Oriental Insurance company VS Nirmal Thakur

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010(3) CPR 155
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA
Arun Kumar Goel (Retd.), President; Mrs. Saroj Sharma and Chander Shekher Sharma, Members
The Oriental Insurance company —Appellant
versus
Mrs. Nirmal Thakur —Respondent
First Appeal No. 210/2009 with First Appeal No. 227/ 2009
Decided on 20.4.2010

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Goverdhan Sharma, Advocate.
For the Respondent:Mr. J.S. Bagga, Advocate.

Headnote:(i) Consumer Protection Act, 1986—Section 12 and 17—Insurance claim—Vehicle Jeep having Contract Carriage Permit and insured was found missing from parking of Hotel and Criminal Case u/s 406 and 420 IPC was registered by Police—District Forum repudiated claim and resisted complaint on ground that complainant failed to observe “reasonable case” as per Policy condition—Claim also resisted on plea that appellant offered to settle claim on non-standard basis—District Forum allowed claim directing appellant to pay Policy amount Rs. 7,85,000/- with interest at 9% from date of filing of complaint—Appeal—Vehicle was stolen within one month of its purchase—No evidence if Policy containing terms and conditions had been delivered/sent to complainant—Offer to settle claim on non-standard basis was rightly declined by complainant as appellant was not distributing charity—No reason to interfere—Complainant’s appeal to enhance interest or compensation was also without merit. (Paras 18 and 25)
(ii) Civil Procedure Code, 1908—Order 41 Rule 27—Additional evidence in appeal—Production of additional evidence could be allowed where such evidence was either not in notice of party after exercise of due diligence—Documents sought to be placed were in custody of appellant—No case of appellant that production of documents was declined by Court—Application did not deserve consideration. (Paras 13 & 16)

ORDER (ORAL)

Arun Kumar Goel (Retd.), President— Since both these appeals have arisen out of the order passed by District Forum, Shimla in Complaint No.253/2007, decided on 11.05.2009, as such were taken up for hearing together and are being disposed of by this order.

2. Admitted facts giving rise to these appeals are that Mrs. Nirmal Thakur, (hereinafter referred to as complainant), had got her vehicle Jeep Mahindra Scorpio (Maxi Cab), bearing registration No.HP-51 T 5450 insured with Oriental Insurance Company, (hereinafter to be referred as opposite party) in the sum of Rs.7,85,000/-. Insurance was valid between 07.06.2006 to 06.06.2007. Complaint file shows that the contract carriage permit was issued by the Secretary, Regional Transport Authority Himachal Pradesh, Shimla for plying this vehicle in favour of the complainant vide annexure C-III. It was insured vide cover note annexure C-II.

3. This vehicle had gone to Manali, Amritsar and Pinjore with Tourists. On the intervening night of 07.07.2006 and 08.07.2006, this vehicle was parked at Pinjore Garden at Haryana Tourism Hotel. It was found missing from the Parking of this Hotel. First Information Report No.131/2006 was lodged under Sections 406 and 420 of Indian Penal Code at Police Station Pinjore. Annexure C-IV, First Information Report was lodged by driver Shri Khayali Chand. Thereafter at the instance of the complainant, another First Information Report was lodged at Police Station Pinjore. Finally untraced report was given by the police. This was accepted by Court of Chief Judicial Magistrate, Panchkula on 23.03.2007. Copy of order passed by the said Court is annexure C-VII. Claim was lodged with the opposite party, which was repudiated by it.

4. In the aforesaid background, complaint for deficiency of service was filed and the complainant prayed for being indemnified to the extent of Rs.7,85,000/- i.e. the sum for which the stolen vehicle was insured, Rs.2,00,000/- on account of business loss, Rs.50,000/- for mental harassment and Rs.5,000/- towards litigation cost. Direction was sought against the opposite party to indemnify the complainant.

5. When put to notice, stand of the opposite party was that the complaint was not maintainable, as the driver/agent of the owner, complainant, failed to observe “reasonable care” as per policy conditions. However, it was pleaded that, the opposite party decided to settle the claim on non-standard basis, but because the complainant failed to give her consent for the approved amount of Rs.5,88,000/-, as such, the claim was repudiated .

6. Insurance was admitted and it was averred that the loss, if any caused to the complainant was due to acts of her driver/agent, who failed to take “proper care”, of the vehicle entrusted to him. It is specifically pleaded in para-5 of reply by opposite party, that it was still ready to settle the claim on non- standard basis as per policy conditions for Rs.5,88,000/-.

7. In the context of present case, it may be appropriate to notice that the opposite party had got the matter investigated from one, Ex-Captain A.N. Chopra, whose report is as annexure OP-3 with the complaint file, alongwith record collected by him alongwith the statements recorded by him.

8. District Forum below after hearing the parties has allowed the complaint thereby directed the opposite party to indemnify the complainant in the sum of Rs. 7,85,000/-, alongwith interest @ 9% per annum from the date of filing of complaint i.e. 06.08.2007 till full payment was made alongwith Rs.2,000/- as cost of litigation. Opposite party has been directed to comply with this order within 45 days after receipt of certified copy of this order. Hence this appeal.

9. Before proceeding further in the matter, it may be appropriate to notice that case was listed for evidence of opposite party on 03.01.2008, 26.03.2008 subject to payment of cost of Rs.300/-, then to 15.07.2008. On 16.09.2008 case was again listed for evidence of opposite party, wh

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Cases Referred (2)