Delhi

East Delhi

CC/974/2015

SATISH - Complainant(s)

Versus

HDFC ERGO GEN. INS. - Opp.Party(s)

14 Feb 2017

ORDER

              DISTRICT CONSUMER DISPUTE REDRESSAL FORUM EAST Govt of NCT Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092  

 

                                                                                                   Consumer complaint no.        974/2015

                                                                                                   Date of Institution                29/12/2015

                                                                                                   Order reserved on                14/02/2017                                                                                                   

                                                                                                   Date of Order                         16/02/2017

                                                                                     

In matter of

Mr. Satish Kumar Jain,  adult   

S/0- Padam Sen Jain

R/o  54, GF, Surya Niketan 

Karkarduma, Delhi 110092……….…….……………………………..…………….Complainant

                                                                    Vs

The Regional Manager

HDFC Ergo Gen. Insurance Co. 

Unit no.- 502,504,506, 5^th Floor, Manatta Tower

54, B1, Community Centre, Janakpuri, New Delhi.………………………..Respondent

 

Complainant’s Advocate     Puneet Tandon  

Opponent’s Advocate          Rajesh Kumar & Pankaj Kumar – Manager Legal  

 

Quorum                                 Sh Sukhdev  Singh        President

                                                 Dr P N Tiwari                 Member

                                                 Mrs Harpreet Kaur      Member   

                                                                                                

Order by Dr P N Tiwari, Member

Brief Facts of the case

 

Complainant had purchased Hyundai Grand i10 Sportz 1.1 DSL, BS IV, pure white car on 09/05/2014 for a sum of Rs 563457/-from Himgiri Motors Pvt ltd vide invoice no.H201400098 marked here as Ex CW1/1. The car had insurance cover from 08/05/2014 to 07/05/2015 issued by ICICI Lumbard General Insurance Co. and new policy cover was from 08/05/2015 to 07/05/2016 issued by present OP/ HDFC Ergo General Insurance Co. Ltd. This policy was third party insurance policy under Private car package policy as marked here CW1/3.

The car had registration no. DL08CAE 4610 vide registration certificate in his old address where as car was registered on 19/05/2014 marked as Ex CW1/4.

 

 

The brief facts are as in the intervening night of 6-7/08/2015, the said car was stolen which was parked in front of complainant’s new house. He noticed his car was missing in the morning at about 7 AM of 07/08/2015. He lodged E-complaint to police on 08/08/2015 and FIR was registered under section 379 IPC on dated 08/08/2015 where he narrated that his original vehicle papers, original RC, original insurance and other original bills were kept inside the car which had been stolen by some unknown person as marked here CW1/5.  

 

Complainant had lodged his intimation to the insurer/OP on dated 10/08/2015 about theft of his insured car as it had been stolen in the intervening night of 06-07/08/2015 whose FIR had also been lodged at Anand Vihar police station on 08/08/2015. It was stated by complainant that the said car was driven by his son Mr. Nikhil Jain who had parked the car in front of his house at about 9 PM on 06/08/2015 after he returning from his shop. The complainant had stated in FIR that his original RC, original insurance policy cover note had been stolen. It had also been also stated that one of the original car key was misplaced somewhere at the time of shifting his house from old house at Balbir Nagar, Shahdara to Surya Niketan, Shadara in our new address and the same key was not available with them, but he was using single key for the last 5-6 months.

 

On receiving written intimation by complainant, OP appointed surveyor on dated 21/09/2015 and after certain clarifications by OP as marked Ex CW1/10, complainant replied clarifications / queries on 26/09/2015 as marked Ex CW1/11. Simultaneously court issued “Un Traced Report”.  

The complainant had deposited all the required documents for claim process, but the OP rejected his claim on dated 10/12/2015 on the basis of non depositing another original key to surveyor. Seeing deficient and negligent act of OP, complainant issued legal notice claiming refund of present IDV value of his car with 1.5 Lac compensation and one lac for litigation charges.

On being served notice, OP submitted written statement admitting facts that the said car was insured by them and intimation was received after complainant had lodged FIR.

 

OP had appointed surveyor in time who submitted his report. It was noted by the surveyor that complainant had stated that his car was used by his son Nikhil and on the day of theft, it was driven and parked by his son outside his house around 9 pm on 6^th Aug 2014. Whereas the owner of the vehicle (complainant) had given statement before police that he had parked his car and certain original documents were left inside the car and same were stolen with the car. Complainant had given one original ignition key and stated that the other key had been misplaced / lost while shifting his house.

OP stated that no preventive steps were taken against theft by complainant and no intimation or report was lodged by him when one of the original key was lost during shifting of his house. This amounts to violation of policy terms and condition of policy clause 4. In such incidences, company was not responsible for any liability.  It was also stated by OP that manufacturer had fitted a device “Immobilizer” by which car cannot be stolen without original keys. Thus their repudiation of claim was justified and was duly informed to the complainant on 10/12/2015. So this complaint may be dismissed.  

 

Complainant submitted his rejoinder and evidences on affidavit where he himself affirmed all the facts and evidences were correct and true as narrated in his complaint. In his defence, he had also submitted a judgment of Hon. State Commission of Chatisgarh in FA 14/2015 in matter of Iffco Tokio General Insurance Co. Ltd vs Dulichand Sahu, taken on record.   

 

OP through legal manager Mr Pankaj Kumar submitted his affidavit and deposed that rejection of claim was properly scrutinized as per policy condition and evidences submitted by their surveyor. It was seen that there was violation of condition clause 4 of the policy and in such condition, liability could not be fixed on OP. 

 

Heard arguments from both parties Ld counsels and order was reserved.

After analyzing all the facts and evidences of OP and of complainant, we have also taken facts of the case as –

1-the said car was driven and parked by the son of the complainant on the date of theft occurred.

2-all original documents like original RC, Insurance policy and other bills were inside the car at the time of theft.

3-no proper and preventive measures were taken to prevent any future loss or damage of his car.

4-no intimation was given to OP or police regarding loss of his one original ignition key.

5-complainant was using his car for more then 5-6 months with one key.  

6- the IDV value was Rs 4,94,000/-for year 2015 to 2016.

7-claim on IDV asked.

 

We have taken references of few citations of Hon. of Hon. Supreme Court and National Commission in short NCDRC in ref to above 7 point of issues came up before us.

 

Taking legal views adopted are as under –

1. NIC vs Nitin Khandelwal – IV (2008) CPJ 1(SC). It was held that despite the ignition key was left inside the vehicle by the complainant where insurance was valid and intimation to the OP and police was given in time. So OP cannot repudiate the claim and to pay 75% of IDV on non standard basis.
2. Monjoy Das vs OIC - IV (2014) CPJ 458 (NC). Stolen vehicle was not traceable by police. OP to prove that vehicle which was insured, was not stolen.  Repudiation of claim was not justified and OP to pay 75% on non standard basis. 
3. Amit Kumar & others vs NIAC – I (2012) CPJ 256 (NC) – It was observed that in breach of policy condition by complainant, claim was repudiated and was justified on the ground that complainant had failed to take reasonable steps to safeguard vehicle for loss or damages which complainant had failed. Hence, rejection of claim was justified.
4. Iffco Tokio General Insurance Co. Ltd vs Dulichand Sahu, FA 14/2015, Hon State Commission Chattisgarh, Raipur submitted by the complainant. Here also OP was liable to pay present IDV of the vehicle.    

 

It was observed in majority of cases that OP liability to pay the loss on the current IDV. But in this case, though the citation Amit Kumar & others vs NIAC – I (2012) CPJ 256 (NC) observations are reasonably sound for deciding the repudiation of claim justified, but analyzing the majority of citations of higher courts, OP had to pay the present IDV despite of negligence present in above cases.  

So, we took the reference of Hon Supreme Court in NIC vs Nitin Khandelwal (supra) in this case as the present IDV of the said car was Rs 4,94,000/- in the year 2015-16 when theft occurred and FIR was lodged and intimation to OP was given on time and OP had appointed surveyor also in time. So, liability to pay is seen. Thus we come to the conclusion that complaint has merit so we pass the following order—

1. OP will pay the 75% of IDV in accordance to the year of insurance within 45 days to the complainant.
2. If order is not complied by OP, 6% interest shall be payable on the IDV from the date of filing of this complaint till realization.
3. No other order to cost.

The order copy be sent to the parties as per act and file be consigned to the record room

 

 (Dr) P N Tiwari  Member                                                                        Mrs Harpreet Kaur  Member                                                                  

                                      

                                                 Shri  Sukhdev Singh  President