Delhi

West Delhi

CC/17/592

ABDUL KADIR - Complainant(s)

Versus

IFFCO TOKIO INSURANCE - Opp.Party(s)

02 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI, C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI NEW DELHI

 

                                      COMPLAINT CASE NO. 592 OF 2017

IN THE MATTER OF

ABDUL KADIR

S/O MOHD USMAN,

R/O : RZ-27, DICHAON ENCLAVE,

NEAR D. K. DEPOT,

NAJAFGARH,

NEW DELHI-43                                                                …. COMPLAINANT

 

VERSUS

Manager

IFFCO-TOKIO GENERAL INSURANCE

COMPANY LIMITED,

22/223, NEW MOTI NAGAR,

NEAR KARAMPURA BUS TERMINAL,

NEW MOTI NAGAR,

NEW DELHI.

 

ALSO AT :

Manager

North :  IFFCO HOUSE,

3^RD FLOOR,

34, NEHRU PLACE,

NEW DELHI – 110019                                                       …..OPPOSITE PARTY

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:                DATE OF DECISION:

06.10.2017 18.01.2023 02.02.2023

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member (Female)

Mr Anil Kumar Koushal, Member (General)

Order passed by Ms Richa Jindal, Member

 

ORDER

1. That the complainant has filed a present complaint under section 12 of the Consumer Protection Act, 1986. Brief facts of the complaint are as follows:

 

1. The complainant is a permanent law-abiding citizen of India,who is the owner of the Commercial Vehicle Car MAHINDRA XYLO NO. 15 HR63C 2701.
2. On 27.12.2015,the Complainant lost/stole his XYLO car. He searches everywhere, but the vehicle was not found anywhere. Finally, the complainant wentto the police officials and register the Online FIR vide FIR No. 023984 on 28^thDec 2015.

2. After this incident,the complainant went to the opposite party’s office on the very next day for claiming his insurance amount whereinthe company Advocate namely Sonu Bhola demanded all relevant documentsabout the insurance claim of the stolen vehicle i.e. Vehicle No. HR63C 2701, the complainant provided all relevant documents asdemanded by Sh. Sonu Bhola.
3. On 25.01.2016 the complainant received the untraced report from the police officials and submitted it to the opposite party office.
4. On 01-02-2016,the complainant again received a letter from Company Advocate,wherein the opposite party demanded all valid documents related tothe stolen vehicle and the complainant again provided all documents related to the insurance claim.
5. On 05-02-2016 complainant again visited the opposite party office and met with company Advocate Sh. Sonu Bhola for enquiring about his insurance claim regardinghis commercial vehicle then Sh. Sonu Bhola said that his claim file was sent to the OP company’s Head Office.
6. Thereafter after various enquiries from the OP’s office, finally OP again met Mr Sonu Bhola who is the Advocate of the company, who demandedan R.T.O. office Application from the complainant. Accordingly, on 16.06.2016 complainant filed at Jhajjar R.T.0. Office and registered a complaint.
7. On 23.06.2016 opposite party again asked to provide the related documents of the vehicle with the request letter. The complainant again provided all relevant documents.
8. Thereafter on several occasions when the complainant kept on enquiring about his long pending claim everyone from OP misled him and kept in abeyance.
9. The complainant was not only harassedbut also deceived and kept in abeyance by the opposite party. The complainant felt very destitute from the opposite party.
10. Again on 25.11.2016 the complainant visited the Opposite party wherein he was informed that his claim file was closed for want of a duplicate key. On the same day,the complainant submitted the Duplicate Key atthe Reception of OP.
11. As a last resort, the Complainant sent a legal notice through his counsel to the Opposite Party on 19-09-09 through registered speed post AD to the office of the Opposite Party but no reply has been received by the Complainant. Hence this complaint wherein the complainant requested for following reliefs :

1) Direct the opposite party to refund the claim of Rs. 5,50,500/- along with interest of 12 % per annum to the complainant against his commercial vehicle.

ii) Direct the Opposite Party to pay compensation on account of Rs 8,00,000/- (Rs. Eight Lakh Only) because the complainant is suffering from unemployment since Dec 2015 to till now and also direct to pay legal expenses for the present case which is calculated as Rs 50,000/- (Rs Fifty Thousand Only).

iii) Direct the opposite party to pay compensation on account of mental harassment and agony of Rs. 2,00,000/-.

 

2.     After hearing the arguments on admission, a court notice was issued to OP’s returnable on 21/12/2017, accordingly OP appeared and took time to file a reply.  OP filed their reply on 14/03/2018 taking the following preliminary objection:

1. The complainant has not come up with clean hands before this forum. The complainant has not disclosed facts while filing the complaint. The present complainant has filed in respect of the theft of a vehicle which was purchased by actual second hand andthereafter the insurance was procured at an inflated. The following table would depict the actual facts as under :

Vehicle Model	2011
Complainant’s Ownership No.	Second owner – as is apparent from RC
Insured with Respondent	Year 2015
vehicle Purchased at Price	275000.00
Vehicle reported to be stolen	On 27.12.2015
Declared value	550500.00
Claim approved	246500.00- 10% deducted on non-submission of the second key

 

The details elicited herein above show how the complainant by suppressing the actual value of the vehicle got it insured at an inflated value. fact has come to light only after lodging the claim during an investigation.

 

2. The complainant while filling the claim form signed a declaration and warranted the truth of the statements whereas it has emerged that the complainant remained untruthful while pursuing the claim with the respondent. The declaration reads as under:

 

"I, We, the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statement in every respect, and I/We agree if I/WE have made, or in any further declaration the Company may require in respect, of the said accident shall make any false or fraudulent statement, or any suppression or concealment the policy shall be void and all rights to recover thereunder in respect of past or future accidents shall be forfeited."

 

3. The complainant despite reminders did not submit the second key of the vehicle whereas in case of theft of a motor vehicle, both keys of the vehicle are required to be submitted.

 

4. The complainant has admittedly not provided the one key, in probability key was left inside the ignition switch thereby committed act of gross negligence in taking care of the vehicle. The Policy does notprovide coverage in respect of acts of gross negligence. The Hon'bleNational Commission in case title Jagdish Vs ICICI Lombard decided on 14.05.2013 held as under:

“The petitioner has not been able to establish that the said vehicle was snatched forcibly.”

 

5. National Commission in Devinder Kumar vs National Insurance Company Ltd., (RPno. 3840 of decided on 02.04.2012) wherein It has beenrecorded as follows:

" There is no explanation why the complainant chose to omit these details when they had already figured specifically in the FIR.”

 

6. Non-submission of the key makes the claim non-payable at all.However, keeping the consumer-centric approach OP offered to settle the case by deducting 10% of the amount of purchased value and an excess of Rs. 1000.00 for an amount of Rs. 246500.00.

 

7. Insurance is a contract of indemnity and the principle is meant to restore the person tothe position in which he was prior to the incident. Insurance is a contract of indemnity meaning thereby putting the insured in the same position where she was prior to losing therefore no one can make a profit out of the contract of indemnity. In the present case, the Insured vehicle is at a lower value than the declared value and therefore cannot be allowed to be benefited by claiming under the policy. In case such claims are allowed then it would be against prevailing law and public policy.

 

8. The complainant has not taken reasonable steps to safeguard the vehicle from loss and has caused the breach of policy condition no. 4 which is as under:

"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 thereof or any driver or employee of the insured.

 

1. That despite repeated reminders the complainant failed to provideanother Original Key.

 

10. That the insurance policy contains condition no. 8 which reads as under:

“The due observance and fulfilmentof the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent toany liability of the Company to make any payment under this Policy.”

In view of the breach of several policy conditions, the claim of the complainant is not admissible yet the amount was offered to the complainant.

 

11. Without prejudice to the submissions made hereinabove it is submitted that in case of theft following are essential and cannot be dispensed with therefore in any case following needs to be provided

• Subrogation Letter
• Indemnity Bond
• Key of stolen Vehicle
• Intimation to RTO
• Transfer of RC in name of the Insurer in case of payment
• Original Policy.

  In view of the above submissions, this forum may be pleased to dismiss the complaint with heavy costs in favour of the answering respondents.

2. On 29/05/2018, the complainant filed a rejoinder rebutting the defence taken by the OP and as well as complainant’s evidence on the same day.Brief facts of the rejoinder are as follows:  

1. the opposite party failed to prove how the complainant was coming without clean hands before this Hon’ble Forum whereas the opposite party receive the premium of RS. 32077.84/- for the year 2015 regularly from the complainant and now the opposite party taking a plea that the complainant purchased a second-hand vehicle and showing inflated value.
2. The complainant submitted his First Key on 01.02.2016 as demanded by SONU BHOLA Advocate as in Annexure-C in the complaint and the Second key is submitted on 25.11.2016 as Annexure-F of the Complaint. So there is no mean deduction of 10 per cent of the IDV Value of the Stolen Vehicle.
3. Opposite party committed a grave error in ignoring that this is a case of theft which has no causal relationship with the user of the insured vehicle. In the present case,a complainant is an illiterate person and according tothe opposite party Letter as Annexure-C of the complaint on dated 01.02.2016 complainant submitted all documents. In this letter, not a single word is mentioned of Indemnity Bond than how the complainant makes an Indemnity Bond. Now after the passing of 3 Years opposite party demands Indemnity Bond.
4. Complainant provided all valid documents, which were demanded by the opposite party.The following documents are provided by the complainant:
9.  
217.  
5625.  
230.  
22.  
555.  
14413. 8.  
9.  
10.  
11.  
5. The complainant has filed his evidence by way of an affidavit affirming the facts alleged in the complaint on the same day. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has relied on the following documents:

1. Online F.I.R. dated: 28.12.2015
2. Police Untraced Report dated: 25.01.2016
3. All valid documents submitted to the company    Advocate (Claim Application) on 01.02.2016
4. Complaint filed at Jhajjar R.T.O. Office on   16.06.2016
5. All Valid documents again submitted by demanding to the company Advocate Request letter to the opposite party on 23.06.2016
6. Duplicate key of Vehicle handed over to the opposite party Employee namely Garima on 25.11.2016 with receiving Stamp.
7. Copy of Legal Notice with proof of service

 

5. Thereafter when the matter was adjourned for respondent evidence of OP, on 29/08/2018, Sh. Rajiv Ranjan, General Manager of OP has filed his affidavit in evidence on behalf of the respondents affirming the facts alleged in the reply &annexed policy schedule along with terms & conditions, claim form and surveyor Report dated 30/05/2016.

 

6. Both parties filed written arguments. Oral arguments were heard on 18/01/2023 and finally the order was reserved.

 

Written arguments of Complainant

 

1. It is submitted that the complaint filed by the complainant is maintainable and filed in accordance with the law sincethe opposite party receives the premium of RS. 32077.84/- for the year 2015 regularly from the complainant till the vehicle get stolen and now the opposite party taking a plea that the complainant purchased a second-hand vehicle and showing an inflated value after taking premium for three continuous years.
2. Further the Complainant submitted his First Key on 01.02.2016 as demanded by SONU BHOLA Advocate as in Annexure-C annexed with the complaint and the Second key is submitted on 25.11.2016 as Annexure-F (Page No. 25) of the Complaint. So, there is no need fora deduction of 10 per cent of the IDV Value of the Stolen Vehicle.
3. Opposite committed a grave error in ignoring that this is a case of theft which has no causal relationship with the user of the insured vehicle. In the present case,a complainant is an illiterate person and according to the opposite party Letter as Annexure-C of the complaint on dated 01.02.2016 complainant submitted all documents. In this letter, not a single word mentions Indemnity Bond then how the complainant makes an Indemnity Bond.
4. The Complainant provided all valid documents as and when demanded by the opposite party, which are as follows:

          i) Online FIR dated 28.12.2015

          ii) Police untraced Report

          iii) Intimation Letter of RTO

          iv) Original Policy

          v)Driving Licence

          vi)Badge, PAN Card & Aadhar Card

          vii)Screen Report of Lost Vehicle

 viii) First Key has given on 01.02.2016 Annexure-C of the complaint and the Second Key on 25.11.2016 Annexure-F of the complaint.

          ix) Registration Certificate

          x) Complaint Letter in Jhajjar

          xi) Legal Notice sends through advocate

 

5. The Hon'ble Supreme Court has held in judgements that the Insurance Company cannot be Rejected Mere Delay in intimating the insurer about the Vehicle Theft. The case title Om Prakash versus reliance General Insurance and ANR. (CA 15611 of 2017) is relied upon in this regard.

Written Submission on behalf of the Respondent

1. The complainant has not come up with clean hands before this hon’ble forum. The complainant has not disclosed true and actual facts while filing the complaint. The present complainant has filed in respect of the theft of a vehicle which was purchased by the Complainant second hand and thereafter insurance was procured at an inflated value.
2. The complainant while filling the claim form signed a declaration and warranted the truth of the statements whereas it has emerged that the complainant remained untruthful while pursuing the claim with the respondent.
3. The complainant despite reminders did not submit the second key of the vehicle whereas, in the case of theft of a motor vehicle, both keys of the vehicle are required to be submitted.
4. The complainant has not provided the one key, in probability key was left inside the ignition switch thereby committingan act of gross negligence in taking care of the vehicle. The Policy does not provide coverage in respect of acts of gross negligence.
5. That the complainant has not taken reasonable steps to safeguard the vehicle from loss and has caused the breach of policy condition no. 4.
6. That despite repeated reminders the complainant failed to provide the following as under:
   1. One Original Key
   2. Explanation of incident

 

7. That the insurance policy contains condition no. 8 according to whichthe claim of the complainant is not admissible yet the amount was offered to the complainant.

 

7. After going through the material placed on record, a short question arose for consideration as to whether the Complainants were entitled to the claim amount or not.

 

8. During the oral arguments complainant states that the amount of Rs.5,50,500/  the cost of the vehicle/sum insured covered under the said Policy bearing No.95187758 due to the theft/total loss of the vehicle which was stolen on 28.12.2015 for which the FIR No.023984/15 dated 28.12.2015 of the e-police station, crime branch, under Section 379 IPC has been registered and Untrace Report dated 25.1.2016 submitted by SHO e-PS MV Theft as Untraced accepted by E- court against which claim was also filed by the complainant to the OP without any delay.

 

9. During the arguments the OP placed reliance onthe variousjudgements, which are not at all relevant in the present case, since the defence taken through those judgements are not corroborated with the investigation report. According to the investigation report on record, only two defences were available i.e. only one key was provided by the complainant and secondly insurance value of the vehicle in question is highly inflated. 

 

10. During the arguments, the OP states that since the complainant had provided only one key to the investigator, OP very conveniently took the presumption that the complainant must have left the key in the ignition and placed judgement in this regard. Which is not acceptable. It is very strange that on the one hand, OP admitted the claim and on the other hand, they argued that the claim is not admissible due to breach of conditions no.4, and 8 of the insurance policy which areas follows:

Condition No.4"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 thereof or any driver or employee of the insured.

 

Condition no.8 “The due observance and fulfilmentof the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under this Policy.”

 

11. In Bharti Axa General Insurance ... vs SarvjitDhanda decided on 26 May, 2015 byNATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI in FIRST APPEAL NO. 405 OF 2014 held that “It is nowhere case of the complainant that car was stolen after starting it. The complainant submitted in the complaint that he parked his car, went inside the hotel and returned after some hours and did not find a car. Whether the car has been stolen by starting it or by lifting it, the complainant is not aware and, in such circumstances, merely because the car has been fitted with a specific advanced technology system, it cannot be presumed that the car could have been stolen only by leaving the wallet key in the car.

 

12. The main objection raised by the OP during their arguments was that the vehicle in question purchased by the complainant wasactually second hand andthereafter the insurance was procured at an inflated value.As per the averments made by the OP, this fact came to their knowledge only at the time of investigation of the theft claim filed by the complainant. Which is against the principle of uberima fides. Whereas the complainant stated that the opposite party received the premium of RS. 32,077.84/- from the year 2015 regularly from the complainant and now the opposite party taking a plea that the complainant purchased a second-hand vehicle and showing inflated value. In this regard, the OP was directed by this bench to file the proposal form but they failed to prove it in spite of various opportunities.

 

13. In our considered opinion, despite various opportunitiesgranted to the Opposite Party failed to prove on record that the complainant has manipulated the IDV of the vehicle in question. Thus, Opposite Party has no authority or right to change or to challenge the IDV of the vehicle at the time of deciding the legitimate claim of the complainant. The Opposite Party itself had fixed the IDV of the vehicle and thus has no authority to allege that the same is on the higher side. It is submitted that since the opposite party has accepted the insurance premium on the IDV of the vehicle, now the opposite party has no right to resile from the same. The Opposite Party is now malafidely trying to run away from its liability and is not clearing the claim of the complainant as per the IDV and trying to change the terms of the policy unilaterally and in utter disregard of the law and is misusing its powers and authority. The Opposite Party has no authority to allege at this stage that the IDV is fixed on the higher side by the complainant. This allegation of the Opposite Party is totally false, misconceived and against its own records.

 

14. In view of the terms and conditions of the insurance policy, the complainant is entitled to the claim of the insured declared value (IDV) of the insured car. It is submitted that the objection is an illegal attempt by the O.P. to run away from the legal liability of 0.P. qua the complainant. Complainant submitted that during the verification and investigation of the claim of the complainant, the complainant duly cooperated on each and every step. Whatever was lying in the power and possession of the complainant, the same was duly handed over by him to the officials and/or representatives of the opposite party from time to time.  It is further submitted that the complainant had already given both keysto the OP, however, the opposite party cannot take any benefit of its own wrongs by not repudiating the claim till the filing of the complaint before this commission. The complaint is maintainable and the complainant is well within his rights to get the claim as per his claim petition.

 

15. It was submitted that for an insurer to repudiate the policy it must establish suppression or misrepresentation of material facts on the part of the insured vide Oriental Insurance Co Ltd. v. Mahendra Construction ­ (2019) 18 SCC 209.

 

16. In LIC of India v. Smt. G.M. Channabasemma (1991) 1 SCC 357, it was observed that there is an obligation upon the assured to disclose all material facts which may be relevant to the insurer but after issuing a policy, the burden of proving that the insured had made false representations and suppressed material facts is on the insurer.

 

17. MacGillivray on Insurance Law (9th Ed., Sweet and Maxwell London, 1997 at p. 280) deals with the rule of Contra Proferentem as under :

“The contra proferentem Rule of construction arises only where there is a wording employed by those drafting the Clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. 'One must not use the Rule to create the ambiguity ­ one must find the ambiguity first.' The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances.”

 

18. Colinvaux’s Law of Insurance (6th Ed., 1990 at p. 42) has elucidated on the said rule in the following words:

“Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean. In such cases, the Rule is that the policy, being drafted in the language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentem, against those who offer it. In a doubtful case, the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous, it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt.”

 

19. It is settled law that the duty of the insured to observe utmost good faith is enforced by requiring him to respond to a proposal form which is so framed to seek all relevant information to be incorporated in the policy and to make it the basis of a contract. The contractual duty so imposed is that any suppression or falsity in the statements in the proposal form would result in a breach of duty of good faith and would render the policy voidable and consequently repudiate it at the instance of the insurer. Whereas in the present case, admittedly despite various opportunities OP failed to file a proposal form on record. Hence the OP failed to prove that the complainant intentionally inflated the IDV of the vehicle in question.

 

20. It is admitted fact the complainant filed his claim with relevant documents to the respondent/Opposite party whose claim was registered as Manual Reference No. 11451. Thereafter vide letter dated 1^st February 2016, the respondent/OP asked the complainant to submit certain documents, which were duly submitted to the respondent/OP for investigation. In the month of June 2016, the OP asked to submit an RTO office application, which was duly submitted by the complainant to OP. Further, vide letter dated 23^rdJune 2016, the respondent/OP demanded relevant documents, which were also furnished. Thereafter the respondent informed the complainant that his claim is under process and further requested to submit all original keys to enable them to process his claim. Accordingly, the complainant visited the OP’s Nehru place office on 25/11/2016and also handed over to them the other original key of the said vehicle.

 

21. After the collection of all documents, the Surveyors have taken a plea about the loss of another key and further as per the statement of the claimant, the IDV of the vehicle is double the actual purchase of the car since the car is second-hand and hence recommended the claim to be settled accordingly. But very importantly the investigator never recommends repudiation but the OP for the reason best known to him closed the claim file without citing any reason. Admitted the claim was never repudiated. No repudiation letter was on record.Hence for breach of condition no.4 of the insurance policy dealing with the obligation of the insured to take all reasonable steps to safeguard the subject vehicle against any loss or damage. On the other hand, the learned advocate of the complainant submitted that both the key that was already given by the complainant to the OP. As admitted by the surveyor in his surveyor report dated 30/05/2018that one key was handed over by the complainant to the OP, whereas the other key was handed over by the complainant to the OP at their Nehru Place office on 25/11/2018.Admittedly the OP did not file any documents or report of CFSL regarding the genuineness of keys as to whether they are original or tempered in support of the contention raised in their defence. Hence it cannot be said that the complainant did not take proper care to safeguard the loss of the vehicle.As per the settled proposition of law, insurance companies cannot be too technical while settling the claim. Hence, the plea taken by OP in support of their defence and at the time of repudiation of the claim has no footing.

 

22. It is pertinent to note that the report was immediately lodged with the police after the insured vehicle was stolen away by some unknown person. Moreover, it is also not the case of the OP that intimation of the incident of theft was not given immediately to it by the Complainant. It is also the specific allegation of the Opposite party that the insured vehicle was stolen away with the help of the original key which was misplaced from the custody of the Opposite Party. And the onus is on the OP to prove this allegation but they failed to prove their case.

 

23. Moreover, concerned police after making due investigation filed "A" summary report which was granted by the competent Judicial Magistrate, First Class. It, therefore, shows that the report lodged about the theft of the vehicle was true and there was no suspicion or doubt about the theft of the insured vehicle.

 

24. Thus, the only question that survives for our consideration is whether the said vehicle was stolen away due to the negligence of the complainant or not. In our view, as there is no iota of evidence to show that the original key was actually misplaced from the custody of the complainant or not or as per the allegation of the OP the vehicle was stolen with the help of an original key used by the thief for stealing the insured vehicle, even if we accept the contention of the OP for argument’s sake, it cannot be presumed that the vehicle was stolen away with the help of the same misplaced key. Hence it cannot be said that simply because one of the original keys was lost or misplaced from the custody of the complainant, the aforesaid condition No.4 of the policy about taking proper care of the car by the complainant is violated.

 

25. Thus, we are of the considered view that all the aforesaid decisions relied on by the learned advocate of the OP are of no assistance to the OP since the aforesaid issue involved in the present case was not involved in those cases. The facts and circumstances of the present case are thus totally different from those of the said cases relied on by the learned advocate of the OP.

 

26. The OP failed to prove that there was negligence on the part of the complainant in leaving the key in the car. We thus hold that as it is not proved that the insured car was stolen away due to any negligence or failure of the complainant in taking its proper care, the repudiation of the claim by the Opposite Party constitutes a deficiency in service on its part. 

 

27. In the light of the above discussion, no negligence can be attributed to the complainant so as to blame it for not taking reasonable steps for safeguarding the vehicle or for alleging any breach of condition of policy on its part.

 

28. The case of the complainant is not falling into any of the general exceptions mentioned in the policy. The policy also contains general conditions and condition no.4 which has been relied upon by the defendant for rejecting the complainant's claim does not cover the fact situation of the present case. Condition no. 4 envisages that the insured shall take all reasonable steps to safeguard the vehicle from any loss and damage. Whereas in the instant case both the original keys were available with the complainant and the same was handed over to the investigator defendant has mentioned the loss of the original key of the vehicle which is totally contrary to the record as the complainant had duly handed over both the keys to the investigator. In the evidentiary affidavit, Complainant has categorically deposed that the complainant had taken all reasonable steps to safeguard the vehicle in as much as the vehicle was properly parked by the driver outside the residence of the complainant; the vehicle was properly locked at the time of parking of vehicle; all reasonable care was taken by complainant company to keep the vehicle safeguarded from any loss or damage. Considering the fact that both the original keys were available with the complainant there was no question of negligence on the part of the complainant. In view thereof, the plea taken by the defendant in a written statement for rejecting complainant's claim is totally illegal, arbitrary and contrary to the record thus making it liable to be declared null and void. The issue is accordingly decided in favour of the complainant and against the defendant.

 

29. The Hon’ble Supreme Court in a catena of judgement on a similar issue was of the considered opinion, that the violation of the condition should be such a fundamental breach that the claimant cannot claim any amount whatsoever. As far as the violation is concerned, this has consistently been held not to be a fundamental breach and, on this behalf, we may refer to the judgments of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259, and B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647. In Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100, the Hon’ble Supreme Court held that to avoid its liability, the insurance company must not only establish the defence that the policy has been breached but must also show that the breach of the policy is so fundamental in nature that it brings the contract to an end.

 

30. Further Hon’ble Supreme Court in case title “Gurmeet Singh v. National Insurance Co. Ltd.” , decided on 20.05.2022 held that the Hon’ble Court believed that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. It observed,

“The insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was valid insurance on payment of a huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of the certificate of registration, which the appellant could not produce due to the circumstances beyond his control.”

31. Supreme Court in the case of "Lucknow Development Authority vs. M. K. Gupta" reported in [(1993) CPJ 7 (SC)] and other Judgments wherein it has been held that for deficiency in service in case of statutory duty also proceedings for the damages under the tort is maintainable against the statutory authorities.

 

32. In the case of "Lucknow Development Authority" (supra), the Hon'ble Supreme Court held that the legislative intent is clear to protect a consumer against services rendered even by statutory bodies. Considering the larger issue, the Apex Court held that a Government or Semi-Government body or a local body is as much amenable to the Act as any other private body rendering a similar service. There can be no doubt that the OPs could be proceeded against under the Act.

 

33. The OPs have thus committed an unlawful act by repudiating the genuine claim of the Complainant on time and therefore have failed to discharge their statutory functions. Though there was negligence on the part of the OPs, the negligence was not malafide.

 

34. On the point that the vehicle in question was not kept in terms of the policy concerned, it may be stated here that the purpose of getting the vehicle in question insured by the complainant with the OP i.e. insurance company by paying premium was to feel secure that he would be protected in case of theft of vehicle and when the same was stolen away during the period of insurance, it was obligatory on the part of the insurance company to indemnify the complainant for the loss suffered by him on account of theft of vehicle and repudiation of the claim by the OP insurance company could not be justified.

 

35. Apart from that, it may be stated here that so far as the exclusion clause of which benefit was sought is concerned, that was not part of the contract and the insurance company would not be entitled to get the benefit of that. From that point of view also, the repudiation of the claim could not be justified.

 

36. The Complainant however in the Complaint specifically pleaded that he had suffered a lot of mental tension over the last several years for not getting his genuine claim on time. Even in his affidavit-in-evidence he specifically narrates the whole incidence of his mental agony. Hence in our opinion, the Complainant is entitled to the compensation as prayed for in the complaint from Opposite Party.

 

37. Thus, in light of the above discussion, in the present case. we allow the complaint, and set aside the repudiation order since the rejection of the claim was highly unjustified, unwarranted and unfounded, therefore, it amounted to a deficiency in service on the part of O.P.

 

38. In view of the above, the complaint filed by the complainant is allowed only against the opposite party. Therefore, OP is held liable for deficiency of service and is hereby directed:-

 

1. To pay the IDV of Rs.5,50,500/- (Rupees Five lakh FiftyThousand Five Hundred Only) alongwith interest @ 6% per annum from the date of filing of complaint i.e. 6/10/2017 till realization to the complainant.
2. To pay litigation expenses of Rs.5,000/- to the complainant.
3. To pay a sum of Rs. 15,000/- as compensation to the complainant.

 

39. Let theOP is to comply with this order within 30 days of receipt of NOC from the complainant.
40. Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
41. File be consigned to record room. Announced on 6/02/2023.

 

 

 

 

 

 

 

 

 

Richa Jindal                              Anil Kumar Koushal           Sonica Mehrotra

(Member)                                       (Member)                      (President)