District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 253/2022.

 Date of Institution: 11.05.2022.

Date of Order: 07.04.2023.

Rahul Lamba aged about 26 years S/o Shri Rajesh Lamba R/o House No. 12/R, Ward No. 9, New Colony, Palwal, District  Palwal – 121101.

                                                                   …….Complainant……..

                                                Versus

M/s. HDFC Ergo General Insurance company Limited, registered & corporate office: Ist floor, HDFC House No. 165-166, backbay Reclaimation, HT Parekh Marg, Churchgate, Mumbai – 400 020 through its Branch Manager/principal Officer.

Having its branch/local office at:-

M/s. HDFC Ergo Genral Insurance Company Limited, Branch Office: Ist floor, Shop NO. 110 & 117, Om Shubham Tower, Neelam Chowk, NIT, Faridabad through its Branch Manager/A.R.

                                                                   …Opposite parties……

Complaint under section-12 of Consumer Protection Act, 1986

Now  amended  Section 34 of Consumer protection Act 2019.

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana………….Member.

PRESENT:                   Sh.  M.S.Bainsla,  counsel for the complainant.

                             Sh.  D.D.Arya, counsel for opposite party.

ORDER:  

                             The facts in brief of the complaint are that  the complainant was the owner of a  Honda motorcycle bearing its registration NO. HR-30-U-0651, engine No. KC35EA1003296.  The above said vehicle got insured with the opposite party vide policy No. 2312202839053900000 valid from 23.06.2019 to 22.06.2024 for the insured value of Rs.61,338/-.  The complainant was running a medical store under the name and style “Sevak Medical Store, Near  Accord Hospital, Sector-86, Faridabad and as a routine, on 29.08.2021, the complainant parked his vehicle in front of his medical store with proper lock by adopting all necessary safety measures.  When he closed his shop and was ready to go home, then he saw that the said motorcycle was not at the spot where it was parked and key were also missing from shop and the complainant tried his level best to search the above said vehicle and he also informed the police in this regard and a case bearing FIR No. 247 dated 30.08.2021 at P.S.Kheri Pul, Faridabad was also registered and the complainant duly intimated the opposite party and its surveyor ad agents also contacted the complainant and assured the complainant to duly compensate in the matter and also lodged the claim vide NO. C230021190154.  The complainant submitted all the requisite papers required by the opposite party and requested the opposite party to disburse the claimed amount and now the opposite party vide its letter dated 31.01.2022 repudiated the claim of the complainant on a very unreasonable, flimsy grounds. The complainant sent legal notice  dated 21.03.2022 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite party to:

a)                pay the above said vehicle insured amount of Rs.61,338/- alongwith interest @ 18% per annum from the date its loss/theft till its realization to the complainant.

 b)                pay Rs. 50,000/- as compensation for causing mental agony and harassment .

c)                 pay Rs. 21,000 /-as litigation expenses.

2.                Opposite party  put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant had admitted in his statement to the investigator that he leaves his insured bike’s keys on his shop counter every day and do his work in shop.   It was worth mentioning that leaving bike keys  on the counter and then getting busy with customers of the shop which was visited by un-numbered customer of complainant, in itself giving an invitation and because of his negligence only him bike got stolen and as such opposite party was not liable for any loss suffered to the complainant because of his own negligence. It was mentioned in the complainant’s statement given by him to investigator that the vehicle was stolen as he had left the keys on his counter and he got busy with customers.    This was a gross negligent act of leaving key with the vehicle on the shop counter which led to the incidence of the insured asset being stolen.  Sufficient care was not taken which a prudent man ought to have taken.  This was violation of terms and conditions of insurance policy issued to him which states.  The insured shall take all reasonable steps to safeguard the vehicle form loss or damage.  The complainant should have kept the keys of the vehicle safely while doing work in his shop.  The complainant failed to take reasonable care with respect to the safety of the vehicle, he having left the keys of the vehicle unattended, nor one but both the keys.  As a result, it became possible for the person who committed theft of the vehicle not only to get picking the keys easily but also drive it away, using the keys which had been left unattended.  It was also obvious that the vehicle was not visible to the complainant form the counter where he was selling items in his shop because had the bike been visible from his counter, he would certainly had raised an alarm. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                The parties led evidence in support of their respective versions.

4.                We have heard learned counsel for the parties and have gone through the record on the file.

5.                In this case the complaint was filed by the complainant against opposite party–  HDFC ERGO General Insurance Company Limited with the prayer to: a)  pay the above said vehicle insured amount of Rs.61,338/- alongwith interest @ 18% per annum from the date its loss/theft till its realization to the complainant.   b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c)  pay Rs. 21,000 /-as litigation expenses.

                   To establish his case the complainant  has led in his evidence,  Ex.CW1/A – affidavit of Rahul Lamba, Ex.C2 – Insurance policy,, Ex.C3 – FIR, Ex.C4 – repudiation letter, Ex. C5 –legal notice, Ex.C6 & 7 – postal receipts,, Ex.C8 – untraced report.

On the other hand counsel for the opposite party strongly agitated and

opposed.  As per the evidence of the opposite party Ex.RW1/A – affidavit of Shweta Pokhriyal, Senior Manager, HDFC ERGO General Insurance Company Ltd,, Ex.R-1 – Insurance policy, Ex.R-2 – Claim Form, Ex.R-3 – statement, Ex.R-4 – Repudiation letter dated 31.01.2022,

6.                As per Ex.C-1, complainant is the owner of a  Honda motorcycle bearing its registration NO. HR-30-U-0651, engine No. KC35EA1003296.    As per Ex.C-2  the above said vehicle got insured with the opposite party vide policy No. 2312202839053900000 valid from 23.06.2019 to 22.06.2014 for the insured value of Rs.61,338/-.  The complainant was running a medical store under the name and style “Sevak Medical Store, Near  Accord Hospital, Sector-86, Faridabad and as a routine, on 29.08.2021, the complainant parked his vehicle in front of his medical store with proper lock by adopting all necessary safety measures.  When he closed his shop and was ready to go home, then he saw that the said motorcycle was not at the spot where it was parked and key were also missing from shop and the complainant tried his level best to search the above said vehicle and he also informed the police in this regard and a case bearing FIR No. 247 dated 30.08.2021 at P.S.Kheri Pul, Faridabad was also registered. Opposite party repudiated the claim of the complainant vide letter dated 31.01.2022 (Ex.R-4) on the ground that “ available record and/or information clearly depicts that there is negligence at your end and high probability that you have not submitted any ignition key of insured vehicle because both original keys were in the same key ring and you put the keys on counter and got on with your own work.  Someone took the keys from your counter and stolen the insured vehicle which has directly contributed to the theft thereof.  It is thus clear that you failed to take reasonable steps to safeguard the vehicle from loss.

7.                After going through the evidence led by the parties,  the Commission is of the opinion that the complaint is allowed on non standard basis.

8.                For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.

                   In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company.  In the above mentioned case, further reliance was placed by the Supreme Court on:

a).               New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and

b).               National Insurance Company Vs. Nitin Khandelwal

Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of any breach of condition upto 25%. Once the Insurance Company has insured the vehicle for the loss caused to the  insured, the insurance company is liable to indemnify the owner.  When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.

9.                Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto.  The complaint is allowed for claim to be settled on non standard basis.  

IDV value of  vehicle                                                     :         Rs.61,338.00

Less Excess Clause                                                         :         Rs.   1,000.00

                                                                                      :         Rs.,60,338.00

Deduction 25% on non standard basis  on total              :    -   Rs.  15,084.00     

                   Total                                                           :         Rs.  45,254.00

10.              The opposite party is directed to pay Rs. 45,254/-  alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and  Form 35.  Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room.  Copy of this order be sent to the parties concerned free of costs.

Announced on:  07.04.2023                                            (Amit Arora)

                                                                                             President

                        District Consumer Disputes

           Redressal  Commission, Faridabad.

                                                           (Mukesh Sharma)

                Member

          District Consumer Disputes

                                                                              Redressal Commission, Faridabad.

                                                                           (Indira Bhadana)

                            Member

                       District Consumer Disputes

                                                                                                Redressal Commission, Faridabad.