Complaint filed on: 20-07-2023

                                                      Disposed on: 27-09-2024

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 27^th  DAY OF SEPTEMBER 2024

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER

Consumer Complaint No. 106/2023 

Sri.Shivakumar @ Shivakumar M.

S/o Narasimhamurthy, Aged about 39 years,

R/o Ambedkar colony, Holavanahalli Village,

Holavanahalli Hobli, Tumakuru District.

                                                                            ……….Complainant

(By Sri.S.N.Hanumantharaju, Advocate)

V/s

HDFC ERGO GENERAL INSURANCE CO. LTD.,

#25/1, 2^nd floor, Building No.2,

Shankarnarayana Building, M.G.Road,

Bengaluru-560001.

  …….Opposite Party

(OP – By Sri.N.V.Naveen Kumar, Advocate)

:O R D E R:

SMT.G.T.VIJAYALAKSHMI -  PRESIDENT

          This complaint is filed by the complainant under section 35 of Consumer Protection Act, 2019 against the opposite party with a prayer, to direct the Opposite party to pay price amount of Rs.70,610-00 along with interest at the rate of 2% p.a from the date of claim petition lodged by the complaint with the opposite party and with future interest of Rs.18% till realization and award compensation of Rs.50,000-00 toward litigation expenses, mental agony and harassment caused to the complainant. 

2.       The brief facts of the complaint is as under:-

          The complainant is owner of motor bike namely Hero splendor plus bearing engine No.HA11EYN5D54694, Chasis No.MBLHAW120N5D11783 and temporary registration No.TO622KA5407AJ and obtained the insurance policy from OP. The value of the said vehicle is of Rs.70,610-00 (Seventy thousands six hundred and ten (Ex-show room price).

          The afore said vehicle of the complainant which is insured with the opposite party has been subjected to theft on 01.07.2022 at about 8:30 p.m near Malnad Hotel, Kodlahalli Cross, near Holavanahalli, Koratagere Taluk. The complainant has also lodged a complaint before the Koratagere Police Station on the very next day i.e., on 02.07.2022 after making attempts to search of the same and when found that the same has been stolen. The Koratagere Police have also lodged the FIR in CR.No.0160/2022 and till so far the said vehicle has not been traced.

          The complainant, who sustained the loss to the tune of Rs.70,610-00 (Seventy thousands six hundred and ten (Ex-show room price), because of the theft of his afore said vehicle, has lodged a claim petition before the opposite party to pay the value of the vehicle by way of compensation as per the terms the afore said policy.

          But, the opposite party who is liable to pay the value of the afore said vehicle to the complainant has not at all paid any amount to the complainant towards value of the said vehicle as compensation, and in its stead the opposite party has issued a repudiation letter dated : 19/04/2023 stating that the complainant has left the original key with the ignition lock of the vehicle unattended and the complainant has given oral statement to that effect.

          The cause of action arose for this complaint on 09.04.2023 when the opposite party has issued the repudiation letter to the complainant in the case. Hence the complaint is in time.

3.       On receipt of notice by this Commission, the OP appeared through their counsel. The version and affidavit evidence of OP is taken as NIL.   

4.       The complainant has filed his affidavit evidence and marked he documents as Ex.C1 to C17.

5.       We have heard the arguments of both side counsels.  The points that would arise for our consideration are;

1. Whether complainant proves the deficiency of service on the part of OP?

2. Is complainant entitled to the relief sought for?

6.        Our findings on the aforesaid points are as under:

Point No.1:  Partly in the affirmative

Point No.2:  As per the final order

                         for the following;

:REASONS:

Point Nos.(1) & (2):-

7.       On perusal of pleadings, evidence and exhibits, the admitted facts between the parties are:-

1. The complainant is owner of the motor bike namely Hero splendor plus bearing engine No.HA11EYN5D54694, Chasis No.MBLHAW120N5D11783 and temporary No.TO622KA5407AJ and obtained the insurance policy bearing No.2312910185150200000 from OP. The period of insurance was from 25.06.2022 to 24.06.2027. The IDV of the vehicle is Rs.67,080/-.
2. The above said vehicle of the complainant has been subjected to theft on 01.7.2022 at 8:30 p.m near Malnad Hotel, Kodlahalli cross, near Holavanahalli,  Koratagere Taluk. The complainant has also lodged a complaint before the Koratagere Police Station on 04.07.2022 after making attempts to search of the same. The Koratagere Police have also lodged the FIR in CR.No.0160/2022 and till so far the said vehicle has not been fraud. Thereafter, the complainant has submitted claim form to the OP on 26.08.2022.
3. Later, on 19.04.2023, the OP has issued a repudiation letter and stated that the complainant has left the original key with the ignition lock of the vehicle unattended. Now the allegation of the complainant is that, even though, the OP received the original key of the vehicle, repudiated the claim of the complainant.

The OP filed version after expiry 45 days, Hence, Ops version and evidence rejected. However, we heard the arguments of OP counsel. In the course of arguments the OP counsel submitted that after receiving the claim form from complainant, OP engaged an investigator and as per investigation report only one original key is handed over to the OP. The letter and claim form submitted by the complainant, reveals the fact that, the contribution of the insured (complainant) himself has caused the loss.

          On perusal of repudiation letter dated 19.04.2023 the OP specifically stated that,

The available records and / or information clearly depicts that, the vehicle was left unattended with the original key in its ignition lock and thus in drivable conditions. The same has been stated by insured in oral statement and investigation report, which has directly contributed to the theft there of. It is thus clear that you failed to take reasonable steps to safeguard the vehicle from loss.

To the condition no.4 r/w condition 8 of the Insurance Policy which states:-

Condition 4:-

“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 parts thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss”.

Condition 8:-

“The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy”.

As you failed to observe and / or fulfill the term/s and / or condition/s, more particularly condition No.4 of the policy, in view of condition No.8 thereof, we do not owe any liability towards your subject claim.

          Considering the above facts and circumstances, it is seen that, the complainant handed over only one original key to the OP and complainant has left another original key in vehicle. Therefore, the complainant clearly violated the condition 4 of the policy.

In catena of judgments, the apex court set out the guidelines for settlement of claims on non-standard basis, when the insured violated the policy terms and conditions. The Hon’ble Supreme Court in the case b/n Ashok Kumar-Vs- New India Assurance Co. Ltd., (2023(3) CCC206(sc)), had applied the guidelines set out by the Hon’ble Supreme Court in Amalendu Sahoo –Vs- oriental Insurance Co. Ltd., (2010 4SCC 536) and in National Insurance Co. Ltd., -Vs- Nitin Khandeswal (2008) 11 SCC259, wherein the Hon’ble Supreme Court, New Delhi, set out the guidelines regarding settling of all non-standard claims as under table:-

          As per the above guidelines and decision of the apex court, the OP is liable to settle the claim of the complainant on non-standard basis. The IDV of the said vehicle is Rs.67,080/- and 75% of IDV is i.e., 75% of Rs.67,080/- is Rs.50,310/- to the complainant with interest @ 9% p.a from the date of repudiation to till realization.

          In spite of specific guidelines from the apex court, the OP failed to settle the claim of the complainant on non-standard basis. This act of OP amounts to deficiency in service and compelled the complainant to approach this commission. Hence, OP is liable to pay Rs.8,000/- as compensation for mental agony and Rs.8,000/- as litigation expenses. Accordingly, we proceed to pass the following:-  

:ORDER:

The complaint allowed in part.

The OP is directed to pay Rs.50,310/- to the complainant with interest @ 9% p.a from the date of repudiation i.e., 19.04.2023 to till realization.

The OP is further directed to pay Rs.8,000/- compensation and Rs.8,000/- as litigation expenses.  

Further, the OP is directed to comply the above order within 45 days from the date of receipt/knowledge of this order.