Delhi

StateCommission

A/684/2014

M/S CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

MUDIT BERRY - Opp.Party(s)

14 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 14.09.2018

 

 

First Appeal No.684/2014

(Arising out of the order dated 14.02.2014 passed in Complaint Case       No. 212/2011 by the District Consumer Disputes Redressal Forum (Centra), Kashmere Gate, Delhi)

 

 

 

Cholamandalam General Insurance Co. Ltd.

Through its Manager,

1^st Floor, Plot No.6, Pusa Road,

Near Metro Pillar No.81,

New Delhi -110005.                                                                 …..Appellant

 

Versus

 

Shri Mudit Berry,

S/o Late Shri Anil Berry,

R/o B-1/47, 1^st Floor,

Paschim Vihar,

Delhi.                                                                                       .….Respondent

 

 

CORAM

Justice Veena Birbal, President

 

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short ‘the Act’) wherein challenge is made to order dated 14.02.2014 passed by the Consumer Disputes Redressal Forum (Central), Delhi, (in short, the “District Forum”) in Complaint Case No.212/2011, by which the aforesaid complaint has been allowed and appellant/OP is directed as under:

 

“1.          To pay to the complainant the insured amount of Rs.5,00,000/- (Rs. Five Lakh) after deduction of Rs.1000/- as Excess Clause. However, the complainant shall transfer the registration certificate of the vehicle in the name of the insurance company and shall also make available no dues certificate from the financer, if any. On furnishing such documents, the insurance company shall pay the insurance amount of Rs.5,00,000/- with interest @9% per annum from the date of repudiation of the claim i.e. 18.08.2011 till the realization of the amount.

 

2.           To pay to the complainant a sum of Rs.25,000/- (Rs. Twenty Five Thousand) as compensation for causing harassment, pain and mental agony.

 

3.           To pay to the complainant a sum of Rs.7,000/- (Rs. Seven Thousand) towards litigation charges.

 

 

2. Briefly the facts relevant for the disposal of the present appeal are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before the Ld. District Forum stating therein that he was the owner of a vehicle (Car Maruti SX4 ZXI) bearing registration No.DL-9CR-3047. It was stated that the said vehicle was insured with the appellant /OP for the period from 13.10.2010 to 12.10.2011 with insured amount of Rs.5,00,000/-. It was alleged that on 02.12.2010 at about 1.30 AM, the vehicle alongwith other articles was snatched from the brother of respondent/complainant at the red light of Raja Garden. The matter was reported to the police wherein FIR No.380/2010 was registered under Section 382/34 IPC at PS Raja Garden. The appellant/OP was also informed and requisite documents were also submitted, however, despite that the claim was not released. A legal notice dated 06.09.2011 was also served on the appellant/OP but no response was received. Finding inaction on the part of the appellant/OP a complaint was filed before the District forum seeking insurance amount of Rs.5,00,000/- alongwith compensation of Rs.50,000/- and litigation costs of Rs.20,000/-.
3. The complaint was opposed by the appellant /OP by filing a written statement denying the allegation deficiency in service. It was alleged that the policy was issued subject to terms and condition attached to it. The alleged instance of snatching was denied. It was alleged that the surveyor appointed by the appellant/OP also found the alleged occurrence doubtful. It was further alleged that in any event the person driving the vehicle did not keep the vehicle locked as such had not taken adequate steps to prevent the loss. It was further stated that there was delay in intimating the matter to the police, accordingly, the claim was repudiated vide letter dated 18.08.2011.
4. Respondent/complainant had filed rejoinder wherein he had reiterated the facts as pleaded in the complaint.
5. Respondent/complainant had also filed his evidence by way of affidavit wherein he had relied upon the documents Ex. CW -1/A to Ex. CW-1/G i.e. copy of the insurance policy (Ex. CW -1/A), copy of FIR (Ex. CW -1/B), copy of order dated 07.07.2011(Ex. CW -1/C), copy of letter/reminder dated 18.07.2011 (Ex. CW -1/D), copy of letter dated 18.08.2011 (Ex. CW -1/E) and copy of legal notice alongwith postal receipts (Ex. CW -1/F and CW- 1/G)). Respondent/complainant has also filed affidavit of his brother Shri Mahim Berry dated 21.08.2012 who was driving the vehicle.
6. On behalf of the appellant/OP affidavit of Shri Abhishek Chander, Assistant Manager was filed wherein reliance was placed on documents Annexure R-1 i.e. copy of the insurance policy and R-2 i.e. copy of investigation report alongwith relevant statement of the insured and Mr. Mahim Berry, copy of FIR and the claim form. Affidavit of the surveyor Shri Aseem Rohtagi was also filed.
7. After hearing the parties, Ld. District Forum held that the vehicle in question was snatched when brother of respondent/complainant, Shri Mahim Berry had stopped the vehicle at the red light at Rajouri Graden at about 1.30 AM. Ld. District Forum also held that the repudiation was not justified and directed the appellant/OP to pay the insured amount alongwith compensation and litigation charges as has been stated above.
8. Aggrieved with the aforesaid order, present appeal is filed by appellant/OP
9. Ld. Counsel for the appellant/OP has contended that there is no reliable evidence to establish that any occurrence as is alleged had taken place. It is contended that all vehicles come with central locking system for all its doors as such there is no possibility for any intruder to get into the vehicle forcibly as has been alleged. It is contended that story alleged is concocted. It is further contended that as per brother of the respondent/complainant the alleged occurrence had taken place at 1.30 AM at the red light of Raja Garden. It is contended that as per information ascertained, the traffic lights of Raja Garden Intersection were on blinking mode from 1.00AM on that date, as such respondent/complainant had falsely stated that the person driving the vehicle had stopped the car at the intersection for the reason of traffic light. It is contended that there is also delay in informing the police. It is contended that PCR was informed only at 8.00AM whereas FIR was recorded on 03.12.2010 at 10.35 AM. It is contended that there is substantial delay. It is contended that the Ld. District Forum omitted to see the material facts on record.  It is contended that the alleged incident has not taken place and the complaint has been wrongly allowed.
10. On the other hand, ld. counsel for the respondent/complainant contended that the District Forum after considering the material on record has allowed the complaint. It is contended that no material is placed on record by appellant/OP to substantiate that the red light at Raja Garden Intersection at the time of incident was on blinking mode. It is contended that the police has been informed within a few hours of the occurrence and there is no delay. It is further contended that the appeal is liable to be dismissed.
11. We have counsel for the parties and perused the material on record.
12. It is admitted position that the respondent/complainant had taken policy from the appellant/OP. There is no denial that at the time of alleged occurrence the brother of the respondent/complainant, namely, Shri Mahim Berry was driving the vehicle. The claim is repudiated by the appellant/OP on the ground of violation of condition No.5 of the policy, vide letter dated 18.08.2011. Relevant portion of the said letter is as under:

 

“With reference to claim documents submitted by you regarding the captioned claim and from the facts it is evident that one set of keys was left in the vehicle which has resulted in the theft. As per our policy terms and conditions this constitutes Gross Negligence.

 

As you must be aware, any how vehicle comes with 2 sets of keys. Also within sixty seconds it is not possible for someone to use another key to steal the vehicle.

 

For your ready reference this condition is reproduced below and reads as follows:

 

Condition No.5:

The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

 

 

We, therefore, regret our inability to consider you claim.”

 

 

13. In the reputation letter, it is alleged that the one set of key was left in the vehicle which had resulted in theft as such there was negligence on the part of respondent/complainant. No such plea is taken in the written statement or in the evidence of appellant/OP.
14. As per averments made in the complaint and evidence by way of affidavit of complainant and his brother Mahim Berry, it is categorically stated that on 02.12.2010 at about 1.30 AM when brother of respondent/complainant Mahim Berry was coming from Panchsheel Enclave to his own house and had stopped the car at Raja Garden red light, two boys opened the door of the car and pulled him out and took away the vehicle alongwith his mobile, driving license etc. Nothing has been placed on record to rebut the aforesaid evidence. Though appellant/OP has alleged that traffic lights of Raja Garden intersection were on blinking mode from 1.00 AM on that date, however, nothing has also been placed on record to substantiate the same. Even the contention of the appellant/OP that the vehicle comes with central locking system and there is no possibility of intruder opening the door has also no force. A person driving a vehicle may not always keep the doors locked. The facts and circumstances of the case establish that car was never left unattended. Shri Mahim Berry at the time of incident was there on the driving seat and key of the car was in ignition switch. In these circumstances, even if second key was left in the vehicle as is alleged in repudiation letter, the same could not have contributed to the theft.
15. There is also no delay in forming the police also as has been alleged by the appellant/OP. As per evidence on record, the incident of snatching had taken place on 02.12.2010 at about 1.30 AM. Thereupon, brother of respondent/complainant had gone to his house walking and had reported the matter to police at 8.00 AM. The information was given within few hours of the alleged incident to the police. FIR was registered on 03.12.2010 at 10.35 AM.   In these circumstances, it cannot be said that there was delay in informing the police. Further claim is not repudiated on the ground of delay also. As such said plea is not available to appellant/OP.
16. In view of the above discussion, I agree with the findings given by the Ld. District Forum in coming to the conclusion that repudiation of the claim by the appellant/OP was unjustified. No illegality is seen in the impugned order and the same stands upheld.
17. Appeal stands dismissed accordingly.
18. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  

              Thereafter the file be consigned to Record Room.

 

 

 (Justice Veena Birbal)

• President
•  
• (Salma Noor) 

Member