STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 01.05.2019
Date of final hearing: 17.11.2023
Date of pronouncement: 19.12.2023
First Appeal No.427 of 2019
In the matter of :-
Royal Sundaram General Insurance Company Ltd., Rider House, Plot No. 136, Sector-44, Gurugram-Haryana, through its Mr. Omkar S. Utture, Manager Legal, Royal Sundaram General India Insurance, No.1, II Floor, Subramaniam Building, Club House Road, Chennai.
....Appellant
Versus
Sh. Gaurav Kumar S/o Sh. Anil Kumar, R/o 49, Kiradi, Delhi.
…..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Sachin Ohri, counsel for appellant.
Sh. P.H.S. Pannu, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 7 days in filing the present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this appeal No.427 of 2019 of appellant-insurer has been invited to legality of order dated 13.03.2019 passed by District Consumer Disputes Redressal Forum-Gurgaon (In short “District Consumer Commission”) in complaint case No.339 of 2018, vide which complainant’s complaint has been allowed.
3. Factual matrix: complainant got his vehicle insured with OP-appellant w.e.f. 24.08.2017 to 23.08.2018 vide policy No. VPC0871068000100 with covered insurance value of Rs.17,85,000/-. Premium of Rs.46,129/- was charged by OP; duly paid by complainant. Insured car was stolen on 12.02.2018 at about 18.15 hrs to 17.05 hrs by unknown persons from Bhamasah Road, Near Hanuman Mandir, Model Town-Delhi, where it was parked. Complainant tried to trace it, but could not trace the same. He lodged FIR No.004714/2018 u/s 379 IPC with Police Station, Model Town-Delhi. He lodged claim with OP, who appointed its Surveyor-Mr. Lakshay Jain. Surveyor surveyed/investigated the claim of complainant. Required documents were submitted by complainant. Police Officials of P.S. Model Town filed untraced report. OP-appellant assured complainant to update the claim shortly, but it has not settled. Lastly, vide letter dated 11.04.2018 insurer/OP/appellant informed complainant that his claim has been repudiated on ground that: insured should take all reasonable steps to safeguard the vehicle from loss. It is pleaded that: this ground taken by OP-appellant for repudiating claim of complainant is illegal, arbitrary, baseless and against terms and conditions of policy. On aforesaid allegations, by filing complaint; complainant prayed for directing OP to reimburse Rs.17,85,000/- being insured value of vehicle along with interest @18% p.a. from date of loss, until final payment, besides, granting compensation of Rs.50,000/- on account of mental agony, harassment and inconvenience and also paying him Rs.22,000/- towards litigation expenses.
4. OP/appellant/insurer raised contest. In defence so entered; it is pleaded that complaint is not maintainable. Hon’ble Forum has no jurisdiction to entertain and decide the complaint, as policy has been issued from Nagpur and occurrence took place at Delhi and complainant is residing at Delhi. It has been contended that insurance is a contract between insured and insurer and both parties are bound by terms and conditions of policy, and any violation thereof, by either of parties makes the contract void. Complainant had violated condition No.4 of policy, (text of which has been mentioned in written version). In present case; vehicle was left unattended without proper precautions due to which thief gained entry which resulted its theft. OP has rightly repudiated claim of complainant vide repudiation letter dated 11.04.2018. Complainant has not come with clean hands before Hon’ble Forum and had concealed true and material facts. It is pleaded that vehicle was not parked in a proper parking, authorised by Government and was left unattended.
5. Parties to this lis led their respective evidence; oral as well documentary.
6. On critically analyzing the same, learned District Consumer Commission-Gurgaon vide order dated 13.03.2019 has allowed complaint and directed OP-appellant/insurer to reimburse IDV of Car in question i.e. Rs.17,85,000/- in terms of insurance policy. Complainant has been held entitled to compensation of Rs.5,000/- for harassment, mental agony as well as litigation expenses of Rs.5,500/-. OP-appellant has been directed to comply with the order within 45 days from date of its receipt, failing which, OP/appellant shall be liable to pay interest on awarded amount @9% p.a. from date of filing of complaint, till realization.
7. Feeling aggrieved; OP/insurer has filed this appeal. Vide order dated 02.09.2019; this Commission has observed that: In case, the awarded amount is deposited by appellant with the learned District Forum within a period of 45 days from today, it shall be released in favour of the complainant on his furnishing adequate security to the satisfaction of the learned District Forum.
8. Learned counsel for parties have been heard at length. With their able assistance; record too has been perused. Written arguments have also been filed by insurer/appellant.
9. Learned counsel for the appellant/insurer has urged a legal submission that impugned order dated 13.03.2019 is patently illegal for the reason that: learned District Consumer Commission-Gurgaon has no territorial jurisdiction vested in it, to adjudicate and decide the complaint. In this regard, it is urged that a specific defense was taken by insurer/appellant in its written version so filed before District Consumer Commission-Gurgaon that insurance policy of stolen car was issued from Nagpur. Occurrence took place at Delhi. Complainant also resides at Delhi and in view of these facts; learned District Consumer Commission-Gurgaon does not have any territorial jurisdiction. The counsel has relied upon decision of Hon’ble Apex Court in case titled as “Sonic Surgical versus National Insurance Company Ltd.” 2010(1) RCR Civil page 1 and urged that learned District Consumer Commission-Gurgaon has not touched this legal plea, which caused gross, obvious and manifest injustice to appellant/insurer. On factual pedestal; learned counsel has urged that there was proved breach of condition No. 4 on the part of insured-complainant who had left his vehicle unattended for about 51 hours on road. Consequently, appellant/insurer has rightly repudiated the insured’s claim vide its letter dated 11.04.2018-Ex.C-12/Annexure-A.
10. On the other hand, learned counsel for complainant has urged that: complainant resides in Delhi and there are documents to support this fact. Theft of insured car, too took place at Delhi; the office of OP-appellant is situated at Gurgaon and fact of repudiation of complainant’s claim was conveyed to Gurgaon office of appellant. Complainant also corresponded with OP/insurer/appellant through its office at Gurgaon. These circumstances, vest jurisdiction with learned District Consumer Commission at Gurgaon. On merits, learned counsel has urged that vehicle was parked at proper place. Nothing emanated, consequent to filing of FIR that complainant has failed to take due care of car in question and was negligent on that front which led to its theft by unknown person. It is urged that IDV value of insured car was Rs.17,85,000/- as per policy and Forum below has rightly passed order against appellant, to reimburse this amount to complainant with interest. Allied reliefs towards compensation and litigation expenses have also been rightly granted to complainant.
11. Before adverting to analysis on factual aspects; it would be imperative to deal with preliminary argument of insurer/appellant regarding jurisdiction of District Consumer Commission-Gurgaon. Admittedly, complainant is residing at Delhi. In policy Ex.C-5, address of complainant has been mentioned as being: a resident of 49, Kirari, New Delhi. As per document Ex.C-3 (passport of complainant) and as per document Ex.C-4 (RC of vehicle); similar address of complainant has been mentioned. In compliant; it is pleaded in Para No. 13 thereof that: Regional Office (Motor Claim Department) of OP/appellant is situated within territorial jurisdiction of District Consumer Commission-Gurgaon. In reply to this paragraph; OP/appellant/insurer, by denying this fact, has pleaded that no cause of action has accrued to complainant within territorial jurisdiction of District Consumer Commission-Gurgaon. The policy has been issued from Nagpur.
12. While glancing at Policy-Ex.C-5 it is visible that: at its top, the Corporate Office, as well as, Registered Office of insurer/appellant is stated to be situated at Chennai. Service Branch address of OP/appellant/insurer has been mentioned at: Manik Plot No. 7, II Floor, Tatya Tope Nagar, West High Court Road, Nagpur-440001. From conjoint reading of documents Ex.C-3, Ex.C-4 and insurance policy-Ex.C-5; it is proved that complainant is resident of New Delhi. Once this is so, no prudent person (resident of Delhi), who intends to become an insured of any insurer, with respect to any vehicle owned by him/her, would go/travel to a far off place from Delhi to Nagpur to get his/her vehicle insured from Nagpur. It was required on behalf of insurer to explain through evidence that policy was issued to insured from Nagpur, primarily for the reason that insured is a resident of Nagpur and also works there. Simply because, in policy-Ex.C-5; the Service Branch address of insurer has been mentioned at Nagpur would not establish conclusively that insurance policy Ex.C-5 got its light of day from its office at Nagpur. Likewise, even if Corporate Office or Registered Office of OP/appellant is stated to be situated in Chennai as per policy/Ex.C-5 would not mean that policy has been issued from Chennai. It has to be borne in mind that insurer/appellant acquire a status of being a service provider. In that context; the comforts meant for insured, who is opting for service of insurer, would become paramount consideration for him/her. No insured would put him/her in an onerous state of condition, while getting service of insurer and there can be no exception for complainant in present case. There is always a customer friendly relationship between insured and insurer.
13. Matter does not end here. Surveyor of insurer (Jain & Associates) who prepared a theft investigation report dated 21.03.2018-Annexure-F has forwarded the same to The Manager (Motor Claim) Royal Sundaram General Insurance Company Ltd. Rider House, Plot NO. 136, Ground & I Floor, Sector-44, Gurgaon-122002, (Haryana). Why he had done so? Obviously because, office of OP/insurer situated at Gurgaon was dealing with theft claim of complainant. This fact would presuppose that complainant must had been corresponding with OP/insurer at its office situated at Gurgaon. There has be no correspondence by complainant with office of OP situated either at Chennai or at Nagpur. These facts would confer territorial jurisdiction of learned District Consumer Commission-Gurgaon. Going further; the repudiation dated 11.04.2018 Ex.C-12/Annexure-A has been issued from Head, MOD Claims-Corporate with CC to Gurgaon office through mail. Why this communication Ex.C-12/Annexure-A was endorsed to insurer’s/appellant’s office at Gurgaon and why not it was sent to any other office of insurer, including its office at Nagpur? Obviously, it was endorsed because insurer’s office at Gurgaon had considerable concern and nexus with regard to theft claim lodged by complainant. Learned counsel for appellant/insurer has miserably failed to answer these queries/posers. As flowing consequence, the reliance placed on ratio of law laid down by Hon’ble Apex Court in case of Sonic Surgical (supra) will not stimulate any cause of appellant/insurer. This being so, the contention raised by learned counsel for insurer/appellant that learned District Consumer Commission-Gurgaon has no territorial jurisdiction to adjudicate and decide the complaint, stood repelled.
14. Admittedly, Car No. DL-1CX-0985 of complainant was stolen on 12.02.2018 from Bhamasah Road, Near Hanuman Mandir, Model Town, Delhi, where it was parked. Currency of insurance policy is from 24.08.2017 to 23.08.2018. Theft of vehicle took place during currency of insurance policy. Admittedly, IDV value of insured vehicle was Rs.17,85,000/-. Admittedly, FIR No. 004714 of 2018 under Section 379 was lodged at Model Town-New Delhi against unknown persons. Untraced report in relation to this FIR was filed and accepted by concerned Court.
15. Insurer/appellant has repudiated theft claim by invoking Condition No. 4 of insurance policy which states that insured should take all reasonable steps to safeguard the vehicle from loss or damage. In this regard, insurer’s stand is that: vehicle was left unattended because that place is neither insured’s residence, nor his friend’s residence, nor insured’s workplace. This type of plea is wholly untenable. It is urged by learned counsel for appellant/insurer that: leaving the vehicle unattended would enhance the risk of its theft. Curiously enough, it has not been the case of insurer/appellant that: keys of vehicle were left inside the vehicle, while allegedly keeping/parking it, unattended. From theft investigation report of insurer’s surveyor Annexure-F dated 21.03.2018, it is deciphered that intimation regard theft was given to insurer/appellant on 12.02.2018 itself (date of theft). This report too recites that insured has produced three original keys of vehicle to the surveyor. There is no material brought on record from which it can be gathered that there was any gross failure on the part of insured/complainant to take reasonable steps in order to safeguard the insured vehicle and to prevent it from loss or damage.
16. Since insurer/appellant has invoked exclusion clause under aforesaid policy therefore, right here, it has to be borne in mind the legal position in this regard is no more res-integra that: “in case, insurer invokes exclusion clause it has to lead express and positive evidence specific to justify/substantiate their act of exclusion from insurance policy”. While observing so, this Commission gain strength from the observations laid down by Hon’ble Apex in cases titled as “National Insurance Co. Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd.” (Civil Appeal No.4979 of 2019) decided on 17.05.2023, and “National Insurance Company Limited vs. Ishar Das Madan Lal” (2007) 4SCC 105 wherein it has been held that: “It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of insured.”
17. While applying above cardinal principle so enunciated in above quoted judgments; this Commission is of firm opinion that exclusion by insurer is wholly unjustified and illegal as there is no evidence brought on record by it stimulate its cause on that front. In view of above this Commission hold that insurer/appellant has been rightly non-suited.
18. Impugned order dated 13.03.2019 does not warrant any interference in this appeal. Impugned order dated 13.02.2019 is the outcome of proper and meticulous appreciation of facts and evidence by learned District Consumer Commission-Gurgaon and same is maintained, affirmed and upheld. This appeal being devoid of merits is hereby dismissed.
19. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
20. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
21. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
22. File be consigned to record room.
Date of pronouncement: 19th December, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
