KISHAN SWAROOP SHIVHARE Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This is a complaint under Sec.17 (a) (i) of the Consumer Protection Act, 1986 (for short the Act') by the insured-complainant to claim the amount of Rs.81,617/- with interest at the rate of 16% per annum from 27.12.1988 the value of the maruti van purchased on 24.12.1988 and Rs.10,000/- for mental pain and Rs.100/- notice expenses. The complainant got the car comprehensively insured for the estimated sum of Rs.86,000/- covering the risk from 12.05 p. m. of 25.12.1988 till 24.12.1989 and for that paid the amount of premium of Rs.2,057/-. The authorised representative of the opposite party issued the Cover Note No.274450 issued on 25.12.1988. As 25.12.1988 was a holiday, therefore premium receipt of Rs.2,057/- was issued on 26.12.1988. In the intervening night of 26th and 27th December, 1988, the car was stolen of which a First Information Report was lodged at the Police Station, Shivpuri and also a claim with the opposite party. The opposite party appointed Bhagwati Investigation Agency to investigate about the genuineness of the claim. Shri K. C. Dixit, Deputy Superintendent of Police (Retd.) Director, Bhagwati Investigation Agency after making detailed investigation gave his report dated 15.1.1990 giving the conclusion of the investigation thus : conclusion : "from the police investigations, records and statements of witnesses at Shivpuri and at Gwalior, show that the vehicle was stolen from Shivpuri in the night of 26/27.12.1988 and as stated by Shri D. K. Jain, it was insured on 25.12.1988. It may be that the Maruti Van of Shri Kishan Saroop might have been stolen from the residence of Shri Jaiswal on 24/25.12.1988, night, but there is weak evidence in this connection. " on receipt of the investigating report the opposite party did not make the payment of the claim.

(2.) The complainant filed the complaint before the District Forum at Gwalior on 12.12.1991 which was resisted by the opposite party. The complaint thereafter was returned to the complainant vide order dated 12.3.1993 for presenting it before this Commission as the amount claimed exceeded the pecuniary jurisdiction of the District Forum. Thereafter, the complaint was filed before this Commission on 20th April, 1993.

(3.) The main ground of contest is that prior to the insurance, the car was stolen and the policy was obtained afterwards in collusion with the Authorised Representative. To support the defence except the report of the Bhagwati Investigation Agency, which was proved by the affidavit of R. C. Kesharwani, Assistant Manager of the opposite party, no other material or evidence has been adduced to prove that the policy was obtained by the complainant after the car was stolen. From the facts which have come on record and the conclusion of the Investigating Agency, it is evident that the policy was issued on 25.12.1988 covering the risk from 12.05 p. m. from 25.12.1988 to 24.12.1989 on receipt of the premium. From the First Information Report, investigation made by the police and the statement of witnesses recorded by the Investigating Agency, who after investigation concluded that the car was stolen in the intervening night of 26th and 27th December, 1988. Therefore, in our opinion the opposite party has failed to establish the fact that the car in fact was stolen on 24.12.1988 prior to the insurance and issue of the cover note. In the circumstances, the action of the opposite party in not making the payment amounts to deficiency in service.