Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 150 (JK)

Hans Raj v. National Insurance Company Limited

2010-03-22

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D. Sharma, J. 1. The complainant was the owner of the truck bearing registration no. JK08A-3457. He himself used to drive the truck and obtained Insurance Policy on 22.03.2004 bearing no. 420803/31/03/6393413 which was valid up to 21.03.2005. It is alleged that on 09.11.2004, he had parked his above said truck in the premises of petrol pump situated in Malikpur on the National High way in the territory of Punjab State and had gone to his house. When he came back in the morning of 10.11.2004, he found that his truck had been stolen. Immediately the matter was reported in Police Station Sujanpor (Punjab) for the commission of theft. The Police had made him to believe that his complaint stood registered on the same day i.e. on 10.11.2004. It is also averred that police had instructed the complainant to assist them in searching the lost truck but all efforts ended in vain. On 22.11.2004; the In-charge of the above said Police Station while on patrol duty visited the place of alleged incident; he met the complainant there and recorded his statement. The alleged occurrence was clubbed with the already registered FIR No. 53 dated 27.04.2004 (Annexure B). By that time, the complainant already had raised his claim with OP No.1. Upon this, Investigator and Surveyor Shri N. Tikoo was appointed to verify the facts. The said investigator vide letter dated 12.01.2005 had asked the complainant to furnish the copy of FIR and final investigation report. Those documents were supplied. The case of the complainant in brief is that he had reported the incident in the morning of the next day i.e. on 10.11.2004 and in case police had failed to act promptly in registering the F.I.R, he was not at any fault. Notice was served upon OP No.1 to settle the claim but that had no effect. The cause of action thus arose and complaint accordingly filed. The reliefs claimed are:- Indemnification for the insured risk in the sum of Rs. 8 lacs alongwith interest at the rate of 12% per annum from the date of loss till realization and compensation of Rs. 50,000/- for harassment and agony. 2. The cause of action thus arose and complaint accordingly filed. The reliefs claimed are:- Indemnification for the insured risk in the sum of Rs. 8 lacs alongwith interest at the rate of 12% per annum from the date of loss till realization and compensation of Rs. 50,000/- for harassment and agony. 2. OP No.1 in his written version has taken the preliminary objection to the effect that the Police was in the process of investigating the case and unless the final investigation report was made available, the claim could not be settled. There was no delay on the part of OP No.1 because immediately on the receipt of the information about the loss, Mr. R.N.Tikoo investigator was appointed to submit the detailed report of the case who had reported:- "The claim lacks genuineness." The report was based on reasons. 3. The complainant has appeared as his own witness as well as Vinod Kumar was examined as a witness. OP No.1 has examined Mr. Krishen Lal, Assistant Branch Manager as a witness and Mr. R.N.Tikoo has also deposed on affidavit. The complainant in his deposition on affidavit has lent support to the averments made in the complaint and in cross examination has stated that he resides in village Barnoti of District Kathua (J&K State). That at the time of the incident, he was in his house. His Co-Driver was left in charge of the insured truck. When the complainant returned to the place where the truck was made stationary, his co-driver told him that the truck had been stolen in his absence when he had gone for taking dinner. He is categorical in stating that the information of the alleged occurrence was laid before the concerned police on 10.11.2004 at about 10 a.m but his statement on spot was recorded on 22.11.2004. He admitted that 22.11.2004 is date shown in the police record for the receipt of the information shown in the copy of the police report. (Annexure B) Vinod Kumar witness has stated that he was a Co-Driver of the truck in question and was accompanying the complainant to the place from where it was stolen. Truck had been parked by the complainant on 09.11.2004 at the patrol pump of Malikpur. He also stated that he alongwith complainant had gone to their respective houses and when they returned back in the morning they found that the truck had been stolen. Truck had been parked by the complainant on 09.11.2004 at the patrol pump of Malikpur. He also stated that he alongwith complainant had gone to their respective houses and when they returned back in the morning they found that the truck had been stolen. He had accompanied the complainant for lodging the report in the nearby Police Station which is situated in Sujanpor where police personnel assured that the complaint had been registered. He also admits that OP No.1 had appointed Shri N.Tikoo to verify the incident. In his cross examination, he stated that he is the Co-Driver of the said truck and he came to know about its theft and the report was lodged. Krishan Lal, Assistant Branch Manager of OP No.1 has deposed on affidavit that immediately after the receipt of the information regarding the raising of the claim investigator was appointed whose report was received and considered. As per the finding of the investigator it was held that the complainant was not entitled to any compensation because his case was not genuine. In cross examination, he stated that there are terms and conditions in the contract of the Insurance Policy that within the period of three months, the complainant had to complete all the formalities in order to prove the loss. Those formalities are: -- Production of (i) Copy of FIR (ii) Copy of the final investigation report made by the Police and (iii) all the requisite documents pertaining to the truck inclusive of copy of the driving license of the driver. In cross examination, he admitted that copy of the Insurance Policy has not been placed on the record of the case. He showed his inability to show any of such terms and conditions; however, he admitted that OP No.2 (Financier of OP no.1) had sent copy of FIR No. 53 dated 27.11.2004 to OP No.1.R.N.Tikoo investigator in his affidavit has given the details of his investigation on the basis of which he had arrived at the conclusion that the case was not genuine, however, in Para no.5 of his affidavit, he has admitted that complainant had personally driven the insured truck on 08.11.2004 when he returned from Kashmir and stayed at home at the night. Next day i.e. on 09.11.2004, he went to Pathankot by crossing the check post of Lakhanpur. Next day i.e. on 09.11.2004, he went to Pathankot by crossing the check post of Lakhanpur. That after few days he returned without truck and stated that the same had been stolen by unknown person/persons at Malikpur on the National Highway. He had based the findings of his report on this aspect of the case on the showing of the complainant and his family members. He examined the records of the Toll Post Lakhanpur and found that the insured truck had crossed the Toll Post on 03.11.2004 from outside the state while loaded with "manyari goods" and afterwards the truck crossed the said toll post empty from Jammu on 05.11.2004. He had also asked the Bank Manager of J&K Bank Chanrorian to provide the copies of the intimation letter as well as FIR produced by the insured in the said Bank regarding the theft of the truck. The Bank provided him the photocopies of the intimation letter dated 12.11.2004 as well as copy of FIR No.53 of 2004 dated 27.04.2004 under sections 379/380 IPC. He has further stated that he had suggested OP No.1 to take up the matter with SP Gurdaspur regarding the verification of lodging of FIR. The complainant has also produced the documentary evidence in the form of a photostat of the attested true copy regarding the recording of his statement on 22.11.2004 by Mr. Devdut In-charge Police post Sujanpur (Punjab) wherein it is stated that his truck was stolen on 09.11.2004 from Malikpur when he had gone to his house during the night after parking it there. He has also stated that truck was stolen during the night of 09.11.2004 by some unknown person or persons. The Police record also shows that the complaint of the complainant was registered under already registered FIR No. 53 of 2004 for the commission of offence falling under sections 379/380 IPC. That FIR had been registered on the complaint of one Dilbagh Rai. He has also produced Annexure D which is a translated version of writing in Punjabi language under the seal and signatures of S.H.O Police Station Sujanpur wherein it is stated that after recording the statement of the complainant on 22.11.2004, the incident was clubbed in the investigation of report registered under no. 53/04 regarding the involvement of some gang who had committed similar incidents. 53/04 regarding the involvement of some gang who had committed similar incidents. The case is still at the investigation stage and the alleged stolen vehicle was not traced. The above stated writing is dated 11.03.2005. 4. It is worthwhile to mention here that the counsel of the complainant wanted to cross examine the investigator Mr. R.N.Tikoo on the averments made in his affidavit but OP No.1 had failed to produce him despite many opportunities. His cross examination was closed vide Order dated 10.11.2008. Vide Order 05.03.2009 J&K Bank, Branch Chanrorian was impleaded as OP No.2. 5. Heard the arguments. 6. Mr. Ajay Vaid, learned counsel appearing for the complainant has stated that it is a genuine case where the insured truck of the complainant has been stolen by a gang of thieves and sold somewhere resulting into total loss of the value of the insured truck bearing No. JK08-A-3457. According to him, theft of the t5ruck stands proved from the oral evidence given by the complainant and supported by his co-driver, Vinod Kumar, as well as documentary evidence placed on the record after obtaining the same from Police Station Sujanpur. Police record, annexure B is only Photostat copy and we had called the claim file from OP No.1 and perused the same. No certified copy was found on the claim file of OP No.1. In rebuttal counsel appearing for OP No.1 has contended that this is a fabricated claim because the claimant, who was the owner of the insured truck, after taking it outside the State on 09.11.2004 had himself sold it somewhere and in order to rob public money of OP No,.1 has cooked up this false case. He has stated that there are inherent contradictions and improvements in the statements of the complainant and his co-driver Vinod Kumar which lend support to the view that it is a false case. He has also pleaded that neither the owner of the petrol pump nor its employee has been examined who could say that the truck was parked during the night in front of or nearby the petrol pump and stolen away from there. Also no official from the concerned police station has been produced in respect of the allegation that the incident was reported there on 10.11.2004. Also no official from the concerned police station has been produced in respect of the allegation that the incident was reported there on 10.11.2004. It is very strange that Dev Dutt ASI Incharge Police Post Sujanpur while on usual petrol duty could by chance find the complainant nearby the place where the alleged theft had been committed and recorded his statement which is being made sheet-anchor of the case. Copy of the FIR which has been produced relates to the report lodged by one Dilbagh Rai. 7. We have considered the submissions of the learned counsel for the parties and perused the record. There are inherent contradictions in the statement of the complainant and his co-driver Vinod Kumar with regard to the loss of truck. In cross examination, the complainant has stated that after parking the truck on 09.11.2004 at Sujanpur near petrol pump when on the next day he went there, it was found that the truck was missing. Co-driver of the said truck Vinod Kumar had been left over there but when complainant returned there on the next day, Mr. Vinod Kumar told him that when he had gone for having his dinner the vehicle was stolen. Vinod Kumar in his affidavit in para 2 has given a different version by stating that "on 09.11.2004 Sh. Hans Raj Driver parked his truck at petrol pump Malikpur Punjab and we went to our houses and came in the morning of 10.11.2004 and we found that his truck had been stolen". We have also found on record the affidavit of one Madhu Bhandari who claims himself as conductor of the said truck. He filed his affidavit in the Commission on 27.04.2006. He has not admitted the presence of alleged co-driver Vinod Kumar at any point of time. He is categorical in deposing: -- "On the intervening night of 09.11.2004, the owner of the truck who was driving himself the said truck alongwith deponent had parked his aforesaid truck at petrol pump Malikpur and thereafter went to his house. When the deponent alongwith the driver came in the morning of 10/11 at the place where they had parked the truck they found that the truck had been stolen." The complainant as well as the co-driver in their depositions have excluded the presence of Madhu Bhandari conductor while-as Madhu Bhandari has excluded the presence of co-driver Vinod Kumar. When the deponent alongwith the driver came in the morning of 10/11 at the place where they had parked the truck they found that the truck had been stolen." The complainant as well as the co-driver in their depositions have excluded the presence of Madhu Bhandari conductor while-as Madhu Bhandari has excluded the presence of co-driver Vinod Kumar. We have also failed to understand how Dev Dutt ASI could find the complainant nearby the place of occurrence after a gap of ten days and then recorded his statement in order to club the incident in the already registered FIR No. 53/2004 for the commission of offence under sections 379/380 IPC. The investigator of OP No.1 Sh. R.N. Tikoo has in his investigation stated that it is a false case and there seems to be truth in this assertion. In the final analysis, we find that this case is of doubtful nature, wherein no relief can be granted in favour of the complainant. Hence the complaint is dismissed and consigned to records. No order as to costs.