S. Kumar vs NEW INDIA ASSURANCE COMPANY LIMITED

THIS is an appeal filed against judgment and order dated 14.1.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 1311 of 2001 filed against O.P.-The New India Assurance Company Limited (for short hereinafter referred to as the Assurance Company) and another.

THE complainant who is the appellant before us had taken the policy of insurance in respect of his mobile phone for a sum of Rs. 12,000/- and the policy bore No. 48/655. Earlier the cover note No. 528753 was issued covering the risk for the period from 11.6.1999 to 10.6.2000. THE said mobile phone, it was alleged by the complainant/appellant, was lost and a Daily Diary Report (for short hereinafter referred to as DDR) was got lodged at Police Station, Sector 11, Chandigarh. THE Assurance Company was also informed about the loss of the said mobile phone and a claim under the policy of insurance was laid. THE said claim was, however, repudiated by the respondent-Assurance Company on the ground that the DDR was lodged by considerable delay and that too by the son of the appellant. THE mobile phone is alleged to have been lost on 13.11.1999 but DDR was lodged after two days i.e., on 15.11.1999. THE appellant did not explain the delay of two days in lodging the DDR and further the complainant obtained an add-on connection with reference to the parent number from the Spice Telecom, which showed that the mobile phone, which was allegedly lost, was still operational on 17.12.1999. THE Assurance Company further found that the mobile phone had not in fact been lost and the complainant/appellant made a false claim. Feeling aggrieved with the repudiation of the claim, the complainant filed complaint, which was registered as complaint case No. 1311 of 2001 in the District Forum. Notice of complaint was served on the O.Ps/respondents who defended their action in repudiating the claim and took some preliminary objections regarding the complaint case involving intricate and complicated questions of facts and law and the complainant should be relegated to his remedy before the Civil Court of competent jurisdiction.

On merit of the case, the respondent-Assurance Company took the plea that the mobile phone was not lost and the claim lodged was false claim. Besides it, in the preliminary objections, the maintainability of the complaint case was challenged on the ground that the complaint raised intricate and complicated questions of law, which could be adjudicated upon by a Civil Court of competent jurisdiction and as such the complainant should be relegated to his remedy of approaching a Civil Court of competent jurisdiction for redressal of his grievances.

THE parties led evidence before the District Forum, which is in the shape of affidavit filed by the complainant Shri S. Kumar who also filed documents i.e., copy of insurance policy, copy of DDR, copy of letter dated 3.2.2000 written by the Assurance Company to the complainant, copy of legal notice served on the respondent/O.P. - Assurance Company through Mr. Rajan Kheterpal, Advocate. THE respondent-Assurance Company filed affidavit of Shri Amarjit Singh, Divisional Manager of Assurance Company having Divisional Office at Manimajra, Chandigarh along with documents marked Annexures R-1 to R-3, which are the photocopies of statement of Sh. Naman Kumar, son of the complainant; Investigation Report dated 20.1.2000 and lastly letter dated 3.2.2000 of the Assurance Company sent to the complainant. The District Forum upheld the contention of the O.Ps. and held that there was no deficiency in service on the part of the O.Ps. The complaint was resultantly dismissed leaving the parties to bear their own costs.

THE complainant felt aggrieved by the impugned judgment and order and filed this appeal. THE notice of appeal was served on the respondent-Assurance Company who put in appearance before this Commission through Mr. R.K. Bashamboo, Advocate. THE record of the complaint case was summoned from the District Forum. We have heard the learned Counsel for the appellant/complainant Shri Varun Katyal, Advocate and Shri R.K. Bashamboo, Advocate for the respondent/O.P. - Assurance Company. We have carefully perused the impugned order of this District Forum and also perused the evidence placed on record of the complaint case. The claim of the appellant/complainant preferred under the policy of insurance, the subject matter of which was the mobile phone Panasonic G-600, was repudiated on mainly four grounds, which are mentioned in letter dated 3.2.2000 (Annexure R-3) by the respondent - Assurance Company. These grounds are (1) The DDR No. 1794 dated 15.11.1999 registered at Police Station, Sector 11, Chandigarh showed that the mobile phone, which was insured under the policy of insurance by the respondents, was left by the son of the appellant Sh. Naman Kumar in the car, which was unlocked. The mobile phone at the time of alleged theft was in the custody of Sh. Naman Kumar son of the complainant/appellant Shri S. Kumar and Shri Naman Kumar had not obtained the policy of insurance in respect of the said mobile phone and instead his father had taken the policy of insurance; (2) The alleged loss occurred due to the negligence of Shri Naman Kumar, which was not covered under the risks mentioned in the policy of insurance; (3) The appellant had purchased an add-on connection for the same SIM Card No. 98140-04803, getting No. 98141-04803 on 17.12.1999 i.e., after the alleged loss and thereby clearly indicating that the original SIM Card and the mobile phone was available with the holder of the policy of insurance till 17.12.1999 i.e., more than a month after the alleged loss; and lastly (4) The representatives of Spice Telecom had confirmed that they did not receive any request for stoppage of service to SIM Card No. 98140-04803 and the service to the SIM was still being given, which clearly showed that the SIM was still with the complainant.

THE dispute, which has been raised in the complaint case related to the factum of the loss of the mobile phone aforesaid about which the policy of insurance had been taken covering the risk of theft. THEre is no valid reason given in the complaint as also in the affidavit of the complainant about the delay in lodging the DDR at the concerned police station, which in the instant case was Police Station, Sector 11, Chandigarh. THE son of the complainant, Shri Naman Kumar furnished information to the police only on 15.11.1999 when DDR was registered. THEre is no valid reason given explaining the delay in lodging the DDR. THE complainant was expected to bring this matter regarding the loss of his mobile phone with the Spice Telecom praying for immediately stopping the service to the SIM Card No. 98140-04803 so that any other person may not unauthorisedly use or misuse the same. THE respondent-Assurance Company referred the matter to the Spice Telecom, which confirmed about not receiving any request for stoppage of service to the said SIM Card and the service was still being given. This fact has been categorically stated by the Divisional Manager Shri Amarjit Singh of the Assurance Company in Para 3 Sub-para (2) of his affidavit, which reads as under: "Moreover, no intimation about loss of sim card was made to the Spice Telecom. It is further submitted that it is surprising that the complainant had obtained an add-on connection on 17.12.1999 containing the parent number from the Spice Telecommunication. THE add-on connection is useful only when the parent connection is operational. Further, the complainant was himself responsible for the loss since he left his car unlocked and did not care to safeguard the insured property. A copy of the investigation report of the Surveyor is enclosed along with as Annexure R/2. In view of the above facts and circumstances, the claim of the complainant, thus, rightly repudiated by the opposite parties. A copy of the insurance policy containing the terms and conditions of the policy is annexed as Annexure R/5."

THE complainant filed his affidavit on 11.11.2002 comprising three paragraphs, which read as under: "(1) That the deponent has already filed a complaint in the above titled case and the complaint may be read as evidence by way of affidavit and the same is not being repeated in the interest of brevity. (2) That the averments made in the complaint are correct and reaffirmed and reiterate the same. (3) That the documents as mentioned in the complaint in support of case of complainant be brought on record as evidence".

The contents of paras 1 to 3 were verified as true and correct to his knowledge and belief. The fact, however, remains that the evidence to substantiate and corroborate the pleadings contained in the complaint was relied on in the shape of affidavit, which is received in summary jurisdiction of the District Forum and the complainant is required to prove as a fact the pleadings, which he has taken in the complaint case. If the pleadings in the complaint case are to be treated as piece of evidence, then there is no requirement of leading evidence in support of the averments made in the complaint. Instead of leading proper and legal evidence, proving the case set up in the complaint merely deposed that the contents in the complaint be read as evidence by way of affidavit.

We are of the considered opinion that such an affidavit cannot be treated to be legal evidence and no reliance can be placed on mere pleadings contained in the complaint case.

IT is relevant to point out that the complainant did not file the affidavit of his son Shri Naman Kumar from whose custody the mobile phone was allegedly stolen was 13.11.1999 and who went to inform the police at Police Station, Sector 11, Chandigarh about this incident on 15.11.1999. There is no specific averment made in the affidavit of Shri Amarjit Singh, Divisional Manager of the Assurance Company, Branch Office at Manimajra, Chandigarh who deposed in para 1, inter alia as under: "........Even if, if we rely upon the story put forth by the complainant regarding stealing of the mobile phone, though it is not admitted, the complainant is himself responsible for the loss. The complainant has totally failed to take reasonable steps to safeguard his property against loss, which was required to be taken by the complainant as per the conditions of the policy...."

It may be mentioned that the Surveyor who was deputed to investigate the matter enquired from the son of the complainant who stated that he did not think that his father locked the car when they went to the market. It has been deposed in para 1 of the affidavit further that the complainant had not taken the steps to safeguard the insured property and the complainant is not entitled to the claim, which has been rightly repudiated by the Assurance Company. About the DDR, it was deposed in Para 3 of the affidavit of Shri Amarjit Singh, Divisional Manager aforesaid, inter alia, as under: "3. That it is admitted to the extent that the DDR No. 1794 was lodged with the police on 15.11.1999. However, it is submitted that the said DDR was lodged by Sh. Naman Kumar, the son of the complainant. But, in the said DDR it has nowhere mentioned that the father, the complainant was accompanying his son Sh. Naman Kumar when the mobile was lost. It is pertinent to mention here that it has been reported in the DDR by Sh. Naman Kumar that this mobile was lost and not the mobile of the complainant was lost. Further, Sh. Naman Kumar has reported that his mobile was lost somewhere in the Sector 11 Market, whereas, in his statement the complainant has stated that on 13.11.1999 at about 7 p.m. the complainant and his son went to Sector 11 Market, they left the mobile on the co-driver seat and when they returned back, they found their mobile missing. The contents of the DDR and the statement of the complainant are totally different and contradictory......"

The copy of the statement of Shri Naman Kumar was annexed as Annexure R/1. The District Forum in the impugned order referred to some of the suspicious circumstances uncovered by the investigator, which have been mentioned in Para 8 of the impugned order. These circumstances were as under: "(a) The DDR was lodged by Mr. Naman Kumar. In the entire DDR, Naman Kumar has not mentioned anywhere that his father Mr. S. Kumar was accompanying him when the mobile was lost. (b) Mr. S. Kumar at no stage informed the investigator that his mobile phone was being used by some unknown person and a call was made from his mobile to another mobile No. 98140-06659 at 8 a.m. on 14.11.1999. Mr. Naman Kumar in DDR claims to have acquired this information from the office of Spice Telecom. (c) Mr. Naman Kumar has further told the police in DDR that mobile No. 98140-06659 belongs to a girl named Vaneeta Behl residing in #275, Sector 121, Chandigarh. (d) Mr. Naman Kumar met Vaneeta Behl and asked her to let him know who made the call at 8 a.m. on 14.11.1999 on her mobile. Vaneeta Behl is alleged to have informed Naman Kumar that the call received by her at 8 p.m. on 14.11.1999 was a blank call and she does not know the person. (e) Naman Kumar has disclosed in the DDR that he asked Vaneeta Behl to show her mobile phone to him so that he could see the received calls. But he found that the list of received calls was deleted (f) Naman Kumar has further reported to the police in the DDR that the girl (Vaneeta Behl) appeared to be nervous and he is positively sure that girl knows the person who has stolen his mobile phone. (g) It is also important to note that neither Mr. S. Kumar nor his son Naman Kumar has lodged an FIR but simply informed the police through a DDR."

Having carefully perused the material placed on record and after going through the impugned order, we find that the District Forum has rightly held that there was no deficiency in service on the part of the respondent/O.P. -Assurance Company. The complaint was rightly dismissed. Resultantly, there is no merit in this appeal, which is dismissed. The costs of appeal shall, however, be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal dismissed.