2 nd Appeal First Appeal No. 295 of 2013

Transcription

1 2 nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH First Appeal No. 54 of 2013 Date of institution: Date of Decision: National Insurance Company Ltd., through its Divisional Manager, Divisional Office at Leela Bhawan Market, Patiala...Appellant/OP Versus Ram Niwas son of Nathu Ram, resident of 184, Phase 2, Urban Estate, Patiala (now deceased through his LRs) 1. Vidya Rani w/o Late Sh. Ram Niwas, 2. Ashwani S/o Late Sh. Ram Niwas, Both residents of House No. 184, Phase-II, Urban Estate, Patiala 3. Meena Rani W/o Sh. Surinder Garg, D/o Sh. Ram Niwas, R/o House No. 1960, Phase-II, Chandani Bhag Thana, Sector 12, Panipath. 4. Renu Rani W/o Sh. Krishan Goyal, D/o Late Sh. Ram Niwas, R/o House No. 141, HUDA Colony, Punri, Distt. Kaithal...Respondents/Complainant Quorum:- First Appeal against the order dated passed by the District Consumer Disputes Redressal Forum, Patiala. Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:- For the appellant : Sh. Sandeep Suri, Advocate For the respondent : Sh. Sunil Dixit, Advocate 2 nd Appeal First Appeal No. 295 of 2013 Date of institution: Ram Niwas son of Nathu Ram, resident of 184, Phase 2, Urban Estate, Patiala (now deceased through his LRs) 1. Vidya Rani w/o Late Sh. Ram Niwas, 2. Ashwani S/o Late Sh. Ram Niwas, Both residents of House No. 184, Phase-II, Urban Estate, Patiala 3. Meena Rani W/o Sh. Surinder Garg, D/o Sh. Ram Niwas, R/o House No. 1960, Phase-II, Chandani Bhag Thana, Sector 12, Panipath. 4. Renu Rani W/o Sh. Krishan Goyal, D/o Late Sh. Ram Niwas, R/o House No. 141, HUDA Colony, Punri, Distt. Kaithal.

2 2..Appellants/Complainant Versus National Insurance Company Ltd., through its Divisional Manager, Divisional Office at Leela Bhawan Market, Patiala...Respondent/OP Quorum:- Present:- First Appeal against the order dated passed by the District Consumer Disputes Redressal Forum, Patiala. Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member For the appellant : Sh. Sunil K. Dixit, Advocate For the respondent : Sh. Sandeep Suri, Advocate Gurcharan Singh Saran, Presiding Judicial Member ORDER This order will dispose of both the above mentioned two appeals as both the appeals are arising out of the impugned order dated passed in Consumer Complaint No. 280 dated by the District Consumer Disputes Redressal Forum, Patiala(in short the District Forum ) vide which the complaint filed by the complainant was allowed with a direction to the Op to make a payment of Rs. 3,59,200/- alongwith 10% from the date of repudiation till the date of payment. 2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short the Act ) against the opposite party on the allegations that being an owner of Car bearing No. PB-11AQ-0049 he got insured it from the opposite party for a sum of Rs. 5,50,000/- against Policy No for the period to after paying premium of Rs. 15,138/-.

3 3 Unfortunately, during the period of insurance on , when the complainant was coming from Cheeka to Patiala and reached near Ram Nagar, he stopped the car to attend the call of nature and after urinating when he came near the car suddenly another car came there and a youngman alighted from the said car and forcibly sit on the driver seat and take away the car. Immediately the complainant went to Police Station Samana where FIR No. 79 dated was got registered. He lodged the claim with the Op, however, the opposite party repudiated the claim on the plea that the driver of the car had left the key in the car, which amounts to negligence and violation of terms and conditions of the policy. However, vide letter dated , the Ops have taken his consent to make payment after deducting 5% of the IDV. In case they were to repudiate the claim why his consent was taken, which amounts to deficiency in services on the part of the opposite party. Hence, the complaint with a direction to the Op to pay a sum of Rs. 5,50,000/- IDV of the Car, compensation of Rs. 50,000/- and litigation expenses of Rs. 11,000/-. 3. The complaint was contested by the opposite party, who filed reply taking preliminary objections that the claim was not maintainable as the car was stolen due to the negligence of the driver of the car and in the event of violation of any contract the claim is not payable. On merits, the insurance of the vehicle has been admitted. However, it was denied that on his car was taken away from near Village Ram Nagar by a stranger when he had come down from the car to give a call of nature. It was denied that immediately he had approached the police and FIR No. 79 dated was

4 4 registered at P.S. Samana. It was also denied that on receipt of letter dated , the complainant visited the office of the opposite party and they got his consent form to pay IDV less 5%. It was denied that there was any deficiency in services of the opposite party. The claim was not payable. It was rightly repudiated. 4. The parties were allowed by the learned District Forum to lead their evidence. 5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, FIR Ex. C-2, letter dt Ex. C-3, DL Ex. C-4, RC Ex. C-5, untraced report Ex. C-6, statement Ex. C-7, sale invoice Ex. C-8, receipt Ex. C-9, policy Ex. C- 10. On the other hand, the opposite party had tendered into evidence affidavit of Jaspal Singh Ex. R-1, affidavit of Kashmir Singh Ex. R-2, intimation Ex. R-3, claim form Ex. R-4, investigation report Ex. R-5, policy Ex. R After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the complaint was allowed as stated above. 7. Aggrieved with the order passed by the learned District Forum, both the parties have filed their respective appeals. 8. The OP has filed this appeal to set aside the order whereas the complainant has filed the appeal for the enhancement of the amount allowed by the learned District Forum. FIRST APPEAL NO. 54 OF In the grounds of appeal, it has been alleged that as per the pleadings of the case, it has been alleged that on , the

5 5 car of the complainant was stolen away and FIR No. 79 dated was registered at P.S. Samana, District Patiala. As per the allegations in the FIR, when the driver of the car stopped the car near Ram Nagar to urinate in the meantime another person stopped the car and on the plea of inquiring the way of Punjola, he forcibly sit in the car and taken away the car. The plea taken by the opposite party that ignition key was in the car, which amounts to negligence on the part of the driver of the complainant. He has not taken reasonable due care and caution and that the car has been taken away due to the negligence of the driver of the complainant. Therefore, the award so passed by the learned District Forum is liable to be set-aside. 10. Whereas on the other now the counsel for the complainant had stated that merely on that plea the claim of the complainant cannot be set-aside. He has referred to the judgment IV (2010) CPJ 297 (NC) National Insurance Company Ltd. versus Kamal Singhal. In that case, three persons took away the car when driver went for nature s call. Informed OP and FIR was registered. Investigation was conducted. The claim was repudiated on the plea of reasonable care, according to Condition No. 4 of the terms and conditions of the policy. However, the District Forum had allowed the complaint. Appeal was dismissed. In the revision before the Hon ble National Commission, a plea was taken that the driver was not expected to carry key with him when the vehicle was within his sight while getting down to answer nature s call. Claim was settled on nonstandard basis. On the same point, there is another judgment of the Hon ble National Commission II (2012) CPJ 197 (NC) Royal

6 6 Sundaram Alliance Insurance Co. Ltd. versus Sanju Dongre and it was again observed by the Hon ble National Commission that the opposite party was not justified to repudiate the claim on the plea that the ignition key was left in the vehicle when driver had gone to give the call of nature. At the best, they can settle the claim on nonstandard basis and the learned District Forum had allowed the claim on non-standard basis only. 11. The counsel for the appellant has not been able to cite any judgment containing the contrary view. Therefore, we are of the opinion that the findings so recorded by the learned District Forum are justified; the same are hereby affirmed. 12. In view of the above discussion, we do not find any merit in First Appeal No. 54 of 2013 and the same is dismissed with no order as to costs. 13. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondents in equal share by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court. 14. Remaining amount shall be paid by the appellant to the respondents in equal share within 30 days from the receipt of the copy of the order. FIRST APPEAL NO. 295 OF In view of the findings recorded in First Appeal No. 54 of 2013 and the judgments referred by the counsel for the complainant

7 7 himself that in such a situation, where the ignition key was left in the car when the driver of the car had gone to answer a call of nature, then the claim should be settled on non-standard basis. The learned District Forum has settled the claim of the complainant on nonstandard basis. In these circumstances, we do not see any reason for enhancement of any amount in favour of the complainant. First Appeal No. 295 of 2013 so filed by the complainant is without any merit and the same is also hereby dismissed. 16. The arguments in these appeals were heard on and the orders were reserved. Now the orders be communicated to the parties as per rules. 17. The appeals could not be decided within the statutory period due to heavy pendency of Court cases. (Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member January 20, as (Surinder Pal Kaur) Member