BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 63 of 2017.
Date of Institution: 10.04.2017.
Date of Decision: 27.05.2019.
Dinesh Sharma son of Shri Om Parkash Sharma, resident of House No. 429, Bharat Nagar, Parit Vihar, Bhiwani, Tehsil & District Bhiwani.
..….Complainant.
Versus
1. Bajaj Allianz General Insurance Co. Limited, Block No.4, 7th floor, DLF Tower 15, Shivaji Marg, New Delhi 110015 through its authorized Signatory/Manager.
2. Jagdeep Sharma, agent office at Loharu Road, opposite Vaish Model Sr. Secondary School, Circular Road, Bhiwani, Tehsil & District Bhiwani.
…...Opposite Parties.
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Mrs. Saroj Bala Bohra, Member.
Present: Shri K. R. Sharma, Advocate for the complainant.
Shri Avinash Sardana & Sh. SK Ghanghas, Advocates for OP No.1.
O. P. No. 2 already given up.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief facts of the case are that the complainant had got insured his Honda Activa No.HR16N-9576 with OPs vide policy No.OG-17-9906-1802-00004773 w.e.f. 15.4.2016 to 14.4.2017 from OPs. It is alleged that the scooty Honda Activa was stolen on 23.11.2016 at about 12.00 noon in front of the house of the complainant, as he was in hurry to go back, the key remained in it. It is further alleged that the matter was reported to police immediately and FIR No. 525 dated 23.11.2016 under Section 379 IPC was registered in policy station, Bhiwani. It is further alleged that untrace report was filed by the police in the court of Shri Hem Raj Mittal, the then ld. CJM, Bhiwani. It is further alleged that the complainant has filed claim No.OC-17-1103-1802-00000612 with OP No. 1 and OP No. gave notice to complainant on 7.2.2017 & 22.2.2017, which was replied on 7.3.2017. It is further alleged that the claim of the complainant was repudiated by the OP No. 1 vide letter dated 6.3.2017, which is wrong and illegal. It is further alleged that the key remained in scooty by chance, as the complainant was having domestic goods with him and he went to his house to give the same and he immediately came back and found the scooty missing. It is further alleged that the complainant has taken all the responsible steps to safe his scooty. It is further alleged that the OP No. 1 has wrongly repudiated the claim of the complainant. Thus, there is deficiency in service on the part of OP No.1. Hence, the present complaint.
2. On appearance, the OP No.1 filed contested written statement alleging therein that on receipt of intimation from insured about the theft of the Honda Activa in question, the OP company deputed an independent investigator Shri Charan Jeet Singh, Surveyor & loss assessor, Raj Nagar, Ghaziabad (UP) for investigations into the theft of the Honda Activa in question, who submitted his report dated 21.1.2017. It is further alleged that after going through investigation, statements of complainant and his neighbourer recorded by investigator and FIR, it was observed that at the material time of theft the insured vehicle was unlocked and original key was left inside the vehicle, which was directly contributed to the theft of vehicle and as such this act on the part of the insured was violation of the terms & conditions No. 4 of the insurance policy. It is further alleged that answering OP has sent letters dated 7.2.2017 and 22.2.2017 to the insured to clarify the position within 7 days from the receipt of the letter, but complainant had failed to clarify the same and as such the claim was repudiated by company and he was intimated vide letter dated 6.3.2017. Hence, in view of the above facts, there is no deficiency in service on the part of the answering OP and as such, the complaint of the complainant is liable to be dismissed with costs.
3. On notice OP No. 2 appeared, but the complainant vide his stated dated 25.7.2017 has given up OP No. 2.
4. Ld. Counsel for the complainant has placed on record the duly sworn affidavit & documents Annexure A to Annexure J in evidence and closed the evidence.
5. Ld. Counsel for OP No. 1 has placed on record affidavit as Annexure RW1/A, RW2/A and documents annexure R1 to R9 and closed the evidence.
6. We have heard both the parties at length and have gone through the case file carefully.
7. Ld. counsel for the complainant reiterated the contents of the complaint. He further contended that the OP company has failed in releasing the insured amount to the complainant, thus, there is clear cut deficiency in service on the part of insurance company. Ld. counsel for the complainant has placed his reliance upon RP No.618-619 of 2018, OIC Vs Sabbir, decided on 13.4.2018 by the Hon’ble National Commission, New Delhi, RP No. 3937 of 2017, NIC Vs Jasmeet Singh, decided on 7.2.2018 by the Hon’ble National Commission, New Delhi, RP No. 735 of 2013, Mahabir Singh Vs Reliance General Insurance, decided on 16.1.2018 by the Hon’ble National Commission, New Delhi and Appeal No. 454/2017, Nayyar Electronic World Vs HDFC Ergo General Insurance, decided on 8.5.2018 by the Hon’ble State Commission, Delhi.
8. Ld. Counsel for the OPs reiterated the contents of the written statement. He argued that the complainant is not entitled to get any amount on account of insurance claim of the vehicle in question, as he himself was negligent for the theft of insured vehicle, as he left the key inside vehicle in question. He further contended that there is no deficiency in service on the part of the OPs and prayed for dismissal of complaint. He placed his reliance upon RP No. 650 of 2014, Paramjit Kaur Vs OIC, decided on 29.5.2014 by the Hon’ble National Commission, New Delhi, RP No. 4759 of 2013, Maria Selvam Vs Royal Sundaram etc., decided on 18.5.2016 by Hon’ble National Commission, New Delhi & RP No. 4521 of 2013, OIC Vs KK Valsalan, decided on 7.5.2014 by the Hon’ble National Commission, New Delhi. Judgments referred by the counsel for the OP company are not applicable to the facts of the present case due to peculiar facts & circumstances.
9. After hearing learned counsel for both the parties and having gone through the material available on record, we are of the considered view that the complaint deserves acceptance, as there is deficiency in service on the part of OP No. 1. The only question is to decide whether the complainant was at fault, as he left the key in the scooty in question when it was parked just for a moment in front door of his house at the time of theft. The sought answer is “No”. It is admitted fact that scooty was got insured by the complainant from the OP No. 1. It is also admitted fact that the scooty in question was stolen by some unknown person from just outside the door of the house of the complainant and the key was left inside the scooty by the complainant. The only plea taken by the OP No. 1 is that the complainant not taken all reasonable steps to safe guard the vehicle from loss or damage and maintain it in efficient condition and breach the condition No.4 of the policy. This plea of the OP No. 1 is not tenable at all, because the scooty in question was parked just for few seconds in front of door of the house of the complainant at the time theft. In our view, the complainant has taken all steps to safe guard his vehicle, but the scooty was stolen by some unknown person in a very quick time, as the complainant went inside the house just to deliver the goods in his hand in the mean while the scooty was stolen. So, it cannot be said that complainant has not taken all the steps to safeguard his vehicle. In our view the arguments of learned counsel for the OP has no substance at all in view of the law laid down in case NIC Vs Nitin Khandewal, 2008(4) CPJ, 1 (SC). It is also admitted fact that the theft had caused during the operation of insurance policy. As regards the allegations that the vehicle was stolen due to the fault on the part of complainant is concerned. The insurance company should have paid 75% of the sum assured on non standard basis along with interest which the insurance company did not pay, because in case of theft of vehicle breach of policy condition not germane and the insurance company liable to indemnify for the loss caused to the complainant which was not paid at all. Although it cannot be said that all steps were not taken to safe guard the vehicle, but the insurance company, if deems so, in that eventuality they are bound to pay the claim on non standard basis, which was not paid. So, the plea of the insurance company is without basis because it has been clearly held by the Hon’ble Supreme Court of India in case Nitin Khandelwal, as mentioned above and same is re-produced as under:-
“Insurance vehicle stolen. Terms and conditions of policy violated. Claim repudiated. Settlement of claim on non-standard basis directed by State Commission. Insurance Company is liable to pay 75% of claim amount. Order upheld by National Commission. Civil Appeal filed. Breach of policy condition not germane in case of theft of vehicle. Nature of use of vehicle cannot be looked in to. Claim cannot be repudiated on that basis. Insurance Company liable to indemnify for loss caused”.
10. As per the case of the insurance company the complainant had violated the terms and conditions of the insurance policy and the conditions of the insurance policy is not tenable as the insurance company must identify the owner of the vehicle when insurer has obtained comprehensive policy for the loss caused to the insurer. As mentioned above, the insurance company even presumes that there was breach of conditions of policy, in that case, the insurance company ought to have settled claim on non standard basis. Therefore, on consideration of the case law referred above, it seems to be well settled that in case of theft of vehicle, the insurance company cannot deny the claim of the complainant in toto.
11. Thus, in view of the observations made by the Hon’ble Supreme Court of India the claim can be settled on non standard basis. Hence, it is a case where 75% of the claim could be settled. Therefore, in view of the facts and circumstances mentioned above the complaint of the complainant is hereby allowed on non standard basis and the insurance company is liable to pay 75% of the insured amount. So, the OP No. 1 is directed as under: -
i) To pay sum of Rs.37,050/- (Thirty seven thousand fifty only) i.e. 75% of the insured amount of Rs.49,400/- along with interest @ 9% p.a. from the date of filing of complaint till its final realization.
ii) To pay Rs.1100/- (One thousand one hundred only) as counsel fee as well as the litigation charges.
The compliance of order shall be made within 30 days from the date of the order. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: - 27.05.2019.
(Saroj Bala Bohra) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
