Delhi

North

CC/48/2021

AKASH JAIN - Complainant(s)

Versus

M/S. TATA AIG GENERAL INSURANCE CO. LTD. - Opp.Party(s)

RISHI PAL SINGH

20 Mar 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 48/2021

Sh.Akash Jain

S/o Sh.Atul Jain

R/o 4635, Mohar Singh Jat

Pahari Dhiraj

Delhi-110006                                                                          …Complainant

                                                                                                

                                                          VS

M/s.Tata AIG General Insurance Co.Ltd.

Through its authorized Signatory

301-308, Third floor

Aggarwal Prestige Mal

Plot No.2, Road No.44, Near M2K Cinema

Rani Bagh, Pitampura,

New Delhi-110034                                                                  ….. Opposite party

 

                                                          ORDER

20/03/2023

Ms. Harpreet Kaur Charya, Member:-

The present complaint pertains to the allegations of deficiency in services and unfair trade practice by the complainant, Sh.Akash Jain, against M/s Tata AIG General Insurance Co.Ltd, the Opposite Party.

1. Briefly stated, the facts of the present complaint are that the complainant is the owner of vehicle bearing No.DL-8C-AE-0213, Hyundai Santro Xing Car (herein after referred as Insured Vehicle). The said car was insured vide Insurance Policy No.0159145466 for a period from 06/12/2018 to 05/12/2019 with the IDV of Rs.1,80,000/- .  A receipt dated 10/12/2018 was issued for the payment of premium of Rs.7,816/-. 
2. It has been stated by the complainant that as he is residing in a congested area of Pahari Dhiraj, Delhi, therefore, due to paucity of parking space he and all other residents park their cars/vehicles at Kabir Mandir area.  On 14/08/2019, the Insured Vehicle was parked near Kabir Mandir area.  The complainant used to check Insured Vehicle on daily basis while leaving for his office in the morning and after coming back in the evening.   On 27/09/2019, the Insured Vehicle was checked and on 28/09/2019, it was found missing by the complainant. Immediately, FIR was lodged with e-Police Station (Sadar Bazar, North Delhi) vide FIR No. 034720 dated 28/09/2019.  Claim was filed with the OP, despite repeated request and reminders the claim was not settled. 
3. On 12/02/2020, the claim was repudiated by OP on the grounds of breach of Condition 4 and Condition 8 of the policy terms and conditions.  It has been averred in the complaint that the complainant was only handed over one piece of paper i.e. the Insurance Cover Note, in which no such terms and conditions were mentioned. 
4. Legal notice dated 20/02/2020 was served upon OP calling them to pay the insured amount of Rs.1,80,000/-, which was neither replied nor complied by the OP.
5.  Hence, the present complaint with the prayer for directions to OP to pay Rs.1,80,000/- i.e. the IDV along with interest @24% per annum, compensation of Rs.1,00,000/- on account of mental agony and harassment and Rs.50,000/- as litigation expenses. 
6. The complainant has annexed the copy of the Aadhar, copy of the FIR No.03472 dated 28/09/2019; untraced report dated 12/12/2019; a letter dated 28/01/2020 written by complainant to OP; repudiation letter dated 12/02/2020; legal notice dated 20/02/2020 along with postal receipt ; certificate of insurance along with the complaint.
7. Notice of the present complaint was issued to OP.  Thereafter, Written Statement was filed on their behalf, where they have taken several objections in their defence such as: the Insured Vehicle was parked at a place far away and not visible from the house of the complainant; the complainant had checked the Insured Vehicle after 46 days, it was then when the theft was discovered therefore, the complainant had left the insured vehicle unattended.  There was no clarity as to when the incident of theft took place, so there could be a delay in filing the FIR. The intimation of the claim was at a belated stage which was in the violation of policy terms and conditions; the financer, IDFC First Bank was a necessary party thus, the complaint was liable to be dismissed for       non-joinder of necessary and proper party.
8. The factum of issuance of the policy cover has been admitted.  It was submitted that the theft claim was intimated vide email dated 04/10/2019 and thereafter an independent investigator was engaged.  The investigator report dated 26/12/2019 alongwith the statement of the insured was relied upon by them. 
9. It has also been submitted by OP that the complainant had facilitated theft by leaving the insured vehicle unattended for 46 days at an unsecured place far away and not visible from his house amounted to gross negligence on part of the complainant, therefore in  violation of Condition 4 and Condition 8 of the policy, which are reproduced as under :

Condition No.4

“ The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at time free and fill access to examine the vehicle or any part thereof or any driver or employee of the insured”

Condition No. 8

“The due observance and fulfilment of the Terms, Conditions and Endorsements of this Policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this Policy”

10. It has been denied that car was locked and all the precautions for the safety of the insured vehicle were taken.  The complainant in his statement to OP dated 03/11/2019, has stated that the vehicle was parked on 14/08/2019,  near the temple and it was checked by the complainant only on 28/09/2019 when he found the vehicle to be stolen.  It was denied that OP had failed to pass the claim of the complainant despite several request and reminders.  It was further denied that the OP had provided only the insurance cover note and not the policy terms and conditions.  Rest of the contents of the complaint have also been denied.  They have prayed for the dismissal of the complaint and an order awarding the cost of the proceeding in the favour of OP.
11. The certificate of insurance and policy schedule form as Annexure OP-1 along with policy wording, claim submitted by the complainant to email dated 04/10/2019 as Annexure OP-2, investigation report dated 26/12/2019 as Annexure OP-3, intimation cum preliminary claim form dated 03/11/2019 as Annexure OP-4, statement of the complainant as Annexure OP-5,letter dated 14/01/2020 rejecting the claim of the complainant and letter dated 12/02/2020 are Annexure OP-6. Vehicle registration status of insured vehicle is Annexure OP-7 and a letter issued by IDFC First Bank dated 12/12/2019 along with the account statement as Annexure OP-8.  Judgments of different Commissions are Annexure OP-9 to Annexure   OP-14, have been annexed with the Written Statement.
12. Rejoinder to the written statement was filed by the complainant where the complainant has submitted that there was no delay in registration of FIR. On 28/09/2019, when the complainant went to see his car the same was not parked and FIR of even date was registered with e-Police Station: Sadar Bazar.  It was further submitted that as the complainant has already repaid the loan amount to IDFC Bank Ltd. and the bank had issued No Objection Certificate for loan account No.19244426, therefore the vehicle was no more hypothecated with the bank.  Hence, the IDFC Bank is not a necessary or proper party.  It was denied that the complainant had left the vehicle unattended for 46 days.  Rest of the contents of the Written Statement have also been denied and those of the complaint have been reaffirmed.  The complainant has also filed the statement of loan account issued by IDFC Bank Ltd.
13. The complainant has also placed on record the No Objection Certificate for loan agreement No.19244426(Registration No.DL8CAE0213) dated 10/01/2022 where IDFC First Bank with whom the vehicle was hypothecated, have issued Form 35 stating that the hypothecation entered with IDFC First Bank has been terminated.  Hence, we observe that IDFC First Bank do not have any lien on the claim. Therefore, they are not necessary or proper party.
14. Evidence by way of affidavit was filed by the parties. The complainant has reiterated the contents of the complaint and has got the copy of the FIR dated 28/09/2019 (though in the affidavit it has been wrongly mentioned as 28/09/2018)  as Ex.CW-1/1, copy of  Untrace report as Ex.CW-1/2, copy of email  dated 04/10/2019 as Ex.CW1/3. Letters dated 28/01/2020 and 12/02/2020 are Ex.CW1/4 and Ex.CW1/5. Legal notice dated 20/02/2020 along with postal receipt dated 20/02/2020 is Ex.CW1/6 and Ex.CW1/7 respectively.  Auto secure private car package policy is Ex.CW1/8. 
15. Sh. Amit Chawla, an Authorised Signatory and Associate Vice President Legal claim at TATA AIG General Insurance Co. Ltd. has been examined on behalf of OP.  He has reaffirmed the content of the Written Statement and has got exhibited the copy of the policy schedule and policy wording as Ex.OP/1, claim submitted by the complainant through email dated 04/10/2019 as Ex.OP/2, investigation report dated 26/12/2019 as Ex. OP/3, a copy of claim form dated 03/11/2019 as Ex-OP/4 alongwith statement of the complainant as Ex.-OP/5.  They have also got exhibited the copy of the repudiation letter dated 14/01/2020 and 12/02/2020 as Ex.OP/6, a  copy of the registration certificate of the vehicle and copy of the loan statement from the financer are Ex.OP/7 and Ex.OP/8 respectively.
16. We have heard the arguments of the respective parties and have gone through the written submission.  Perusal of the record shows that the Complainant is aggrieved by the non-settlement of his theft claim of the vehicle, which was insured by OP. The factum of the theft is not disputed.  The claim of the complainant is repudiated vide letter dated 14/01/2020 and 12/02/2020 on the ground of breach of Condition 4 and Condition 8 which are:-

Condition No.4

“ The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at time free and fill access to examine the vehicle or any part thereof or any driver or employee of the insured”

Condition No. 8

“The due observance and fulfilment of the Terms, Conditions and Endorsements of this Policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this Policy”.

It is seen from record that the OP has relied upon the Investigation Report dated 26/12/2019 (Ex.OP-3).  Under the brief description of loss it is stated:-

“About 11.58 pm on 14/08/209(sic) Insured Aakash Jain after returning from his office had parked Hyundai Santro Car No.        DL-8CAE-0213 at near Kabir Mandir, Idgah Road, Sadar Bazaar, Delhi.  After locking car no. DL-8CAE-0213 insured Aakash Jain went to his residence.”

 

17. Thus, it is clear that the complainant had duly locked the car thereby taking reasonable steps for safeguarding the vehicle from loss.  The same fact is reiterated in the complaint and complainant’s evidence as well.  Once the complainant has locked the vehicle, it amounts to taking of reasonable steps to safeguard the insured vehicle from any loss or damage. In para 3 of the Written Statement the Op has stated that “there could be a delay in filing of FIR due to delay in finding of Theft”, this submission is totally based on assumptions. Even in Ex.OP-3, it has been observed that there is no delay in registration of FIR.
18. OP has relied on the following judgements:

1. Tata AIG General Insurance Co. Ltd. vs Mahendra Singh & Ors. of   Hon’ble NCDRC 2019 (2)CPR 713.The facts of the judgement are different from the present case as in Mahendra Singh & Ors.(supra) the driver while leaving the truck in the parking did not lock the same and left the keys of the truck in its ignition
2. Suraj Mal Ram Niwas Oil Mill Pvt. Ltd. vs Untited India Insurance Co. Ltd. & Anr. (2010) 10 Supreme Court Cases 567 and
3. Oriental Insurance Co.Ltd. vs Sony Cheriyan (AIR 1999 SC 3252).These judgements pertain to the interpretation of Insurance contract and its terms.
4. Gurshinder Singh vs Shriram General Insurance Co.Ltd. &Anr. arising out of S.L.P. (C) 24370 of 2015, Hon’ble Supreme Court had observed:

18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance Co. about the occurrence of the theft, it would be taking a hyper technical view.  We find, that this court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claim which has already been verified and found to be correct by the investigator. 

19.  We find , that this court in Om Prakash (supra) has rightly held that the Consumer Protection Act, aims at protecting the interest of the consumers and it being a beneficial legislation deserve pragmatic construction.  We find, that Om Prakash (supra) this court has rightly held that mere delay in intimating the insurance co. about the theft of the vehicle should not be a shelter to repudiate the Insurance claim which has been otherwise proved to be genuine.

e. Bachan Singh vs Oriental Insurance Co. Ltd. 2014 (2) C.P.C.309. The facts of the present complaint are different from the judgment relied upon as in that case the cleaner of the truck was present on the spot, but still, the truck was stolen, when he was very much present there.

19.     The OP has not placed anything on record to show that the Complainant had facilitated the theft by leaving the insured vehicle at unattended and unsecured area. Mere bald assertion that the vehicle was not visible from the house of the insured does not justify the repudiation. The insured is not expected to remain present every moment on the spot to ensure safety of the vehicle, but he is only expected to take reasonable precaution and care of vehicle. In the present case the Complainant has locked the Insured vehicle and has the key of the vehicle with him, implies that he has taken reasonable steps to safeguard the insured vehicle from damage or loss. Therefore, we do not find breach of the policy terms and conditions on part of the Complainant. The repudiation of the genuine and authentic claim of the complainant on flimsy grounds definitely amounts to deficiency in services on the part of OP.

Therefore, in the facts and circumstance of the present complaint we allow the present complaint and direct OP to pay Rs.1,80,000/- being the IDV of the insured vehicle  to the complainant along with interest @7% from the date of filing of the present complaint till realisation. We also award compensation of Rs. 20,000/- on account of mental harassment and agony, inclusive of litigation expenses.

The order be complied within 30 days of receipt of this order, else              compensation of Rs.20,000/- shall also carry an interest @7% p.a. from the date of order till realization.

          Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website. 

Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya) Member

(Divya Jyoti Jaipuriar)                         President