Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 148.
Instituted on : 30.03.2015.
Decided on : 10.08.2016.
Subhash Chander son of Vishakhi Ram, r/o House No.816/25, Chinyot Colony, Rohtak.
………..Complainant.
Vs.
Megma HDI General Insurance Co. Ltd. through its Manager, office at 3rd Floor, Naraina Complex, Rohtak.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Sunil Kumar proxy counsel for Sh.Vijay Parmar, Advocate
for the complainant.
Sh.Sameer Gambhir, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is registered owner of vehicle no.HR-46C-1344 and the same was got insured with the opposite party vide policy no.P0014100002/4103/210698 and the IDV of the vehicle is Rs.590000/-. It is averred that during the period of insurance the insured vehicle has been stolen by some one in the area of Kahanaur Chowk and FIR No.236 dated 12.09.2014 was got registered and intimation was given to the opposite party within time. It is averred that complainant submitted all the documents with the opposite party and requested to disburse the claim amount under the policy but the opposite party had refused to settle the claim of the complainant on the ground that the claim of the complainant does not fall under the terms and conditions of policy. As such it is averred that the act of opposite party is illegal and there is deficiency in service on the part of the opposite party and the complainant has sought the insured sum of Rs.590000/- alongwith interest, compensation and litigation expenses.
2. On notice opposite party appeared and filed its written reply submitting therein that the claim is not payable on account of violation of terms and conditions of policy. It is averred that the driver and insured confessed in statement that driver was in drunken condition at the time of theft, same fact is also mentioned in the FIR. Further keys of truck were stolen with truck because these were present in truck and truck was in starting condition at that time. Further insured has submitted that truck was snatched whereas FIR was lodged under section 379IPC of theft. This is negligence and violation of terms and conditions of policy condition no.5. It is averred that complainant cannot take the benefit of his own wrong and complaint deserves to be dismissed. It is averred that there is no deficiency in service on the part of opposite party and dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C9 and closed his evidence. On the other hand, ld. Counsel for the opposite party has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R8 and has closed the evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per certificate of insurance Ex.R8, vehicle of the complainant was insured with the opposite party for a sum of Rs.590000/-. It is also not disputed that as per copy of FIR Ex.R3 the vehicle of the complainant was stolen on 10.09.2014. After the theft complainant filed the claim with the opposite party but the opposite party vide its letter Ex.R1 has repudiated the claim of the complainant on the ground that: “driver and insured confessed in statement that driver was in drunken condition at the time of theft and keys of truck were stolen with truck because the same were present in the truck and the truck was in starting condition” and due to above discrepancies the claim stands repudiated on account of violation terms and conditions of the policy.
7. After going through the file and hearing the parties it is observed that the claim of the complainant has been repudiated by the opposite party on the ground that at the time of theft, driver was in drunken condition and the keys were present in the truck and the truck was in starting position. To prove its contention, opposite party has placed on record copy of FIR Ex.R3 and investigation report Ex.R5, photocopies of statements Ex.R6 of complainant and Ex.R7 of driver Sunil Kumar and terms and conditions of the policy Ex.R9 and Ex.R10. But the report of investigator and photocopy of statements of complainant and driver are not supported with affidavit. Hence are not conclusive proof of evidence. Regarding the contention of opposite party that the vehicle was left unattended, reliance has been placed upon the order dated 14.09.2015 of the Hon’ble State Commission, Haryana, Panchkula in First Appeal No.335 of 2015 titled as United India Insurance Co. Vs. Anirudh whereby Hon’ble State Commission has relied upon the case of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour and Travels and another, decided on 11.08.2011 whereby High Court of Punjab & Haryana has held that: Retention of key in a car ought not be at all times taken as constituting so serious breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy”, as per 1(2010)CPJ 272(NC) titled New India Assurance Company Ltd. Vs. Subash Kumar Hon’ble National Commission, New Delhi has held that: “Contention, vehicle parked unattended in violation of policy, not acceptable-Person taking insurance not expected to keep security man to safeguard the vehicle”, as per law laid-down in II(2011)CPJ 252 titled Reliance General Insurance Co. Vs. Amit, Hon’ble Haryana State Commission, Panchkula has held that: “Vehicle left unattended by its driver and cleaner, hence deficiency in service-Not accepted-Breach of policy condition not germane in cases of theft of vehicle”. Regarding the contention of opposite party that the driver was under the influence of liquor and as per wordings of policy Ex.R10 the company shall not be liable to make any payment in the event of any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. But the alleged terms and conditions are not applicable to the facts and circumstances of the case as in the present case no accidental loss is caused to the vehicle and the driver was not driving the vehicle and he was outside the truck for easing call of nature and hence no nexus with the theft of vehicle and driver under the influence of liquor. Moreover it is not proved on file that alleged terms and conditions of the policy were part of the policy, were explained to the insured or the same were supplied to the complainant. In this regard reliance has been placed upon the law cited in 2015(1)CLT591 titled as Star Health and Allied Vs. Asha & Others, whereby Hon’ble Haryana State Commission, Panchkula has held that: “Insurance policy-Exclusion clause-Not explained to insured when cover not was issued-Insurance company cannot derive any benefit from exclusion clause” and regarding the consumption of alcohol Hon’ble National Commission in 2014(2)CPC 335 titled United India Insurance Co. Ltd. Vs. Sheela & Ors., has held that: “Mere taking of alcohol without proving limit of diet can be a proof of intoxication-No nexus between intoxication and cause of death proved in the present case even from post mortem report”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim amount as per policy.
8. In view of the facts and circumstances of the case, it is observed that the opposite party shall pay the insured sum of Rs.590000/-(Rupees five lac ninety thousand only) along with interest @9% p.a. from the date of filing the present complaint i.e. 30.03.2015 till its actual realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of completion of formalities by the complainant e.g. Form No.26, 28, 29, 30, 35, Original R.C., Subrogation letter, Indemnity Bond and Affidavit of transferee etc. to the opposite party failing which the opposite party shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
10.08.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
