Delhi

StateCommission

A/454/2017

NAYYAR ELECTRONICS WORLD - Complainant(s)

Versus

HDFC ERGO GENERAL INSURANCE CO. LTD. - Opp.Party(s)

MUKESH KUMAR GILL

01 May 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  01.05.2018

Date of Decision :  08.05.2018

Appeal No. 454/2017

(Arising out of the order dated 08.08.2017 passed in Complaint Case No.452/2015 by the

District Consumer Redressal Forum-West, Delhi.)

 

In the matter of:

 

Nayyar Electronic World,

Through Parvinder Singh Nayyar (Partner)

Shop No.RU-376, Pitampura,

Delhi.                                                                                                  …..........Appellant

 

Versus

HDFC ERGO

General Insurance Company Ltd.

Through its Manager,

At Unit No.502, 504 & 506, 5^th Floor,

Mahatta Tower, B-1 Block,

Community Centre, Janakpuri,

New Delhi-110054.

 

Registered office:

1^st Floor, 165-166, Back bay Reclamation,

H.T. Parekh Marg, Church Gate,

Mumbai-400020.                                                                              ….....Respondent

                                                                

CORAM

 

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

Present :        Sh. Mukesh Kumar Gill, Counsel for the Appellant.

                        Sh. Navneet Kumar, Counsel for the Respondent.

 

PER  :     ANIL SRIVASTAVA, MEMBER (G)

Dismissal of the complaint by the Consumer Disputes Redressal Forum (West), Govt. of NCT of Delhi on 08.08.2017 in CC No.452/15 in the matter of Nayyar Electronic World Versus HDFC REGO General Insurance Company Ltd., observing that there is no merit in it, led to filing of this appeal before this Commission under Section 15 of the Consumer Protection Act, 1986 by the complainant against the insurance company, hereinafter referred to as appellant and respondent respectively  praying for setting aside of the impugned order and for the relief prayed for in the complaint.

2.       Facts of the case necessary for the adjudication of the complaint are these,

3.       The complainant/appellant had purchased an insurance policy from the opposite parties/respondent after paying premium of Rs.14,136/- for his Duster Renault Car bearing number 2311 2006 1029 2700 000 for a period of one year from 10.11.2013 to 09.11.2014, during which period, on 10.10.2014, the said car was stolen when it was parked in front of the show room of the company at Pitampura, New Delhi.  Matter was reported to both, the police authorities and to the insurance authorities. On receipt of the Un Trace Report from the court of ACMM, Rohini, Delhi the complainant/appellant filed a claim alongwith necessary required documents for release of the amount of insurance declared value., which claim was repudiated by the insurance company observing as under :

“During the course of the investigation all the necessary documents as explained to you were submitted by your goodself to us.  During the scrutiny of the  documents it was observed that you had failed to provide us the second original key and had provided an Intimation Letter Dated: 24^th August 2014 addressed to The SHO, PS Maurya Enclave was provided by you stating that the original key had been lost somewhere in Pitampura during a marriage function.

In this regards a RTI was applied with the Delhi Police to confirm the genuineness of the intimation letter provided by you as the same was not having any receiving of the concerned Police Station and the reply received from Delhi Police states that there was no complaint received at Police Station Maurya Enclave in regards to lost key.

It is misrepresentation / concealment of the facts on your part for not disclosing the correct information to us and also there was no steps taken to safeguard the vehicle if the original key was lost, which is violation of policy condition No.1 & 4.

Our above conclusion is based on the known facts and the documentation provided to us.

In view of above we regret to inform you that we would not be able to honour our liability for the above said loss against Claim No.C230014075386 and repudiating the above claim and closing the claim as ‘No Claim” in our records.”

4.       The claim having been repudiated, a consumer complaint was filed before the District For a, which complaint, as stated above, stood dismissed by way of an order dated 08.08.2017, which order, has been impugned in this appeal on the ground that the For a had failed to appreciate that the terms and conditions based on which the claim was repudiated was never furnished and if that be case, reliance of those stipulations for dealing with or deciding their claim would be misplaced as those would not be binding on them.  Secondly, the evidence by way of affidavit has been filed by an officer of the insurance company otherwise not competent to swear.  The affidavit was tendered by the Law Officer of the Company who is entrusted with the task of tendering legal advice and not to sign the affidavit.  Thirdly, on the observation of the company that the loss of key, the root cause of the repudiation was never reported to the police, the complainant/appellant has vehemently argued that the report was lodged before local Police Authorities.  Fourthly, the Fora has not examined the issue in its right perspective since the factum about the theft of the car has not been disputed by the company and if that is the case, Un Trace Report having been furnished, the claim is not liable to be repudiated. Finally,  drawing our attention to various judgements the complainant / appellant has argued that in the matter of theft of the vehicle, as is the case, the issue of breach of policy conditions as alleged, is not germane to the issue.

5.       The respondents were noticed and in response thereto they had put in appearance.  However, as per the proceedings recorded on 23.03.2018 the respondents had submitted that they would not file the reply.

6.       The appeal was listed before us for final hearing on 01.05.2018 when the counsel from both sides appeared and advanced their arguments.  We have examined the documents and given a careful consideration to the subject matter.

7.       Short question for adjudication in this appeal is whether the insurance company was just in repudiating the claim, preferred due to the theft of car, on the ground that the complainant/appellant by loosing the second key have acted in violation of clause 4 of the terms and conditions contained in the policy and, secondly, whether technicalities should weigh or prevail over the decision making authorities while considering claim on such issues.

8.       The ld. Counsel for the complainant/appellant argued that the terms and conditions of the policy was never served on them  and thus those are not binding on him, and, secondly, the loss of key having already been reported to the local police authorities, they cannot be termed as having acted in violation thereof.  In support of his contention the ld. Counsel has drown our attention to the judgement passed by the Hon’ble NCDRC in the matter of M/s. Hurdi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. Versus Oriental Insurance Co. Ltd. in OP 122/1995 decided on 24.05.2004 where the point in issue was whether there exists any deficiency on the part of insurance company in not issuing insurance policy though cover notes given.  The Hon’ble NCDRC  ruled that where despite giving cover notes, insurance policies were not issued to the complainant its cannot be held that so called condition of policies were known to him and are biding.

9.       Per contra the ld. Counsel for the respondent/opposite parties has drawn our attention to a decision of the two member bench of Hon’ble NCDRC in the matter of Gas Ghar Versus Oriental Insurance Co. Ltd.  decided on 23.02.2006 as reported in III [2006] CPJ 377 (NC) holding as under:

“Contention advanced by Mr. Arunab Suman for petitioner was that the petitioner is not bound by the said schedule as it had not been supplied the policy along with its annexures. It is not in dispute that the validity of policy was from 11.6.1992 to 10.6.1993. Damage to boundary wall due to cyclone was allegedly caused on 24.3.1993. There was thus gap of more than 9 months in between the commencement of policy and the incident. During that period the petitioner is not shown to have not sent any letter to the respondent/ Insurance Company complaining of non-receipt of policy with annexures. In that background plea of non receipt of policy with schedule by the petitioner cannot be accepted.”

10.     From the above it is apparent that there exists two judgements, both by the Hon’ble NCDRC, having equal number of judges and both on one point, but both at variance, inasmuch as the one pronounced ealier (M/s. Hurdi Lal Jain Cold Storage and Ice Factory Ltd.) supra, rules that if the insurance policy were not issued to the complainant it cannot be binding on him, while the one pronounced later (Gas Ghar) supra, rules that non-receipt of policy, the complainant having made no attempt to procure in, amounts to negligence on the part of the complainant.

11.     The Hon’ble Punjab & Haryana High Court in the matter of Poonak Vs. Rajbir Rawal decided on 23.01.2013, reported in (2013) SCC ONLINE D&H 1505, held in para 25 of the judgement as under :-

“ We would also like to point out the approach of different  High Courts which is consistent and uniform, viz., in such a situation the High Court is not bound to follow the one which is later in point of time, but may follow the one which according to it, is better in law, This is so held by a Full Bnch of this Court in Indo-Swiss Time Ltd. vs. Umarao, AIR 1981, Punjab & Haryana 213. The Madras High Court in R. Rama Subbnarayalu v. Rengammal, A.I.R. 1962 Madras 450, made the following pertinent observations:

          “Where the conflict is between two decisions pronounced by a Bench consisting of the  same number of judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one”.

12.     Applying the ratio of the judgement referred to above, we are of the considered view, keeping in view the facts and circumstances of the case, the ratio in the case of M/s. Hurdi Lal Jain would be applicable in the subject matter and if that be the case, non receipt of the insurance policy would mean that the terms contained in the policy are not binding on them.

13.     Notwithstanding this we way examine the facts of the case. Claim of the complainant arising out of the theft of the car was repudiated on the ground that they (complainants) have acted in contravention of the condition of the policy and the alleged act is loss of the second key of the car.  The relevant clause of the condition is detailed below:

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured.”

14      The averment is that the factum about the loss of the second key was never reported to the police.  However, the ld. Counsel for the complainant emphatically argued that the intimation about the loss of the second key was reported to the police.  This fact, denied by the insurance company is based on the information furnished to them by the Police Authorities under RTI Act.  Without going into the subject regarding intimation about the loss of the second key to the police, we may test whether the loss of the second key is material to the extent that claim if preferred is liable to be repudiated.

15.     For this purpose the ld. Counsel for the respondent has placed reliance on the judgement of the Hon’ble NCDRC in the matter of L & T General Insurance Company Ltd. Vs. Umesh and Another [RP 2732/16] decided on 09.11.2016 holding as under:

“It would thus, be seen that the complainant was under an obligation to take all the steps which a tractor owner would ordinarily take in order to safeguard his tractor from any loss or damage including theft of the tractor. There is no explanation for the complainant for leaving the key of tractor inside the ignition while leaving the plot where the tractor was parked and going back to his house.  In the ordinary course  of human conduct, no one would leave the key of the tractor inside the ignition and this is more so when the plot on which the tractor is parked is also not locked from outside.  In such a situation, it would be possible for any person to enter a plot after opening the main gate which is just bolted but not locked from outside and commit theft of the tractor using the key which is left inside the ignition.  The complainant/respondent therefore, clearly committed a breach of clause 5 of the policy extracted hereinabove.  As a result, the insurer got absolved of all its liability to reimburse the complainant on account of theft of the tractor.

16.     However, the facts of the case are distinguishable inasmuch as in the subject matter issue is loss of key.  But in the case referred to above, the complainant had carelessly left the key in the ignition of the vehicle. Hence facts of both the cases being distinguishable reliance of that judgement in this case would be misplaced.

17.     However, the Hon’ble High Court of Calcutta in the matter of Binoy Ghosh Versus Union of India in WP 10337(W) of 2012 as reported in 2016 SCC Online Cal 3938 directly on the subject  is pleased to hold as under:

“The impugned order records that a request was made by the Insurance Company for furnishing of the final Police Investigation Report, second key of the vehicle and the certificate of fitness.  So far as the documents required are concerned, the duplicate copies of those documents could have been obtained by the Insurance Company. The vehicle was stolen in February 2008.  The vehicle is yet to be recovered.  Even if the same was to be recovered now, the role of the second ignition key in a vehicle of this age and history would have extremely limited role.  The second key of the vehicle is not of such a value that 15% of the total claim amount as to be deducted.”

18.     Having regard to the dictum of the Hon’ble High Court, we reach to an inevitable conclusion that the loss of second key is not material for taking a decision on the settlement of the claim.

19.     The respondents have also taken an objection that the least the complainant was expected was to change the lock after losing the second key. But this averment as of now is irrelevant. The second key was lost on 24.08.2014 but the car was stolen on 10.10.2015.  Relevance of the change of lock after the loss of second key is normally significant within a short duration but in the given case almost 14 months have elapsed in between from the date of lose of key and the date of loss of car.  These averment therefore merit no consideration.

20.     In this view of the matter, we are of the considered view relying on the judgement of the Hon’ble High Court, Calcutta (supra) that the orders passed by the District For a cannot be sustained since the only ground taken by the insurance company to repudiate the claim, namely, loss of the second key of the car, since lost, stands demolished by the orders of the Hon’ble High Court.  We accordingly allow the appeal and set  aside the impugned order and consequently allow the complaint filed before the District For a and direct the insurance company to settle the claim and pay to the complainant the claim amount of Rs.9,73,000/- with simple interest @8% within a period of two months.  Having ordered this we do not express any opinion on the other points raised by either side.  No order as to cost.  

21.   Ordered accordingly.  Let a copy of this order be sent to the parties to the case free of cost as statutorily required.  A copy of this order be forwarded to the District For a also for information.  File be consigned to Record Room.

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                     MEMBER                                         MEMBER (JUDICIAL)

 

245.