Madhya Pradesh

StateCommission

A/17/1770

CHOLAMANDALAM M.S. JAN INSU. - Complainant(s)

Versus

MANNU - Opp.Party(s)

SH.R.TIWARI

22 May 2024

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 1770 OF 2017

(Arising out of order dated 23.05.2017 passed in C.C.No.61/2015 by District Commission, Jhabua)

 

1. CHOLAMANDLAM M.S.GENERAL

    INSURANCE COMPANY LIMITED,

    SECOND FLOOR, DAYER HOUSE-2,

    N.S.C.BOSE ROAD, CHENNAI

 

2. CHOLAMANDLAM M.S.GENERAL

    INSURANCE COMPANY LIMITED,

    H-102/ D METRO TOWER, FIRST FLOOR,

    SCHEME NO.54, VIJAY NAGAR, INDORE

    THROUGH ASSISTANT MANAGER (LEGAL)

    CHOLAMANDLAM M. S. GENERAL

    INSURANCE COMPANY LIMITED,

    ABOVE AXIS BANK, M.P.NAGAR,

    ZONE-I, BHOPAL (M.P.)                                                                            …  APPELLANTS.

 

         Versus

 

MANNU S/O SHRI MAL SINGH DAMOR,

R/O VILLAGE-BALVASA, TEHSIL-THANDLA,

DISTRICT-JHABUA (M.P.)                                                                             … RESPONDENT.   

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER        

 

COUNSEL FOR PARTIES :

                Shri Ravindra Tiwari, learned counsel for the appellants.

           None for the respondent though served.

          

O R D E R

(Passed On  22.05.2024)

                                The following order of the Commission was delivered by A. K. Tiwari, Acting President:                  

                   The opposite parties/appellants-Cholamandlam M. S. General Insurance Company Limited (hereinafter referred to as ‘insurance company’) have filed this appeal against the order dated 23.05.2017

-2-

passed by the District Consumer Disputes Redressal Commission, Jhabua (for short ‘District Commission’) in C.C.No.61/2015 whereby the complaint filed by the complainant/respondent (hereinafter referred to as ‘complainant’) has been allowed.

2.                Facts of the case in brief are that the complainant’s Mahindra Tractor bearing registration number MP-45 AA-4933 was insured with the opposite party-insurance company for the period w.e.f. 16.10.2013 to 15.10.2014 for IDV Rs.4,05,000/-. It is submitted that on 20.07.2014 when the subject vehicle was parked outside the house of the complainant, it was stolen in midnight by some unknown miscreants of which FIR was lodged with Police Station-Kakanvasi on 21.07.2014 and the insurance company was also informed. It is alleged that despite submitting all the relevant documents, the company repudiated the claim vide letter dated 30.06.2015. Aggrieved complainant therefore alleging deficiency in service on part of the opposite party-insurance company approached the District Commission seeking IDV of subject vehicle Rs.4,10,000/- with interest from the date of theft along with compensation of Rs.20,000/- and costs.

3.                The opposite party-insurance company resisted the complaint stating that on information being received of theft of subject vehicle, the insurance company appointed investigator, who after investigation and taking statements of the complainant it is found that the complainant on

-3-

20.07.2014 after parking the subject vehicle in front of his house went to sleep. In morning he did not find the subject vehicle. According the complainant’s statement given to the investigator, one key of the tractor was with him and one key of the tractor he placed in tool box of the tractor. The complainant did not take reasonable care to safeguard his vehicle and left one key in the tractor which amounts to violation of policy terms and conditions. In such circumstances, the insurance company has not committed any deficiency in service in repudiating the claim of the complainant and prayed for dismissal of complaint. 

4.                The District Commission partly allowing the complaint directed the insurance company to pay IDV of the subject vehicle to the complainant within one month failing which the amount shall carry interest @ 7.5% from the date of order till payment. Compensation of Rs.5,000/- with costs of Rs.1,000/- is also awarded.

5.                Heard learned counsel for the appellants and perused the record.

6.                Learned counsel for the opposite parties/appellants-insurance company argued that the tractor was insured under the policy terms and conditions. The complainant should have taken reasonable care to safeguard his vehicle but he parked the subject vehicle in front of his house and left one key of the tractor in the tool box and went to sleep. Due

-4-

to which the unknown miscreants after using the key kept in tool box took away the tractor. This shows negligence on part of the complainant himself. He himself admitted in his statement given to the investigator that he left the one key in tool box of the tractor which clearly shows that there was negligence on part of the complainant. Since there was violation of policy condition no.5, the complainant is not entitled to get any relief. There is no deficiency in service on part of the insurance company. The District Commission without considering the aforesaid facts has erred in allowing the complaint and therefore, the impugned order deserves to be set-aside.

7.                The complainant has filed his affidavit along with documents P-1 to P-5 including repudiation letter, copy of FIR, copy of FR, certificate of registration of subject vehicle and copy of insurance policy.  On behalf of insurance company an affidavit of Narendra Soni, Legal Officer along with documents D-1 to D-10 has been filed.

8.               After hearing learned counsel for the appellants and on careful perusal of the record and the impugned order we find it is an admitted fact 

that the complainant’s vehicle was insured with the insurance company for the period w.e.f. 14.08.2014 to 28.05.2015 for IDV Rs.4,05,000/- (P-5=D-4). It is also admitted that the subject vehicle was stolen in the intervening 

-5-

night of 20.07.2014 and 21.07.2014. From P-2, it is evident that the FIR was lodged on 21.07.2014 and intimation was given to the insurance company on 22.07.2014. P-3 is FR executed in the matter. The insurance company vide letter dated 30.06.2015 (P-1=D-2) repudiating the claim on the ground of violation of policy condition no.5. 

9.                     The insurance company has filed investigation report dated 18.05.2015 (D-9) of investigation agency Legal Nexus & Associates along with statement of complainant. The investigator in his report opined that the theft of insured vehicle confirmed in the intervening night of 20.07.2014 & 21.07.2014 from the complainant’s residence. Insured timely informed the insurance company and the police. Since culprits were not found FR was executed in the matter. He has further stated that during investigation insured’s negligence came in knowledge as he kept one key of vehicle in tool box of the tractor, however, final decision towards the claim purely on insurer only. 

10.              D-6 is statement of complainant himself given to the complainant wherein he has stated that on 20.07.2014 he parked the tractor in front of his house and he went to sleep. He has also stated that one key was with him and he left one key in the tool box of the tractor. Thus we find that complainant though left one key in the tractor and there 

-6-

was violation of policy terms and conditions then in such case, the insurance company cannot avoid its liability to pay insurance claim in toto. 

11.              On due consideration the facts and circumstances of the matter, we find that the subject vehicle even if parked in front of complainant’s house in night, it cannot be said that it was left unattended. Even as per insurance company if it is presumed that the complainant did not take reasonable care to safeguard his vehicle and left the key in tool box of subject vehicle and therefore there was violation of policy condition no.5. Even if there was any violation of policy terms and conditions in similar facts and circumstances of the case Hon’ble Supreme Court in Amalendu Sahoo Vs Oriental Insurance Company Limited II (2010) CPJ 9 (SC) has set out stipulation for payment of claim, not exceeding 75% of the admissible claim, in case of there is violation of policy terms and conditions. Similar view has been taken by the Hon’ble Supreme Court in Ashok Kumar Vs New India Assurance Co. Ltd. III (2023) CPJ 58 (SC).  Respectfully following the principle laid down by the Hon’ble Supreme Court we are of a considered opinion that the claim of the complainant/appellant does not deserve to be disallowed in toto.

12.              Therefore, in this view of the matter, we are of a considered opinion that the impugned order passed by the District Commission deserves modification as the complainant is entitled to get the claim on

-7-

non-standard basis. Accordingly, we direct the opposite parties/appellants-insurance company to pay 75% of Rs.4,05,000/- i.e. IDV of the vehicle which comes to Rs.3,03,750/- with interest @ 7% p.a. from the date of filing of the complaint till its realization, to the complainant.  Direction for payment of compensation of 5,000/- and costs Rs.1,000/- as given by the District Commission shall remain unaltered.

13.              With the aforesaid observations and modification in the impugned order this appeal stands partly allowed. No order as to costs of this appeal.

               (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Acting President                             Member

 

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 1770 OF 2017

(Arising out of order dated 23.05.2017 passed in C.C.No.61/2015 by District Commission, Jhabua)

 

1. CHOLAMANDLAM M.S.GENERAL

    INSURANCE COMPANY LIMITED,

    SECOND FLOOR, DAYER HOUSE-2,

    N.S.C.BOSE ROAD, CHENNAI

 

2. CHOLAMANDLAM M.S.GENERAL

    INSURANCE COMPANY LIMITED,

    H-102/ D METRO TOWER, FIRST FLOOR,

    SCHEME NO.54, VIJAY NAGAR, INDORE

    THROUGH ASSISTANT MANAGER (LEGAL)

    CHOLAMANDLAM M. S. GENERAL

    INSURANCE COMPANY LIMITED,

    ABOVE AXIS BANK, M.P.NAGAR,

    ZONE-I, BHOPAL (M.P.)                                                                            …  APPELLANTS.

 

         Versus

 

MANNU S/O SHRI MAL SINGH DAMOR,

R/O VILLAGE-BALVASA, TEHSIL-THANDLA,

DISTRICT-JHABUA (M.P.)                                                                             … RESPONDENT.   

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER        

 

COUNSEL FOR PARTIES :

                Shri Ravindra Tiwari, learned counsel for the appellants.

           None for the respondent though served.

          

O R D E R

(Passed On  22.05.2024)

                                The following order of the Commission was delivered by A. K. Tiwari, Acting President:                  

                   The opposite parties/appellants-Cholamandlam M. S. General Insurance Company Limited (hereinafter referred to as ‘insurance company’) have filed this appeal against the order dated 23.05.2017

-2-

passed by the District Consumer Disputes Redressal Commission, Jhabua (for short ‘District Commission’) in C.C.No.61/2015 whereby the complaint filed by the complainant/respondent (hereinafter referred to as ‘complainant’) has been allowed.

2.                Facts of the case in brief are that the complainant’s Mahindra Tractor bearing registration number MP-45 AA-4933 was insured with the opposite party-insurance company for the period w.e.f. 16.10.2013 to 15.10.2014 for IDV Rs.4,05,000/-. It is submitted that on 20.07.2014 when the subject vehicle was parked outside the house of the complainant, it was stolen in midnight by some unknown miscreants of which FIR was lodged with Police Station-Kakanvasi on 21.07.2014 and the insurance company was also informed. It is alleged that despite submitting all the relevant documents, the company repudiated the claim vide letter dated 30.06.2015. Aggrieved complainant therefore alleging deficiency in service on part of the opposite party-insurance company approached the District Commission seeking IDV of subject vehicle Rs.4,10,000/- with interest from the date of theft along with compensation of Rs.20,000/- and costs.

3.                The opposite party-insurance company resisted the complaint stating that on information being received of theft of subject vehicle, the insurance company appointed investigator, who after investigation and taking statements of the complainant it is found that the complainant on

-3-

20.07.2014 after parking the subject vehicle in front of his house went to sleep. In morning he did not find the subject vehicle. According the complainant’s statement given to the investigator, one key of the tractor was with him and one key of the tractor he placed in tool box of the tractor. The complainant did not take reasonable care to safeguard his vehicle and left one key in the tractor which amounts to violation of policy terms and conditions. In such circumstances, the insurance company has not committed any deficiency in service in repudiating the claim of the complainant and prayed for dismissal of complaint. 

4.                The District Commission partly allowing the complaint directed the insurance company to pay IDV of the subject vehicle to the complainant within one month failing which the amount shall carry interest @ 7.5% from the date of order till payment. Compensation of Rs.5,000/- with costs of Rs.1,000/- is also awarded.

5.                Heard learned counsel for the appellants and perused the record.

6.                Learned counsel for the opposite parties/appellants-insurance company argued that the tractor was insured under the policy terms and conditions. The complainant should have taken reasonable care to safeguard his vehicle but he parked the subject vehicle in front of his house and left one key of the tractor in the tool box and went to sleep. Due

-4-

to which the unknown miscreants after using the key kept in tool box took away the tractor. This shows negligence on part of the complainant himself. He himself admitted in his statement given to the investigator that he left the one key in tool box of the tractor which clearly shows that there was negligence on part of the complainant. Since there was violation of policy condition no.5, the complainant is not entitled to get any relief. There is no deficiency in service on part of the insurance company. The District Commission without considering the aforesaid facts has erred in allowing the complaint and therefore, the impugned order deserves to be set-aside.

7.                The complainant has filed his affidavit along with documents P-1 to P-5 including repudiation letter, copy of FIR, copy of FR, certificate of registration of subject vehicle and copy of insurance policy.  On behalf of insurance company an affidavit of Narendra Soni, Legal Officer along with documents D-1 to D-10 has been filed.

8.               After hearing learned counsel for the appellants and on careful perusal of the record and the impugned order we find it is an admitted fact 

that the complainant’s vehicle was insured with the insurance company for the period w.e.f. 14.08.2014 to 28.05.2015 for IDV Rs.4,05,000/- (P-5=D-4). It is also admitted that the subject vehicle was stolen in the intervening 

-5-

night of 20.07.2014 and 21.07.2014. From P-2, it is evident that the FIR was lodged on 21.07.2014 and intimation was given to the insurance company on 22.07.2014. P-3 is FR executed in the matter. The insurance company vide letter dated 30.06.2015 (P-1=D-2) repudiating the claim on the ground of violation of policy condition no.5. 

9.                     The insurance company has filed investigation report dated 18.05.2015 (D-9) of investigation agency Legal Nexus & Associates along with statement of complainant. The investigator in his report opined that the theft of insured vehicle confirmed in the intervening night of 20.07.2014 & 21.07.2014 from the complainant’s residence. Insured timely informed the insurance company and the police. Since culprits were not found FR was executed in the matter. He has further stated that during investigation insured’s negligence came in knowledge as he kept one key of vehicle in tool box of the tractor, however, final decision towards the claim purely on insurer only. 

10.              D-6 is statement of complainant himself given to the complainant wherein he has stated that on 20.07.2014 he parked the tractor in front of his house and he went to sleep. He has also stated that one key was with him and he left one key in the tool box of the tractor. Thus we find that complainant though left one key in the tractor and there 

-6-

was violation of policy terms and conditions then in such case, the insurance company cannot avoid its liability to pay insurance claim in toto. 

11.              On due consideration the facts and circumstances of the matter, we find that the subject vehicle even if parked in front of complainant’s house in night, it cannot be said that it was left unattended. Even as per insurance company if it is presumed that the complainant did not take reasonable care to safeguard his vehicle and left the key in tool box of subject vehicle and therefore there was violation of policy condition no.5. Even if there was any violation of policy terms and conditions in similar facts and circumstances of the case Hon’ble Supreme Court in Amalendu Sahoo Vs Oriental Insurance Company Limited II (2010) CPJ 9 (SC) has set out stipulation for payment of claim, not exceeding 75% of the admissible claim, in case of there is violation of policy terms and conditions. Similar view has been taken by the Hon’ble Supreme Court in Ashok Kumar Vs New India Assurance Co. Ltd. III (2023) CPJ 58 (SC).  Respectfully following the principle laid down by the Hon’ble Supreme Court we are of a considered opinion that the claim of the complainant/appellant does not deserve to be disallowed in toto.

12.              Therefore, in this view of the matter, we are of a considered opinion that the impugned order passed by the District Commission deserves modification as the complainant is entitled to get the claim on

-7-

non-standard basis. Accordingly, we direct the opposite parties/appellants-insurance company to pay 75% of Rs.4,05,000/- i.e. IDV of the vehicle which comes to Rs.3,03,750/- with interest @ 7% p.a. from the date of filing of the complaint till its realization, to the complainant.  Direction for payment of compensation of 5,000/- and costs Rs.1,000/- as given by the District Commission shall remain unaltered.

13.              With the aforesaid observations and modification in the impugned order this appeal stands partly allowed. No order as to costs of this appeal.

               (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Acting President                             Member