DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.116/2011
Sh. Deepak Wassan
Y-141, Regency Park-II,
DLF Phase-IV, Gurgaon,
Haryana ….Complainant
Versus
IFFCO-Tokio General Insurance Company Ltd.
Regd. Office at:
IFFCO Sadan, C-1 District Centre,
Saket, New Delhi-110017 ….Opposite Party
Date of Institution : 13.04.11 Date of Order : 22.03.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
The Complainant’s case, in brief, is that he was the owner of a Toyota Innova vehicle bearing registration No.HR26Z8251 which was insured with the OP for the period 14.07.08 to 13.07.09 vide policy No. 39361946; that the vehicle was stolen on the night of 22.03.09 when the driver was going driving the vehicle to Delhi Domestic Airport to pick up the complainant and his family who were returning home Kolkatta; that near the flyover of the Palam around 9.20-9.30 p.m. the vehicle of the complainant was managed to be intercepted by 3 men who entered the vehicle and quickly overpowered the driver and made him lie down on the floor between the front two seats of the vehicle; that the vehicle was thereafter driven for about 35-40 minutes after which the driver was dropped off to a deserted place in Dwarka and the vehicle was driven off; that the driver thereafter was spotted by ASI, Uttam Chand of Dwarka Police Station and DD No.2 dated 22.03.09 was recorded in this respect; that the driven was taken to Dwarka, Sector-23 police station where the driver narrated the entire incident with the objective of lodging a complaint in respect therewith; that the driver was however taken to Delhi Cantonment Police Station where the narration given by the driver was materially changed and a slant word added which appeared directed at helping the insurance agency evade the claim that would follow on the basis of armed robbery of the vehicle; that the slant added was that the driver had got down to relieve himself leaving the key in the ignition. The FIR was registered with the PS, Delhi Cantonment. It is stated as follows:-
“That the narration had been changed at the Delhi Cantonment police station with the insertion of the slant that the theft took place while the driver had got down to relieve himself while leaving the key in the ignition is confirmed by the fact that the one Mr. Tilak Raj Mongia, who was the SHO of Dwarka police station at the time when the incident took place, on being apprised by the complainant and his wife of the wrong FIR recorded at the Delhi Cantonment police station and having confirmation of the entire incident as conveyed to him by his subordinates at Dwarka police station, personally met Mr. Samir of the insurance company (respondent) around the last week of December 2009/first week of January 2010 and apprised him of the correct version of events as stated by the driver at first instance at Dwarka police station.
According to the complainant, the OP rejected the claim of the complainant on 07.07.09 relying on that portion of the FIR which stated that the driver had got down to relieve himself leaving the key in the ignition for violation of condition No.5 of the policy in question which provides that “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage.” Para 7 of the complaint is relevant and the same is reproduced as hereunder:-
“7. That to respectfully reiterate, the present matter, at the first and foremost instance, cannot, under the law applicable, be said to be covered under condition number five as there is no personal breach on part of the complainant and/or as the driver was under a mandate, through the complainant or otherwise under the law, not to leave the vehicle unattended with the key in the ignition and/or as the main purpose of the insurance policy, which is to provide protection and cover in cases of unfortunate incidents such as the present one, cannot be allowed to be an defeated by isolated provisions which seek to crucify the insured for deeds and events beyond the control of the insured and regarding which the insured cannot be said to be in personal fault or breach. As such, the entire claim amount needed to be granted by the insurance company forthwith.”
It is stated that the claim of the complainant was again rejected by the OP vide letter dated 19.08.09. Hence, pleading negligent on the part of the OP, the complainant has filed the present complaint for issuing the following directions:-
“(a) direct the respondent to grant the full value of the claim with rate of interest @ 24% per annum running from July 7, 2009, the date when the respondent wrongfully refused the claim of the complainant;
(b) direct the respondent to pay an amount of Rs.3,50,000 (Three Lakhs Fifty Thousand) as compensation to the Complainant for the harassment, mental agony and expenses incurred in the course of pursuing his rights to collect his rightful claim from the respondent;
(c) direct and impose, given that proper operation of insurance structure is a vital part of social welfare policy and structure, exemplary costs on the respondent of a minimum amount of Rs.5,00,000/- (Five Lakhs) to be paid by the respondent to any well known charity trust or organization directed by this Hon’ble Forum for such purpose as deterrent against such blatantly unlawful conduct as displayed in the present matter.”
OP in the written statement has inter-alia stated that the Complainant had obtained a private car policy bearing No.39361946 for a Toyota Innova car bearing registration No.HR26Z8251 for the period 14.07.08 to 13.07.09 and a claim was lodged with the OP by the Complainant for the stolen vehicle on the night of 22.03.09 from near Palam flyover when his driver had left the vehicle unattended with its ignition key in the vehicle; that the claim of the complainant was promptly processed by the OP and the investigator was appointed for verifying the facts pertaining to the theft; that the investigator in his report stated that the key of the insured vehicle was left in the ignition switch and the vehicle was left in drivable condition which had directly contributed to the theft of the vehicle; that the driver being grossly negligent in leaving the vehicle in a drivable condition had failed to take minimum reasonable safeguard of his vehicle from loss in violation of the condition No.5 of the policy which read as under:-
“5 The insured shall take all responsible 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 insured or any part thereof or any driver or employee of the insured. In the event of 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 vehicle insured be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”
Thereafter, vide letter dated 07.07.09 the claim of the Complainant was repudiated for breach of policy terms and conditions clearly mentioned therein that perusal of the documents on the record revealed that the vehicle was left unattended and the same got stolen while the original key was inside the ignition lock. It is stated that the Complainant has again wrote a letter dated 28.07.09 for reconsideration of the claim and after re-examining the documents on the record as well as investigator’s report the OP vide letter dated 19.08.09 reiterated that liability could not be admitted in the light of the terms and conditions of the policy. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder to the written statement of OP.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Rajeev Chaudhary, Vice-President has been filed in evidence on behalf of the OP.
We have heard the oral arguments on behalf of the parties and have also gone through the file very carefully.
Questions to be decided in the present complaint are two- fold viz. (i) whether the negligence of the driver of the vehicle in question in attending the vehicle is not binding on the complainant in whose name the vehicle in question was insured at that time and (ii) whether clause 5 of the terms and conditions of the policy in question is applicable to the facts of the present complaint.
The Complainant has relied on the following five judgments rendered by the Hon’ble National Commission:-
- Sukhwinder Singh Vs. Cholamandalam-MS Gen. Insurance Co. Ltd. MANU/CF/0572/2013.
- New India Assurance Company Ltd. Vs. Girish Gupta MANU/CF/0447/2014.
- Reliance General Insurance Co. Ltd. Vs. Sharwan Chhajer and Ors. MANU/CF/0127/2016
- Future Generali India Insurance Co. Ltd. Vs. Anshita Chaudhary MANU/CF/0555/2016
- Iffco Tokio General Insurance Co. Ltd. Vs. Krishna Kumar & Ors. MANU/CF/0824/2017
On the other hand, OP has relied on a judgment reported as TATA AIG General Insurance Co. Ltd. Vs. Nikhil Seth MANU/CF/0780/2015
We have very carefully gone through the copies of these judgments. The Complainant has not cited any case law on the point that he cannot be made to suffer because of the negligence of his driver. Even otherwise, the driver was employed by the complainant for driving his car. Therefore, the driver was the person authorized to drive the car on behalf of the complainant. Hence, any deed of omission/commission committed by the driver would be binding on the complainant in the absence of any other stipulation to the contrary. Therefore, we reject the contention of the complainant that the act of negligence, if any, committed by his driver was/is not binding upon him.
Condition No.4 (and not 5) of the policy in the present case is in pari- materia with condition No.4 or condition No.5 of the insurance policies which were the subject matter of the cases citied on behalf of the parties. From reading of the judgments it becomes crystal clear that the insured is required to take reasonable steps for protection of the insured vehicle from any loss or damage. However, leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The facts of the five cases relied on behalf of the complainant are different from the facts of the present case. Moreover, in Nikhil Seth’s case (supra) the decision in Sukhwinder Singh (supra) has been discussed and it is held that the view taken in Sukhwinder Singh (supra) cannot be laid down as a thumb rule. Therefore, leaving the key in the ignition of the car while the car remained unattended does not always amount to negligence on the part of the insured or his/her driver. In case such an act has been done in an emergency, leaving the ignition key in the car may not amount to negligence on the part of the insured/his driver. If someone wants to urinate to relieve pressure, this may be a case of an emergency. Keeping in view of the law laid down in these authorities we now revert to the facts of the present case.
To our horror and dismay, the complainant has unsuccessfully tried to build a castle on the sea sand which he must know was likely to collapse under all circumstances. As per averments made in the complaint, when his driver had reached near the flyover of Palam at about 9.20-9.30 p.m. the vehicle of the complainant was managed to be intercepted by 3 men who entered the vehicle and quickly overpowered the driver and made him lie down on the floor between the front two seats of the vehicle and that the vehicle was thereafter driven for about 35-40 minutes after which the driver was dropped off to a deserted place in Dwarka and the vehicle was driven off. He has gone to the extent of saying that a slant word was added in police station Delhi Cantonment while recording the FIR with a view to help the insurance agency to evade the claim that would follow on the basis of armed robbery of the vehicle and that the slant added was that the driver had got down to relieve himself leaving the key in the ignition. The statement of the driver of the vehicle in question must have been recorded by the police official during the investigation of the FIR. Therefore, the driver was the best person to depose the fact regarding the incident. The car had been stolen or robbed from him. The copy of the DD No.2 dated 23.03.09 recorded at Sector 16B, Dwarka has been filed on the record as Annexure C-2 which describes that the car had been taken away from the driver by some boys.
Mr. Tilak Raj Mongia, SHO PS Dwarka who according to the complainant had told all the true facts to Mr. Samir of the OP during the last week of December 2009/first week of January 2010 had become an important witness. However, the complainant has not preferred to examine him as a witness before this Forum. After all a police official of the rank of SHO must be a very responsible person. Had the true facts been otherwise, the complainant would have requested him to send a written letter to the OP or to higher police officers in this regard.
Copy of the FIR is Annexure C-3 in which it is stated that the driver had parked the vehicle in question on the road side near the Domestic Airport Flyover and had gone to urinate and left the key in the car and that when he was coming back after relieving himself he saw that 3 boys had opened the door, boarded the car and ran away by taking the car. The copy of the report under section 173 Cr. PC has been filed which does not state any fact as described by the complainant in the complaint. There is no material or evidence on the record which may even suggest that during the course of investigation the complainant had tried to bring the true facts to the notice of the investigating agency or he had made some type of complaint against the concerned police officer of PS Delhi Cantt. at the relevant time against his/her conduct in recording false facts in the FIR. We have not been able to understand as to why the necessity for moulding the facts against the record had arisen to the complainant and what prompted him to introduce false facts in the complaint. If the version made in the complaint is accepted, then it would not become a simple case of theft but would become a case of robbery under section 392 IPC.
However, at the same time the OP has simply repudiated the claim of the complainant on the ground that the insurance company had observed that the vehicle was left unattended and the same was stolen while its original key was inside the ignition of the vehicle and hence the complainant committed violation of condition No.5 of the policy. Had the facts regarding robbery of the car been brought to the notice of the OP, the OP would have an opportunity to deal with the same.
The OP has filed a copy of a letter dated 27.03.09 written by the complainant to the OP on the record as Ex. R-2 which is not marked exhibit no. in the affidavit of the OP’s witness. We also mark the same as Mark BB. In the said letter the complainant had himself mentioned that on his return to his residence he was told by a friend of his driver Baljeet that the car had been stolen from near the Palam Flyover Domestic Airport; that in the morning around 10:00 AM they reached Delhi Cantt. PS and an FIR was lodged on March 23, 2009 FIR No.73; that one key and original RC and insurance documents were stolen with the vehicle. The Complainant did not state the facts now mentioned in the complaint in the said letter dated 27.03.09 written to the OP.
The FIR was infact registered on the statement of driver of the car. The copy of the FIR is Annexure C-3. The copy of the policy containing the terms and conditions is Ex. R-1. Condition No.4 (not 5) has already been reproduced hereinabove. Therefore, it is condition No.4 and not condition No.5 under which the claim of the complainant had been revoked by the OP. Copy of the repudiation letter dated 07.07.09 is Annexure C-5 from a perusal of which it transpires that the OP had observed that the vehicle was left unattended and the same was stolen while its original key was inside the ignition switch of the vehicle and hence there was violation of condition No.5 of the policy. In response to the repudiation letter the complainant wrote a letter dated 28.07.09 to the AVP, Claims of the OP wherein he had tried to interpret the condition No.5 in his own words and manner. This letter was written without prejudice. In response to the said letter the OP sent a reply dated 19.08.09 copy of which is Annexure C-7.
Complainant himself was not the person from whose possession the car had been stolen/robbed. It was his driver Baljeet Singh from whose possession the car was stolen /robbed. Therefore, the complainant’s evidence is hearsay evidence. Hence, in the special facts and circumstances of the present case we are of the considered opinion that the examination of the driver Baljeet Singh and of Sh. Tilak Raj Mongia, the then SHO, PS Dwarka was necessary. It was the driver who was the best person to depose the true facts. However, the complainant has not examined these two witnesses. Therefore, in our considered opinion, the claim of the complainant is not free from doubts and suspicions and, hence, the same is liable to be discarded. In our considered opinion, the repudiation of the claim of complainant by the OP was justified and, hence, we hold that the complainant has failed to prove any deficiency in service on the part of OP.
In view of the above discussion, we do not find any merit in the complaint and accordingly we dismiss it with no order as to cost.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 22.03.2018.
