Haryana

Karnal

CC/387/2013

Vikramjeet Singh S/o Amrik Singh - Complainant(s)

Versus

1. Iffco Tokio General Insurance Company Ltd - Opp.Party(s)

Gourav Sharma

28 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.387 of 2013

                                                             Date of instt.12.09.2013

                                                               Date of decision 28.3.2017

 

Vikramjeet Singh son of Amrit Singh resident of Gali no.3, Vikash Nagar, Karnal.

 

                                                                               ……..Complainant.

                                      Vs.

1. The Manager, IFFCO TOKIO General Insurance Company, Ltd. through its Sonalika Tractor Agency near Nameshtey Chowk, Karnal.

2. The Manager, IFFCO Tokio General Insurance Company, 3^rd floor Nehru Palace New Delhi.

3. IFFCO TOKIO General Insurance Company Pvt. Ltd. Bandra (West) Mumbai 400050 through its Manager.

 

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri Gaurav Sharma Advocate for complainant.

                    Shri  Virender Sharma Advocate for opposite parties.

                    

                    

 ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he got insured his tractor Sonalika bearing Registration no.HR-05Z 6999 with opposite parties, vide policy cover note no.40490193 dated 28.01.2010. The said tractor was stolen from village Dadnor and the case bearing First Information Report no.16 dated 17.01.2011 was registered in Police Station, Gangoh, District Saharnpur, regarding the said theft. Despite efforts, the police was unable to trace the tractor, therefore, untraced report was filed before learned Illaqa Magistrate Saharanpur on 21.4.2011, which was accepted. Thereafter, several representations were made to the opposite parties for settling the claim, but the opposite parties did not pay any heed to his requests. Ultimately, he got served legal notice dated 15.3.2012 upon the opposite parties, but the same also did not yield any result. In this way, there was deficiency in service on the part of the opposite parties, which caused him harassment and mental agony.

2.                Notice of the complaint was given to the opposite parties, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no locus standi and cause of action to file the complaint; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complaint is not maintainable; that this forum has got no jurisdiction to entertain and adjudicate the complaint; that the complainant has violated the condition of the insurance policy and theft of the vehicle had taken place due to the negligence of the complainant.

                   On merits, it has been submitted that the tractor was stolen due to negligence of the complainant, as at the time of the investigation conducted by the official of the opposite parties, the complainant himself reported that he left the key in the tractor and gone away for toilet. Therefore, the opposite parties were not responsible for the negligent act of the complainant and as such the complainant is not entitled for claim. It has further been pleaded that the cover note was issued to the complainant by Mumbai branch, but the same has not been made as party.

4.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to C8 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Brijesh Sain Ex.O1 and documents Ex.O2 to Ex.O8 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the complainant and learned counsel for the opposite parties.

7.                The complainant got insured his tractor bearing Registration no.HR-05Z 6999 with opposite parties for the period of 28.1.2010 to 27.1.2011. The said tractor was stolen on 17.1.2011 and First Information Report no.16 was registered in Police Station, Gangoh, District Saharnpur, regarding the said theft. The vehicle could not be traced out and the police submitted untraced report, which was accepted by learned Illaqa Magistrate Saharanpur on 21.4.2011. Intimation regarding theft was duly given to the opposite parties, who appointed investigator. Investigation report Ex.O3 was submitted by the investigator. It was concluded by the investigator that theft of the tractor had taken place due to gross negligence on the part of the last user, the son of the insured, who left the tractor parked unattended with its original start switch key inside the ignition  and thief took advantage of that situation.

8.                Thus, the main plank of the opposite parties is the report of the investigator on the basis of which it was alleged that there was negligence on the part of the complainant as his son had left the ignition key in the tractor while going for easing out. However, the copy of the letter dated 17.7.2011 lying on the file shows that the claim of the complainant was made as ‘No Claim’ as some documents were not submitted by him inspite of regular follow up by the opposite parties. The opposite parties have not produced any letter or notice to the complainant for submitting any document. Even in the said letter it was not clarified as to which documents were required to be submitted by the complainant for processing the claim. Therefore, in such a situation making the claim of the complainant as ‘No Claim’ was not legally justified.

9.                Now, the question arises whether there was breach of condition on the part of the complainant by leaving the ignition key in the tractor by his son while going to answer the call of nature. A perusal of the copy of the First Information Report Ex.C2 shows that the case regarding theft was registered on the basis of the statement of the complainant on 17.1.2011, wherein he submitted that his son Nirmaljeet Singh was driving the tractor from his house to village Gangaladi and when he reached near the bridge of village Padnor, he parked the tractor and went for the answering the call of nature in a sugarcane field, but when he came back he found the tractor stolen.

10.              The proposition of law laid down by Hon’ble National Commission in case  Sukhwinder Singh Versus Cholamandalam-MS General Insurance Company Ltd. & Anr. 2013(4) CPJ 218  squarely covers the facts of the present case, wherein the driver of the car parked the car at roadside and went to ease himself, forgetting to remove the key ignition  and when he came back he found the car stolen. Condition no.5 of the insurance policy was considered by Hon’ble National Commission and it was held in para no.10 of the order as under:-

          This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as willful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver fogot to remove the keys from the ignition switch he cannot be said to have committed willful breach violation of the terms of the above condition no.5. In our aforesaid view we are support by judgment of Punjab and Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Versus M/s Sagar Tour and Travels and Anr.

Another decision of the Hon’ble National Commission in case National Insurance Co. Ltd. Versus Kamal Singhal IV(2010) CPJ 297 (NC) was also relied upon and it was held that the act of forgetting key in the ignition by the driver did not amount to violation of condition no.5 of the policy.

11.              In the instant case also, the son of the complainant parked the tractor at roadside and went away for easing out, while forgetting to take the key from the ignition and when he returned he found the tractor stolen. Therefore, in view of the law laid down in the aforecited authority it cannot be said that there was any violation of condition of policy by the complainant. Consequently, the claim of the complainant, cannot be repudiated by the opposite parties on the ground of violation of condition no.5 of the policy. Not making the payment of the claim to the complainant without any sufficient reason, certainly amounted to deficiency in service on the part of the opposite parties.

12.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to pay the insured amount to the complainant with interest @ 9% per annum from the date of filing the complaint till its realization. We further direct the opposite parties to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The party concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 28.3.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member