DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.39/2011
M/S Darcl Logistics Ltd.
Having its Registered Office at
Plot No. 55 P, Sector 44,
Institutional Area, Gurugram,
Haryana- 122003
….Complainant
Versus
New India Assurance Co. Ltd.
Having its Branch Office at,
2nd Floor, Mother House,
22 Yusuf Sarai, Commercial Complex,
Gulmohar Enclave, New Delhi- 110049
….Opposite Party
Date of Institution : 10.02.2011
Date of Order : 09.03.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
- The Complainant aggrieved at repudiation of his claim approached this Commission for directions to the New India Assurance Co. Ltd. (OP) to make payment of Rs.5,08,500/- alongwith interest @18% p.a. and further to pay Rs.2,00,000/- as compensation on account of harassment and mental agony.
- Complainant is a public limited company and is the registered owner of goods carrying Commercial Vehicle bearing Registration No. HR38F 8829. During the validity of the insurance policy the said vehicle got stolen
on 30.01.2008. It is stated that OP was intimated regarding the theft
on 01.02.2008 and copy of FIR dated 11.02.2008 was submitted to OP
on 18.02.2008. Pursuant to the intimation, OP appointed an investigator. The investigator submitted its report on 02.01.2009. True copy of the report is annexed as Annexure C/5. Thereafter, Complainant sent several reminders to OP to pass the claim. However, on 08.06.2009, Complainant received a letter from OP stating that the claim of the Complainant had been repudiated for the reasons stated below:-
- With respect to your above claim, the Competent Authority after going through the file found that your driver while parking the said vehicle left the vehicle keys in the vehicle itself. Therefore, did not take care of the vehicle properly and has left the vehicle unattended, which has resulted into the theft of the vehicle. This is a gross negligence on the part of your driver, which is a violation of policy terms and conditions.
- That as per the intimation of theft received in the office of the Company, you informed the Company on 04.02.2008 and to the police on 11.02.2008. Therefore, you have informed the loss due to theft to the Company after five days of the theft, which is a violation of Condition No. 1 of the terms and conditions of the policy.
- That you have not submitted the copy of permit and the fitness certificate did not show the date of validity which is again violation of Motor Vehicle Act as well as the terms and conditions of the policy.
- Alleging deficiency in service by OP Complainant approached this Commission.
- OP contested the claim stating inter-alia that Complainant’s claim has been repudiated as the Complainant has committed breach in the terms of policy, which are fundamental in nature. It is stated that during the subsistence of policy the said vehicle was reported to have been stolen on 30.01.2008 after the vehicle was parked by the driver. The Complainant had informed OP on 04.02.2008 and FIR in this regard was got registered by the Complainant only on 11.02.2008. The Complainant in terms of policy condition no. 1 was required to immediately notify OP about the loss and was also required to provide all the documents; on the contrary the Complainant informed OP on 04.02.2008.
- It is next submitted that the investigator appointed by OP after making inquires submitted their report on 02.01.2009 concluding therein that the driver had left the keys of the vehicle while it was parked unattended. The said act of the driver by leaving the key inside the vehicle has contributed for the loss as such the same was also not payable in the terms of policy condition. It is also stated that the Complainant has also failed to provide copy of the permit and fitness certificate in respect of the insured vehicle. It is on the grounds stated above that OP had rightly repudiated the claim of the Complainant. Therefore, it is prayed that the complaint be dismissed as it is devoid of any cause of action.
- Replication is filed on behalf of the Complainant. Evidence by way of affidavit and written arguments are filed on behalf of parties. Material placed on record is perused and the rival contentions of the parties have been considered. Oral arguments made on behalf of the parties are heard.
- It is undisputed that Complainant’s vehicle bearing Registration No.
HR38F 8829 was found missing on 30.01.2008 during the subsistence of the policy. OP Company was intimated regarding the same on 04.02.08 vide letter dated 01.02.08 however, FIR in this regard was got registered on 11.02.2008 that is after delay of about 12 days.
- OP repudiated the claim on the ground that Complainant has not only violated the terms and conditions of the policy by lodging the FIR after delay but also the keys of the insured vehicle were left inside the vehicle. Complainant has not given any justifiable explanation of the delay in filing the FIR. It is pertinent to state here that time is of essence in the cases of theft and delay in lodging the FIR and sending intimation about the theft to the insurer can be fatal to the recovery of the insured vehicle.
- In Gurshinder Singh v/s Shri Ram General Insurance Company decided by Hon’ble Supreme Court on 24.01.2020 it is held:-
“We find, that the second part of Condition No. 1 deals with the ‘theft or criminal act other than the accident’. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle”.
Thus, this condition of Insurance contract has found favour with the Hon’ble SC also.
- OP has also stated that as per the report of Investigator driver of the vehicle had left the keys of the vehicle in ignition and left the vehicle unattended thereby, breaching the fundamental terms and conditions of the policy. The condition of the policy stipulates that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage. In these circumstances, we are of the view that the insured /owner in the present case were negligent.
- In Shakuntala Devi v/s Reliance General Insurance on Hon’ble NCDRC in RP No. 2091/2012 decided on June, 2015 held:-
“Undisputedly, the insured left the keys in the ignition of the unattended insured car. Thus, it is obvious that petitioner instead of taking steps to protect the insured car from loss or damages have facilitated the theft by leaving the keys in the ignition of unattended car. Thus, in our view learned State Commission has rightly held that the repudiation of claim by the Insurance Company was justified and there is no deficiency in service. In our aforesaid view, we find support from the judgement of co-ordinate Bench of this Commission in the matter of Arun Lal Jaat v/s HDFC Ergo General Insurance Co. Ltd. (supra)”.
- In view of the discussion above, we opine that Complainant was negligent in not only taking prompt action in lodging FIR but also had left the keys in the vehicle ,unattended therefore, the claim was rightly repudiated by OP. Thus, we dismiss the complaint with no order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules.
