BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.107 of 2019
Date of Instt. 05.04.2019
Date of Decision: 15.02.2023
Inderjit Singh, Advocate aged 43 years S/o Sh. Kundan Singh, resident of House No.149, Golden Avenue, Phase II, Garha Jalandhar, Jalandhar.
..........Complainant
Versus
Bajaj Allianz General Insurance Company Limited, 2nd Floor, Satnam Complex, BMC Chow, Jalandhar.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. R. K. Nanda, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OP.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant is owner of Maruti Ciaz car bearing registration no.PB-08-DU-9092 and the same is registered in his name. The complainant got his above said car comprehensively insured from the OP and in lieu of it, the OP charged a sum of Rs.32,165/- as premium towards the said insurance. To this effect, the OP issued a policy no.OG- 18-1217-1801-00007349 and the same was valid from 15.09.2017 to 14.09.2018. In lieu of the policy the OP undertook to indemnify the complainant in respect of all the damages occurring out of the use of the aforesaid car including the own damage. The complainant is, thus, the 'consumer' of the OP and very well falls within the ambit of definition of 'consumer' as provided under the Act. On 26.10.2017, the son of the complainant namely Simranjeet Singh was driving the aforesaid car and the said car was snatched at Gun Point by three unidentified persons in the area of JD Dhaba, Mall Road, Jalandhar from the aforesaid Simranjeet Singh. Qua this incident a case FIR No.141 dated 26.10.2017 u/s 392, 34 IPC and 25 & 27 Arms Act was registered at PS Division No.6, Jalandhar on the statement of aforesaid Simranjeet Singh. The intimation with regards to the said incident was given to the opposite party well in time. The said car was traced by the police on 12.11.2017 in the area of Village Birowal, District Muktsar. At that time, when the vehicle was recovered, it was in a badly damaged condition. The said vehicle was handed over to the complainant thereupon. Thereafter, the said vehicle was handed over for its repairs to Stam Autos Private Limited, G.T. road, Opposite DP School, Jalandhar by the complainant and intimation in that respect was given to the OP. The OP thereupon asked the complainant to provide with a estimated repair bill and ask the complainant to get the repairs and assured him that in the meantime his claim would be settled at their end. Believing upon the assurance given by the OP, the complainant asked the repair workshop to start its repair on the aforesaid vehicle and the complainant supplied the OP with all the requisite documents including own damage claim. Thereafter, the complaint received a letter dated 27.01.2018 from the OP whereby he was asked for a copy of driving licence of Simranjeet Singh alongwith original for verification. In the meantime, the complainant informed the OP that above said Simranjeet Singh was not having a valid driving licence whereupon he was informed that in such case his claim will not be payable. To this the complainant submitted a letter dated 05.02.2018 wherein he explained his position that in cases of snatching there is no requirement of driving licence as the driver was not at fault at the time of snatching. Thereafter the complainant received a letter dated 07.02.2018 whereby the complainant was informed that his reply dated 05.02.2018 is not satisfactory and was further asked to reply within 7 days as to why his claim should not be repudiated, to which the complainant again visited the office of opposite party and explained his similar position. In the meantime as the vehicle was got repaired and the workshop officials were asking the complainant, time to time, to take delivery of the vehicle and clear the outstanding dues. As the complainant was not getting any positive response from the OP, he perforce took delivery of the vehicle from the repair workshop and paid a sum of Rs.1,49,875/- towards the expenditure so incurred on the repair of the vehicle. To utter surprise the complainant received a letter dated 16.02.2018 from the opposite party whereby he was informed that his claim has been repudiated on the grounds that:-
‘This is with reference to the above reported claim, letters sent to you on 05.01.2018, 22.01.2018 and 07.02.2018, your reply on dated Nil received to us on 05-02-2018, we would like to inform you that the explanation submitted by your goodself is not found to be satisfactory without any documentary evidence.
In view of the above your claim stands repudiated, accordingly the same may please be noted.’
The repudiation of the genuine claim of the complainant is illegal, baseless and without any convincing reason and as such amounts to deficiency of services and unfair trade practice on the part of the OP. It is well settled that in cases of snatching or theft, breach of terms and conditions is not germane. As the driver of the vehicle i.e. Simranjeet Singh has not in any manner contributed to the snatching and damage, thus there was no fault or act or omission on his part and as such the OP should not be allowed to avoid it liability merely on account of technical breach of conditions concerning driving licence. The complainant has suffered a huge financial loss, great mental tension, agony and frustration due to the wrongful repudiation of his genuine claim by the OP and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to pay a sum of Rs.1,49,875/- being the expenditure incurred by the complainant on getting repaired his insured vehicle with interest @ 12% per annum. Further, OP be directed to pay a sum of Rs.25,000/- as compensation and damages for the deficiency of services and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OP, as such the same is liable to be dismissed. It is further averred that the complainant cannot take advantage of his own wrongs. The insured vehicle was being driven by Simarjeet Singh son of complainant Inderjeet Singh at the time of occurrence on 26-10-2017. It is the condition of the insurance policy that the insured vehicle be driven by a person holding a valid and effective driving license to drive the vehicle. In the present case, there is willful breach of policy terms and conditions, as the complainant/insured handed over the vehicle to his son Simarajeet Singh, knowing that he is not having any valid and effective driving license to drive the car and that being so, there is no liability of the opposite party to indemnify the insured/complainant as there is willful breach of terms and condition of the insurance policy by handing over the car to his son Simarjeet Singh, who was not holding any driving license to drive car on the day of occurrence. The complainant failed to give any satisfactory reply to the letters dated 05-01-2018, 27-01-2018, 07-02-2018, as such he claim of the complainant has been rightly repudiated vide letter dated 16-02-2018 after due application of mind as per terms and conditions of the insurance policy. It is further averred that there is neither any negligence nor any deficiency in service or unfair trade practice on the part of the OP. Repudiating the claim which is not payable as per terms and conditions of the insurance policy does not amounts to any deficiency in service or unfair trade practice. The claim of the complainant stands repudiated vide letter dated 16-02-2018 as per terms and conditions of the insurance policy after due application of mind and the complainant was informed accordingly. There is no cause of action in favour of the complainant against replying OP, therefore, the complaint deserves to be dismissed. The complainant is not the consumer of the replying opposite party therefore the complaint is liable to be dismissed. The complainant has no locus standi or cause of action to file the present complaint against replying OP. The complaint is not maintainable in the present form and is liable to be dismissed. On merits, the factum with regard to the ownership and insurance of the car is admitted. The facts regarding snatching of the car and then registering an FIR is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has proved that he is the registered owner of the vehicle Maruti Ciaz Car bearing registration No.PB08-DU-9092 as per RC Ex.C-2. It is admitted and proved that the complainant got his vehicle insured from the OPs. The policy has been proved as Ex.C-3. The complainant has alleged that on 26.10.2017, the son of the complainant was driving the car and the car was snatched at gun point by three unidentified persons. On the statement of his son Simranjeet Singh, the FIR No.141 was registered, which has been proved as Ex.C-4. So, it is proved that the vehicle was snatched by unidentified persons. Intimation was given to the OPs and claim was also filed. The driving license of the driver was demanded by the OPs, but the son of the complainant was not having any valid driving license. The complainant was having driving license which has been proved as Ex.C-1. The claim of the complainant was not passed due to the fact that the son of the complainant was not having driving license. The complainant has proved the letters explaining his position and requesting the OPs to settle the claim. He has proved the letter Ex.C-7. It has been alleged by the complainant that afterwards the car was recovered in a damaged condition. He spent Rs.1,49,875/- towards the expenditure on the repair of the vehicle, which has been proved as Ex.C-8, but the claim of the complainant was repudiated, vide Ex.C9. Perusal of Ex.C9 shows the reason for repudiating the claim of the complainant was that the son of the complainant was not having driving license and the explanation sent by the complainant, vide Ex.C-6 was not found satisfactory. The Ld. Counsel for the complainant has submitted that there was no fault of the driver of the vehicle as no accident took place. The vehicle was snatched by unidentified person and later on the same was got recovered and sent for repair. The driving license of the complainant’s son is not required for settling the claim. It has been held by the Hon’ble Supreme Court, in a Civil Appeal No.3409 of 2008, decided on 08.05.2008, titled as ‘National Insurance Co. Ltd. Vs. Nitin Khandelwal’, which reads as under:-
“Consumer Protection—Insurance claim qua theft of vehicle—Repudiation by insurance company, alleging violation of terms of Policy—Theft vis-à-vis Relevance of breach of conditions—Claim on the basis of non-standard—Allegedly, the vehicle was registered and insured as a private vehicle but at the relevant time it was used as taxi for carrying passengers on payment—In cases of theft, breach of terms of insurance policy, no germane, particularly, nature of use of vehicle cannot be looked into—Company is liable to indemnify the owner of the vehicle when the insurer (sic, insured) has obtained comprehensive policy for the loss caused to the insurer (sic, insured)—Company cannot repudiate the claim in toto—Claim allowed by State Commission on non-standard basis, to the extent of 75% which in turn upheld by National Commission—No fault found with the view taken by State Commission, as upheld by National Commission—interference declined.”
7. The contention of the OP is that there is clear cut violation of the conditions of the policy as per the condition of the policy, the son of the complainant was not eligible for driving the vehicle as he was not having any learner license or valid driving license. He has relied upon Ex.O-1, the certificate of insurance policy. Admittedly, the surveyor was appointed and the surveyor had given the report Ex.O-2, but the claim was repudiated merely on the ground that the son of the complainant was not having driving license and despite the letter issued by the OP Ex.O-3 and Ex.O-4, the complainant failed to provide the driving license. He has relied upon the law laid down by the Hon’ble Chhattisgarh State Consumer Commission, in which it has been held that ‘in cases of theft where the complainant was not possessing any valid driving license, the claim was liable to be repudiated’.
8. It is not denied rather proved that the complainant got insured his vehicle and his vehicle was snatched by the unidentified persons. It has been proved that the FIR was registered. Now the point in controversy is as to whether the driving license was required or not or whether there is any breach of condition of the insurance policy. As per the law laid down by the Hon’ble Chhattisgarh State Consumer Commission, when the vehicle was being driven by the appellant without valid effective driving license at the time of incident he was not possessing valid and effective driving license which comes within the purview of breach of terms and conditions of insurance policy and the Hon’ble Chhattisgarh State Consumer Commission held the repudiation as valid. The Hon’ble Supreme Court in a case titled as ‘National Insurance Co. Ltd. Vs. Nitin Khandelwal has observed that in cases of theft or snatching, the claim cannot be rejected on the ground of breach of contract. It was observed in the case by the Hon’ble Supreme Court that where the vehicle has been snatched or stolen, in such cases breach of condition is not germane. The insurance company is liable to indemnify the owner of the vehicle, when the insurer has obtained comprehensive policy for the loss caused to the insurer. It was further observed by the Hon’ble Supreme Court that even if it is assumed that there was a breach of condition of the insurance policy, the insurance company out to have settled the claim on non-standard basis, but the insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
9. In the present case, the main thing to be considered is the nature of the use of the vehicle. As per observation of the Hon’ble Supreme Court. Had there been any accident and the son of the complainant would have been driving the car without any licence, then definitely there can be negligence and the claim is liable to be repudiated, but in the present case, there was no accident rather the vehicle was snatched by the unidentified persons without the fault of the driver. The driving license was not of any use in such cases of theft or snatching. Therefore, as per the law laid down by the Hon’ble Supreme Court in such cases of theft of vehicle or snatching breach of condition is not a germane. Thus, the claim of the complainant was wrongly and illegally repudiated by the OP and the same is hereby set-aside and the complainant is entitled for the relief as claimed.
10. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to pay 75% of the total claimed amount i.e. Rs.1,49,875/- on non-standard basis with interest @ 6% per annum from the date of repudiation i.e. 16.02.2018 till realization and further OP is directed to pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
15.02.2023 Member Member President
