DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

C.C. No. 214 of 20-08-2018

Decided on : 18-1-2022

Tarsem Singh alias Semi S/o Wazir Singh S/o Darbara Singh, aged about 40 years R/o Village Naruana, Tehsil & District Bathinda.

........Complainant

Versus

1. Tata Capital Financial Services Limited, Opposite Adesh Hospital, Barnala Road, Bhucho Mandi, District Bathinda, through its Branch Head/Branch Manager/Incharge

2. Tata AIG General Insurance Co. Ltd., Branch Office C/o Tata Capital Financial Services Limited, Opposite Adesh Hospital, Barnala Road, Bhucho Mandi, District Bathinda, through its Branch Manager/Branch Head/Incharge

3. Tata AIG General Insurance Co. Ltd., Branch Office/Divisional Office/Zonal Office 301-308, Third Floor, Aggarwal Prestige Mall, Plot No. 2 Road No. 44, M2K Cinema, Rani Bagh, Pitampura, New Delhi 110 034, through its Branch Manager/Divisional Manager/Zonal Manager/General Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. Thomas Bhangan, Advocate.

For the opposite parties : Sh. Gurinder Singh, Advocate for OP No. 1

Sh. Vinod Garg, Advocate, for OPs No. 2 & 3.

ORDER

Kanwar Sandeep Singh, President

1. The complainant Tarsem Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Tata Capital Financial Sevices Limited and others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that he purchased one tractor Eicher EIC-485 bearing Engine No. 248714, Chassis No. 556978 Model 2016 by availing financial assistance from opposite party No. 1. At the time of providing financial assistance, opposite party No. 1 got insured the said tractor with opposite parties No. 2 & 3 as they are its sister concern. Cover note/Policy No. 0155906916 00 effective from 26-3-2016 to 25-3-2017 (Policy Type : Auto Secure – Commercial Vehicle Package Policy) for the IDV of Rs. 6,17,500/- was issued and premium of Rs. 11,711/- was charged. In this way, the said tractor of the complainant was comprehensively insured with opposite parties No. 2 & 3.

3. It is alleged that after purchase of tractor, the dealer also charged amount on account of registration certificate and got issued registration certificate No. PB-03AP-0838.

4. It is also alleged that no terms and conditions of the aforesaid policy were ever explained to insured nor any detailed terms and conditions of policy were ever supplied to the insured as required under law/IRDA guidelines.

5. The complainant further alleged that on 27-2-2017 at about 7.00.p.m. the complainant after doing labour work at Badal Road, Bathinda with the aid of said tractor/trolley, after parking trolley, was returning to his village Naruana on his said tractor, a driver of a white colour car, after overtaking the tractor, stopped his car in front of the tractor of the complainant and complainant stopped his tractor. Thereafter two persons of about 25-30 years of age, whose faces were covered with handkerchiefs, came out of the car and started abusing and quarreling with the complainant by levelling allegations that complainant struck against their car. The said both persons pulled the complainant from his tractor and started beating him. They took complainant in their car where two more persons were already sitting. The complainant became unconcious. On the next day i.e. on 28-2-2017, at about 7.00 a.m. complainant gained his conscious and he found himself on the road. The complainant returned to his house at about 6.00 p.m. by taking lifts and noticed that said four unknown persons stolen his purse consisting of Rs. 2,000/-, gold ear rings weighing 3 gms, one mobile of LAVA Company consisting SIM No. 98762-50507 and 75080-91226. The complainant narrated the entire episode to his family members. On 1-3-2017, complainant accompanying his brother Joginder Singh, grand-father Geja Singh and some other respectable persons reported the matter to police vide Rapat No. 18 dated 1-3-2017 in P.S. Canal Colony, Bathinda. On the same day, the complainant also reported the matter to the opposite parties No. 2 & 3 through opposite party No. 1. The opposite party asked the complainant to arrange some documents i.e. copy of FIR, copy of Adhar Card, untraceable report etc., and that in the meantime, they shall process the claim.

6. It is further alleged that in the first week of April, 2017, complainant received a letter dated 31-3-2017 from opposite party No. 3 vide which opposite party No. 3 conveyed that there is delay of 25 days in giving intimation to them regarding theft of insured tractor. They further conveyed that their representative Mr. Ajay Sharma shall visit the complainant and get some papers. Accordingly, said representative visited the house of complainant and procured the required documents and also got the signatures of the complainant on some blank papers/blank printed form and assured the complainant that his lawful claim shall be paid by the opposite parties, however, on receipt of non-traceable report. The complainant also submitted certified copy of Non-traceable report dated 22-4-2018 to opposite parties No. 2 & 3 through opposite party No. 1.

7. The complainant further alleged that since then, he is running from pillar to post, but to no effect and the opposite parties have not settled his lawful claim. Due to theft of tractor, the complainant has become handicapped and he could not do his household/agriculture/labour work and due to said act of the opposite parties, the complainant suffered mental tension, agony and financial loss, for which he claims compensation to the tune of Rs. 2,00,000/-.

8. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay insurance claim of Rs. 6,17,500/- with interest @ 18% p.a. in addition to Rs. 2,00,000/- as compensation besides Rs. 10,000/- as litigation expenses.

9. Upon notice, opposite parties appeared through their respective counsel and filed written reply. The opposite party No. 1 in its separate written reply took legal objections that opposite parties No. 2 & 3 are not its sister concerns rather a independent body; complainant availed financial facility from opposite party No. 1 and hypothecated his tractor in favour of opposite party No. 1, as such it has first charge on the said tractor and an amount of Rs. 2,61,433/- as on 10-10-2018 with up-to-date interest is due against complainant and while deciding the complaint, loan amount of opposite party No. 1 be first recovered and that there is no deficiency in service on the part of opposite party No. 1.

10. On merits, the opposite party No. 1 has admitted that complainant purchased tractor in question by getting finance from opposite party No. 1 under hire purchase agreement and hypothecated the said tractor in favour of opposite party No. 1. The complainant himself got the said tractor insured with opposite parties No. 2 & 3.

11. It has been pleaded that complainant has availed financial facility of Rs. 4,75,981/- and he agreed to repay the same in quarterly installments of Rs. 37,111/- plus interest and other charges. He also hypothecated the tractor in question to opposite party No. 1, As such, opposite party No. 1 is having first charge on the said tractor being hypothecated and a huge amount of Rs. 2,61,433/- as on 1-10-2018 with further up-to-date interest is due against the complainant and while deciding the complaint, the laon amount of opposite party No. 1 with up-to-date interest and costs be first recovered and accordingly appropriate order may please be passed. There is no deficiency in service on the part of opposite party No. 1. The dispute is between complainant and opposite parties No. 2 & 3.

12. The opposite parties No. 2 & 3 filed their joint written reply by raising legal objections that intricate questions of law and facts are involved and that the complainant has concealed material facts and documents from this Commission.

13. It has been pleaded that complainant has not submitted required documents including original final untraced report and DDR entry/100 number call detail althrough letters dated 31-3-2017, 15-11-2017 and 22-11-2017 were sent to the complainant. There was delay in intimating to the police by 36 days and to the opposite parties by 27 days (24-3-2017) whereas as per policy terms and conditions immediate intimation to the police and insurer is madatory. The delay in intimation to the police and insurer affects the recovery of vehicle and arrest and conviction of offender. Further it directly affects the right of insurer to get thorough investigation to know the genuiness of the claim and recovery of the vehicle/arrest of culprit. The complainant did not provide required documents for processing and decision of claim. The claim is premature as the complainant has approached this Commission without completing the formalities or processing/decision of claim. The complainant has violated the terms and conditions of the policy, therefore, opposite parties reserve their right to decide the claim as per terms and conditions of the policy, as and when required documents are submitted.

14. Further legal objections are that the complainant has no locus standi or cause of action and that the complaint is not maintainable.

15. On merits, the opposite parties No. 2 & 3 have denied that complainant had given intimation to police on 1-3-2017. The opposite parties have pleaded that complainant is guilty of misleading the facts of the case by making false statement regarding lodging of FIR. FIR has been lodged after delay of 36 days and intimation to opposite parties after lapse of 25 days.

16. It has been pleaded that opposite parties appointed Mr. Ajay Kumar Sharma to investigate the matter and he vide his report dated 24-6-2017 confirmed about the delayed intimation and breach of policy terms and conditions. The claim of insured can be decided only after due verification of the required documents and on merits of the case.

17. The opposite parties No. 2 & 3 have also pleaded that if this Commission comes to the conclusion that the complainant is entitled to any relief only in that case, the complainant may be directed to submit the documents called for in letters, mentioned above, so that claim may be decided. If this Commission concludes that complainant is entitled to any relief on total loss basis, only in that case, the complainant may be directed to hanover keys and the registration certificate duly transferred in favour of opposite parties and also letter of subrogation and power of attorney.

18. In support of his complaint, the complainant has tendered into evidence his affidavit dated 16-8-2018 (Ex. C-1), photocopy of certificate of Insurance (Ex. C-2), photocopy of RC of vehicle (Ex. C-3), photocopy of FIR No. 0048 dated 2-4-2017 (Ex. C-4), photocopy of letter dated 31-3-2017 (Ex. C-5), photocopy of check-list (Ex. C-6), photocopy of Adhar Card (Ex. C-7) and photocpy of Non-traceable report (Ex. C-8).

19. To rebut the evidence of complainant, opposite party No. 1 tendered into evidence affidavit dated 15-10-2018 of Parvinder Singh (Ex. OP-1/1), photocopy of agreement (Ex. OP-1/2) and photocopy of account statement (Ex. OP-1/3).

20. The opposite parties No. 2 & 3 have tendered into evidence photocopy of letters (Ex. OP-2/1), photocopy of policy alongwith terms and conditions (Ex. OP-2/4), photocopy of Investigation report (Ex. OP-2/5), photocopy of FIR (Ex. OP-2/6), photocopy of letter (Ex. OP-2/7), affidavit dated 15-10-2018 of Sanjay Bhagat (Ex. OP-2/8) and affidavit dated 18-10-2018 of Ajay Kumar Sharma (Ex. OP-2/9).

21. We have heard learned counsel for the parties and gone through the record.

22. There is no dispute between the parties that tractor bearing registration No. PB-03AP/0838 of complainant is financed/hypothecated with opposite party No. 1 (Ex. C-3/Ex. OP-1/2) and insured with opposite parties No. 2 & 3 for the IDV of Rs. 6,17,500/- for the period from 26-3-2016 to 25-3-2017 (Ex. C-2). The tractor in question was stolen on 27-2-2017. The complainant got registered F.I. R. (Ex. C-4) and intimation in this regard was given to the opposite parties, but till date, claim has not been paid to the complainant.

23. The objections of the opposite parties No. 2 & 3 is that complainant has not submitted the required documents as demanded vide letters Ex. OP-2/1 to Ex. 2/3 and there was delay in intimating the theft to the police by 36 days and to opposite parties by 27 days (24-3-2017). In this regard, the learned counsel for opposite parties No. 2 & 3 referred condition No. 1 of the policy according to which in case of theft or criminal act, the insured is required to give immediate notice to the police.

24. Ex. OP-2/3 is the last letter dated 22-11-2017 sent by opposite parties No. 2 & 3 to complainant vide which they asked the complainant to submit original Final Untraced Report issued under Section 173-CRPC and DD entry/100 No call details as FIR lodged after 3 days.

25. Copy of FIR Ex. C-4/Ex. OP-2/6 is on the file. However, copy of FIR has also been tendered by the opposite parties meaning thereby that this document is in their possession. A perusal of this document reveals that complainant approached the police on 1-3-2017 and his statement regarding theft of tractor in question vide Report No. 18 dated 1-3-2017 in Police Station, Canal Colony, Bathinda. was recorded. Thereafter FIR No. 0048 was registered in this case on 2-4-2017. There is no delay in reporting the matter to police by the complainant as in the evening on 28/2/2017 he returned to his house after incident and immediately on the next day on 1-3-2017, he reported the matter to police.

26. The other document which opposite parties No. 2 & 3 demanded from the complainant is copy of Untraced Report. The complainant has placed on file copy of Untraced Report as Ex. C-8. When complainant has obtained certified copy of this report dated 22-4-2018 and tendered in evidence, there is no reason for him to not to submit the same with the opposite parties. The opposite parties No. 2 & 3 also demanding registration certificate and key of the vehicle. A persual of document/check-list (Ex. C-6) reveals that original registration certificate and one original key was received by opposite parties No. 2 & 3. As it is a case of snatching, second key remained in tractor and this fact also find mentioned in investigation of opposite parties No. 2 & 3 (Ex. OP-2/5).

27. Hence, the evidence placed on file proves that theft of tractor in question of complainant took place and opposite parties No. 2 & 3 did not pay his genuine insurance claim without any basis. Thus, there is deficiency in service on the part of opposite parties No. 2 & 3 and complainant is entitled to Rs. 6,17,500/- i.e. IDV of the vehicle/tractor (policy Ex. OP-2/4).

28. The opposite party No. 1 has pleaded that complainant obtained loan on the said tractor amounting to Rs. 4,75,000/- out of which an amount of Rs. 2,61,433/- as on 1-10-2018 with further up-to-date interest is due against the complainant. In support of this version, the opposite party No. 1 has placed on file copy of account statement of loan account of complainant which shows w.e.f. 9-3-2017, no EMI was paid by the complainant. The copy of R.C. (Ex. C-3) also proves that tractor in question is hypothecated with opposite party No. 1. Therefore, this Commission is of the view that opposite party No. 1 has first charge on the said vehicle.

29. In view of what has been discussion, this complaint is partly allowed against opposite parties No. 2 & 3 with Rs. 10,000/- as cost and compensation and dismissed qua opposite party No. 1.

30. The opposite parties No. 2 & 3 are liable to pay IDV of Rs. 6,17,500/- of tractor in question to complainant with interest @9% p.a. w.e.f. 20-8-2018 (date of institution of complaint) till payment.

31. The opposite parties No. 2 & 3 are directed to pay outstanding loan amount against tractor in question of complainant out of aforesaid claim amount to opposite party No. 1, alongwith interest, if loan amount still due, and pay the balance amount of IDV to complainant.

32. The opposite parties No. 2 & 3 will be at liberty to obtain any other document, if legally required, for settlement of claim.

33. The compliance of this order be made by opposite parties No. 2 & 3 jointly and severally within 45 days from the date of receipt of copy of this order.

34. The complaint could not be decided within the statutory period due to heavy pendency of cases.

35. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    18-1-2022 (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member

     

    (Paramjeet Kaur)

    Member