Haryana

Ambala

CC/166/2013

HARISH KUMAR - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. - Opp.Party(s)

R.P SINGH

25 Jul 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No.  166 of 2013

                                                        Date of instt:     03.07.2013

                                                        Date of decision:25.07.2017

 

1.       Harish Kumar

2.       Manoj Kumar

3.       Vinod Kumar

          All residents of village and P.O. saha Tehsil Barara, Distt. Ambala.

 

                                                                           ...Complainant.

Versus

1.     Bajaj Allianz General Insurance Company ltd., Near Vijay Rattan       Chowk, Ambala Club, Ambala Cantt through its Branch Manager.

2.     Bajaj Allianz General Insurance Co. ltd. SCO 14, 4^th floor, Urban Estate,          Sector-5, Panchkula through its Branch Manager.

3.       Bajaj Allianz General Insurance Co. Ltd. 167/18-C, 2^nd floor, Hazara Singh       building, Ambala Club, Near Vijay Rattan Chowk Ambala Cantt through its          Branch Manager.

 

                                                                         …Opposite party.

 

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                Sh. PUSHPINDER KUMAR, MEMBER

                SH. ANAMIKA GUPTA, MEMBER

 

Present:-     Sh. R.P. Singh, counsel for complainant.

                   Sh. R.K. Vig, counsel for Ops.

 

Order:-

 

                   In nutshell, the brief facts of the complaint are that the complainant got insured the tractor-trailor bearing No.HR-54-A-2239 for a sum of Rs.4,50,000/- for the period from 09.12.2011 to 08.12.2012 at mid night and the final premium for an amount of Rs.6488/- issued on 10.12.2011. On dated 13.04.2012, the said tractor-tralior was retuning from Moga after selling the suger-cane crops the said tractor-trailor was driven by the drivr of the complainant namely Kapil Kumar at about 1.30a.m. when the said tractor-trailor reached near the Nirmal Dhaba G.T. Road, Nabipur Chowi, P.S. Sirhind Distt. Fatehgarh Sahib (Punjab) after selling the sugar cane crop, in the meantime the driver of the said tractor trailor parked the said tractor-trailor in the kacha – berm near the G.T. Road and went to the call of nature. After 4-5 minutes, when the driver of the said vehicle came back, then suddenly a TATA Indica car stopped near the tractor and four persons also sitting Indica car and one person came out from the said Indica car and one person forcefully snatched the said tractor-trailor with the help of other person. The tractor-trailor at that time is in starting position because the said vehicle was not self start at that time, so the complainant’s driver starting the tractor/vehicle till he come back after discharge the call of nature. The driver of the complainant namely Kapil Kumar informed to the complainant regarding snatching/theft of the said tractor-trailor, then immediately the complainant receiving the information, the complainant reached at the spot and they intimated to the local police of P.S. Sirhind Distt. Fatehgarh Sahib regarding the said occurrence and the police has registered a FIR vide FIR No.33 dated 26.04.2012 under Section 379 IPC. Further submitted that the complainant visited the office of the OPs No.1 and 2 many times, but the OPs deliberately and intentionally avoid the services and malafidely ignored the request of the complainants despite of having valid insurance made by the OPs. ON dated 30.08.2012, the Ops given the complainants on the false and baseless facts which the complainants have duly replied the said notice and the OPs intentionally escaped the liability and there is a deficiency on the part of the service of the OPs which creates a substantial loss and harassed the complainant. Hence, the present complaint.

2.                Upon notice, OP appeared and filed written statement submitting that the complainants for the first time informed to the OP’s on dated 18.04.2012 after five days regarding the theft of vehicle No.HR-54-A-2239 which took place on 13.04.2012 and the complainant had also lodged FIR after 13 days from the date of occurrence. It is a matter of record that the OP’s consequent upon the information, appointed surveyor Er. Sachin Gulati who lost no time & prepared the report on the basis of witnesses clearly observed that there is delay of about 13 days in filing the FIR and the vehicle in question left without taking steps of safety, which was open invitation for theft to all sundry because now-a-days with little know how vehicle can be piled/opened even though locked. The complainants themselves violated the terms and conditions. So, the OPs has prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X alongwith documents as Annexure C-1 to C-5 and close his evidence. On the other hand OP also tendered an affidavit as Annexure R-X & R-Y along with document as Annexure R-1 and R-12 and closed the evidence on behalf of OP.

4.                We have heard counsel for the parties and carefully gone through the case file. Admittedly, the tractor-trailor is insured with the OPs for the period from 09.12.2011 to 18.12.2012. It is case of the complainant is that the tractor-trailor in question was snatched on 13.04.2012 by four unknown person and FIR in this regard has been lodged on 26.04.2012 bearing FIR No.33 after a delay of more than 13 days Annexure C-2 and the contents of the FIR as under:-

                   On dated 13.04.2012, the said tractor-trailor was returning from Moga after selling the sugar cane crops the said tractor-trailor was driven by the driver of the complainants namely kapil Kumar, at about 1.30 a.m. when the said tractor trailor reached near the Nirmal Dhaba G.T. Road, Nabipur Chowki, P.S. Sirhind Distt. Fatehgar Sahib after selling the sugar cane crop, in the meantime the driver of the said tractor trailor parked the said tractor trailor in the kacha berm near the G.T. Road and went to the call of nature. After 4 and 5 minutes, when the driver of the said tractor troliar came back, then suddenly a Tata Indica car stopped near the tractor and four persons also sitting indica car and one person came out from the said indica car and one person forcefully snatched the said tractor trailor with the help of the other person who are in the INdica car from the hands of the driver. The tractor trailor at that time is in starting position because the said vehicle was not self star start at that time, so the complainant’s driver starting the tractor/vehicle till he came back after discharge the call of nature”.

5                 Counsel for OP has argued that the complainant has  intimated to the OPs regarding theft of the vehicle in question on 18.04.2012 after a delay of more than 5 days and Surveyor has also investigated the matter and Report Annexure R-1 as under:

                -“it has been admitted by the insured and his servant/driver Kapil Kumar that, key which was being used before theft was left with the tractor. Same has been given in writing by insured and driver/last user Kapil Kumar.               

                The Counsel for the Ops argued on the two points that as per the contents of the FIR, it is clearly mentioned that vehicle in question was left the unattented by the driver of the vehicle in question and he left the key in the vehicle in question  and same was stolen when the key was left in the ignition of the vehicle and same was not locked. Complainant failed to reasonable step for safeguarding the vehicle from loss. Since leaving the key an ignition of the vehicle would tempt any thief to commit theft of the vehicle is left unlocked. Therefore, complainant contravention clause 5 of the terms and condition of the policy.

                   Counsel for the OP has relied upon the judgment of Hon’ble National Commission in case titled as L&T General Insurance Company Ltd. Vs. Umesh & Anr. 2016 (4) CLT Page 504 has also observed that Insurance Claim (Tractor)-Key of the tractor left inside the ignition – Theft of tractor- Held – that the complainant was under an obligation to take all the steps which a tractor owner would ordinarily take in order to safe guard his tractor from any loss or damage including theft of the tractor-The complainant therefore, clearly committed a breach of the policy – As a result, the insurer got absolved of all its liability to reimburse the complainant on account of theft of the tractor and the another judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled as Dilbagh Singh Vs. OIC ltd Appeal No.358/2016 decided on 29.05.2017 has also observed that this constitutes breach of policy condition No.5 which is as under:

                   The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time free and full access to examine the vehicle or any part thereof or any driver 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 damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

                   Further observed that by leaving the key of the car in the ignition and not locking the vehicle, the complainant failed to take reasonable steps for safeguarding the vehicle from loss, since leaving the key in the ignition of the vehicle would tempt any thief to commit theft of the vehicle, when the vehicle is left unlocked. The complainant therefore, contravened conditions NO.5 of the insurance policy in the aforesaid manner. In view of the breach of the above referred condition, the insurer in not liable to reimburse the complainant for the loss suffered by him on account of his own negligence and the judgment of Hon’ble National Commission New Delhi in case titled Caina Construction Company Vs. Oriental Insurance Company Limited & Anr. 2016(4) CLT Page 87 has also observed that Insurance Claim – theft of vehicle- delay in intimation – plea of OP that insurance claim of the complainant was rightly repudiated because of the failure of the complainant to intimate the theft to insurance company in writing within a reasonable time, which amounts to violation of the terms and conditions of the insurance contract – held – In the event of any accidental loss or damage to the insured vehicle, it was contractual obligation of the insured complainant to immediately inform insurance company- Admittedly, the complainant has violated the said condition by delaying the intimation of theft to the insurance company for about five months – The complainant has violated the above noted stipulation of the insurance contract.

                   Counsel for the complainant has rebutted the arguments of the OPs and argued that the vehicle in question has been stolen by unknown person on 13.04.2012 while the complainant had parked the said tractor-trailor in the Kacha berm near the GT Road and went to the call of nature and leaving the key in the ignition of the vehicle in question and after snatching the vehicle in question  by unknown person, driver of the vehicle immediately informed the complainant then the complainant reached at the spot and intimated the local police, P.S. Saran, Distt. Fategarh. The police have told to the complainant that they will conduct the investigation and police has suggested to the complainant to search the said vehicle on his own level if the said vehicle was not found then the police will register the FIR. When the complainant has not found his vehicle after pursue of the complainant then police has registered the FIR bearing No.33 dated 26.04.2012. Counsel for complainant has further argued that there is no fault on the part of the complainant regarding delay in lodging the FIR. Even then, the surveyor of the Ops has also investigated the matter and submitted his report Annexure R-1, as per the Surveyor report the vehicle in question has been  stolen on 13.04.2012 from near Nirmal Daba, Village Nabipur, P.S. Sarad. Admittedly, the vehicle in question had not been traced out till date & contention of the OPs is that the complainant had violated the condition No. 5 of Insurance Policy which says that “the insured shall take all reasonable steps to safeguard the Motor Cycle 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 motor Cycle or any part there of any driver or employee of the insured. In the event of any accident or breakdown the motor cycle shall not be left unattended without proper precaution being take to prevent further damage or loss and if the Motor Cycle be driven before the necessary repair are effected any extension of the damage or any further damage to the motor cycle shall be entirely at the insured’s risk”. The leaving of the key is the ignition of vehicle on all occasions cannot be turned as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is a breach of condition will always depend upon the circumstances and facts of the case. The vehicle in question is said to have been stolen when the complainant parked the vehicle in question near the G.T. Road and went to the call of nature and left the keys in the ignition of the vehicle. Then, lapse on the part of the driver of the vehicle cannot be treated as willful breach of condition No. 5 on the part of insured. Counsel for complainant had relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held in one similar case titled as New India Assurance Company ltd & anr. Vs. Girish Gupta reported in Revision Petition No. 590 of 2014  III(2014) CPJ 663 (NC) that Consumer Protection Act, 1986 Section 2(1) (g), 14(1) (d), 21(b)- Insurance-theft of vehicle –driver left key in vehicle-violation of condition of policy alleged-claim repudiated-deficiency in service-District Forum dismissed complaint – State Commission allowed appeal – Hence revision – Driver alighted from vehicle to answer call of nature – leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy. Lapse on part of driver not willful breach- Repudiation not justified and another judgment of Hon’ble Punjab & Haryana High court in the matter of Baja Allianz General Insurance Company ltd. Vs. M/s Sagar Tour & Travels & Anr; P.L.R Vol CLX IV-(2011-4) has laid down that the lapse on the art of the driver cannot be treated as willful breach of condition No.5 on the part of the driver. If in the hurry to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terns of the above condition No.5.

                        Counsel for the complainant has also drawn out attention the law laid down by the Hon’ble Supreme Court titled as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), Hon’ble Supreme Court has observed thus:

                        “In the present case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant 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. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft and another judgment of Hon’ble State Commission, Pandri, Raipur titled as M/s Bhagwati Trading Co. Vs. The Oriental Insurance Co. Appeal NO. FA/13/350. Counsel for complainant has argued that if, this Forum come to this conclusion, there is any breach of the conditions of the policy, this Forum can decide the claim of the complainant on non-standard basis as per the judgment of Hon’ble Supreme Court title as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C).

                   Another contention of the Ops is that the complainant has informed the OPs after a period of 17 day is not tenable and the same no evidence worth the name has been led. Even otherwise, in the circular Ref: IRDA/HLTH/MISC/CIR/216/09/2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority, it has been mentioned that genuine claims should not be rejected on account of delay in intimation and that the insurer’s decision to reject a claim must be based on sound logic and valid grounds. In this case, although the insurance company has pleaded that there was delay of 17 days in giving intimation but to prove the same no evidence worth the name has been led. It is proved from the file that the vehicle in question was stolen on 13.04.2012 and has not been traced out. The Surveyor of the OPs has investigated the matter and submitted his report Annexure R-1 in which he never denied about the theft of the vehicle in question. The question of breach of trust by will not affect the right of the complainant, who lost his vehicle in question. From the above said facts and circumstances of the case, it is clear that the complainant has properly explained the delaying of the FIR regarding stolen of the vehicle in question. We observed that it is not a fault of the complainant regarding delaying the registration of the FIR. Usually, it has been seen that the police did not take the immediate action regarding the cases of the theft. Counsel for complainant has also relied upon the judgment of Hon’ble Punjab and Haryana High Court case title Bharti AXA General Insurance Company limited Vs. Ms. Monu Yadav Vol. CLXXVI-(2014-4) Page 861 has laid down that Insurance –Theft of car –delay in lodging claim with Insurance Company of 54 days – Instructions dated 20.09.2011, issued by Insurance Regulatory and Development Authority to all the insurance Companies- As per the said instructions, this condition should not prevent the settlement of genuine claims particularly when there is delay in giving intimation or in submission of documents due to unavoidable circumstances – The companies were advised that they must not repudiate such claims on the ground of delay, especially when the policy has been promptly informed in this regard.

5.                Keeping in view of the totality of the fact & circumstances of the present case and law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), it would be appropriate that if we allow the present complaint by giving 75% of the insured amount to the complainant on non-standard basis. Hence,  the present  complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay the 75% of Insured Declared Value of vehicle in question i.e. Rs.4,50,000/- which comes to Rs.3,37,500/- from the date of complaint alongwith interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.5,000/- on account of litigation charge, mental harassment & agony alongwith cost of litigation.

                   Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room. 

Announced on:25.07.2017                                          (D.N. ARORA)

                                                                                       PRESIDENT

 

                                                                                    (PUSHPINDER KUMAR)

                                                                                        MEMBER

 

 

                                                                        (ANAMIKA GUPTA)

                                                                                          MEMBER