Punjab

Ludhiana

CC/21/511

Bhageerath - Complainant(s)

Versus

Bajaj Allianz General Insurance Co.Ltd - Opp.Party(s)

A.S.Rana

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:511 dated 09.11.2021.                                                         Date of decision: 01.02.2024.

 

Bhageerath son of Shri Angnu, Plot No.1007, St. No.36, Sua Road, Tarweni Chowk, Guru Amardass Nagar, Near Keys Hotel, Ludhiana.                                                                                                                 ..…Complainant

                                                Versus

1. M/s. Bajaj Allianz General Insurance company Ltd., SCO 156-159, 2^nd Floor, Sector 9-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. M/s. Bajaj Allianz General Insurance Company Ltd., Head Office at GE Plaza, Airport Road, Yerawada, Pune, through its Managing Director/Authorized Signatory.
3. M/s. Bajaj Allianz General Insurance Company Ltd., Branch office at Sandhu Towers, 5^th Floor, B-XX-3369, Gurdev Nagar, Ferozepur Road, Ludhiana, through its Branch Manager.                                                                                                                         …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. A.S. Rana, Advocate.

For OPs                         :         Sh. G.S. Kalyan, Advocate.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant purchased one Splendor Plus motor cycle bearing registration No.PB-10-HL-5675 from M/s. N.S. Motors, Ferozepur Road, Ludhiana which he got financed from M/s. HDB Financial Services. The complainant stated that at the time of financing the vehicle, officials of financer M/s. HDB Financial Services got one key of vehicle with them. Further the complainant got his vehicle insured from the OPs vide insurance policy No.OG-21-1217-1826-00014462 having validity from 30.10.2020 to 29.10.2021 but the OPs supplied one page policy without enclosing any terms and conditions. The complainant further stated that he availed the insurance policy from the OPs assuming the OPs to be very good for giving claims to its customers. On 02.01.2021, his son Ujilesh Kumar, who is Plumber by profession parked the said vehicle outside House No.187, Bock-G, Shaheed Bhagat Singh Nagar, Ludhiana and after working in the house, when he returned back at about 04.00 PM, he found that the vehicle was missing. He tried to search the vehicle but the same was not found. Then he gave complaint to police on 02.01.2021 upon which FIR No.10 dated 15.01.2021 U/s. 379 IPC was lodged at PS Dugri, Ludhiana. The OPs sent a letter dated 20.03.2021mentioning that the complainant gave them intimation on 18.01.2021 regarding theft of vehicle on 02.01.2021. According to the complainant, he informed OP3 regarding theft of the vehicle on 04.01.2021 by visiting the branch for lodging of claim. Thereafter, the complainant and his son many times visited office of OP3 to get the claim but the officials of OPs dilly delayed the matter on one pretext or the other. The complainant received many letters from the OPs and finally received rejection letter dated 20.03.2021. The complainant moved a final reminder dated 17.09.2021 to OP1 but nothing was done. Rather OP1 sent letter dated 01.10.2021 and the claim of the complainant was repudiated/rejected. This amounts to deficiency in service on the part of the OPs. In the end, the complainant has prayed for issuing directions to the OPs to pay the amount of Rs.63,350/- to him along with other charges and compensation of Rs.2,00,000/-.

2.                Upon notice,     the OPs appeared and filed joint written statement by taking preliminary objections assailed the complaint on the ground of maintainability; non-joinder of necessary parties; lack of cause of action and mis-representation of facts etc. The OPs stated that the complainant approached them and he was explained the terms and conditions of the policy, then after understanding the terms and conditions, he decided to take the policy w.e.f. 30.10.2020 to 29.10.2021. The OPs further stated that on receipt of claim, they deputed surveyor and claim investigator Grover Associates, Surveyor and Claim Investigators, 66, Part-I, Sector 19 HUDA, Kaithal to survey and assess the loss and to investigate the genuineness of the claim. The said surveyor submitted his detailed report dated 11.02.2021, which is reproduced as under:-

• It is a case in which Sh. Bhageerath son of Sh. Agnu, Resident of Gurumar Dass Nagar, Ludhiana was having a motorcycle Hero Splendor Plus reg. No.PB-10-HL-5675.
• This motorcycle was purchased 2020 from Ludhiana on loan, and loan still continuing.
• The colour of motorcycle was black, Engine no.66482 and chasis no.A5836
• As per statement of insured, on dated 02-01-2021 insured's son parked his motorcycle outside house Shahid Bhagat Singh Nagar, Ludhiana at about 4 pm and went inside but when he came back at about 6 pm the motorcycle was found missing.
• He tried to trace the motorcycle but all attempts motorcycle not traced.
• FIR was lodged with PS Dugri vide FIR No.10 dated 15.01.2021 of which being provided copy and attached with however there is delay in lodging FIR for about 13 days for which he confirmed that he visited police station just on date of theft but police did not lodged FIR and after various efforts FIR was lodged and RTI has been applied for confirmation for delay in FIR revert is awaited.
• Insured provided one original key of motorcycle in which was fresh and there was intestinal scratches on the key which is not satisfactory and not matching with version of Insured.
• Insurance company was intimated after 16 days of theft as per statement of insured after getting the FIR copy insurance company was intimated.
• Insured motorcycle was purchased in 2020 on loan, as per his statement loan was paid regularly but no records of same being provided.
• There was no CCTV Camera installed near the place of theft as such no CCTV recording is there, also there was no newspaper clipping for incident also no parking slip and yard is there.
• Previous year insurance details not applicable being new vehicle insurance.

INVESTIGATOR'S SPECIAL COMMENTS:

As per our observation incident of theft is found genuine and people near the place of theft were aware of this theft however insured is trying to mis represent the facts on key provided by him as the key is totally fresh and intention scratches are there.

Further we have brought you the facts and decision may be taken considering policy terms and conditions.

The OPs further stated that thereafter they sent letter dated 27.02.2021, 06.03.2021 and 13.03.2021 for explaining the delay in lodging FIR and intimation to the OPs. The OPs further stated that on non-receipt of any reply from the complainant and after scrutinized the claim documents, their officials applied their mind and repudiated the claim of the complainant vide letter dated 20.03.2021, the operative part of which is reproduced as under:-

"This is with reference to your claim and letters sent to you on 27.02.2021, 06.03.2021 and 13.03.2021 for which your good self have failed to submit any reply till date. Therefore in the absence of any response from your side we have no other option except to repudiate the claim.

In view of the above your claim stands repudiated, accordingly the same may please be noted.

Please note that nothing contained in this letter is or should be constructed rights our on as a waiver of any one or more our part and all rights under and in relation to the policy remain fully reserved.”  

                   On merits, the OPs reiterated the crux of averments made in the preliminary objections as well as factual submission. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of tax invoice dated 30.10.2020, Ex. C2 is the copy of loan disbursal letter of HDB Financial Services Ltd. dated 17.02.2021, Ex. C3 is the copy of insurance policy w.e.f. 30.10.2020 to 29.10.2021, Ex. C4 is the copy of FIR, Ex. C5 is the copy of reminder letter-2 dated 06.03.2021, Ex. C6 is the copy of reminder letter-3 dated 13.03.2021, Ex. C7 is the copy of repudiation letter dated 20.03.2021, Ex. C8 is the copy of letter written by the complainant, Ex. C9 is the copy of continuation repudiation letter dated 01.10.2021, Ex. C10 is the copy of RC No.PB-10-HL-5675, Ex. C11 is the copy of Aadhar card of the complainant and closed the evidence.

4.                On the other hand, the counsel for the OPs tendered affidavit Ex. RA of  Sh. Saurav Khullar, Assistant Manager (Legal) of Bajaj Allianz General Insurance Co. Ltd., SCO 156-159, 2^nd Floor, Sector 9-C, Chandigarh as well as affidavit Ex. RB of Sh. KL Grover, Partner of Grover Associates, 66 Part-I, Sector-19, HUDA, Kaithal, Haryana along with documents Ex. R1 is the copy of claim summary sheet, Ex. R2 is the copy of Transcript of Proposal for Two Wheeler Policy-Bundled, again Ex. R2 is the copy of policy wordings, Ex. R3 is the copy of motor insurance claim form, Ex. R4 is the copy of Motor Claims theft - Declaration Form, Ex. R5 is the copy of FIR, Ex. R6 is the copy of statement of the complainant, Ex. R7 is the copy of letter dated 11.02.2021 of the surveyor, Ex. R8 is the copy of postal receipt, Ex. R9 is the copy of survey report, again Ex. R9 is the copy of envelop, Ex. R10 is the copy of letter written by the complainant, Ex. R11 is the copy of letter dated 27.02.2021, Ex. R12 is the copy of postal receipt, Ex. R13 is the copy of reminder letter-2 dated 06.03.2021, Ex. R14 is the copy of postal receipt, Ex. R15 is the cop of reminder letter-3 dated 13.03.2021, Ex. R16 is the copy of postal receipt, again Ex. R16 is the copy of repudiation letter dated 20.03.2021, Ex. R17 is the copy of postal receipt, Ex. R18 is the copy of continuation repudiation letter dated 01.10.2021, Ex. R19 is the copy of postal receipt, Ex. R20 and Ex. R21 is the original key and closed the evidence.                   

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavit and documents produced on record by both the parties.        

6.                In this case, the theft of the motorcycle bearing registration No.PB-10-HL-5675 of the complainant took place 02.01.2021. According to the complainant, after the theft, complaint was lodged with the police on the same day i.e. 02.01.2021 and on the basis of which FIR No.10 Ex. C4 = Ex. R5 was got registered on 15.01.2021 by the Police of Police Station Dugri, Ludhiana under Section 379 IPC. The complainant has further claimed that he informed OP3 regarding the theft of the vehicle on 04.01.2021 by visiting the branch but in this regard, no written record has been placed on the file.

7.                It is the definite case of the OPs that on the receipt of the claim, it was registered and Grover Associates, Surveyors & Claim Investigators were deputed to investigate the matter. The said investigator vide his report Ex. R9 dated 11.02.2021 vide which the investigator observed that there is delay of 13 days in lodging the FIR and further there is delay of 16 days in giving intimation to the insurance company. Further vide report Ex. R9, the said investigator in his findings observed that the insured has provided only one original key of the motor cycle which was fresh and there was intestinal scratches on the key which is not satisfactory and not matching with version of insured. However, the surveyor in his special comments observed that he found the incident of theft to be genuine. On receipt of the survey report, the OPs sent letter dated 27.02.2021 Ex. R11, reminder leter-2 dated 06.03.2021 Ex. C5 = Ex. R13 and reminder letter-3 dated 13.03.2021 Ex. C6 = Ex. R15 were sent to the complainant, the operative part of which is reads as under:-

"1. From documents submitted by your good self it is observed that FIR lodged with police station after 13 days and we were also intimated after 16 days of occurrence of theft. By doing so the condition (1) of above noted policy is breached.

"As per our policy condition no.1 "Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.:

2. You have deprived the investigation agency an opportunity for timely action to recover the vehicle.

3. You have deprived us an opportunity to establish the facts relative to the reported loss needed to establish the admissibility of the claim.

4. It has been found that only one original key submitted by your good self (submitted key is fresh and intentionally scratched) and you have failed to submit second original key of the vehicle. So you are requested to submit the second original key or please clarify the following:-

5. If the original key was lost then what reasonable steps were taken to safe guard the vehicle from theft by way of misuse of missing key including without limitation replacement of lock set.

6. Submit documentary evidence if any to prove that the misplace keys have not contributed to the theft in any way.

7. Why it should not be concluded that you have failed to maintain it in efficient condition and therefore indirectly contributed in the theft of vehicle.

8. 100 no. call details/police information letter duly acknowledge by police officials.”

As the complainant failed to reply the above said letters, the OPs vide letter dated 20.03.2021 Ex. R16 repudiated the claim of the complainant. No specific condition or clause of the policy has been referred by the OPs while repudiating  the claim of the complainant.

8.                In this case, the claim of the complainant has been rejected by the OPs on the ground of non-submission of original keys or the vehicle as well as non-explanation regarding delay in lodging FIR and intimating the OPs despite the fact that surveyor found the incident of theft to be genuine. However, in 2022(2) RCR (Civil) 196 (SC) in case title Jaina Construction Company Vs Oriental Insurance Company Limited and another whereby it has been held by the Hon’ble Supreme Court of India that delay of 5 months in intimation to insurance company is not a ground in itself for repudiation of claim. Further it has been held that when the complainant had lodged the FIR immediately after the theft of the vehicle and when the policy after the investigation arrested the accused and filed the challan before the concerned court, and when the claim of the insured was found to be genuine, the Insurance company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft.

9.                The other reason for repudiation of the claim of the complainant by the OPs is that the complainant has not submitted the original keys to them and only one key Ex. R21 and R22 has been handed over by the complainant to them which alleged to be not satisfactory and not matching with the version of the insured. As far as the second key is concerned, the complainant in the complaint has stated that he got financed the vehicle from M/s. HDB Financial Services and they have kept the other key with them. This fact could have been verified and investigated by the surveyor from the said financer. As such, non submission of second key is not a valid ground to deny the claim of the complainant.

10.              Recently, the Hon’ble Supreme Court of India in Civil Appeal No.4758 of 2023 title as Ashok Kumar Vs New India Assurance Co. Ltd. decided on July 31, 2023 while relying the judgments in National Insurance Company Limited Vs Nitin Khandelwal (2008) 11 SCC 259 and Amalendu Sahoo Vs Oriental Insurance Company Limited (2010) 4 SCC (536) has held that even if there was breach of any clause in the insurance policy, the claim could not have been repudiated in toto and the claim should have been settled on non-standard basis. The Hon’ble Supreme Court made the following observations in Para No.15, 18 and 19 of the said Civil Appeal No.4758 of 2023:-

“15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-

"378. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative. It is noticed in the repudiation letter that the driver Mam Chand had, after alighting from the vehicle, gone to enquire about the location of Mittal's Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away. The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle.

18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

Sl. No.	Description	Percentage of settlement
(i)	Under declaration of licensed carrying capacity.	Deduct 3 years' difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim."

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct.

We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.”

12.              Perusal of the insurance policy/schedule Ex. C3 = Ex. R2 shows that the ID value of the motor cycle is Rs.50,079/-. So by applying the ratio of the above cited cases, it would be just and appropriate if the claim of the insurance is allowed to the extent of 75% of the insured value of the vehicle.

13.              As a sequel of above discussion, the complaint is partly allowed with direction to the opposite party to reimburse the insurance claim of the complainant to the extent of 75% of the insured value (Rs.50,079) of the vehicle. The amount of the claim shall be paid to the complainant with interest @8% per annum from the date of filing of the complaint till actual payment within 30 days from the date of receipt of copy of order. The interest paid on the amount shall be considered as compensation. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                   (Sanjeev Batra)                Member                     Member                                  President   

 

Announced in Open Commission.

Dated:01.02.2024.

Gobind Ram.