Rajasthan State Consumer Disputes Redressal Commission, Jaipur

Appeal No. 564/06 Kamal Auto Industries, Kota

Versus

United India Insurance Co. Ltd & Ors.

Before: Mr Justice Sunil Kumar Garg - President and Mrs Vimla Sethiya - Member

Date of Judgement: 13.08.2009

BY THE STATE COMMISSION

This appeal has been filed by the Complainant-Appellant against the order dated 23.02.2006 passed by the District Forum, Kota in complaint No. 228/03, by which the complaint of the Complainant-Appellant was dismissed.

It arises in the following circumstances:

That the Complainant-Appellant had filed a complaint against the Respondent insurance company before the District Forum, Kota, on 15.05.2003 inter alia stating that the Complainant-Appellant had obtained a package policy of Rs. 90,000/- effective from 11.12.2001 to 10.12.2002 from the Respondent insurance company for the safety of the two-wheelers, which are being received from the manufacturers. It was further stated in the complaint that on 10.04.2002, an unknown person had approached the Complainant-Appellant for purchase of the Bajaj pulsar motorcycle and he desired demonstration test drive and for that, Ram Swaroop, an employee of the Appellant company was asked to accompany that person who had intended to purchase the motorcycle, as a pillion rider. During the drive when the vehicle had covered some distance, that person complained of dwindling in the rear wheel. So, he asked Ram Swaroop who had sat behind him to get down from the motorcycle so that he could check the motorcycle. As soon as the pillion rider Ram Swaroop had got down from the motorcycle that person ran away with the motorcycle. Thus, the motorcycle was stolen away by that person. A theft report was lodged with the police station, Vigyan Nagar, Kota bearing FIR No.163/02 on 11.4.2002 and a claim preferred by the Complainant-Appellant before the office of the Respondents insurance company, but that claim was repudiated by the Respondents insurance company through letter dated 28.1.2003, inter alia on the ground that before the motorcycle was handed over to the unknown person, his name, address must have been verified and a pillion driver should have accompanied him. Therefore, the Complainant-Appellant had not taken proper care in handing the motorcycle to an unknown person. Since by that act, the terms and conditions of the policy had been violated, the claim was not payable.

It has been stated by the Complainant-Appellant that it was wrong to say that no person sat behind the unknown driver of motorcycle, as Ram Swaroop was ordered to accompany that person. Thus, the claim was wrongly repudiated and the present complaint was filed for claiming Rs.56,000/- as the cost of the motorcycle.

A reply was filed by the Respondents insurance company before the District Forum on 22.12.2003 and they have taken the same pleas which were taken in the repudiation letter dated 28.01.2003 and it was further stated that by handing over the motorcycle to an unknown person, the Appellant had not taken due care and thus the claim was rightly repudiated. Hence, there was no case and the complaint needed to be dismissed.

The District Forum after hearing both the parties, through the impugned order dated 23.02.2006 had dismissed the complaint as stated above, inter alia holding.

i)	That no affidavit of Ram Swaroop had been filed by the Complainant-Appellant;
ii)	That the Complainant-Appellant had violated the terms and conditions of the policy as the motorcycle was handed over to an unknown person without verifying his identity; and
iii)	That no pillion driver was deputed to sit along with that person.

 
Aggrieved by that order, this appeal has been filed by the Complainant-Appellant.

In this appeal, the main contention of the learned counsel for the Complainant-Appellant is that the findings recorded by the District Forum as well as the repudiation of the claim by the Respondents insurance company could not be sustained, as Ram Swarrop was asked to sit behind that person and the police had also taken his statement u/s 161 of Cr.P.C. and further the police after investigation had registered the FIR in that case. Since the motorcycle in question was insured under Package Policy and the fact that it was stolen away be some person though might be unknown, the repudiation of the claim as well as the dismissal of the complaint was not justified and appeal be allowed.

On the other hand, the learned counsel for the Respondents has supported the impugned order.

We have heard the learned counsels for parties and perused the record.

In this case, so far as the fact that the motorcycle had been stolen away by some unknown person is not in dispute, as an FIR was lodged with the police. There is also no dispute on the point that the police had submitted the FIR. Further on file, there is an investigation report dated 21.07.2002 prepared by Shri Dilip Maheshwari appointed by the Respondents insurance company in which though he had come to the conclusion that an unknown person had taken the vehicle, he had concluded at the same time that proper care was not taken by the Complainant-Appellant by handing over the motorcycle to an unknown person for test drive without a pillion driver.

As for the findings of the District Forum as well as the conclusion of the investigator that no person was asked to sit behind that unknown person, the findings are palpably wrong, as during the investigation, the statement of Ram Swaroop was taken by the police u/s 161 of Cr.P.C., in which he had clearly stated that he was sitting behind that unknown person at the time of test-drive of the vehicle. Thus, we see no reason to disbelieve the statement recorded by the police and simply because his affidavit has not been filed would not make any difference.

When Ram Swaroop had been deputed to accompany the unknown person, it could not be said that the Complainant-Appellant had not taken proper and due care. Thus, we come to the conclusion that the Complainant-Appellant had taken the due care when the vehicle in question was taken on demonstration test-drive.

For reason as stated above, it could not be said that the terms and conditions of the policy had been violated by the Complainant-Appellant.

When this being the position, the repudiation of the claim by the Respondents insurance company and similarly, the findings of the District Forum by which the complaint was dismissed could not be sustained and this appeal deserves to be allowed.

So far as the question of compensation for the loss is concerned, since it was a package policy, no amount was found mentioned in the cover note. Even in the complaint, an estimated value had been mentioned. Therefore, it would be proper to refer the matter to the Respondents insurance company to decide the issue of compensation after taking into consideration the price of motorcycle on the date of theft.

For reasons as stated above, this appeal filed by the Complainant-Appellant is allowed, impugned order dated 23.02.2006 passed by the District Forum, Kota is quashed and set aside and the Respondents are directed to make payment for the loss of the motorcycle after taking into consideration its price on the date of theft. That exercise should be done by the Respondents insurance company within 3 months from today. Further, the Respondents are also directed to give the quotation of the price of the motorcycle in question on the date of theft.