Haryana

Yamunanagar

CC/221/2011

Pawan Kumar Garg S/o Luxmi Narayan - Complainant(s)

Versus

National Insurance Co.Ltd. - Opp.Party(s)

Mukesh Sehgal

12 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 221  of  2011

                                                                                          Date of institution:16.03.2011                                                                                     

                                                                                          Date of decision: 12.07.2016.

Pawan Kumar Garg aged about 60 years son of  Sh. Luxmi Narayan, R/o New Haryana Agency, Old Subji Mandi, Jagadhri.                                                                                                                                                                                                                                                                                                 …Complainant.

                                                         Versus

 

National Insurance Co. Ltd. near Fountain Chowk Yamuna Nagar, through its Branch Manager.

 

                                                                                                                          … Respondent. 

 

                         

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Mukesh Sehgal, Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for respondent.  

 

ORDER

 

1.                     Complainant Pawan Kumar filed this complaint under section 12 of the Consumer Protection Act 1986 seeking directions to the respondent (hereinafter referred as OP) to pay an amount of Rs. 58,575/- alongwith interest on account of theft of his motorcycle bearing registration No. HR-02W-0763 and further to pay compensation as well as litigation expenses.            

2.                     Brief facts of the present complaint, as alleged by the complainant, are that he is the registered owner of Bajaj Pulsar motorcycle bearing registration No. HR-02W-0763 which was comprehensively insured with the OP Insurance Company vide policy bearing No. 420402/31/10/620000099 for IDV of Rs. 58,557/- valid w.e.f. 07.04.2010 to 06.04.2011, which was stolen on 27.11.2010 at 7.30 P.M. during the currency of Insurance Policy. In this regard an FIR bearing No. 486 dated 27.11.2010 was lodged with the police station Jagadhri City. After that complainant immediately informed the OP Insurance Company. Upon which, Sh. A.S. Vias Investigator was deputed by the OP Insurance Company. The complainant handed over the requisite documents and one original key of the motorcycle to the investigator. The complainant had also informed the registration authority regarding the theft of motorcycle in question vide letter dated 30.11.2010. The complainant visited so many times to the office of OP Insurance Company and requested to settle the claim of the complainant, however, Op Insurance Company issued a letter bearing No. 420402/theft/311062900214 dated 03.02.2011 in which the claim of the complainant has been repudiated on flimsy ground that complainant has not taken proper and due care and the theft occurred due to the complainant’s fault. It has been further mentioned by the complainant that no terms and conditions were supplied by the OP Insurance Company, so, the repudiation of the claim of the complainant is totally illegal against the law and the OP Insurance Company are bound to pay the claim to the complainant. The complainant has requested to the official of the OP Insurance Company several times to pay the claim but all in vain. Hence, there is a deficiency in service on the part of the OP Insurance Company. Hence this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service; the complainant has violated the terms and conditions of the insurance policy in question as the complainant left the key of the motorcycle in ignition of the motorcycle and left the motorcycle unattended in gross negligence, so there was clear cut violation of the condition No.4 of the insurance policy. Hence, the claim of the complainant has been rightly repudiated and on merit the facts regarding the ownership and insurance of the motorcycle bearing No. HR-02W-0763 were not denied. It has been further mentioned that the insurance policy alongwith its terms and conditions were supplied to the complainant firstly on 24.03.2011 and after that on 09.05.2011. It has been further mentioned that on receiving the intimation from the complainant Surveyor and Loss Assessor/Investigator Sh. A.S.Vias was deputed who submitted his report dated 01.01.2011 to the OP Insurance Company. On receipt of the report of the investigator and on perusal of the statement of insured as well as Vipin Kumar and further from the perusal of the contents of the FIR, it came to the notice of the Op Insurance Company that the complainant left the keys in motorcycle and also left the motorcycle unattended in gross negligence which violates the terms and conditions of the insurance policy. Hence, the claim of the complainant has been rightly repudiated. Lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and CY and documents such as Photo copy of Insurance Policy as Annexure C-1, Photo copy of FIR as Annexure C-2, Photo copy of intimation letter as Annexure C-3, Photo copy of receipt of one key issued by investigator A.S.Vias as Annexure C-4, Photo copy of intimation letter to the Registering Authority, Jagadhri as Annexure C-5, Photo copy of repudiation letter dated 03.02.2011 as Annexure C-6, Photo copy of letter dated 25.02.2011 as Annexure C-7, Photo copy of reply dated 24.04.2011 of application issued by Op as Annexure C-8, Photo copy of another letter dated 25.04.2011 as Annexure C-9, Photo copy of reply of application issued by OP as Annexure C-10 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Sh. V.K.Sethi, Assistant Manager, NIC as Annexure RW/A, affidavit of Sh. A.S.Vias Investigator as Annexure RW/B, Photo copy of intimation letter as Annexure R-1, Photo copy of claim form as Annexure R-2, Photo copy of investigator report dated 01.01.2011 as Annexure R-3, Photo copy of statement of Pawan Kumar recorded by Investigator as Annexure R-4, Photo copy of statement of Vipin Kumar as Annexure R-6, Photo copy of FIR as Annexure R-6, Photo copy of repudiation letter as Annexure R-7, Photo copy of reply of letter as Annexure R-8, Photo copy of letters of Pawan Kumar complainant as Annexure R-9 and R-10, Photo copy of reply of letters as Annexure R-11, Photo copy of insurance policy with its terms and conditions as Annexure R-12 and closed the evidence on behalf of OPs.  

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully. 

7.                     It is not disputed that motorcycle bearing Registration No. HR-02W/0763 was not insured with the OP Insurance Company vide its policy bearing No. 420402/31/10/620000099 for IDV of Rs. 58,557/- valid w.e.f. 07.04.2010 to 06.04.2011, which is evident from the copy of insurance policy Annexure R-12/C-1. It is also not disputed that motorcycle in question was stolen on 27.11.2010 by unknown person when the complainant was busy in purchasing some articles from the stall in the market  leaving the motor cycle unattended and that too, with key in the ignition of the motorcycle which is evident from the copy of FIR bearing No. 486 dated 27.11.2010 registered in the Police Station, P.S. Jagadhri City (Annexure R-6/C-2) and statements of complainant as well as other person Vipin Kumar ( Annexures R-4  & R-5) and further from investigator report Annexure R-3. Learned counsel for the OP insurance company argued at length that as the complainant left the motor cycle unattended with a key in the ignition and has not taken a proper care before leaving the vehicle on the road, So, there was utter violation of the terms and conditions of the insurance policy i.e. Condition no.4 , hence, the claim of the complainant was rightly repudiated and he was informed about the fate of his claim vide letter dated 03.02.2011; and referred the case law titled as Delhi Dhulia Road Carrier Versus United India Insurance CO.Ltd.2011(III)CPJ 36 in which it has been held that Consumer Protection Act, 1986- Sections 2(1)(g),14(1)(d),15-Insurance-Truck-Theft-Breach of Policy Conditions-Surveyor appointed-Claim repudiated-Forum dismissed complaint-Hence appeal-Contention, complainant had not taken any care of vehicle, left it unattended, unlocked, goods lying therein and was found under the influence of liquor-Accepted-Non-observance of reasonable and proper care on part of driver which violates clauses of agreement-Repudiation justified.

8.                     On the other hand, learned counsel of the complainant draw our attention towards the copy of FIR bearing no. 486 U/s 379 IPC dated 27.11.2010 Annexure C-2 and argued that complainant lodged the FIR on the same day i.e.27.11.2010 with the P.S. Jagadhri City and also informed the OP insurance company immediately on 27.11.2010 which is evident from the information letter Annexure C-3. Learned counsel for the complainant further draw our attention towards the insurance policy Annexure C-1 vide which the motor cycle in question was insured for a sum of Rs.58575/- as IDV value. And lastly, prayed for acceptance of the complaint.

9.                     After hearing the parties at length, we are of the considered view that OP insurance company has wrongly repudiated the claim as a whole of the complainant. No doubt, complainant was busy in purchasing some articles from the market, leaving the Motor cycle unattended and that too, with key in the ignition of the motor cycle and there was violation of Condition No.4 of the insurance policy, however, OP insurance company cannot repudiate the claim of the complainant. We have perused the Condition No.4 carefully and minutely but in this condition it is no where mention that OP insurance company can repudiate the claim of the complainant. This is the only condition which has been imposed on the insured but this condition has been incorporated in the policy separately under the head of conditions, not under the head of general exceptions where the conditions have been incorporated in which the company shall not be liable under this policy. Meaning thereby that Condition No. 4 has been incorporated in the policy in question as an obligatory condition imposed on the insured and the insurance company cannot repudiate the claim of the complainant as a whole. The facts of law referred Delhi Dhulia Road Carrier Versus United India Insurance CO. Ltd (Supra) are not disputed but not applicable to the facts of the present case, as in the said citations driver of the vehicle was under influence of liquor and due to negligence of the driver theft took place. However, the Hon’ble National Commission, New Delhi has taken the same view that the claim of the complainant should be settled on NON-STANDARD BASIS in case titled as National Insurance Company Ltd. Versus Kamal Singhal, 2011(1) CPC Page 197 wherein it has been held that Insurance Claim- Theft of Car- Breach of insurance policy- Repudiation of claim- Driver of the complainant’s insured car picked up three persons- In the midway, three persons took away car when driver went for nature’s call- OP and police were informed about theft- Investigation report submitted- Insurance Company repudiated the claim on the ground of breach of policy, “ reasonable care” not taken- Complaint allowed by the District Forum- Appeal dismissed- Hence this revision- The driver not expected to carry key while getting down to answer nature’s call- Claim be settled on ‘Non Standard “ basis in terms of the guidelines issued by the insurance company- Order of Fora below upheld- Revision petition dismissed. 

10.                   Further, the same view has been held by the Hon’ble Supreme Court of India in case titled as National Insurance Company Ltd. Versus Nitin Khandelwal, 2008(3) CPC page 559 wherein it has been held that Consumer Protection Act, 1986-Section 14(1)(d)- Insurance Claim- Insured vehicle stolen- Claim was repudiated on the ground that terms and condition of policy were violated- State Commission settled claim on non-standard basis directing Insurance Company to pay 75% of claim amount which was upheld- National Commission giving rise to present civil appeal- Held, claim cannot be repudiated for breach of policy condition as nature of use of vehicle cannot be taken into consideration- Order passed by Consumer Fora upheld.   Further, the same view has been held by the Hon’ble High Court for the State of Punjab & Haryana at Chandigarh in CWP No. 23209 of 2011 in case titled as Reliance General Insurance Company Ltd. and another Versus Rajesh Kumar son of Sh. Bani Singh and another decided on 14.12.2011.

11.                   In the present case also, complainant was purchasing some articles from the stall in the market just standing near the motorcycle in question, so, it cannot be said that the complainant left the motorcycle in question unattended in careless and negligent manner. The facts mentioned in the case law titled as National Insurance Company Versus Kamal Singh (supra) as well as National Insurance Company Versus Nitin Khandelwal and other law cited above are fully applicable to the facts of the present case.

12.                   In the circumstances noted above we are of the considered view that OP insurance company has wrongly repudiated the claim of the complainant as a whole whereas, the claim of the complainant should be settled on NON-STANDARD BASIS.   

13.                   Resultantly, we partly allow the complaint of the complainant and direct the OP insurance company to pay Rs. 43,931/- (Round figure Rs. 44000/-) being 75% of the total sum insured of Rs. 58575/- alongwith interest @7% p.a. from the date of filing the present complaint till actual realization subject to submission of the subrogation letter and indemnity bond and other relevant documents/papers which are necessary to transfer the vehicle in the name of OP Insurance company. Further, the OP is also directed to pay Rs. 2,000/- as compensation as well as litigation expenses. This order shall be complied within a period of 30 days from the receipt of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. The parties concerned be communicated with a copy of this order free of cost accordingly and the file be consigned to the record room after due compliance.

Announced in open court.12.07.2016.                                                                                               

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER