Haryana

Yamunanagar

CC/998/2010

Labh singh S/o Assa Singh - Complainant(s)

Versus

Bajaj Allianz Insurance Company Ltd. - Opp.Party(s)

Vijay Deep Singh

23 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                Complaint No. 998  of 2010.

                                                                                                Date of institution: 20.10.2010

                                                                                                Date of decision:  23.08.2016

Labh Singh  aged about 42 years son of Sh. Assa Singh, resident of House No. 772/5, Basant Nagar, behind ESI Hospital, Jagadhri, Distt. Yamuna Nagar. 

                                                                                                                               …Complainant.

                                                Versus

Bajaj Allianz General Insurance  Company ltd. 167/IBC, 2^nd Floor, Hazara Singh Building, Near Ambala Club, near Vijay Rattan Chowk, Ambala Cantt. Through its Regional Manager.                                                                                                                                                                                                                                                                                 …Respondent

BEFORE:  SH. ASHOK KUMAR GARG, PRESIDENT

                  SH. S.C.SHARMA, MEMBER        

 

Present: Sh. Vijay Deep Singh, Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for respondent.

           

ORDER

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986.

2                      Brief facts of the present complaint, as alleged by the complainant, are that complainant was registered owner of car Santro Zing of Hyundai Company bearing registration no. HR02N-6467 which was comprehensively insured with the Op Insurance Company vide policy bearing No. OG-10-1207-1801-00001987 valid from 21.12.2009 to 20.12.2010 for a sum of Rs. 2,00,000/-. On 23.04.2010, son of the complainant had gone to Rai Motors, Jagadhri for getting service of the car in question and handed over his car with key to Sh. Manjit Singh proprietor for the same. As per information of the complainant, Sh. Manjit Singh after service of the car, sent the same to Milap Service Station near Matka Chowk, Jagadhri and proprietor of Milap Service Station Sh. Surender Kumar informed to Manjit Singh to take the car at 2.30 P.M. When at 2.30 P.M. Manjit Singh proprietor of Rai Motor went to Milap Service Station to take back to the car and asked about the same, where Surender Kumar disclosed that he had parked the car outside the service station after washing the same. Upon which, Manjit Singh came out from the service station and found the car missing from the service station. Thereafter, the said Manjit Singh informed to the son of the complainant on mobile and matter was reported to the police upon which an FIR bearing No. 176 dated 23.04.2010 under section 379 IPC was registered in the policed station City, Jagadhri. A claim was also lodged with the OP Insurance Company. Thereafter, the official of the OP Insurance Company demanded some documents as formalities which were also sent to the OP Insurance Company. Untrace report under section 173 Cr.P.C. was also submitted with the OP Insurance company. Complainant made so many requests to the official of the OP Insurance Company to settle the claim but the Op Insurance Company has finally rejected the claim of the complainant vide its letter dated 19.06.2010 on flimsy ground. Lastly, prayed that the Op be directed to make the payment of theft of car alongwith interest as well as compensation and litigation expenses. Hence, this complaint.   

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service on the part of Op Insurance Company as the Op Insurance Company started processing the claim of the complainant on the same day i.e. 23.04.2010 after receiving the information from the complainant. An investigator BEE VEE Investigating Agency was also deputed to investigate the alleged theft and to submit the fact finding report. On perusal of the documents and investigation report, it was observed by the company that insured left the car in question unlocked with ignition keys inside the car. A letter dated 10.05.2010 in this regard was written to the complainant to clarify the same within 7 days. A reminder was also given on 19.05.2010 which was replied vide letter dated 15.05.2010. Lastly, it has been mentioned that the alleged loss occurred during the transaction of the complainant with the service station and the alleged loss has arisen out of a contract between insured and service station providing service to the car of the complainant. So, the Op Insurance Company came to the conclusion that the case in question falls under the general exemption No.2 of the Insurance policy, according to which “ Any Claim arising out any contractual liability is not maintainable.” Hence, the claim of the complainant has been rightly repudiated vide letter dated 19.06.2010. Further, it has also been also mentioned that the claim of the complainant is a case of bailment of goods which has been defined in section 148 of the Contract Act as a  bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose, is accomplished be returned or otherwise dispose off according to the direction of the person delivering them and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and photo copies of documents i.e. FIR bearing No. 176 dated 23.04.2010 as Annexure C-1, Report under section 173 Cr.P.C as Annexure C-2, RC as Annexure C-3. Insurance policy as Annexure C-4, copy of letter dated 10.05.2010 as Annexure C-5, clarification letter dated 19.05.2010 as Annexure C-6, Postal receipt as Annexure C-7, reply of clarification letter as Annexure C-8, Repudiation letter dated 19.06.2010 as annexure C-9, Copy of news paper as Annexure C-10 and closed the evidence on behalf of complainant.  

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Sh. Sachin Ohri Manager (Legal) as Annexure RX and photo copies of documents i.e. letter dated 10.05.2010 as Annexure R-1, Letter dated 19.05.2010 as Annexure R-2, Letter dated 15.05.2010 as Annexure R-3, Repudiation letter dated 19.06.2010 as Annexure R-4, FIR as Annexure R-5, Claim Form as Annexure R-6, Insurance Policy with its terms and conditions as Annexure R-7 and closed the evidence on behalf of OP Insurance Company.

6.                            We have heard learned counsel for both the parties and have gone through the pleadings as well as documents carefully and minutely placed on the file. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for opposite party reiterated the averments made in reply and prayed for its dismissal.

7.                     The only plea of the Op Insurance Company is that there is a violation of terms and conditions of the Insurance Policy as the insured left the car in question unlocked with ignition key inside the car and further the car in question had been stolen from the hands of officials of the service station which falls under the general exception No.2 of the Insurance Policy “according to which, “Any claim arising out of any contractual liability is not admissible”.  Further, it has been also argued that the claim of the complainant is a case of bailment of goods which has been defined in section 148 of the Contract Act as a  bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose, is accomplished to return or otherwise disposed off according to the direction of the person delivering them. So, the claim of the complainant has been rightly repudiated vide letter dated 19.06.2010.

8.                     On the other hand, counsel for the complainant hotly argued at length that genuine claim of the complainant has been wrongly repudiated by the Ops Insurance Company on flimsy ground and draw our attention towards the copy of FIR Annexure C-1 and argued that on the same day, without any delay, FIR bearing No. 176 dated 23.04.2010 was lodged with the police station City Jagadhri. Learned counsel for the complainant further argued that the complainant lodged the claim with the Op Insurance Company on the same day i.e. on 23.04.2010 and this fact has been admitted by the Op Insurance Company in its reply in para No.3 of preliminary objections. Learned counsel for the complainant further draw our attention towards the final report under section 173 Cr.P.C. issued by the police station, Jagadhri on dated 09.08.2010 from which it is clearly evident that police of the police station, Jagadhri could not trace out the vehicle/car in question. It has been further argued that there was no violations of terms and conditions of the insurance policy and if there was any negligence then it was on the part of persons of the Service station, not on the part of the insured.   Lastly, counsel for the complainant referred the case law titled as National Insurance Company Versus Nitin Khandelwal, 2008 (IV) CPJ page 1 Supreme Court and requested for acceptance of the complaint.

9.                     After hearing both the parties at length and going through the case law referred above,  we are of the considered view that there is a deficiency in service on the part of the OP Insurance Company as the Op Insurance Company has wrongly repudiated the claim of the complainant as a whole whereas from the contents of the complaint as well as copy of FIR and report under section 173 Cr.P.C, it is clearly evident that there was negligence or carelessness on the part of the persons of the service centre. Even, the complainant has clarified this fact to the OP Insurance Company vide its letter dated 15.05.2010 (Annexure C-8) mentioning therein that “1, The vehicle was not left unlocked by me, but the same was handed over to the service station. Hence, there is no negligence on my part. (2) That I did not leave ignition key of the vehicle, in the vehicle, but the same was handed over to the service station by me.” The plea of the OP Insurance Company that complainant has admitted this fact that the key of the car was in ignition switch which is evident from the claim form Annexure R-6 is not tenable as how the complainant Labh Singh can say that the key of the car was in ignition when the car was not in his possession rather it was in the possession of mechanic of the service station. Further, the Op Insurance Company has also failed to place on file any report of investigator to prove the version that there was any carelessness or negligence on the part of the complainant.

10                    However, at the same time it cannot be overlooked that from the contents of FIR as well as report under section 173 Cr.P.C. (Annexures C-1 and C-2) and clarification letter (Annexure C-8), it is clearly evident that car in question was parked unattended outside the service station by the mechanic of the service station. Further, this fact has also been admitted by the complainant himself in claim form Annexure R-6 that car was parked unlocked at Milap Service Station and the key of the car was in the ignition switch. Although the car in question was not in the possession of the complainant at the time of alleged loss but it was the duty of the complainant also to take care of his car. So, we are of the considered view that there was some negligence and carelessness on the part of the complainant which constitute the violation of the terms and conditions of the insurance policy on the part of the insured/complainant.  However, the claim of the complainant has been wrongly repudiated in toto whereas claim should be settled on the” NON STANDARD BASIS” as it is clearly evident that complainant has suffered financial loss on account of theft of the car in question.  The same view has been held by the Hon’ble Supreme Court of India in case titled as National Insurance Company Versus Nitin Khandelwal, 2008 (IV) CPJ page 1 Supreme Court has held that breach of policy condition not germane in case of theft of vehicle- Nature of use of vehicle cannot be looked into- Claim cannot be repudiated on that basis-Insurance Company liable to indemnify for loss – Insurance Company held liable to pay 75% of the claim amount. Further, the same view has been held in case titled as New India Insurance Company Versus B. Mangatram & Co. 2013(4) CPJ Page 211 National Commission wherein it has been held that at the time of Robbery driver of vehicle was carrying passengers in vehicle on hire- Violation of terms of policy inasmuch as vehicle was not meant to be used for commercial purpose- No direct nexus with violation of terms of policy and robbery- Claim allowed on non standard basis. Further in case titled as National Insurance Company Versus Kamal Singhal, 2010 CPJ Page 297 National Commission has held that Consumer Protection Act 1986-Sections 2(1)(g), 21(b)- Insurance –theft- Breach of policy conditions- Claim repudiated- complainant’s car was insured by OP- Driver on its journey picked up three persons- Three person took away car when driver went for nature’s call- Informed OP and police about theft- Investigation officer appointed- Claim repudiated on the ground of breach of policy, reasonable care’ not taken- district Forum Allowed Complaint-Appeal dismissed- Hence revision- Driver was not expected to carry key while getting down to answer nature’s call- Claim be settled on non-standard basis- Order of For a below upheld.

11.                   In the circumstances noted above, we are of the considered view that the claim of the complainant has been wrongly repudiated by the Op Insurance Company in toto as the facts of the present case are not different from the facts mentioned in the above noted citations. So, the complainant is entitled to get some relief on Non Standard Basis.

12                    Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 1,50,000/-  (being 75% of the sum insured of Rs. 2,00,000) alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 3000/- as litigation expenses. It is also made clear that an amount of Rs. 1,50,000/- on account of theft of car bearing registration No. HR-02N-6467 will be released to the complainant subject to submit the subrogation letter and indemnity bond as well as NOC of Financer and other relevant documents/papers which are necessary to transfer the vehicle in the name of OP Insurance Company. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 23.08.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER