Delhi

North

RBT/CC/204/2022

KIRAN JAIN - Complainant(s)

Versus

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

06 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

RBT/CC No/204/2022

                           [DCDRC-V CC No.171/2018]

In the matter of

Kiran Jain

D/o Anil Kumar Jain

R/O House Number-D-43

Prahlad Vihar, Shahbad Dairy,

Prahlad Pur

Bangar, Delhi-110042 ...Complainant

                                                         

Versus

HDFC Ergo General Insurance Co. Ltd.

Ground floor, Amandeep Building,-14,

Kasturba Gandhi Marg,

New Delhi-110001                                                                    ...Opposite party

           

ORDER
06/12/2023

Ms.Harpreet Kaur Charya, Member

The present complaint has been received by way of transfer vide order No.F.1/SCDRC/Admn./Transfer/2022/330 dated 16/04/2022 of Hon’ble Delhi State Consumer Dispute Redressal Commission, where the matter was transferred from DCDRC-V (North West) to this Commission. 

1. The Complainant, Ms. Kiran Jain has filed the present complaint against HDFC Ergo General Insurance Ltd., the OP with the prayer for directions to OP to pay Rs.56,154/- , the cost of the insured vehicle; Rs.20,000/- on account of mental agony and Rs.20,000/- on account of litigation charges along with interest.
2. Facts necessary for the disposal of the present complaint are, on 30/10/2016, the complaint bought TVS Jupiter Grey Scooter bearing registration No.DL-8S-BY-9207 from Sabharwal Automobile, 4, Inder Enclave, Main Rohtak Road, Peeragarhi and got the same insured from OP vide policy No.2312201608575500000 for a period from 30/10/2016 to 29/10/2017,with IDV of Rs.46,583/-. 
3. On 26/07/2017, at about 10.30 a.m the complainant went to RG Mall, Sector-9, Rohini, locked the insured vehicle carefully.  It has been stated by the complainant that while she was keeping the helmet in the boot (diggy) of the insured vehicle, she inadvertently also locked her purse in which she had kept the key of the insured vehicle.  As the boot and the handle of the scooter were locked, the complainant called her father and requested him to get the second key and went to pick up goods from the mall.  The complainant has further stated that the insured vehicle was parked in the free parking complex of the mall and after five minutes when she returned to the place, she was shocked to see that the scooter was not there.
4. Immediately, police was informed and a complaint was registered regarding the theft of the insured vehicle vide e-FIR No.023587/2017, PS: Prashant Vihar.  The complainant has also submitted that along with the insured vehicle her purse, helmet, key of the scooter and driving license were also stolen. OP was also informed on the same day.  Untraced report was accepted by the court. 
5. As per the complaint, on 04/12/2017, the claim was rejected by OP on the ground of breach of policy condition No.4 wherein it was stated that the complainant had left the insured vehicle unattended with the original key in it.   It has been averred by the complainant that although the key was lying in the scooter, it was in the safe place (Boot which was locked) and it was not a case of breakdown or accident.
6. Feeling aggrieved by the repudiation of the claim, the complainant has filed the present complaint.  Policy schedule, FIR No.023587 dated 27/07/2017, untraced report dated 26/10/2017, vehicle invoice dated 30/10/2016, list of documents submitted to the investigator ‘Eminent Support services Pvt. Ltd’, record of Delhi Police Control room dated 26/07/2017 along with Adhar card and PAN card of the complainant have been annexed with the complaint.
7. Notice of the present complaint was served to OP.
8. OP has filed the Written Statement taking several preliminary objections in their defence such as ; there is no deficiency in service on their part; the complainant has not taken reasonable care of the insured vehicle as she had left the vehicle unattended leaving the key inside the vehicle.  Even as per the description of the stolen property, the scooter key has been mentioned; it has been admitted by the complainant that she had left the key in the vehicle. 
9. The existence of policy cover, appointment of ‘‘Eminent Support services Pvt. Ltd’ as Investigator and repudiation of the claim has been admitted.  It has been submitted that as per the report of the Investigator the complainant had left the original keys in the boot of the vehicle and the vehicle had been stolen with the original key, which was left in the insured vehicle.  As the complainant had failed to safeguard the insured vehicle, there was violation of condition no. 4 of the policy terms and conditions, hence, the claim was rejected vide letter dated 04/12/2017. They have relied upon condition No.4 which is being reproduced here under :-

The Company shall not be liable to make any payment in respect of:-

 

The insured shall take all reasonable steps to safeguard the vehicle from loss or damages and to maintain it in efficient condition and the Company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employee for the insured.In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repair are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

10. It has been denied that the complainant had checked the boot of the scooter carefully and had parked the same in free parking complex of the RG Mall (safe Zone). Rest of the contents of the complaint have been denied.
11. They have further submitted that the complainant is not entitled for to any claim as per the prayer clause and the present complaint may be dismissed.
12. Evidence by way of affidavit was filed by the complainant, where the contents of the complaint have been repeated. She has got exhibited the documents annexed with the complaint, Insurance Cover Note as Ex-CW1/1; copy of FIR, PS: Prashant Vihar as Ex-CW1/2; copy of untraced report as Ex-CW1/3; invoice of insured vehicle as Ex-CW1/4; list of documents handed over to the investigator as Ex-CW1/5; call record of PCR as Ex-CW1/6; Aadhar card and PAN  card as Ex-CW1/7 and Ex-CW1/8 respectively and the repudiation letter as Ex-CW1/9.
13. Ms.Shweta Pokhariyal, Assistant Manager (Legal) has been examined on behalf of OP.  The contents of the Written Statement have been repeated in the evidence by way of affidavit.  She has got exhibit the copy of policy terms’ and condition as Ex-RW-1/1; the copy of the investigation Report dated 17/11/12017 as Ex-RW-1/2; copy of the repudiation letter dated 04/12/2017 as Ex-RW-1/3.
14. We have heard the arguments of the Ld. Counsel for the complainant and Ld. Counsel for OP.  We have also gone through the written argument filed by the parties. The factum of theft is not in dispute and the insured vehicle has not been traced .The complainant has disputed the ground of rejection as mentioned in the Ex.CW1/9 and Ex.RW1/3, the repudiation letter dated 04/12/2017, the claim of the complainant has been rejected on the ground that as per the statement to the investigator the complainant had left the original key in the insured vehicle, thus, there is of violation of policy terms and condition No.4, which states that :-

The Company shall not be liable to make any payment in respect of:-

 

The insured shall take all reasonable steps to safeguard the vehicle from loss or damages and to maintain it in efficient condition and the Company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employee for the insured.In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repair are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

 

15.   If we go through Ex.RW1/2 (report of the investigator) wherein the investigator has stated that:-

“The insured has surrendered only one unused key which she kept at her residence. As per her, the 2^nd original key, which she was using for subject vehicle, was left in the diggy of the vehicle, which amounted to contributory negligence. During discreet enquiry with guards, they also confirmed that she has left the key in the diggy.”

 

16. Thus, it is evident that the complainant had not left the key in the ‘ignition’ of the insured vehicle, rather, the key was in the diggy (boot) which was locked.  The evidences on record which is the statement of the Complainant to the Investigator and confirmation by the guards and other documents on record clearly show that the Complainant had locked the insured vehicle and had taken adequate measures while leaving the vehicle. The Complainant has clearly stated that she had locked the vehicle and then left the key in the boot/diggy of the scooter which was again locked. Hence, it cannot be held that there was negligence on part of the complainant in taking due care of  the insured vehicle.
17. The contract of insurance is for the indemnification of loss and rejection of the genuine claim of the complainant on flimsy ground amounts to deficiency in services. This has not only caused financial loss but mental agony to the complainant, for which complainant is entitled to compensation as well.
18.   Therefore, in the facts and circumstance of the present complaint and in the  interest of justice, we direct OP to pay:-

1.  Rs.46,583/- being the Insured’s Declared Value (IDV).
2. Interest @7% p.a. on Rs. 46,583/- from the date of filing of claim till realization.
3. Compensation of Rs. 10,000/- on account of mental agony and harassment.
4. Rs.7,500/- as cost of litigation.

19. The order be complied with in 30 days from the date of receipt of order. In case of non-compliance, the OP shall be liable to pay interest @9% per annum on (a)+(b)+(c)+(d) from the date of order till realisation.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya) Member	(Ashwani Kumar Mehta)                        Member   (Divya Jyoti Jaipuriar)           President