Delhi

North East

RBT/CC/161/2022

G NEXT MEDIA PVT.LTD. - Complainant(s)

Versus

FUTURE GENERALI INDIA INS.CO.LTD. - Opp.Party(s)

01 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

RBT/Complaint Case No. 161/22

 

 

 

 

In the matter of:

 

 

 

	G Next Media Pvt. Ltd. Through Sh. Harish Bhatt (Vice President Accounts & Finance) Mr. N.G. Nair ( Earlier appointed) Vice-President( Administration) Corporate Office 78, Okhla Industrial Estate, Phase 3, New Delhi-110020	Complainant
	Versus
1.         2.	Future General India Insurance Co. Ltd. 11th Floor, Unit No. 1101, Aggarwal Corporate Height, Plot No.7, Netaji Subhash Place, Pitampura, Delhi-110034 Through Branch Manager   The Claims Manager Policy Servicing Branch( Off code-34) Future General India Insurance Co. Ltd. Aggarwal Corporate Height, Plot No.7, Netaji Subhash Place, Pitampura, Delhi-110034	Opposite Party No.1                       Opposite Party No.2

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                           DATE OF ORDER:

18.10.18 19.04.23 01.06.23

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member                                                                               

Ms. Adarsh Nain, Member

 

 

ORDER

 Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that his company was owner of vehicle bearing no. PB-65 X-9350 and the said vehicle was insured with Opposite Party bearing policy no. V4789228 valid from 27.11.16 to 26.11.17 against premium of Rs.  34,906/-. The Complainant stated that at night of 03.09.17 the said vehicle got stolen. The Complainant lodged an FIR bearing no. 0878/2017 dated 04.09.17 at Police Station Loni, District Ghaziabad, U.P u/s 379 IPC. The Police Station Loni filed final report bearing no. 01 on 30.10.17. The Complainant lodged theft claim no. CV 833838 with Opposite Party and claim of Complainant was declined by Opposite Party vide letter dated 01.11.17 on false and frivolous ground. The Complainant sent letter dated 14.12.17 to Opposite Party No.1 stating that the lapse on the part of the driver ought not to be treated as wilful breach of condition on his part and in the hurry to answer natures call the driver forgot to take the keys with him and as such he cannot be said to have committed wilful breach of the terms of policy and requested the Opposite Parties to reconsider the decision and process the claim. The Opposite Party deny the claim of Complainant vide letter dated 25.01.18 stating that the reason provide by the Complainant to be not satisfactory and sticking to the Opposite Parties wrong and false stand of breach of policy no.4. The Complainant sent a legal notice to Opposite Party dated 30.07.18 via speed post to settle the claim of Complainant and Opposite Party vide reply dated 08.08.17 repudiated the claim of Complainant. Hence, this shows deficiency on the part of Opposite Parties. The Complainant has prayed for the claim amount of the vehicle in question i.e. Rs. 8,38,035/- along with interest @ 12 % p.a. from the date of rejection of claim till realization and Rs. 2,00,000/- for mental harassment. He further prayed for Rs. 22,000/- on account of litigation expenses.   

Case of the Opposite Parties

2. The Opposite Party contested the case and filed written statement. The Opposite Party stated that Complainant is admittedly engaged in Media services and is a registered company. Complainant is represented through Mr. N.G Nair, Vice President of Complainant company (earlier). It is admitted in the complaint itself that the said insured vehicle was being used for operational activities of the Complainant company and also on the date of incident was being used for commercial activities of the company. Hence, alleged stolen vehicle was used for commercial purposes and to earn profit. There are several other vehicles used by the Complainant apart from the vehicle in question. Therefore, the stolen vehicle was being used as commercial vehicle and hence the Complainant is not a consumer under the definition provided under Consumer Protection Act.
3. It is further stated that during the investigation into the matter by the appointed investigators, following findings are arrived at:-

1. Vehicle was left unattended at the time of theft.
2. Vehicle was unlocked since the keys were in the vehicle. This fact is admitted.
3. It is evident from the contents of complaint also that the vehicle was left unattended and one of the original key was left inside the vehicle resulting in help to the culprits.
4. By this way, driver of the Complainant has not taken even minimum efforts for safeguard the vehicle resulted in loss.

4. Opposite Party stated that the complaint filed by the Complainant is not maintainable as the loss is direct outcome of the carelessness of the Complainant and Complainant cannot be allowed to take benefits of their own wrongs. Contract of insurance is based upon the legal maxim of “Ubberima fide” i.e. of utmost trust. Complainant was under statutory obligation to take proper safeguard of the insured vehicle.
5. That there is gross negligence on the part of driver of the vehicle that he left the vehicle at a place which is prone to the notorious criminal activities and has not attended vehicle for very long time. Moreover, one key of the vehicle was also left inside the said vehicle. Thus the complaint is not sustainable
6. Thus there is no deficiency in services on the part of Opposite Party and hence the repudiation is justified and is done after proper investigation and vetting of the documents.

Rejoinder to the written statement of Opposite Parties

7. The Complainant filed rejoinder to the written statement of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint. Further Complainant stated that he is covered under definition of consumer as given in the Act, and the vehicle in question was not being used for commercial purpose to earn profit but for operational activities of the Complainant and taking policy by Complainant who is carrying on commercial activities cannot in any case be held to be a commercial purpose.

Evidence of the Complainant

8. The Complainant in support of complaint filed affidavit of Shri N.G Nair, (previously working as Vice President of Complainant company) wherein he has supported the averments made in the complaint.

Evidence of the Opposite Parties

9. In order to prove its case, Opposite Party has filed affidavit Ms. Deepa Bisht, Trainee Legal Officer for Opposite Party, wherein the averments made in the written statement of Opposite Party have been supported.

Arguments & Conclusion

10. We have heard the Counsel for Complainant. We have also perused the file and the written arguments filed by the Complainant. The case of the Complainant is that his company’s vehicle was stolen during the validity period of the insurance policy taken from the Opposite Party. The Opposite Party rejected the claim on the ground that there was lapse on the part of the driver who left the key in the vehicle. As per the Complainant, the lapse on the part of the driver ought not to be treated as willful breach of condition on his part as in the hurry to answer nature’s call the driver forgot to take key with him and as such he cannot be said to have committed willful breach of the terms of the policy and request Opposite Parties to reconsider the decision and process the claim. The Opposite Party denied the claim of Complainant stating that the reason provide by the Complainant are not satisfactory. It is further submitted by Complainant that he is covered under definition of consumer as given in the Act, and the vehicle in question was not being used for commercial purpose to earn profit but for operational activities of the Complainant and taking policy by Complainant who is carrying on commercial activities cannot in any case be held to be a commercial purpose.  Hence, there is deficiency of service on the part of Opposite Parties.
11. The case of the Opposite Party is that Complainant itself had said that insured vehicle was being used for operational activities of the Complainant’s company and also on the date of incident was being used for commercial activities of the company. Hence, alleged stolen vehicle was used for commercial purposes and to earn profit, hence the Complainant is not a consumer under the definition of under Consumer Protection Act. It is further stated by the Opposite Party that as per their investigator, following findings are arrived at:-

1. Vehicle was left unattended at the time of theft.
2. Vehicle was unlocked since the keys were in the vehicle. This fact is admitted.
3. It is evident from the contents of complaint also that the vehicle was left unattended and one of the original key was left inside the vehicle resulting in help to the culprits.
4. By this way, driver of the Complainant has not taken even minimum efforts for safeguard the vehicle resulted in loss.

12. Opposite Party stated that Complainant’s case is not maintainable as the loss is direct outcome of the carelessness of the Complainant and Complainant cannot be allowed to take benefits of their own wrongs. Contract of insurance is based upon the legal maxim of “Ubberima fide”. Complainant was under statutory obligation to take proper safeguard of the insured vehicle. Hence, repudiation is justified and there is no deficiency of service on the part of the Opposite Party.
13. It is admitted by the Opposite Party that vehicle was stolen during the validity period of the policy and theft of the vehicle is not contested by the Opposite Party.
14. The Supreme Court of India in the matter of National Insurance Co. Ltd. Vs. Harsoliya Motors and others Civil Appeal No(s) 5352-5353 of 2007 held as under:-

“36.Thus, what is called out is that there is no such exclusion from the definition of the term “consumer” either to a commercial enterprise or to a person who is covered under the expression “person” defined in Section 2 (1) (m) of the Act, 1986 merely because it is a commercial enterprise. To the contrary, a firm whether registered or not is a person who can always invoke the jurisdiction of the Act, 1986 provided it falls within the scope and ambit of the expression “consumer” as defined under section 2 (1)(d) of the Act, 1986.

 

37.Applying the above principles to the present case, what needs to be determined is whether the insurance service has a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose of the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. The fact that the insured is a commercial enterprise is unrelated to the determination of whether the insurance policy shall be counted as a commercial purpose within the purview of Section 2 (1)(d) of the Act.

38.   19. The General Clauses Act, 1897 in Section 3 (42) defines “person”

“3.(42) ‘person’ shall include any company or association or body of individuals, whether incorporated or not,”

20. Section 3 of the 1986 Act upon which reliance is placed by learned counsel for KPTC provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force. This provision instead of helping the contention of KPTC would rather suggest that the access to the remedy provided to (sic under) the Act of 1986 is an addition to the provisions of any other law for the time being in force. It does not in any way give any clue to restrict the definition of “person”.

21. Section 2 (1)(m), is beyond all questions an interpretation clause, and must have been intended by the legislature to be taken into account in construing the expression “person” as it occurs in Section 2 (1)(d). While defining “person” in Section 2 (1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i),(ii) and (iv) being unincorporated and Category (iii) corporate, of its intention to include body corporate as well as body unincorporate. The definition of “person” in Section 2 (1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that company is a person within the meaning of Section 2 (1)(d) read with Section 2 (1)(m) and we hold accordingly.”

 

39. Applying the aforesaid test, two things are culled out; (i) whether the goods are purchased for resale or for commercial purpose; or (ii) whether the services are availed for any commercial purpose. The two-fold classification is commercial purpose and non-commercial purpose. If the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act, 1986.

43. Applying the above principles in the present case, what needs to be determined is whether the insurance service had a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose of the transaction was to facilitate some kind of profit generation for the insured or to the beneficiary and our answer is in the negative and accordingly we are of the view that the complaint filed by the respondent insured herein has no close or direct nexus with the profit generating activity and the claim of insurance is to indemnify the loss which the respondent insured had suffered and the Commission has rightly held that the respondent is a “consumer” under Section 2 (1)(d) of the Act, 1986.”

15. In view of the above judgment, in the present case the subject vehicle was not used for commercial purpose as the time of the incident vehicle was used to pick up one of the employee of the Complainant and not for earing profit.
16.  With regard to the Opposite Party contention of loss of vehicle was direct outcome of carelessness of the Complainant and Complainant cannot be allowed to take benefit of their own wrongs. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the matter of National Insurance Company Vs. Kamal Seghal IV (2010) CPJ 297 (NC) held  as under:-

“Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer nature’s call, particularly, when the vehicle was within his sight. We too, concur with the finding of Fora below about there being no clinching evidence suggesting violation of condition 3 (A) and 4 of the policy authorizing the insurance company to defeat genuine claim of the insured.”

 

17.  The Hon’ble Supreme Court of India in the matter of National Insurance Co. Ltd. Vs. Niting Khandelwal reported in (2008) 11 SCC 259 held as below:-

“Since the vehicle in question had been stolen, therefore, in the case of theft of vehicle, the breach of condition is not germane. The State commission allowed the claim only on non-standard basis, which has been upheld by the National commission. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.”

 

“In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On that basis of the settled legal position, the view taken by the State Commission, namely, that the appellant pay 75 % of the amount on non-standard basis, with interest at 6 % is upheld.”

 

18. In view of the law laid down by the Hon’ble National Commission and Hon’ble Supreme Court of India, the complaint is allowed. The Opposite Parties are directed to pay the 75 % of IDV of the vehicle of Rs. 8,38,035/- on non- standard basis jointly and severally to the Complainant with interest @ 6 % p.a. from the date of filing the complaint till recovery. Opposite Parties are further directed to pay an amount of Rs. 20,000/- jointly and severally to the Complainant on account of mental harassment and Rs. 10,000/- as litigation expenses along with interest @ 6 % p.a. from the date of this order till recovery. 
19. Order announced on 01.06.23.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Adarsh Nain)      Member

(Surinder Kumar Sharma) President