ORDER

21.10.2024

MS. NIPUR CHANDNA, MEMBER

1. The factual matrix of the present case is that on 21^st January, 2019 complainant purchased a scooty from Sabhrawal automobiles at Raja Garden, New Delhi along with a comprehensive insurance of HDFC Ergo, Barakhamba Road, New Delhi. It is stated that the company’s office is shifted to Eros Tower, Nehru Place Complex New Delhi.
2. It is stated that on 8 September, 2019 the scooty was stolen in front of complainant’s house. It is further stated that police station was informed and FIR was registered. It is stated that all the documents were submitted to company’s authorized surveyor. It is stated that untraced report from court was submitted too on 9 January, 2020.
3. It is stated that complainant has talked many times to claim officer but response was that the process takes time. It is further stated that after 8 months passed, complainant sent an e-mail to company’s grievance cell. It is stated that the response was repudiation of claim with an unknown reason. It is stated that on asking for reason, complainant was told that the key given to surveyor is “UNUSED” which was a surprise to complainant. It is further stated that whereas the second key with house keys were inside the locked Dicky.
4. It is stated that complainant purchased the scooty for medical emergencies and smooth driving as complainant have undergone by pass heart surgeries with four stents too. It is further stated that complainant have another scooter as well with no. DL 8S L 6562 complainant husband drives it with a valid license. It is stated that the scooty was purchased for comfort not for theft or recovery of claim. It is further stated that complainant is 73years senior citizen lady with multiple diseases is highly hurt with the company’s arbitrary decision.
5. Complainant is seeking direction against OP to pay sum insured of Rs.50,000/- along with 12% interest and Rs.50,000/- for causing mental agony and harassment and any other order which deems fit and proper.
6. OP filed WS thereby denying any deficiency in service on its part. It is stated that this hon’ble forum has no jurisdiction to entertain and try the present complaint as the claim has already been repudiated and the same has already been informed to the complainant, therefore, the complaint is liable to be dismissed.
7. It is stated that the present complaint has been filed for unlawful gain, which shows the lust for money of the complainant, hence it is liable to be dismissed with cost. It is further stated that there is no relationship of consumer under the Consumer Protection Act, between the complainant and respondent after the claim has already been repudiated, therefore, the complaint is liable to be dismissed. It is stated that complainant has not come with clean hands before this Hon’ble Consumer Forum and has concealded the material facts, therefore, the petition is liable to be dismissed.
8. It is stated that the complainant is not a consumer as per the Consumer Protection Act, therefore, the present complaint is not maintainable. It is further stated that the detailed examination of evidences and cross-examinations are required for the just and judicious decision in this matter, therefore, this matter can only be adjudicated upon in the concerned appropriate Civil Courts of law, hence, the present complaint is liable to be dismissed by this Hon’ble Consumer Forum.
9. It is stated that the true facts of the case are that TVS Scooter bearing registration  no. DL-11SZ-0845 vide chassis no. MD626EG40J3L45258 & Engine no. EG4LJ19G7208 was insured vide policy no.2312202610343400001 the period 21.01.2019 to 20.01.2024 in the name of Mrs. Shakuntala Kawatra for a sum of Rs.49,232/- and the liability of the company, if any is subject to terms and conditions of the policy. It is further stated that a claim was received by the company along with certain documents. It is stated that on receiving the claim investigator was appointed in order to verify the genuineness of the alleged theft. It is further stated that during verification, the complainant submitted one original key of the insured vehicle. It is stated that as statement was also recorded by the investigator in which the complainant has stated that my husband was using the said scooty. It is further stated that the original RC and one original key of the vehicle were stolen along with the insured  vehicle as the same were kept in the dicky of the scooty. It is also stated by the complainant that the key submitted to the insurance company was used to run the vehicle. It is stated that the statement of the husband of the complainant was also recorded.
10. It is stated that thereafter, one original key submitted by the complainant with the answering respondent was got forensically examined by the respondent from M/s SIFS India, who submitted their report dated 17.03.2020.As per their report the said key submitted by the complainant was never used, which clearly establishes the fact that, the key stolen with the vehicle was regularly used and the said key was left in the vehicle which resulted in theft of the insured vehicle, therefore, it is a clear case of mis-representation and also the violation of the condition no.4 & 8 of the terms and conditions of the policy as the complainant has not taken due care to safeguard the vehicle.
11. It is stated that OP relied on judgment of Hon’ble Supreme Court of India in matter of United India Insurance Co. Ltd. Vs. Harchand Rai ChandanLal, Civil Appeal No.6277 of 2004, judgment of Hon’ble National Consumer Disputes Redressal Commission LIC Vs Kuldeep Singh of 03.06.2015, judgment of Hon’ble National Consumer Disputes Redressal Commission Life Insurance Corporation of India Vs. Smt. Neelan Sharma of 30.09.2014.
12. On merit all the allegations made in the complaint are denied by OP and reiterated contents of preliminary objections.
13. Complainant filed rejoinder and denied all the allegations made in the WS and reiterated contents of complaint.
14. Complainant filed evidence by way of her affidavit and reiterated contents of complaint.
15. OP filed evidence by way of affidavit of Shweta Pokhriyal AR of OP insurance company. In the affidavit contents of WS reiterated. OP relied on copy of policy of terms and condition Ex.RW1/1, copy of surveyor report Ex.RW1/2, copy of FSL report Ex.RW1/3 and copy of letter dated 09.06.2020 Ex.RW1/4.
16. Written arguments filed by complainant as well as OP.
17. We have heard complainant in person and Sh. Ashok Kumar Kawatra her husband and Sh. Raghav Gupta proxy for Sh. R.K Gupta counsel for OP.
18. The sole question for our consideration in the present complaint case is whether the repudiation of the claim by OP Ins. Co. is justified and legal.
19. Admittedly, in the present complaint case the vehicle in question got stolen on 08.09.2019, the intimation of the theft was duly given to P.S. Ashok Vihar, North West as well as to the OP Ins. Co. The complainant has also placed on record the copy of untraced report dated 27.12.2019 in respect to the theft of the vehicle. Complainant has also placed on record copy of the invoice dated 21.01.2019 in respect to the purchase of the vehicle in question.
20. After receiving the intimation of the theft, OP Ins. Co. appointed the independent agency to verify the claim in question. The Ins. Co. also submit one key to Sherlock Institute of Forensic Science to examine the submitted key in question. As per the forensic report the one key submitted by the complainant is original and belongs to the vehicle in question. The key was unused one. It is further concluded in the report that as per the service history the vehicle has covered total 392 kms on 11.04.2019 according to which striation mark are absent on the blade region of keys. Therefore, the key is not in line with the edge and the total kilometer travelled by the vehicle.  The forensic report clarify the genuineness of the key submitted by the complainant and admitted that the submit key is in original.
21. The complainant has already informed the OP Ins. Co. that another key as well as the original RC was inadvertently kept by him in the glove box of the vehicle in question, as such stolen with the vehicle. The OP Ins Co. taking the shelter of the this mistake of the complainant repudiated the entire claim by citing the reason that due to gross negligence on the part of the complainant her case was squarely covered under clause no. 4 of the Ins. policy which says that the complainant failed to take reasonable care to safeguard the vehicle in question and justified the repudiation.
22. Admittedly, the complainant had purchased the policy in question for indemnification. The complainant and her husband are senior citizens. Complainant herself admitted that inadvertently her husband kept one key and original RC in the glove box of the vehicle in question. Considering the age of the complainant and the forensic report placed on record, we are of the considered opinion that claim of the complainant should not be rejected in toto, therefore, Considering the peculiar facts and circumstances of the present complaint case as well as keeping in mind the genuiness  of the incident of theft in question, we direct OP  to pay to the complainant 75% of the IDV to meet the end of justice.
23. In view of the above discussion, we hold repudiation unjustified and direct OP Ins. Co. as under:

1. To pay to the complainant 75% of the IDV (Rs. 49,232/-) along with interest @ 6% per annum from the date of filing of complaint i.e. 21.08.2020 till realization.
2. Pay to the complainant sum of Rs. 10,000/- on account of pain and mental agony suffered by her.
3. Since the complainant has herself contested the present complaint case she is not entitle for any litigation cost.

File be consigned to record room.

24. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  21.10.2024.

SANJAY KUMAR                       NIPUR CHANDNA                  

  PRESIDENT                                        MEMBER