vehicle, which is 27.8.2016. Surveyor in his report has quantified the tentative repairable liability to the tune of Rs.12,90,312. He has also made details of assessment in this regard. As against this; evidence of complainant in the shape of testimony of CW-3 Harpreet Singh and his report Ex.C-3 project the loss suffered by vehicle to the tune of Rs.17,08,864.72. CW-3 Harpreet Singh has proved his report (Ex. CW-3) by stepping into witness box and deposed that this stolen vehicle is beyond repair. His testimony is wroth believable. His testimony has formed a formidable and acceptable base. His testimony coupled with his report could not be dented in his cross-examination. Hence, CW-3 Harpreet Singh’s version on oath is credible and thus reliable. Complainant has hence discharged her onus by leading evidence, admissible in law to prove her case.
13. Contrary thereto; Surveyor of OPs No. 1 & 2 (Sh. Kiran Kumar) has not stepped into witness box to prove his report dated 04.11.2016. Onus obviously lay upon OPs to lead positive evidence for assigning credibility of its surveyor’s report dated 04.11.2016 and insurer/OPs No. 1 & 2 have failed in that arena. Despite that; this Commission can legally peruse this report of Surveyor, in an endeavor to award ‘just compensation to complainant’. As observed, complainant has discharged her onus by leading substantive evidence (oral and documentary in the shape of testimony of CW-3 Harpreet Singh and his report Ex.C-3) in order to justify and establish that loss suffered to vehicle was to the tune of Rs.17,08,864.72 and damage caused to the vehicle was irreparable.
14. Even if, no own damage claim has been lodged with OPs, still it will preclude and foreclose the right of complainant to file this complaint. Learned counsel for the insurer has failed to point out that lodging of own damage claim was a pre-requisite and condition precedent to file this complaint. Consequently, this Commission does not seek any weight in the arguments of learned counsel for OPs No. 1 and 2 that cause of action in favour of complainant would accrue only when she, on lodging of own damage claim, suffers repudiation by insurer. In firm opinion of this Commission; cause of action in favour of complainant was available to her at every time, hence after incident of theft of vehicle; its recovery by police; and till the date of filing of this compliant.
15. Since admittedly, complainant has not lodged own damage claim, therefore, she cannot allege any deficiency in service on the part of OPs No. 1 & 2 because OPs No. 1 & 2 have not got any occasion to deal any such claim. Despite that the; complainant is entitled to compensation for loss suffered to her vehicle from OPs No. 1 & 2 because admittedly it was insured with OPs No. 1 & 2 on the day when theft resulted. As per Insurer’s Surveyor Report dated 04.11.2016; IDV of vehicle was Rs.18,78,426/-. Complainant is certainly entitled to this much amount of Rs.18,78,426/-. Accordingly, OPs No. 1 & 2 are directed to pay the amount of Rs.18,78,426/- to complainant within two months from the date of passing of this order, with interest @6% per annum from the date of filing of this complaint till its actual realization. In addition; Rs.11,000/- is awarded to complainant towards litigation expenses. Before parting, it is observed that only on payment of this amount (Rs.18,78,426/- plus interest) OPs No. 1 & 2 would take possession of the damaged vehicle presently lying with the Police Station and would deal with the same in any manner. With aforesaid terms, this complaint stands disposed of, being partly allowed.
16. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 02nd May, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
