Delhi

North West

CC/1152/2015

BHUPINDER SINGH ANAND - Complainant(s)

Versus

ICICI LOMBORD GENERAL INSURANCE CO.LTD. - Opp.Party(s)

09 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST

GOVT. OF NCT OF DELHI

CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.

 

CC No: 1152/2015

D.No.______________________                     Dated:________________  

IN THE MATTER OF:

 

BHUPINDER SINGH ANAND,

R/o K-31, JANGPURA EXTENSION,

NEW DELHI-110041.                … COMPLAINANT

 

Versus

 

 

ICICI LOMBARD GENERAL INS. CO. LTD.,

315, 3^rd FLOOR, AGGARWAL CITY MALL,

PLOT No. 4, ROAD No. 14, PITAM PURA,

NEW DELHI-110034.

 

ALSO AT: -ICICI LOMBARD GENERAL INS. CO. LTD.,

ICICI LOMBARD HOUSE, 414,

VEER SAVARKAR MARG,

NEAR SIDDHI VINAYAK TEMPLE PRABHADEVI,

MUMBAI-400025 (MAHARASHTRA).                          … OPPOSITE PARTY

 

 

 

CORAM :SH. M.K. GUPTA, PRESIDENT

                SH. BARIQ AHMED, MEMBER

      MS. USHA KHANNA, MEMBER

 

         

                                                  Date of decision:09.11.2017

 

SH. M.K. GUPTA, PRESIDENT

ORDER

1.       Complainant has filed the present complaint against the OP under section 11 & 13 of the Consumer Protection Act, 1986 therebyalleging that the complainant is the owner of the vehicle i.e. Honda City Car bearing Registration No. DL-3C-BA-5856 which was

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          purchased in 2010 and the vehicle was insured by the OP vide policy no. 3001/73114876/01/00 for the period from 25.08.2013 to 24.08.2014. On 12.08.2014 at about 8: 00 A.M., the complainant gave the keys of the car to the car washing boy as a regular routine to wash the car, after an hour at around 9: 00 A.M. the complainant came out and was shocked to see that the car was not parked at the position it was parked earlier in the morning and saw that the cleaner of the car was running behind the vehicle as somebody stole the vehicle from front of the house and the complainant immediately without any delay called the police and FIR was lodged with police on the same day having no. 440/2014 P.S. Hazrat Nizamuddin on 12.08.2014 under Section 379 IPC and the complainant immediately informed OP and applied for the claim on 12.08.2014 under claim no. MOT03988148. Pursuant to the acknowledgement of the claim from the complainant, OP issued a letter dated 12.08.2014 regarding submission of required documents and the complainant submitted all such documents alongwith duly filled claim form on 16.08.2014 and assisted OP fully with the claim procedure and OP appointed a surveyor regarding the claim of the complainant and no such major objections were raised by the surveyor at the time of the inspection and the complainant was assured that insurance claim will be

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          allowed if the complainant would act as per the instruction of OP and the complainant performed all those procedure as told by OP. The complainant’s vehicle could not be traced and an untrace report was filed by the police officials of P.S. Hazrat Nizamuddin on 30.09.2014. Thereafter the complainant provided the said documents to OP and the complainant was waiting for the honoring of the claim and nothing materialized till January-215 and OP surprisingly rejected the claim of the complainant vide a repudiation letter dated 05.02.2015 on frivolous and imaginary grounds as :

“… the insured vehicle was unlocked and key left in ignition. This grossly negligent act of leaving vehicle unlocked to theft. Sufficient car was not taken which a prudent man ought to have taken. This is in violation of terms & conditions of the insurance policy. The motor policy issued to you states-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 there of 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 precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of damage to the vehicle shall be entirely at insured’s own.

In the circumstances you are therefore, informed that the above captioned claim as made by you hereby stands as ‘No Claim…”

 

2.       The complainant further alleged that OP claimed that the complainant left the keys on ignition and left the car unlocked which was completely false and untrue as the keys of the car were

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          given to the car washing boy to clean the car and naturally the car was not on ignition at that time and it was from there that the car of the complainant was stolen and the complainant again contacted the executives of OP and asked them as to why the claim was rejected and the complainant wrote a notice on 15.04.2015 to OP for the repudiation of the claim of the stolen but no reply came from OP. The complainant further alleged that as a last resort,the complainant sent a legal notice dated 08.07.2015 where OP was required to honour the claim of the complainant but OP neither repliednor made any payment and as such there is an act of deficiency in service on the part of OP.

3.       On these allegations the complainant has filed the complaint praying for direction to the OP to pay total (IDV) of Rs.5,91,429/- alongwith interest 24% p.a. from the date of rejection of claim i.e. 05.02.2015 till the date of filing of the complaint August 2015, the total amount being Rs.6,62,400/- and further award pendent-lite and future interest as well as Rs.1,00,000/- as damages and further Rs.1,00,000/- as compensation for causing mental & physical harassment and agony suffered by the complainant. The complainant has also sought exemplary cost of the complaint alongwith Advocate’s fee of Rs.75,000/- and miscellaneous expenses of Rs.38,000/-.

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4.       OP has been contesting the case and filed written statement and submitted that the complaint of the complainant is misconceived, false and frivolous and is liable to be dismissed. OP further submitted that the insured has not taken any due precaution and care and there was carelessness on his part and the complainant failed to take reasonable care to do in keeping safe the vehicle from theft and the complainant has been grossly negligent in throwing away the insured vehicle in the hand of thieves and this act of the complainant is clear cut violation of the terms & conditions of the policy. OP further submitted that the complainant admitted on the part of the FIR that he had negligently left the key in ignition and had not bothered to take care of the same and after due investigation, OP lawfully repudiated the claim of the complainant,it was found that the insured vehicle was unlocked and key left in ignition. and there is no deficiency in service on the part of OP and the complaint is not maintainable and is liable to be dismissed. 

5.       The complainant filed rejoinder and denied the contentions of OP.

6.       In order to prove his case the complainant filed his affidavit in evidence and also filed written arguments. The complainant also placed on record copy of R.C. of the vehicle, copy of insurance policy for the period from 26.08.2013 to 25.08.2014 (mid-night), copy of FIR no. 440 dated 12.08.2014, copy of motor theft claim form, copy

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          of final form report, copy of untraced report dated 30.09.2014, copies of letters dated 12.08.2014 & 05.02.2015 sent by OP to the complainant, copy of notice dated 15.04.2015 sent by the complainant to OP and copy of legal notice dated 08.07.2015 sent by the complainant through his counsel to OP by speed post alongwith postal receipts.

7.       On the other hand on behalf of OP Sh. Vikash Goyal, Legal Manager of OP filed his affidavit in evidence which is on the basis of the written statement of OP. OP also filed copy of Motor Theft Claim Form, copy of letter dated 16.08.2014 sent by the complainant to OP, copy of FIR no. 440/2014, copy of report dated 25.08.2014 of the investigator, copy of letter dated 05.02.2015 sent by OP to the complainant and copy of insurance policy for the period from 26.08.2013 to 25.08.2014 (mid-night) alongwith private car package policy wording. OP has also filed written submissions.

8.       Ld. Counsel for complainant in support of his submissions relied on following authorities: -

i) First Appeal No. 1158/2012 in case entitled The Oriental Ins. Co. Ltd. Vs M/s Blue Moon Travels Pvt. Ltd. decided by Hon’ble State Commission, Delhi on 09.11.2016.

ii) Revision Petition No. 590 of 2014 in case entitled New India Assurances Co. Ltd. Vs Girish Gupta decided by Hon’ble National Commission, New Delhi on 31.07.2014.

iii) First Appeal No. 1110 of 2009 in case entitled Oriental Ins. Co. Ltd. Vs Badshah decided by Hon’ble State Commission Disputes Redressal Commission, Punjab on 19.12.2012.

 

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                    In the above case laws it has been held “in case of theft of vehicle breach of condition is notgermane. 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 insurer. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

 

9.       This forum has considered the case of the complainant in the light of evidence of both the parties and documents placed on record by the complainant and OP. The testimony of the complainant has remained consistent and there is nothing on record to disbelieve the case of the complainant. The investigator has observed that the car was parked outside the residence of the complainant and was being cleaned and the key was inside the car on the ignition switch and at about 9:05 AM the car was missing and the complainant immediately made a call at 100 number, PCR came to the spot within 10 minutes and search the car. It cannot be said that the complainant was negligent in keeping the vehicle in safe custody. It was natural for an owner of a vehicle to deliver the key to the person who used to come in the morning clean the vehicle. The OP has not disputed the IDV value of the vehicle as per insurance policyand the IDV value of the vehicle is Rs.5,91,429/- which is not disputed by OP. Thus, it appears that OP has unlawfully repudiated the claim of the complainant. Accordingly, we hold the OP guilty of deficiency in service.

10.     Accordingly, OP is directed as under:

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i)        To pay to the complainant an amount of Rs.5,91,429/-.

ii)       To pay to the complainant an amount of Rs.50,000/- ascompensation towards mental agony and harassment caused to the complainant.

iii)      To pay to the complainant an amount of Rs.8,000/- as litigation cost.

11.     The above amount shall be paid by the OP to the complainant within 30 days from the date of receiving of this order failing which OP shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving of this order till the date of payment. If OP fails to comply with the order within 30 days, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.

12.     Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.

Announced on this 9^th day of November, 2017.

 

 

 

 

 

BARIQ AHMED                         USHA KHANNA               M.K. GUPTA

   (MEMBER)     (MEMBER)                        (PRESIDENT)

 

 

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