Punjab

Ludhiana

CC/19/359

M/s Marshall Machines Limited - Complainant(s)

Versus

Iffco Tokio General Insurance Co.Ltd - Opp.Party(s)

Ankur Ghai Adv.

21 Jul 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 359 dated 24.07.2019.                                                        Date of decision: 21.07.2022.

 

M/s. Marshall Machines Limited, C-86, Phase-V, Focal Point, Ludhiana through its authorized representative Sh. Surinder Kumar                                                                                                                        ..…Complainant 

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1. IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED Iffco Sadan, C-1, District Centre, Saket, New Delhi-110017, through its General Manager.  
2. IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED, IFFCO Bhawan, Plot No.2, Sector 28-A, Third Floor, Madhya Marg, Chandigarh through General Manager.
3. IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED, 1^st and 2^nd Floor Sohan Singh Complex, Ishmeet Singh Chowk, Shashtri Nagar, Model Town, Ludhiana through General Manager.                                                                                              …..Opposite parties 

Complaint under Section 12 & 14 of the Consumer Protection    Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Ankur Ghai, Advocate.

For OPs                         :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Briefly stated, the case of the complainant is that the complainant company is the registered owner of Maruti Dezire VDI car bearing registration No.PB91-A-4859. On 05.09.2018, the vehicle was being driven by Baljit Singh son of Major Singh, the driver of the complainant company. After dropping a director of the company at IGI Airport Terminal 3, Baljit Singh was supposed to come back to Ludhiana. However, the said driver reported the theft of the car and in this regard, an FIR No.031446 dated 06.09.2018 was got registered with Police Station Samaipur Badli, Rohini, under Section 37h9 IPC. In the FIR, the driver Baljit Singh disclosed that after dropping the director of the complainant company at airport, he was driving the vehicle back to Ludhiana. On reaching bypass, he picked up two passengers for Sindhu border. When they reached near Upper GTK Road Gurudwara, he stopped the vehicle and got down to answer the call of nature but in the meantime, the said two passengers took away the vehicle towards Alipur. The original documents of the car and the mobile of the driver were also left in the car itself. The complainant company lodged the claim regarding theft of the car with the OPs who appointed M/s. Vikas Kumar and Associates to assess the loss. However, the OPs rejected the claim on the ground of violation of condition No.5 of the policy. This amounts to deficiency of service on the part of the OPs. The complainant company got served a legal notice dated 24.06.2019 but despite that the claim was not paid. Hence the complaint whereby it has been requested that the OPs be directed to pay the claim qua IDV value of the car to the tune of Rs.7,06,751/- along with compensation and damages of Rs.50,000/-.

2.                The complaint has been resisted by the OPs. In the joint written statement filed on behalf of the OPs, it has been, inter alia, pleaded that the claim was firstly reported on 15.09.2018 which was registered vide claim No.37649942. The complainant company was further informed that the claim was lodged after a delay of 9 days which constitutes violation of condition No.1 and 8 of the policy and, therefore, the claim was not admissible. After the receipt of the report of the investigator dated 23.10.2018, it was found that the present case was a case of gross negligence on the part of the driver of the complainant company who left the car unlocked/unattended in start condition with its original key inside and this constitutes violation of condition No.4 of the policy. As a result, the claim has been treated as no claim and intimation in this regard was given to the complainant company vide letter dated 30.11.2018. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

3.                In evidence, Sh. Surinder Kumar, authorized representative of the complainant company submitted his affidavit as Ex. CA along with documents Ex- C1 to Ex- C18 and closed the evidence.

4.                On the other hand, learned counsel for the OPs tendered affidavit Ex. RA of Sh. Sameer Gupta, Vice President of the OPs along with documents Ex. R1 to Ex. R9 and closed the evidence.

5.                We have heard the arguments advanced by the counsel for the parties and have also gone through records.

6.                During the course of arguments, the counsel for the complainant has argued that the OPs have wrongly rejected the claim. According to the counsel for the complainant, the complainant company cannot be held responsible for any error or negligence on the part of its driver. In this regard, the counsel for the complainant has relied upon 1978 AIR (Andhra Pradesh) 310 in Machiraju Vishalakshi and others Vs The Treasurer, Council of India Mission of the Luthern Church in American Guntur-2 and others whereby it has been held by the Hon’ble Andhra Pradesh High Court the master could not be held liable for the wrongful act done by the driver which was not part of the duty entrusted to him.  The counsel for the complainant has further relied upon 2011 (1) CLT 517 in National Insurance Company Ltd. Vs Kamal Singhal whereby it has been held by the Hon‘ble National Consumer Disputes Redressal Commission, New Delhi that even if the driver of the car left the key inside while getting down to answer nature’s call, the claim should not be rejected but it should have been settled on non-standard basis.

7.                On the other hand, the counsel for the OPs has argued that the claim has been rightly repudiated as there has been violation of the terms and conditions of the policy on the part of the company and its driver who firstly wrongly allowed two passengers to travel in the car and later on went to attend call of nature leaving the keys of the car in the ignition and taking the advantage of this, the said two passengers fled away with the car. Thus, it was a case of gross negligence on the part of the driver of the car. The driver is nothing but an agent of the complainant company and the company is bound by his acts and conduct. The counsel for the OPs has relied upon 2017(3) CLT 151 in The Sr. Divisional Manager Vs Smt. Sheeba Jaiman whereby it has been held by the Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi that if the vehicle was left unattended by the complainant’s friend who left the key inside the car and this had helped the miscreants in getting away with car. It was further held that the friend of the complainant failed to take proper care and steps to safeguard the vehicle from miscreants and theft took place due to his negligence and, therefore, the claim was held to be rightly repudiated by the insurance company.  The counsel for the OPs has further relied upon 2017(2) CLT 533 in Bachhu Singh Vs National Insurance Company Ltd. and others whereby it has also been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the insured left the key of the vehicle in the ignition unattended, this is nothing but an open invitation to commit theft of the vehicle and it cannot be disputed that the insured failed to take adequate steps to safeguard the insured property against its loss and thereby contravented a mandatory term of insurance policy relieving the insurer of all its obligations to reimburse him in terms of the insurance policy.

8.                We have thoughtfully considered the above contentions raised by the counsel for the parties and have also carefully gone through the record.

9.                In this case, the alleged theft of the car had taken place on 05.09.2018. The report with regard got the loss of the car was promptly lodged on the very next day i.e. 06.09.2018 vide FIR Ex. C7. Even though, there is no delay in lodging the FIR reported to the police regarding the theft of the car the OPs have claimed that the intimation to the OPs regarding the theft of the car was given on 15.09.2018 and there is a delay of 9 days  which constitutes violation of terms and conditions of the policy. However, in this regard, it is pertinent to mention that if the report regarding theft was promptly lodged with the police, the delay of 9 days in giving the information to the insurance company cannot be treated as fatal. In this regard, a reference can be made to te law laid down in Gurshinder Singh Vs Shriram General Insurance Co. Ltd. and another  in Civil Appeal No.653 of 2020 decided on 24.01.2020  whereby  it has been held by the Hon’ble Supreme Court of India that mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of duty to co-operate with the insured. It has further been held that the object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. It has been further held in this very case that in a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. It was further held that after the registration of an FIR, if the police successfully recovered the vehicle and returned the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. Therefore, the delay cannot be treated to be a serious lapse on the part of the insured if he has already informed the police about the theft.

10.              Secondly, the claim seems to have been repudiated on the ground of negligence in as much as there was an acute negligence on the part of the driver of the car in not only unnecessarily allowing two strangers to travel in the car and later on, he went to attend the call of nature leaving the keys of the car in the ignition itself with the result that the said stranger passengers drove away the car towards Alipur, not to be found later on. No doubt in this regard, the counsel for the OPs has relied upon Bachhu Singh Vs National Insurance Company Ltd. (Supra) whereby it has been held that if the insured has failed to take adequate steps to safeguard the vehicle from loss, this constituted contravention of mandatory terms of the policy and, therefore, the claim has been rightly rejected. However, the counsel for the complainant has relied upon Machiraju Vishalakshi and others Vs The Treasurer, Council of India Mission of the Luthern Church in American Guntur-2 and others (Supra) whereby it has been held that the master cannot be held liable for the wrongful ac done by the driver which was not part of duty entrusted to him. In this case also, the driver of the car was supposed to bring back the car to Ludhiana. After dropping the director of the company at the IGI Airport, he was not supposed to allow any passengers or strangers to travel in the car and was further supposed to take utmost care and caution and should not have left the keys in the car with stranger passengers still sitting in it. In this regard, a further reference can also be made to the law laid down in 2017 (1) C.P.R. 430 in Shriram General Insurance Co. Ltd. Vs Ramcharan Dhobi whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that as per IRDA Circular dated 20.09.2011 no genuine claim should be rejected on technical ground of delay. It was further held that as per the circular genuine cases should not be rejected even though there is some violation complying with the terms and conditions of the policy conditions and interest of justice would be served if insurance claim is allowed on non standard basis. The counsel for the complainant has also relied upon National Insurance Company Ltd. Vs Kamal Singhal (Supra) wherein in the similar situation the driver on its journey picked up three persons who eventually took away the car when the driver went for nature’s call. The claim was repudiated on the grounds of breach of policy that the reasonable care was not taken. It was further held that in the given circumstances, the claim should be settled down on non-standard basis.

11.              Taking into consideration the law laid down in the afore cited cases, we are of the considered view that the complainant company cannot be held entirely liable for some wrongful act of negligence committed by its driver and even if there has been negligence on the part of the complainant company or its driver, the claim should not be rejected in toto. In our considered view, it would be just and proper if the OPs are directed to settle the claim on non-standard basis by paying 70% of IDV value of the vehicle as held in National Insurance Company Ltd. Vs Kamal Singhal (Supra).

12.              As a result of above discussion, the complaint is partly allowed with direction to OPs to settle the claim on non standard bass to the extent of 70% of the insured value of the vehicle. The amount of the claim shall be paid to the complainant within 30 days from the date of receipt of copy of the order. Keeping in view the peculiar circumstances of the case, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:21.07.2022.

Gobind Ram.

M/s. Marshall Machines Limited Vs Iffco Tokio GIC               CC/19/359 

Present:       Sh. Ankur Ghai, Advocate for complainant.

                   Sh. Vyom Bansal, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to OPs to settle the claim on non standard bass to the extent of 70% of the insured value of the vehicle. The amount of the claim shall be paid to the complainant within 30 days from the date of receipt of copy of the order. Keeping in view the peculiar circumstances of the case, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:21.07.2022.

Gobind Ram.