Punjab

Ludhiana

CC/20/88

Pawan Kumar - Complainant(s)

Versus

M/s New India Assurance Co.Ltd - Opp.Party(s)

Rajeev Bhatia Adv.

07 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:88 dated 09.03.2020.                                                 Date of decision: 07.08.2023.

 

Pawan Kumar son of Sh. Ranjit Singh, resident of House No.710, Sector 33, Chandigarh Road, Ludhiana, Punjab-141001.                                                                                                                                    ..…Complainant

                                                Versus

M/s. New India Insurance Company Ltd., Regional Office at 108, Surya Tower, The Mall, Ludhiana-141001, Punjab through its Managing Director/Directors/Authorized Representative/authorize representative in any capacity.                                                                                                                                                                                         …..Opposite party 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Rajiv K. Bhatia, Advocate.

For OP                           :         Sh. Rajan Kumar Chand, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant was the owner of one car Maruti Swift bearing registration no.PB-10-CX-6336 colour white Model 2010 which was got insured from the opposite party vide policy No.36010131180100000839 on 18.06.2018 for a premium of Rs.5499/- w.e.f. 21.06.2018 to 20.06.2019, covering the theft loss along with other loss. The complainant stated that on 10.07.2018 at about 01.30 am he was going towards Shingar Cinema, Ludhiana from his house on the said car and when he reached near Samrala Chowk, Ludhiana, he heard some loud noise from the truck side of his car as if somebody hit the backside of the car. Then the complainant came out to see the same at the backside of his car while leaving the engine in running condition and when he was examining his car from backside then one unknown person entered his car and sped away his car from there. The complainant informed the police at control room and police came at the spot after some time and recorded his statement at 02.30 am on 10.07.2018. the complainant further stated that he was alone at that time and in the state of utter shock he made the wrong statement to the police which he realized after getting the copy of FIR No.126 dated 10.07.2018 then he immediately requested the IO that he was not in a cognizant and conscious state at the time of recording his earlier statement he was under shock due to incident of theft of his car. The complainant immediately disclosed the correct facts to IO and recorded a separate statement on 10.07.2018. Thereafter, the police investigated the matter and tried to locate the car but no clue found by them and they closed the investigation vide Final Investigation Report under Section 173 of Cr.P.C. on 30.09.2018.

                   The complainant further stated that on the basis of the documents, he put his claim for theft of car with opposite party and completed all documentation but the opposite party deliberately vide letter dated 25.04.2019 repudiated the claim of the complainant. The complainant approached the Ombudsman of the insurance company but his complaint was declined on the biased decision. The opposite party defaulted in providing satisfactory service to the complainant and have adopted unfair trade practice due to which the complainant has suffered harassment mentally and physically. In the end, the complainant has prayed for issuing directions to the opposite party to accept the claim of Rs.3,50,000/- of the complainant regarding theft of his car; to declare the claim repudiation letter of opposite party as null and void; to pay a sum of Rs.1,00,000/- as compensation and litigation charges.

2.                Upon notice, the opposite party appeared and filed written statement by taking preliminary objections that the complaint is not maintainable; the complaint is barred under Section 26 of the Consumer Protection Act; lack of jurisdiction; the complainant is estopped by his own act and conduct from filing the complaint etc. The opposite party stated that the complainant has already availed remedy before the Insurance Ombudsman and the said complaint had already been dismissed by the Insurance Ombudsman vide order dated 13.12.2019, the operative part of the order is as under:-

“After going through the complaint, SCN, submission made by both the parties during personal hearing, it has been observed that there is no dispute with regard to theft of the vehicle on 10/07/2018 (between 1:30- 2:00 A.M). Only issue remains to see whether complainant have taken reasonable steps to safe guard the vehicle while getting down and there is negligence on his part?. Complainant pleaded that initially FIR contents about incident were not correct. So he got his FIR amended as per amended FIR, on that fateful day, while driving suddenly he heard some noise from the back of his car, he immediately applied the brakes and went to back of his car to see what has happened meanwhile an unidentified person opened the door of driving seat of the car and ran away with the car. On other hand, insurance company stressed that initially FIR was also lodged by the complainant himself. As per FIR no.126 dated 10/08/2018 lodged by the insured himself, he came to Samrala Chowk for getting cigarette shop leaving the car started and he was just enquiring about the cigarette shop and an unknown person came from Gole Market side and after opening the door of the car he ran away with the car towards Baba Than Singh Chowk. On examination both FIRS the initial and amended FIR, it seem that complainant had left the key in ignition and left the vehicle in running condition when he got down from the vehicle. This itself indicates that complainant failed to take adequate steps to safeguard the insured vehicle against its loss and this is clear cut negligence on the part of the complainant. Hence, the decision of the insurance company is in order. Keeping in view the above facts, the said complaint is hereby dismissed and no relief is granted.”

The opposite party further stated that the complainant has lodged the claim with it regarding theft of his Maruti Swift Car No.PB-10-CX-6336 and immediately on receipt of the claim, it was duly registered, entertained and M/s. Krish Associates, Investigators was deputed for investigation of the matter who through its representatives investigated the mater, collected documents and submitted their investigation report dated 14.02.2019 with the company. After receipt of the investigation report dated 14.02.2019 along with documents, the claim file was duly scrutinized by the official of the company and it was found that the complainant left the vehicle in running condition at night, unattended and unlocked and meanwhile someone sped away with the vehicle. So the negligence was on the part of the complainant/insured and claim is not payable and same has been rightly repudiated by the opposite party vide letter dated 25.04.2019. The said FIR no.126 dated 10.07.2018 has been lodged by the complainant himself and he has specifically stated to the police in his statement that he came to Samrala Chowk for getting cigarette at midnight and when he reached opposite to Bhatia Lemon Shop for going towards Shingar Cinema Road and stepped down from car to a stall for enquiring about the cigarette shop leaving the car started and was just enquiring about the cigarette shop, an unknown person came from Gole Market side and after opening the door of the car he ran away with the car towards Baba Than Singh Chowk. The said FIR is the first version of the insured/complainant and he cannot change his statement later on with motive to get the claim. The complainant/insured has given his first and correct version to the police and on the basis of said statement FIR was lodged by the police. Now the complainant has changed his story with the motive to get claim. The complainant cannot change his stand taken in FIR which is the first version of the complainant. The complainant had left the key in ignition and left the vehicle in running condition, unattended and unlocked at midnight which was an open invitation to theft of vehicle and thus the insured failed to take adequate steps to safe guard the insured property against its loss which is clear cut negligence on the part of the complainant. According to the opposite party, claim of the complainant/insured is not payable as terms and conditions of the policy and complaint is liable to be dismissed.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of registration certificate No.PB10CX6336, Ex. C2 is the copy of policy schedule cum certificate of insurance, Ex. C3 is the copy of FIR No.126 dated 10.07.2018, Ex. C4 is the copy of statement of the complainant dated 10.07.2018, Ex. C5 is the copy of untraced report U/s.173 Cr.P.C., Ex. C6 is the copy of repudiation letter dated 25.04.2019, Ex. C7 is the copy of investigation report of M/s. Krish Associates dated 14.02.2019, Ex. C8 is the copy of letter/order of Insurance Ombudsman and closed the evidence.

4.                On the other hand, the counsel for the opposite party tendered affidavit Ex. RW1/A of Sh. Jaswant Singh Dhaap, Manager of the opposite party, affidavit Ex. RW2/A of Sh. Raksh Pal Kalotra, Proprietor of M/s. Krish Associates, Investigator, Detectives, Tracers, Ludhiana along with documents Ex. R1 is the copy repudiation letter dated 25.04.2019, Ex. R2 is the copy of  policy schedule cum certificate of insurance, Ex. R3 is the copy of investigation report dated 14.02.2019 of M/s. Krish Associates, Ex. R4 is the copy of registration certificate No.PB10CX6336, Ex. R5 is the copy of letter dated 12.02.2019 written by M/s. Krish Associates to Licensing Authority (MV), Ludhiana, Ex. R6 is the copy of driving licence of the complainant, Ex. R7 is the copy of letter dated 12.01.2019 written by M/s. Krish Associates to District Transport Officer, Ludhiana, Ex. R8 is the copy of FIR No.126 dated 10.07.2018, Ex. R9 is the copy of statement of the complainant, Ex. R10 is the copy of statement of the complainant submitted to the opposite party, Ex. R11 is the copy of joint statement of Gurdeep Singh and Kanwar Rajinder Singh submitted to opposite party, Ex. R12 is the copy of driving licence of Gurdeep Singh, Ex. R13 is the copy of driving licence of Kanwar Rajinder Singh, Ex. R14 is the copy of statement of Varun Kumar submitted to the opposite party, Ex. R15 is the copy of statement of Surinder Pal Bhatia, Ex. R16 is the copy of Aadhar card of Varun Aggarwal,  Ex. R17 is the copy of Aadhar card of Surinder Pal Bhatia, Ex. R18 is the copy of Aadhar card of Vijay Kumar, Ex. R19 is the copy of Aadhar card of Bharat Bhushan, Ex. R20, Ex. R23 and Ex. R24 are the copies of photographs, Ex. R21 is the copy of untraced report under Section 173 Cr.P.C., Ex. R22 is the copy of complaint written to Insurance Ombudsman by the complainant, Ex. R23 is the copy of no claim bonus certificate, Ex. R27 is the copy of letter dated 28.08.2019 of insurance company to Insurance Ombudsman, Ex. R28 is the copy of letter dated 13.08.2019 written by the complainant to Insurance Ombudsman, Ex. R29 is the copy of Motor Vehicle Claim Form,  Ex. R30 is the copy of insurance package policy, Ex. R31 is the copy of Standard Form for Private Car Package Policy and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                One Maruti Swift car bearing registration No. PB-10-CX-6336 owned by the complainant was taken away from the lawful possession of the complainant on 10.07.2018 at about 01.30 AM in the area Near Samrala Chowk, Ludhiana and at that time, the engine of the car was in running condition and the keys were in the key hole of the car. The complainant suffered a statement ex. C3 before the police and on the basis of which an FIR No.126 dated10.07.2018 was registered against unknown person. During the investigation, the car could not be traced and an untraceable report under Section 173 Cr.P.C. Ex. C5 was filed in the court. Since the car was insured with the opposite party and the theft had taken place during the subsistence of the policy Ex. C2 = Ex. R2 and as such, the complainant preferred a claim for the reimbursement of the loss due to theft of the car. The claim was duly registered, entertained and processed and in pursuance thereof M/s. Krish Associates was deputed for investigation who submitted the investigation report on 14.02.2019 Ex. C7 = Ex. R3 and he opined as under:-

          “EXPERT OPINION

On the basis of the claim documents/claim form/witnesses/written & oral statements/photographs/circumstantial evidences gathered during the course of investigation, we are of the opinion that:

• The car No. PB-10-CX-6336 Make Swift VDI is GENUINELY reported as STOLEN on 10.07.2018 from Samarala Chowk, Ludhiana.
• F.I.R. No.0126 dated 10.07.2018 and N.T.R. found to be GENUINELY issued by the Police Station Division No.3, Ludhiana.
• Stolen Car is not so far traced.
• THE INSURED HAS GENUINELY LODGED CLAIM.

Keeping in view the above findings the underwriters may process the claim further as per the terms, conditions, warranties, exceptions and endorsements (if any) of the policy.

Investigation Report is submitted WITHOUT PREJUDICE.

7.                The said report was examined by the officials of the opposite party and vide letter dated 25.04.2019 Ex. C6 = Ex. R1, the claim of the complainant was repudiated and it was treated as ‘No Claim’. The operative part of the report is reproduced as under:-

“With reference to above mentioned claim, Krish Associates Investigator were deputed to investigate the case. As per the investigation report received and FIR, you left the vehicle in running condition, unattended and unlocked at night. Meanwhile someone picked the vehicle. This is clear negligence at your part. We are repudiating claim as no claim.”

8.                The counsel for the opposite party contended that the statements of the complainant with regard to incident are at variance and it is the complainant who left the vehicle in running condition along with the keys and as such, he failed to take steps to safeguard the insured vehicle. So his claim was rightly repudiated.

9.                On the other hand, the counsel for the complainant contended that the incident of theft happened within no time and there is no negligence on his part. The FIR in this case was promptly recorded and the statement of the complainant could not be treated as the first version of the complainant with regard to incident. Perusal of FIR and untraced report clearly establishes that it is the complainant who left the car and the engine was in running condition and the keys of the car were in the ignition.

10.              Now the point of consideration arises whether the act and conduct of the complainant entitles him to any compensation, if so, to what extent?

11.              Recently, the Hon’ble Supreme Court of India in Civil Appeal No.4758 of 2023 title as Ashok Kumar Vs New India Assurance Co. Ltd. while relying the judgments in National Insurance Company Limited Vs Nitin Khandelwal (2008) 11 SCC 259 and Amalendu Sahoo Vs Oriental Insurance Company Limited (2010) 4 SCC (536) has held that even if there was breach of any clause in the insurance policy, the claim could not have been repudiated in toto and the claim should have been settled on non-standard basis. The Hon’ble Supreme Court made the following observations in Para No.15, 18 and 19 of the said Civil Appeal No.4758 of 2023:-

“15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-

"378. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative. It is noticed in the repudiation letter that the driver Mam Chand had, after alighting from the vehicle, gone to enquire about the location of Mittal's Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away. The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. 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.

18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

Sl. No.	Description	Percentage of settlement
(i)	Under declaration of licensed carrying capacity.	Deduct 3 years' difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim."

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct.

We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.”

12.              Perusal of the Policy Schedule cum Certificate of Insurance (Private Car Package Policy) Ex. C2 = Ex. R2shwos that the ID value of the car is Rs.2,10,000/-. So by applying the ration of the above cited cases, it would be just and appropriate if the claim of the insurance is allowed to the extent of 75% of the insured value of the vehicle.

13.              As a sequel of above discussion, the complaint is partly allowed with direction to the opposite party to reimburse the insurance claim of the complainant to the extent of 75% of the insured value of the vehicle. The amount of the claim shall be paid to the complainant with interest @8% per annum from the date of filing of the complaint till actual payment within 30 days from the date of receipt of copy of order. The interest paid on the amount shall be considered as compensation.  Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:07.08.2023.

Gobind Ram.

 

 

 

Pawan Kumar Vs New India Insurance Co. Ltd.             CC/20/88

Present:       Sh. Rajiv K. Bhatia, Advocate for complainant.

                   Sh. Rajan Kumar Chand, Advocate for OP.

         

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite party to reimburse the insurance claim of the complainant to the extent of 75% of the insured value of the vehicle. The amount of the claim shall be paid to the complainant with interest @8% per annum from the date of filing of the complaint till actual payment within 30 days from the date of receipt of copy of order. The interest paid on the amount shall be considered as compensation.  Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:07.08.2023.

Gobind Ram.