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2010(2) CPR 214
J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
JAMMU
G.D. Sharma, President & B.L. Saraf, Member
New India Assurance Company Ltd. —Appellant
versus
Sanjay Kumar Kandhari & Anr. —Respondents
First Appeal No. 2823 of 2006
Decided on 30.11.2009
Counsel for the Parties:
For the Appellant:Mr. Rupinder Singh, Advocate.
For the Respondent No. 1:Mr. Rajesh Tingloo, Advocate.
For the Respondent No. 2: Nemo.
IMPORTANT POINT
It is primary duty of Commission to unearth frauds committed by unscrupulous consumers.
Headnote:Jammu and Kashmir Consumer Protection Act, 1987—Sections 14(1)(d), 15 and 17—Insurance—Theft of car—Delay in settlement of claim—Appellant directed by District Forum to indemnify respondent to the extent of Rs. 95,000/- which was actual loss assessed by Loss Assessor and Surveyor alongwith 6% interest and cost of Rs. 2,000/- —Claim file not produced by appellant despite direction—It gives rise to suspicion that cover note is of doubtful nature—No insurance policy can be issued without issue of premium amount—Claim form was field up by respondent after a gap of 13 months—It shows mala fide conduct of respondent—Claim raised by respondent was fraudulent and appellant rightly repudiated it—Fraud was perpetuated with active connivance of some black sheep working in office of appellant—Public money cannot be allowed to go in drain in favour of some fraudulent and unscrupulous depositor—Impugned order quashed—Appeal allowed with cost of Rs. 10,000. (Paras 5 to 7)
G.D. Sharma, President—Through the medium of this appeal, order dated 19.7.2005 passed by the learned Divisional Consumer Protection Forum, Jammu (hereinafter to be referred to as the Forum) has been challenged. The appeal was time barred and accompanied by application for condonation of delay. Application was allowed on 23.11.2006 and appeal admitted for hearing.
2. Brief facts of the case are that respondent No.1 got his Maruti Car of 1990 model, bearing registration No. JK02F-5488 insured with the appellant under cover note No. 033696. According to the cover not issued in favour of respondent No.2, the insurance policy had commenced on 1.6.2001 and was to expire on 31.5.2002. On the 2nd day from the commencement of the insurance policy, it is alleged that during the intervening night of 2/3.6.2001 said car has been stolen from the residence of respondent No.1. The incident was reported in Police Post Sarwal on the morning of 3.6.2001 and FIR No 121/2001 was registered for the commission of offence under Section 379, RPC. The police closed the case as “untraced”. According to respondent No.1 he had informed respondent No. 2 on 4.2.2001 by sending copy of the FIR through post, accompanied by letter but this fact has been denied by the appellant in his defence. That the appellant delayed the settlement of the claim, so respondent No.1 was compelled to file the complaint in the Forum on 22.11.2002. The defence taken by the appellant was that no alleged intimation dated 4.6.2001was ever received but a written complaint received on 9.4.2002 and the claim was repudiated on 16.9.2002, intimation whereof was given to the complainant which fact has been admitted. After the appraisal of evidence, learned Forum allowed the complaint and directed the appellant to indemnify respondent No.1 to the extent of Rs. 95,000/- which was the actual loss assessed by the loss assessor and Surveyor alongwith interest @ 6% from 12.6.2002 till its realization. Litigation expenses were also allowed in the sum of Rs. 2,000.
The appellant has challened the order, inter alia on the following grounds.
1. Learned Forum has failed to appreciate the evidence on record.
2. No record was produced on the file by respondent No.1 before the Forum to prove the fact that he had intimated respondent No.2 about the alleged loss before 9.4.2002;
3. It was a case of suspicious nature because the insurance policy was obtained on 1.6.2001 and immediately during the intervening night of
2/3.6.2001 theft is alleged to have taken place. Premium was deposited with appellant on 4.6.2001. The burden of discharge was on OP No.1 but that has not been discharged.
Heard the arguments
3. In his submissions Mr. Rupinder Singh Advocate has submitted that respondent No.2 had no business for the registration of the claim of the loss but his only job was to solicit business and collect the premium. Respondent No.2 had deposed on affidavit and called for his cross-examination by the appellant but he was not produced so his evidence could not be read in favour of respondent. Respondent No.1 had raised a stale claim as his form was filled on 23.7.2002. While concluding his arguments he has submitted that the policy is surrounded by suspicious circumstances and the claim has rightly been repudiated.
4. In rebuttal Mr. Tingloo has submitted that respondent No.2 issued the cover note (annexure B) covering the risk form 1.1.2001 to 31.5.2002 which clinches the issue regarding the alleged suspicious nature of the policy. That annexure R1 which was attached with the written version though issued on 4.6.2001, also states at the top that the risk covered was from 1.6.2001 to 31.5.2002.
5. After considering the respective contentions of learned Counsel for the parties, we had directed Mr. Rupinder Singh Advocate to produce the claim file on 25.11.2009 for our perusal but he produced only Photostat copy of the premium receipt indicating the fact that the amount of premium was received on 4.6.2001. He fa
