Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 64
Instituted on : 12.02.2018
Decided on : 07.05.2024
Amit Kumar S/o Sh. Balwant Singh, R/o VPO. Chuliana (39), District Rohtak, Haryana-124501.
……….………….Complainant.
Vs.
- Liberty Videocon Insurance Ltd. 10th Floor, Tower-A, Penimshla Business Park, Ganpatrai, Kadam Marg, Lower Parel, Mumbai-400013 through its Manager.
- Liberty Videocon Insurance Ltd. Office No.901 & 902, 9th Floor, JMD, Regent Square M.G. Road, Gurugram (HR) 122082, through its Manager.
...........……Respondent/opposite party.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.Krishan Kaushik Advocate for the complainant.
Smt. Ruchi Chawla, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he the Complainant is owner of Vehicle (Bolero bearing Registration No. HR12AA5972, Chassis No. NA1XX2GRKFSF63706, Engine no. GRF4F84191 and the above said vehicle of complainant was insured with Liberty Videocon Insurance Ltd. Insurance Company. That the above said vehicle was stolen by someone on dt.09.09.2016 and after searching for more than 20 days the vehicle was not found till date. Then complainant lodged a complaint with the Police Station at Sampla vide FIR No.0522 dated 30.09.2016 regarding the theft of his vehicle. The complainant had moved an application in the office of opposite party no.2 for claiming compensation. The complainant has completed all the formalities and submitted the requisite documents for getting the insurance claim but the insurance company flatly refused to give any compensation regarding the above said vehicle of the complainant. The act and conduct of the opposite party is illegal and amounts to deficiency in service. The complainant also served a legal notice dated 23/08/2017 through his counsel to the respondents and requested them to settle his claim. But the respondents have illegally refused to pay any amount of compensation to the complainant. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the insurance claim on account of the stolen vehicle of the complainant a sum of Rs.8 lacs alongwith interest @ 18% p.a. from the date of theft of the vehicle till the date of actual realization of the compensation, to pay Rs.50,000/- as compensation on account of mental tension & harassment and Rs.11,000/- as litigation expenses to the complainant.
2. After registration of complaint notices were issued to the opposite parties. Opposite parties in preliminary objections of their reply has submitted in the present matter, alleged theft took place on 09-09-2016, whereas FIR has been got lodged after unexplained delay of 21 days. Moreover complainant also made a statement that his brother could not go to the police station for registration of FIR and hence there was delay of 21 days in lodging the FIR. Furthermore second key of the vehicle has not been produced by the complainant before the insurance company, as same could not be traced by complainant. On merits, it is submitted that on receipt of the claim intimation, same was registered vide claim No. 200102201116110169801. That during the correspondence between the complainant and answering respondent, answering respondent got the foul smell and thus an Independent Investigator M/s Pathfinder was appointed to bring the truth on the record file. The complainant and his brother namely Sandeep s/o Balwan made a written statement to the independent investigator confirming the factum that Sandeep s/o Balwan parked the vehicle in question in front of Waterworks VPO Chullyana, with keys inside the vehicle and when he returned back after one and half hour i.e. 1:00 P.M. the vehicle was stolen by some unknown persons resulting/facilitating/providing an easy access of the vehicle to the third person. That complainant failed to proper take care/safeguard of the vehicle in question from loss which is not expected from any prudent man. This act of not taking proper care resulted into breach of the condition no. 4 of the policy wording. The second key of the vehicle has not been produced by the complainant before the insurance company. Thus the claim of the complainant was rightly repudiated vide letter dated 15.05.2017, duly served upon the complainant. All the other contents of the complaint were stated to be wrong and denied. It is prayed that complaint may kindly be dismissed with costs.
3. Ld. counsel for complainant in his evidence has tendered affidavit Ex.PW1/A, Ex.PW2/A, documents Ex.P1 to Ex.P4 and closed his evidenced on 30.07.2019. Ld. Counsel for opposite parties has tendered affidavit Ex.RW1/A & Ex.RW2/A, documents Ex.R1 to Ex.R6 and closed his evidence on 04.12.2019.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. We have perused the documents placed on record by both the parties. The claim of the complainant has been repudiated by the opposite parties vide their letter Ex.R6 on the ground that as per the statement dated 27.09.2016 his brother had left key in ignition switch after parking it, thus leaving the vehicle in drivable condition, which was directly contributed to the theft of vehicle. Ld. Counsel for the opposite parties has also placed reliance upon the ratio of law laid down in Revision petition no.3840of 2011 of Hon’ble National Commission, New Delhi in case titled as Devinder Kumar Vs. National Insurance Company Ltd., Revision petition no. 2405 of 2016 titled as Reliance General Insurance co. Vs. Daljeet singh Kashmeer Singh Batth. However in the written statement and at the time of arguments, ld. Counsel for the opposite parties has also taken the plea that there was a delay of 21 days in lodging the FIR.
6. Regarding the delay in lodging the FIR, it is observed that as per copy of FIR Ex.P3, brother of complainant namely Sandeep has submitted in the FIR that they had made a telephone call on 100 number on that date i.e. on the date of theft. Complainant has also made a statement before the investigator which is placed on record as Ex.R4, as per which the vehicle in question was taken away by his brother on 09.09.2016, who parked his vehicle at the gate of Water Works and also left the key inside the car. The vehicle in question was got theft and he made a call on 100 number and police also came at the spot and enquired the matter from his brother. Ex.R5 is the statement of brother of the complainant, who has also repeated the statement of complainant. To prove the fact that the complaint of theft was made at no.100, complainant moved an application before this Commission for summoning the witness. Application of complainant was allowed and a witness namely Sh. Manoj appeared and made a statement before this Commission that as per standing order no.02/1996 dated 19.03.1996 they keep the record of log book of 100 number only upto one year and thereafter the same is destroyed. They cannot produce the record being more than one year old. Meaning thereby, the call record of complainant dated 09.09.2016 on 100 number cannot be produced by the concerned police officials being destroyed by the department. Hence in the lack of above said record it is proved that brother of the complainant had made a call on no.100 after the theft immediately. Regarding the violation of terms and conditions No.4 of the policy by leaving the key inside the vehicle, Hon’ble Supreme Court of India in civil appeal no. 4758 OF 2023 titled as Ashok Kumar Vs. New India Assurance Co. Ltd., has held that : “Theft of Vehicle - Any violation of the condition of the insurance policy should be in the nature of a fundamental breach to deny the claimant insurance coverage. Mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. - Theft of Vehicle - Insurer had repudiated the claim by saying that the driver had left the vehicle unattended in the public road with the key on the ignition. The time gap between the driver alighting from the vehicle and noticing the theft, is very short. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle. Even if there was some carelessness, it was not a fundamental breach of condition for totally denying the insurance claim altogether. Therefore, a claim up to 75% must be awarded on a nonstandard basis”. The law cited above is fully applicable on the facts and circumstances of the case. On the other hand, law cited above by ld. Counsel for the opposite parties are not fully applicable on the facts and circumstances of the case. Hence the complainant is entitled for the claim on non-standard basis i.e. 75% of the IDV of vehicle. The IDV of the vehicle as per policy Ex.R1 is Rs.769159/- and compulsory deductible is Rs.2000/-. Hence the complainant is entitled for Rs.574869/-(75% of Rs.769159/- less Rs.2000/-).
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite parties to pay the amount of Rs.574869/-(Rupees five lac seventy four thousand eight hundred and sixty nine only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 12.02.2018 till its realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to complete the formalities i.e. to submit the signed form no.29-30, indemnity bond and subrogation letter in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 19.03.2024 of this Commission. Complainant is also directed to send a letter to the RTO for cancellation of R.C.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.05.2024.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Vijender Singh, Member
