Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST) GOVT. OF NCT OF DELHI CONVENIENT SHOPPING CENTRE, FIRST FLOOR, SAINI ENCLAVE, DELHI – 110 092 C.C. No. 292/2019 | AMIT BUILDERS THROUGH ITS PARTNER SH. PREM CHAND JAIN, HOUSE NO.1, SHYAM ENCLAVE, DELHI - 110092 | ….Complainant | Versus | | BAJAJ ALLIANZ INSURANCE CO. LTD. BLOCK NO.04, 7TH FLOOR, DLF TOWER 15, SHIVAJI MARG, DELHI – 110015 | ……OP |
Date of Institution | : | 11.09.2019 | Judgment Reserved on | : | 26.02.2024 | Judgment Passed on | : | 18.03.2024 |
QUORUM: Sh. S.S. Malhotra | (President) | Ms. Rashmi Bansal | (Member) | Sh. Ravi Kumar | (Member) |
Order By: Ms. Rashmi Bansal (Member) JUDGMENT By the present order, the commission is disposing of the complaint of the complainant alleging deficiency in services and unfair trade practice on its part in dismissing his claim for the theft of the vehicle. - In nutshell, the case of the complainant is that it is a partnership company, got his vehicle Honda city car insured with OP and kept the policy renewed from time to time and lastly it was renewed from 28.08.2018 to 27.08.2019 for a sum insured of Rs.2,15,131/- and premium of Rs.5028/- was paid. The complainant submits that OP has not issued any document except a certificate of insurance even upto two months of the payment of premium. On 19.05.2019, the above stated vehicle was stolen from the parking space in front of his house. A complaint dated 19.05.2019 itself was lodged with police on 100 Number and an FIR number 017332 was also registered. The OP was also immediately informed and requested for registration of the claim. A surveyor of OP visited the complainant and collected documents viz., copy of RC, claim form, FIR, untraced report, last supporting bill of maintenance along with other documents to settle the claim of the complainant as per IDV of the vehicle. A letter to RTO intimating the theft of the car was also sent on 23.05.2019. The survey report was submitted to OP, but no copy was ever provided to the complainant by OP.
- Complainant submits that he was shocked to receive a letter dated 01.07.2019 of OP stating that the keys submitted by the complainant were not original and the keys submitted were found used and duplicate and asked the complainant as to why his claim is not be rejected in toto and called for the explanation within a period of seven days, which was replied by the complainant vide reply dated 05.07.2019 to the OP, however, OP has finally rejected the claim of the complainant vide its letter dated 17.07.2019 on the ground that the complainant was failed to take reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient conditions. Complainant submits that such condition is not applicable in the present claim as the vehicle was parked fully locked by the complainant and no other reasonable care was required to be taken by the complainant. Complainant also submits that OP has illegally and arbitrarily denied the genuine claim of the complainant by avoiding its own liability under the guise of conditions which were never be the part of the contract or conveyed to the complainant at any point of time. It is submitted that the OP is fully liable to pay the cost of the vehicle as per its IDV as the vehicle was comprehensively insured with the OP and intimation about the loss was lodged by the complainant with the OP with all other formalities for the payment of the claim. Complainant submits that rejection of the claim of the complainant amounts to deficiency of service on the part of the OP for which he has suffered mental agony and harassment and praying for payment of the IDV of Rs. 2,15,131/- along with interest @ 12% and compensation for his suffering along with litigation cost.
- Upon notice, OP has filed its reply admitting the policy, validity period of the policy, IDV , fact of theft and submitted that complainant has given two keys of the vehicle to the surveyor with respect to the vehicle stolen and surveyor vide its report dated 23.05.2019, concluded that the complainant has submitted two keys but that the complainant was not aware whether the same were duplicate or original and the keys had marks/scratches. The forensic report also stated that the two keys provided were duplicate keys and were not the original keys provided by the manufacturer for the vehicle in question and that the keys were not in line with the age of the vehicle. Further, vide letter dated 01.07.2019,OP repudiated the claim of the complainant, relying on condition number 4 of the terms and conditions of the policy which provides that “the insured shall take all reasonable steps to safeguard the vehicle from the loss or damage, and to maintain it in efficient condition”. The complainant has used duplicate keys for the vehicle which were made locally and were not provided by the manufacturer. Further, the keys submitted by the complainant had marks which were not due to normal wear and tear and in the light of these findings, OP submits that it is clear that the complainant had not taken all reasonable steps to ensure the safety of the vehicle and by using duplicate key that were made locally, had exposed the said vehicle to the theft. OP submits that the complainant wrote a letter dated 05.07.2019 to OP in which it was submitted by the complainant that the original keys were found after searching the keys at home, after receipt of the letter of the OP dated 01.07.2019 and has specifically mentioned that the original keys were not in use for 4–5 years as the same had been misplaced. Further, the complainant also mentions that out of the two earlier keys submitted one was made locally and the other was lock set changed key. Therefore, the complainant has themselves admitted that the keys used for the vehicle were duplicate keys, made locally and not provided by the manufacturer which is a direct admission by the complainant of their violation of condition number 4 of the policy. The OP repudiated the claim of the complainant again vide letter dated 17.07.2019. OP further submits that complainant has misrepresented facts in the declaration form by stating that the two keys submitted were original keys of the vehicle in question, which is contrary to the letter dated 05.07.2019 of the complainant and it is a well-established principle of insurance that any misrepresentation by the insured will render the contract voidable by the insurance company since insurance is a matter of utmost good faith and complainant has misrepresented the OP under the pretext of the same being original and the complainant clarified the same only after claim was rejected by the OP on 01.07.2019. OP prays for dismissal the claim of the complainant.
- Complainant has filed rejoinder negating the contention of the OP and has reiterated his complaint.
- Both the parties have filed their respective evidence along with the documents in support of their case. The complainant has filed copy of the insurance policy, copy of FIR, copy of letter dated 23.05.2019 of the surveyor, copy of letter dated 23.05.2019, sent to RTO, copy of letter dated 01.07.2019 sent by OP, copy of letter dated 05.07.2019 sent by the complainant 20p, copy of repudiation letter dated 17.07.2019.
- The OP has filed copy of the policy, survey report, forensic report, copy of letter dated 01.07.2019, copy of letter dated 05.07.2019, copy of repudiation letter dated 17.07.2019.
- The Commission has heard the arguments put up by both the parties and has gone through the documents on record. Both the parties have relied upon almost the same documents. The fact of theft is not in dispute. It is also not in dispute that vehicle was parked fully locked and at a safer place where the complainant usually parks his vehicle. There is no allegation of mala fide on the part of the complainant. The only objection of the OP is with respect to furnishing of the duplicate keys to the OP instead of the original keys which in the opinion of this commission, after considering the facts and circumstances of the case, does not constitute fundamental breach of terms and conditions of the policy. In such cases, the OP should have settled the claim on non-standard basis as per the decision of the Hon'ble Supreme Court in ‘Amalendu Sahu versus Oriental Insurance Co Ltd’, II (2010) CPJ 9 (SC), where it was held that even in case where, there is a breach of warranty/conditions of the policy, an amount up to 75% of the admissible claim can be agreed to.
- Further Hon'ble High Court / Supreme Court Hon'ble NCDRC in New India Assurances Ltd. Vs. Narayan Prasad II (2006) CPJ 144 NC has given guidelines for settling the claim on non – standard basis.
Non – standard claims following types of claims shall be considered as non – standard and shall be settled as indicated below after recording reasons: Sr. no. | Description | Percentage of Settlement | 1. | 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 | 2. | Overloading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claims | 3. | Any other breach of warranty / condition of policy including limitation as to use | Pay up to 75% of the admissible claim |
- Therefore, this Commission is of the view that the repudiating the claim of the complainant in toto by OP amounts deficiency in service on the part of OP and directs OP to pay 75% of the IDV i.e. 75% of 2,15,131 which is 1,61,348.25 /- with interest at the rate of 7% p.a. from the date of rejection of the claim i.e. 17.07.2019, till the date of payment along with compensation of Rs. 20,000 towards his sufferings for mental harassment and agony, which includes the litigation cost.
This order be complied with within 30 days from the date of receipt of the order. Copy of the order be supplied / sent to the parties free of cost as per rules. File be consigned to Record Room. Announced on 18.03.2024. | |