Haryana

Karnal

CC/151/2020

Salinder Kamboj - Complainant(s)

Versus

Bajaj Allianz General Insurance Company Limited - Opp.Party(s)

Vijay Kamboj

10 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 151 of 2020

                                                        Date of instt.11.03.2020

                                                        Date of Decision:10.05.2023

 

Salinder Kamboj son of Shri Ved Parkash, resident of house no.68, Gali no.3, R.K. Puram, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Bajaj Allianz General Insurance Company Limited, Claims Department-SCO no.156-159, 2^nd floor, Sector 9C, Chandigarh through its Manager/authorized signatory.

 

2.     M/s Malwa Nishan Car Zone Pvt. Ltd., SCO-8, Sector-14, Meerut Road, Karnal through its Manager/Authorized signatory.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Dr. Rekha Chaudhary…..Member

                   

Argued by: Shri Vijay Kamboj, counsel for complainant

                   Shri Atul Miittal, counsel for the OPs.

 

                    (Jaswant Singh President)

 

ORDER:   

                

                The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of a vehicle car Micra DLXV BSIV, make Nissan Motors India Pvt. Limited, bearing registration no.HR-05AD-7606, model 2011. The said vehicle was insured with the OP no.1, vide policy no.OG-19-1217-1801-00013967, valid from 20.12.2018 to 19.12.2019, for the sum assured of Rs.2,50,000/-. On 19.09.2019, the complainant had come to house of Hussan son of Ajmer in village Sangohi in connection with his personal work and in the midway, at about 8.15 p.m. near village Darar Turn two kilometer inside Bus Stand Darar, the complainant stopped the vehicle nearby road, he came out from the vehicle to pass urine, and when the complainant was passing urine, in the meantime two young persons came from behind on a motorcycle, one of them came down from the motorcycle and the other ran away from the spot on the motorcycle and at once, the other person, boarded in the car of complainant and run away with the car of the complainant towards Karnal side. The complainant raised hue and cry and the person gathered at the spot stated that a white colour car had gone towards Karnal side. In this way the car of the complainant had been stolen by some unknown person. The original documents of the said vehicle i.e. Registration Certificate and copy of insurance policy and even the relevant papers of the complainant were in the utility box of said car and same were also stolen with the said car. Complainant immediately informed the local police of Police Station Sadar Karnal regarding the said incident and also informed the OP no.1. Although complainant moved an application to the police on the same day but police lodged the FIR no.0985 dated 20.09.2019 under section 379 IPC on the next day of incident. Thereafter, on 24.09.2019, complainant lodged the claim with the OP no.1 on toll free number and in response complainant was informed that his claim has been lodged and given the reference no.80471596 and also informed the complainant that the next proceedings of his claim will be initiated after submission of untrace report by the police. Finding no option, complainant waited up till filing of untrace report. The police filed untrace reported dated 23.10.2019 in the court of Shri Harish Goyal, learned Additional Chief Judicial Magistrate, Karnal. Thereafter, complainant approached the OP no.1 and handed over the copy of untrace report and all other documents, such as copy of FIR, untrace report, copy of RC, copy of insurance policy and identify proof of complainant as required by the OP and complainant also requested the OP no.1 to settle the claim but OP did not settle the same and lastly repudiated the claim of complainant, vide letter dated 18.02.2020 on the false and frivolous ground. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice OP no.1 appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action; territorial jurisdiction and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was thoroughly processed by the OP by way of appointment of Grover Associates Investigators and Recovery Agency, as investigator who thoroughly investigated the claim of the complainant and submitted the detailed report dated 20.01.2020. The claim of complainant duly processed and after thorough scrutiny of the documents i.e. investigation report, statement of complainant and the claim form, the claim had rightly been closed as ‘No Claim’, vide letter dated 12.10.2020, on the ground that the ignition key of insured vehicle was left in the ignition switch and thus vehicle was left unattended in drivable condition has directly contributed theft thereof. There was gross violation of condition of the policy and as such claim was inadmissible. As per terms and condition of the policy all reasonable safeguards for the protection of the insured property and in this case, complainant had himself left the vehicle in question unlocked. It is further pleaded that the alleged theft occurred on 19.09.2019 but FIR was lodged on 20.09.2019 and company was intimated on 08.01.2019 after delay of almost 111 days. As per condition no.1 of the policy, notice shall be given to the company immediately on 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. Thus, the claim of the complainant is not payable. It is further pleaded that the complainant had not submitted the reply of the letters dated 18.02.2020, 04.03.2020, 12.03.2020 sent by the OP. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Learned counsel for the complainant given up the OP no.2 being unnecessary party, vide his separate statement dated 21.10.2021.

4.             Parties then led their respective evidence.

5.             Complainant has tendered into evidence his affidavit Ex.CW1, copy of insurance policy Ex.CW2 and Ex.CW3, copy of RC Ex.CW4, copy of FIR Ex.CW5 alongwith untrace report and closed the evidence on 24.08.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Saurav Khuller, Senior Executive Legal Ex.OW1/A, affidavit of Grover Associates Surveyor and Loss Assessor Ex.OW2/A, copies of letters dated 18.02.2020, 04.03.2020, 12.03.2020, 12.10.2020 Ex.OP1 to Ex.OP5, copy of claim form Ex.OP5, copy of investigation report Ex.OP6, copy of statement of complainant Ex.OP7, copy of insurance policy alongwith terms and conditions Ex.OP8 and closed the evidence on 14.12.2022 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OP for the insured declared value (IDV) of Rs.2,50,000/-. On 19.09.2019, complainant stopped the vehicle near village Darar to pass the urine. In the meantime, two young persons came on the motorcycle and one of them has run way with his car. The matter was reported to the police station immediately and an FIR no.0985 dated 20.09.2019, under section 379 IPC was registered by the police.  Intimation was also given to the OP regarding theft of the vehicle and also requested the OP to settle the claim but OP has repudiated his claim on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for OP, while reiterating the contents of written version, has vehemently argued that the theft had occurred on 19.09.2019 and the complainant has reported the theft to the concerned police on 20.09.2019 and to the insurance company only on 08.01.2020 i.e. after an inordinate delay of 111 days. Complainant had left the ignition key of the vehicle in ignition switch and thus vehicle was left unattended in drivable condition, which is violation of terms and conditions of the policy, so the OP has rightly repudiated the claim of complainant and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant got insured his vehicle from the OP. It is also admitted that the said vehicle had been stolen during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle was Rs.2,50,000/-.

12.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.OP4 dated 12.10.2020, which is reproduced as under:-

“From documents submitted by your goodself it is observed that we were intimated after 111 days of occurrence of theft. By doing so the  condition no.1 of the policy.

“As per our policy condition no.1 “notice shall be given to the company immediately on 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”.

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

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

Your goodself had left the key in the ignition switch and also the engine was left in running mode thus leaving your vehicle in the drivable condition, which has contributed to the theft of vehicle therefore why it should not be concluded that you have failed to take minimum reasonable safeguard of your vehicle from loss as per the terms of policy which states as “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any drive or employee of the insured. In the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

In view of the above please explain within seven days from the date of this letter as to why the claim should not be repudiated”.

13.            In the present complaint, vehicle in question was stolen on 19.09.2020 at about 8.30 p.m. and complainant immediately intimated to the police and concerned police lodged the First Information Report (FIR) Ex.C5 on the next day i.e. 20.09.2019. There is no delay on the part of the complainant in lodging the FIR. Generally, the owner/Driver of the vehicle first tries to search the vehicle at his own level, but when he fails to trace out the same, the matter is reported to the police. It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR. In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

14.           The complainant had not taken all reasonable steps to safeguard his vehicle from loss or damage as at the time of theft, complainant had left the ignition key of the vehicle in ignition switch and thus vehicle was left unattended in drivable condition.

15.           If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

16.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

17.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

18.           As per insurance policy Ex.C2/Ex.OP8, the insured declared value of the vehicle in question is Rs.2,50,000/-. Hence the complainant is entitled for Rs.1,87,500/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.

19.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,87,500/- (Rs. one lakh eighty seven thousand five hundred only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. However, the complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.05.2023     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

Dr. Rekha Chaudhary)

                     Member