Delhi

StateCommission

A/44/2018

M/S TATA AIG GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

JASBIR SINGH - Opp.Party(s)

MANOJ KUMAR

26 Feb 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :26.02.2020

Date of Decision :05.03.2020

FIRST APPEAL NO.44/2018

In the matter of:

 

Tat a AIG General Insurance Company Ltd.,

DPJ-415, 4^th Floor,

DLF Tower-B, Jasola Centre,

New Delhi.                                                                                              …..Appellant

Versus

Jasbir Singh,

S/o. Shri Diwan Singh,

B-21, Shubham Enclave,

Paschim Vihar,

New Delhi-110063.                                                                              ………Respondent

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The present appeal is against order dated 17.11.17 passed by District Forum in cc no.101/13 allowing the complaint and directing appellant to pay Rs.10 lakhs being IDV of the vehicle, Rs.50,000/- as compensation towards mental agony and harassment including litigation charges. If the amount is not paid within 30 days from date of order, the appellant was liable to pay interest @10% p.a. from the date of order till the date of payment.
2. The appeal was filed on 29.01.18. There is delay of about 30 days in filing the appeal for which an application for condonation has been moved. The plea of the appellant is that it received copy of the order on 27.11.17. Is delivered the said copy in the office of appellant on 01.12.17. The appellant took time to send the copy to Legal Department along with original file. Then Legal department took time in engaging counsel. The same was followed by winter vacation. The delay is neither intentional nor wilful.
3. The respondent has opposed the application by filing reply. He stated that application is without any cogent ground, is false, vague and has been filed with sole object to harass the appellant. No document has been filed with the application to support the averments made in the application. If the delay in filing appeal is condoned, he would suffer.
4. I have gone through the material on record and heard the arguments on application for condonation of delay. It is settled law that delay should be condoned liberally. For this reliance may be placed on decision of Hon’ble Supreme Court in Civil Appeal No.10289/14 titled as ATS Govinda Rajane vs. Chief Manager, SBI decided on 14.11.14 and another decision of Hon’ble Supreme Court in . Civil Appeal No.5131/19 titled as Hemlata Verma vs. ICICI Prudential Life Insurance Company  Ltd decided on 01.07.19. The application is allowed and delay is condoned.
5. On merits  the  respondent was owner of Mahindra Scorpio Car no.DL 4CN B 5217 which was insured with the appellant from 25.09.11 to 24.09.12. On 27.08.12 the same was stolen when his son was at barber shop. His son made call at no.100 and FIR  no.187/12 was lodged at Police Station Paschim Vihar, The police closed the case as untraced. Information was given to appellant about the theft soon after phone call at no.100. Respondent received letter dated 28.08.12  from appellant about surveyor/ investigator visiting the respondent. But appellant did not send anyone for  investigation.  He received repudiation letter dated 28.12.12 citing violation  of terms and condition no.4 of the policy. Respondent sent a protest letter dated 28.12.12. He sent legal notice. Thereafter he filed complaint claiming Rs.10 lakhs as value of stolen car with interest @12% p.a. and compensation of Rs.1 lakh for mental agony and harassment, Rs.25,000/- as litigation cost.
6. Appellant filed WS reproducing condition no.4 of the policy. According to that the insured was to take all reasonable steps to safeguard the vehicle from loss or damage. During investigation and verification of documents it came to notice that son of the complainant told that he had kept the keys of the car away from him at public place which was in gross  violation of condition no.4. The complainant provided keys of some other vehicle which was in violation of  declaration signed by him in the claim form. The vehicle was got stolen due to gross negligence of the complainant.
7. After going  through the material on record the District Forum held that in case of theft of vehicle breach of condition is not germane. It relied on decision of U.P. State Commission in ICICI Lombard  General Insurance Company vs. Saurbh Yadav II (2017) CPJ 54, decision of NC  in Oriental Insurance Company vs.  Abdul Shamad II (2017) CPJ 76, decision of Hon’ble Supreme Court in Civil Appeal no.3409/08 titled as  National Insurance Company vs. Nitin Khandelwal decided on 08.05.08. Hence repudiation by OP was not justified and impugned order was passed.
8. I have gone through the material on record and heard arguments. Counsel for appellant relied upon decision of NC in Bachchu Singh vs. National Insurance Company III (2017) CPJ 293. There the driver of the vehicle left  key in ignition and did not lock door of the vehicle while going to a place from where vehicle was not visible to him.  The same is not applicable to the facts of the present case. Counsel for appellant also relied upon decision of NC in R.P.No.1239/18 titled as Tata AIG vs. Mahindra Singh  decided on 21.05.19. There also the complainant had parked the vehicle in front of M/s. Chetan Golden Transport Company and had gone inside company  along with cleaner  leaving behind the vehicle unattended with its ignition key in point. Again the same is not applicable.
9. Counsel for appellant also relied upon  decision of NC in R.P. no.1796/15 titled as Mohd. Shamsur Alam vs. Reliance General Life Insurance Company decided on 07.01.16. This was also a case of leaving the keys in the ignition.
10. Per contra the counsel for respondent relied upon decision of State Commission Chattisgarh in FA no.272/13 titled as Sukh Ram Kashyap vs. National Insurance Company decided on 27.05.14. In that case the District Forum has dismissed the complaint on the ground that motor cycle was not locked at the time of theft. The same was set aside by State Commission in appeal  holding that breach of policy was not germane in  case of theft as per decision of NC in National Insurance Company vs. Kamal Singal IV (2010) CPJ 297. It also relied upon decision of NC in R.P. no.643/05 titled as National Insurance Company vs. J.P. Leasing and Finance Pvt. Ltd,  decision in R.P. no.2097 titled as Punjab Chemical Agency vs. Soubahrati Rajiv Bankar and decision in R.P. no.3366/09 titled as National Insurance Company vs. Jeetmal.
11. Not only this the Chattisgarh Commission also relied upon decision of Hon’ble Apex Court in National Insurance Company vs. Nitin Khandelwal IV (2008) CPJ 1.
12. Counsel for appellant stated that initially the respondent deposited original keys (two) to the appellant on 16.10.12 as per seizure key copy of which is attached with reply to the appeal. Then he deposited original key as per another letter copy of which is annexure-A with reply to appeal. He submitted that initially son of the complainant stated that when he had gone to barber shop to get hair cut, he kept the key of the vehicle away from him on the table top of barber shop. When after half an hour he picked the key, he came to know about missing of the car. Later on in statement to surveyor of the appellant copy of which is at page-58 and 59, translated copy at page 59A of bunch of appeal, he stated that both the keys were available with them. They were different from each other. It seemed that somebody has replaced his keys in barber shop and taken his car. According to him these two statements are contradictory. In yet another statement to investigator of appellant copy of which is at pages-60 to 62 (translated copy at pages 62 A and 62 B) of bunch of appeal, complainant stated that he had got two keys of the scorpia with him, both the keys were different and unused.  When that difference was brought to his notice by the investigator, he agreed and enquired for the keys from complainant who informed that he had kept the key on the counter of saloon and when he came back, he found the car missing. It seemed somebody has replaced the key from barber shop.
13. I am unable to pay any significance to the above arguments. It was held by Chattisgarh State Commission in Sukh Ram Kashyap Supra that when different pleas are taken in case of theft, the claim should be settled on non standard basis of IDV.
14. In view of the above discussion I do not find any ground to interfere with the finding of the District Forum that OP was not justified in repudiating the claim. However regarding quantum it may be mentioned that respondent is entitled to settlement on non standard basis viz. 75% of the IDV. Consequently the appellant is directed to pay Rs.7,50,000/- with compensation of Rs.50,000/-. In case the appellant does not comply with the order within 30 days from receipt of copy of this order, it would pay interest @10% p.a. from the date of this order till the date of payment.
15. Copy of the order be sent to both the parties free of cost.
16. One copy of the order be sent to District Forum for information.
17.      File be consigned to record room.

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)