Delhi

North East

CC/460/2015

Harday Nayaran - Complainant(s)

Versus

HDFC ERGO - Opp.Party(s)

30 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.460/15

 

In the matter of:

 

		Harday Nayaran S/o Sh. Ram Sewak R/o E-12, E-Block, Main Nala Road, Bhagirathi Vihar, Delhi-110094.		Complainant
		Versus
		HDFC ERGO General Insurance Co. Ltd Ground Floor, Ambadeep Building, 14, Kasturba Gandhi Marg,                            New Delhi-110001.		Opposite Party
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		20.11.2015 21.05.2018 30.05.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that he is a registered owner of motorcycle bearing registration no. DL 05-SAD-2838 of make Hero Passion Pro which was insured with the OP vide policy                                                    no. 2312200846396900000 valid w.e.f. 07.09.2014 to 06.09.2015 for the total IDV of Rs. 27,312/- on payment of premium of Rs. 924/- paid by the complainant to the OP. The said motorcycle of the complainant got stolen by unknown persons from service road Maharana Pratap Bagh, Yamuna Vihar Between 6 PM to 7:20 PM on 24.05.2015 about which the complainant immediately lodged police complaint vide FIR no. 002595 with PS E-Police station, Distt Crime Branch, Delhi under section 379 IPC on 25.05.2015 and informed the OP as well. The OP, after receipt of information of theft registered the claim of the complainant vide claim no. C230015022566 dated 25.05.2015 and appointed M/s A.A Insurance Service as investigator in the matter to whom the complainant submitted all the requisite documents regarding the said motorcycle and completed the formalities. Meanwhile, the said motorcycle, however could not be traced and finally untrace report was filed by the concerned Police Authority before the Hon’ble Court of Shri Sharad Gupta, ACMM, Karkardoma Courts Delhi on 27.07.2015.  Thereafter despite several follow-ups and visits by the complainant to OP to pay the insurance claim regarding the theft of his motorcycle, OP failed to take any action regarding payment of claim and vide repudiation letter dated 08.09.2015, the OP rejected the claim of the complainant as “no claim” on grounds of violation of policy condition no.4 pertaining to insured taking reasonable steps to save guard the vehicle from loss or damage and not to leave it unattended without proper precautions with respect to the loss of original keys by the complainant and no reasonable steps taken to save guard the vehicle from theft by way of misuse of missing key and not changing the lock set as per manufactured specification. The complainant sent a legal notice to the OP on 26.09.2015 demanding the insurance claim of Rs. 27,312/-(IDV of the said vehicle) which despite receipt by the OP, was not acted upon. Lastly the complainant was constrained to file the present complaint before this Forum praying for issuance of directions to the OP to pay a sum of Rs. 27,312/- as insurance claim of the vehicle to the complainant alongwith interest @ 24% from the date of theft of vehicle till realization, Rs. 50,000/- towards harassment, tension and mental agony undergone by the complainant at the hands of OP and Rs. 25,000/- towards cost of litigation.

The complainant has attached copy of FIR, copy of letter dated 26.05.2015 by the complainant to OP regarding intimation of theft, reminder from OP to the complainant for furnishing of requisite documents alongwith claim form, repudiation letter dated 08.09.2015 and legal notice with postal receipts dated 26.09.2015.

2. Notice was issued to the OP which entered appearance and filed written statement on 08.03.2016 in which the OP, while admitting that the complainant had purchased the policy bearing no. 2312200846396900000 for the period 07.09.2014 to 06.09.2015 from the OP,  took the preliminary objection that the claim of the complainant was repudiated because the vehicle was stolen due to the fault and negligence of the complainant himself since as per his own admission as also the report of the investigator, the complainant had lost both the keys of his vehicle and had not got the locked set changed, thereby failing to save guard the vehicle from theft by way of misuse of the missing key and had thus violated section 4 of the policy and therefore the OP was not liable to make any payment in respect of such loss caused. The OP further took the plea that the complainant failed to provide both the keys of the vehicle without any clarification to the queries asked by the OP and the OP repudiated his claim as there was gross negligence and willful misconduct on the part of the complainant since the possibility that the original key had been misused in the theft of the vehicle could not be ruled out. The OP therefore repudiated the claim of the complainant on violation of condition no.4 of the terms and conditions of the policy which stipulated that :-

“The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely a the insured’s own risk”. Since insurance is a contract made in utmost good faith and entered into on the basis of information provided by the proposer which the OP alleged in the present case was not disclosed by the complainant which was within his knowledge but gave false and incorrect information amounting to misrepresentation and fraud. The OP further submitted that the registration of the FIR and intimation of loss was done by the complainant on 25.05.2015. The OP further took the defence that as per the investigator “AA Insurance Services”, vide report dated 02.07.2015, as per the admission of the complainant himself the complainant had lost both the keys of his vehicle and had not got the lock set of the motorcycle changed as per the manufacturers specification, thereby failing to save guard the vehicle from theft by way of misuse of the missing key and therefore, OP relying on the said report urged that it is not liable to make any payment to the complainant in respect of any loss caused and therefore justified its repudiation of claim vide letter dated 08.09.2015 in view of complainant’s failure to submit both the keys of the motorcycle, admission of the complainant of having lost both the keys of the motorcycle without any clarification given to the queries of the OP thereby leading to conclusion that the key was left in the motorcycle which resulted in theft of the same. Therefore OP prayed for dismissal of the present complaint on the said ground.

3. Rejoinder to the written statement was filed by the complainant in rebuttal to the defence taken by the OP in which the complainant stated that the complainant never admitted that the keys were lost and it is mere assumption of the OP that the keys were misused in the theft of the vehicle as police in its final report neither mentioned any negligence on the part of the complainant nor mentioned misuse of any key and further submitted that there was no negligence on the part of the complainant in taking all safety measure.
4. Evidence by way of affidavit was filed by the complainant exhibiting the copy of insurance policy, copy of FIR, copy of untrace report, copy of application from complainant to OP dated 26.05.2015, copy of reminder and repudiation letter dated 08.09.2015 from OP to complainant and copy of legal notice alongwith postal receipts.
5. Evidence by way of affidavit was filed by the OP exhibiting terms and conditions of the Two Wheeler Package Policy, investigator report dated 02.07.2015, zerox copy of keys submitted by the complainant to OP and also filed evidence by way of affidavit of the investigator namely Aseem Rohatgi who was deputed by the OP to carry out investigation of loss which occurred on 24.05.2015 with respect to the complainant’s vehicle bearing no. DL-05-SAD-2838 and who had prepared his investigation report dated 27.08.2015 for the OP.
6. Written arguments were filed by both the parties. The written arguments filed by the complainant were amalgamation of his complaint, rejoinder and evidence by way of affidavit narrating his grievance against the OP. The complainant argued that in his application dated 26.05.2015 to the OP exhibited as CW1/4 in evidence by way of affidavit, the complainant clearly mentioned that both the keys were already broken and the complainant never claimed that the keys were lost and the OP never responded to this fact in its written statement and the complainant never conceal any material facts from this Forum and provided all necessary information and documents to the OP.

In the written arguments filed by the OP, the OP reiterated its defence of justification of repudiation dated 08.09.2015 in the light of fault of theft of vehicle due to fault and negligence of the complainant who failed to safeguard his vehicle by way of misuse of missing key, both of which he had lost and had not got the lock set of the motorcycle changed. The OP further argued that one duplicate key was of ignition and the other one of the petrol tank and non submission of both keys without clarification to the queries of the surveyor can rightly lead to an inference be drawn that the second key was left in the vehicle or the lost key had been used in theft of the vehicle. The OP further argued that the complainant admitted that both the keys of the vehicle had been lost and failed to give any clarification as to what reasonable steps were taken by him to ensure that the lost keys would not be misused in the theft of the vehicle. Therefore, owing to gross negligence and willful misconduct on the part of the complainant leading to theft of the vehicle in question, the same amounted to violation of condition no.4 of the T&C of the policy and therefore prayed for dismissal of the complaint on grounds that the OP is not liable to make any payment to the complainant towards the claim sought in the present complaint. The OP placed reliance on the judgment passed by Hon’ble NCDRC in New India Assurance Co. Ltd Vs Ajeet Kumar passed in RP no. 1896/2008 on 4^th September 2013 in which case at the time of registering the FIR, the driver had stated that he had left the keys within the said vehicle when it was stolen by some unknown person which stand was later contradicted by the complainant by stating before the investigator that he had taken the ignition key with him and the duplicate key was in a briefcase inside the car and therefore the Hon’ble NCDRC had held that leaving the vehicle unattended and unlocked amounted to violation of terms and conditions of the policy and no compensation was payable. The OP further placed reliance on judgment passed by Hon’ble NCDRC in Arjunlal Jatt Vs HDFC Ergo General Insurance Co. Ltd in RP no. 3182/14 passed on 28.08.2014 in which case the driver of the truck had left the truck unattended with the key of the truck in ignition when it was stolen and therefore the Hon’ble NCDRC adheld that the theft had taken place solely on account of the driver, employed by the insured, the insurance company cannot be made liable for such a negligent act on the part of the driver.

7. We have heard the arguments forwarded by both the parties and have carefully perused the documentary evidence placed on record by both and the judgments relied upon by the OP in its defence. At the final stage of the case, the OP had offered the settlement amount of Rs. 27,315/- to the complainant towards the IDV of the said vehicle on non-standard basis, however the same was not acceptable to the complainant in view of a belated offer of settlement after three years of litigation.

It is not in dispute that the subject two wheeler package policy with respect to the subject motorcycle was taken by the complainant from the OP and was in operation when the motorcycle was stolen. The OP has admitted to immediate action of the complainant in terms of intimation of the theft to the OP as well as lodging of the FIR. The dispute is that of both the missing keys of the motorcycle which the OP has alleged were “lost” by the complainant as admitted by the complainant to its surveyor. However on perusal of hand written letter dated 26.05.2015 written by the complainant to the OP, the complainant had intimated the OP that out of the two original keys which he had received at the time of the purchase of the said motorcycle, one key got broken almost two years back and the other key also got broken four months before the theft at a petrol pump near Bhajanpura and he had got a duplicate key made and has been using the same and is submitting the same key, key of petrol tank, original RC, cancelled cheque, photocopy of passbook, Id proof, FIR copy and original purchase papers of the bike to the insurance company. On perusal of surveyor report dated 02.07.2015 filed by OP as exhibit E2 alongwith its evidence by way of affidavit, the surveyor had concluded that “theft seems to be genuine but final decision should be taken by the insurer and had stated in his findings that the complainant had reverted to the aspect of two different keys that his both original keys were lost so he arranged a duplicate key and the other one belongs to petrol tank which the OP is relying upon to justify the repudiation of claim.

The two judgments of Hon’ble NCDRC relied upon by the OP are squarely on the glaring and gross negligence of the drivers of the vehicle in leaving the ignition key in the vehicle and leaving the vehicle in such a precarious state unattended for which reason the claims were repudiated by the insurance companies and rightly upheld by the Hon’ble NCDRC.However the facts in the present case are distinguishable from the cases relied upon by the OP in as much as in the first instance itself, the complainant had duly intimated the OP on 26.05.2015 of the factum of theft of the motorcycle and the fact that both the original keys were already broken much before the date of theft and had never admitted to have “lost” them. The Hon’ble Apex Court in National Insurance Co. Ltd Vs Nitin Khandelwal observed that “in the case of theft of vehicle, breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insured. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim of loss of vehicle due to theft”. The Hon’ble NCDRC in the latest of New India Assurance Co.Ltd Vs Praveen Krushna Takari I (2018) CPJ 80 (NC) had observed that the stand of the insurance company that “reasonable care” should have been taken by the complainant is being construed to the advantage of the insurance company as has not been specifically defined in the policy for the insurance company to repudiate the whole claim on the basis of “proper precautions”. The Hon’ble NCDRC, therefore in the present case keeping the view the afore sited judgment in NIC Vs Nitin Khandelwal was of the considered opinion that the claim deserved to the allowed on non standard basis as there was no fundamental breach of any of the conditions stipulated in the contract.

8. Therefore, relying on the observation of the Hon’ble Apex Court and NCDRC in the aforementioned judgments and the facts of the present case, we opinel that the claim of the complainant was genuine and so was the factum of the theft and the loss of keys and the repudiation of his claim by OP was wrongful and unjustified. We therefore direct the OP to pay a sum of Rs. 27,312/- as insurance claim of the vehicle / IDV of the vehicle alongwith interest @ 9% from the date of the filing of the complaint till realization to the complainant. We also direct the OP to pay a sum of Rs. 10,000/- to the complainant towards harassment, tension and mental agony undergone by the complainant and Rs. 5,000/- towards cost of litigation. Let the order be complied within 30 days of receipt of copy of this order by the OP          
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 30.05.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member