Complaint No: 17 of 2019.
Date of Institution: 21.01.2019.
Date of order: 06.12.2023.
Sulakhan Singh S/o Sh. Fauja Singh R/o Village Sultani, P.O Behrampur, Tehsil and District Gurdaspur.
….........Complainant.
VERSUS
New India Insurance Company, through its Divisional Manager, Division Office, Dalhousie Road Pathankot. Pin Code – 145001.
………Opposite party.
Complaint U/S 12 of Consumer Protection Act, 1985.
Present: For the Complainant: Sh.Naresh Thakur, Advocate.
For the Opposite Party: Sh.Vikrant Mahajan and Sh.Rajeev Sharma, Advocates.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sulakhan Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, 1985 (here-in-after referred to as 'Act') against New India Insurance Co. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant was owner of the Truck bearing registration No.PB-06-V-9392 and said Truck was Insured with the opposite party vide Police No.36160031160100002209 and said policy was valid upto from 13.08.2016 to 12.08.2017. It is further pleaded that the said vehicle was insured for amount of Rs.18,25,000/-. It is further pleaded that truck was being run for earning livelyhood by way of self employment. It is pleaded that Truck of the complainant was stolen on 08.07.2017 from Industrial Area Jalandhar and FIR No.0143 dated 13.07.2017 U/s 379 IPC was registered at Police Station Division No.1 Jalandhar. It is further pleaded that the complainant obtained untraced report regarding the theft of his above said Truck bearing registration No.PB-06-V- 9392 from the court of Judicial Magistrate First Class Jalandhar through concerned Police station Division No.1 Jalandhar vide its order dated 11.04.2018 and thereafter the complainant approached the opposite party for the releasing of the claim regarding theft of his truck which was duly Insured with the opposite party and the period of Insurance was upto 12.08.17 as such the opposite party is liable to pay the claim to the complainant regarding the stolen property insured with the opposite party. It is alleged that the opposite party did not give the proper consideration to the genuine demand of the complainant for his claim and kept on putting the matter prolonged on one pretext or the other and finally refused to make the payment of the claimed amount to him. It is further alleged that the complainant through his counsel issued legal notice through registered post to the opposite party which was received by the opposite party but inspite of legal notice the opposite party refused to make the payment to the complainant and filed vague reply to the legal notice. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to make the payment of Rs.18,25,000/- alongwith interest for which complainant is legally entitled and the opposite party may be burdened with a cost of Rs.15,000/- as litigation expenses and Rs.25,000/- for mental harassment and torture and the opposite party may be directed to pay the same to the complainant, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the Present Complaint is not maintainable in the present form and is without any merits and without any cause of action. It is pleaded that vehicle No.PB-06-V-9392 was insured with the answering opposite party vide policy No.361600311601 00002209 for the period 13.08.2017 to 12.08.2017 and the complainant submitted intimation letter dated 10.07.2017 intimating the theft of the above mentioned vehicle and there after M/s Royal Associates, Investigating & Detective agency was deputed by the regional office of the opposite party for the investigation of the case / claim. It is further pleaded that the investigating agency in its report based on the statement of the insured had pointed out that one ignition key was placed in the dashboard of the vehicle, moreover as per the FIR someone has stolen the vehicle using key. It is worth mentioning here that, as per the terms and conditions of the insurance policy AS PER KEY CLAUSE “IT EXCLUDES THE LOSS OF PROPERTY FOLLOWING THE USE OF KEY OR ANY DUPLICATE THEREOF BELONGING TO THE INSURED, UNLESS THIS HAD BEEN OBTAINED BY THREAT OR VIOLENCE”. It is further pleaded that as such the claim of the complainant is not sustainable in the eyes of law and moreover the act of the complainant being so careless and causal regarding the safety of the vehicle by not securing the duplicate key of the vehicle and placing the same in the vehicle itself is totally against the terms and conditions of the Insurance policy and a such the claim of the complainant is not payable as per the terms and conditions of the insurance policy. It is further pleaded that as a matter of fact, the vehicle was also not securely parked at the night time and the same was left alone with the keys inside the vehicle which is totally against the terms and conditions of the insurance policy. It is further pleaded that the complainant had failed to immediately inform the opposite party regarding the alleged theft of the vehicle and the same was intimated to the opposite party after a considerable delay vide letter dated 10.07.2018, which is also a violation of the terms and conditions of the policy. As such the claim of the complainant was rightly repudiated by the opposite party. It is further pleaded that the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the answering opposite party as such no theft as alleged by the complainant ever took place, rather it seems to be planned venture. It is further pleaded that vehicle in question was neglected and not properly parked and further the complainant had not taken any steps for the safeguard/ proper safety of the vehicle and had parked the same in a negligent and illegal manner and as such the complainant has committed the breach of terms and conditions of the policy and as such the complaint deserves dismissal and the complainant is not entitled to any relief / claim. It is further pleaded that it is crystal clear that the complainant has clear cut violated the terms and condition of the insurance policy and as such the complainant is not entitled to any relief. It is further pleaded that the complainant is estopped by his act and conduct from filling this present complaint as he has clear cut violated the terms and conditions of the insurance policy. It is further pleaded that the present claim is in respect of Vehicle of the complainant which was used for commercial purposes and such the complainant is not a consumer and the matter in dispute is beyond the scope of Jurisdiction of the Hon'ble Commission. It is further pleaded that the complainant has filed a false, frivolous and in fructuous complaint without any merits and as such the complainant is not entitled to any claim and the same is liable to be dismissed.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Sulakhan Singh, (Complainant) as Ex.C-1/A alongwith other documents as Ex.C-1 to Ex.C-4.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Mr. Kuldeep Raj, (Senior Divisional Manager, Divisional Office, The New India Assurance Co. Ltd, Pathankot) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-5.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the complainant, but not filed by the opposite party.
8. Counsel for the complainant has argued that complainant was owner of truck bearing No.PB-06-V-9392 and the complainant was earning is livlyhood by himself plying the truck in partnership by of self employment and the truck was insured with the opposite party. It is further argued that the said truck was stolen on 08.07.2017 from industrial area Jalandhar and FIR regarding theft of the truck was got registered copy of which Ex.C4. The police authorities have issued untraced report accepted by the court of Sh.Gagandeep Sing, PCS JMIC Jalandhar Ex.C3 but the opposite party has repudiated the claim of the complainant which amounts to deficiency in service. It is further argued that truck was insured with the opposite party vide policy of insurance Ex.C2 as per which the IDV of the truck was Rs. 18,25,000/-.
9. On the other hand counsels for the opposite party have argued that as per the report of M/s Royal Associates investigator one ignition key was placed in the dashboard of the vehicle and as per FIR the vehicle was stolen by using key and accordingly as per terms and conditions of the policy the claim was repudiated as per key clause. The counsel for the opposite party has further argued that there is delay in intimation of the claim and truck was being used for commercial purpose as such complainant is not consumer as per the Act.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his duly sworn affidavit Ex.C-1/A, copy of legal notice Ex.C1, copy of policy of insurance Ex.C2, copy of untraced report Ex.C3 and copy of FIR Ex.C4 whereas opposite party has placed on record affidavit of Mr.Kuldeep Raj Sr. Divisional Manager Ex.OP-1, policy of insurance Ex.OP-3, copy of cover under this policy Ex.OP-2, report of investigator Ex.OP-4 and statement of Sulakhan Singh Ex.OP-5.
12. It is admitted fact that complainant is registered owner of truck bearing No.PB-06-V-9392. It is further admitted fact that the said truck was owned by the complainant and was insured with the opposite party insurance company w.e.f. 13.08.2016 to 12.08.2017 with IDV of Rs.18,25,000/-. It is further admitted fact that truck was stolen on 08.07.2017 from industrial area Jalandhar. It is further admitted fact that FIR No.143 dated 13.07.2017 was registered at P.S. Divn. No.1 Jalandhar U/s 379 IPC. It is further admitted fact police has issued untraced report in respect of the vehicle. It is further admitted fact that claim lodged by the complainant has been repudiated by the opposite party on the basis of report of investigator. The main issues for adjudication before this Commission are whether the repudiation of claim by the opposite party is justified or not. Whether the claim is not payable on account of delay in intimation. Whether the present complaint is not maintainable on account of commercial use of vehicle. The first issue regarding repudiation of claim on the basis of key clause. To decide this issue we have gone through the copy of FIR Ex.C4 as per which the complainant has stated that some unknown person has stolen away the truck by using some key but it is nowhere mentioned in the FIR that key was kept in the dashboard. Perusal of investigation report which is the main document Ex.OP-4 shows that said investigator recorded the statement of registered owner of truck Ex.OP-5 wherein it is written that all the original documents of the truck i.e. R.S., insurance permit and fitness were in the vehicle and one key was kept in the dashboard of the truck and key of cabin was lying with the cleaner of the truck but the opposite party has not been able to prove this fact that under what circumstances the investigator recorded the statement of registered owner. Even the said statement is recorded without any authority and it is not certified under the statement that the said statement was read over and explained to the complainant before getting the same signed by the investigator. Moreover, it has come on record and verified by the investigator that complainant had very diligently parked the truck in the transport nagar Jalandhar and had deployed one cleaner for the safety of truck and the cleaner of the truck had locked the cabin of the truck and key of the cabin and the truck was with the cleaner. Meaning thereby that the complainant had taken all the safeguards for the protection of the truck and even if after having taken all the safeguards truck is stolen in that case opposite party cannot repudiate the claim by taking plea that the complainant had placed one key in the dashboard of the truck. Moreover, it is not proved by the opposite party that truck was stolen by using the key which is being alleged to be placed in the dashboard. As such we are of view that truck must had been stolen by some thief who must be having master keys with which said thief had opened the lock of the cabin and if the thief had succeeded in opening the cabin of the truck by using the master keys then there was no hindrance in way that the thief started the truck by using the master keys with which the truck was stolen. As such we do not any fault on the part of the complainant and repudiation by the opposite party is unjustified on this ground.
13. We have further placed reliance upon judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Shri Sukhwinder Singh. Vs. Cholamandalam etc. decided on 30.08.2013. In this case it is held as under:-
9. "Vehicle in question was stolen while the driver of the vehicle had gone to ease himself after parking the car on the road side and leaving the keys in the ignition. The question of determination is whether or not aforesaid act of the driver of the car amounts to violation of condition no.5 of the insurance policy?. In order to find answer to this question, it is necessary to have a look on the aforesaid condition which is reproduced thus:
"The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times 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 precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insureds own risk".
10. "This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serous breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as willful breach of condition no.5 on the part of the driver. If in the hurry to answer the call nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terms of the above condition no.5".
14. We have also placed reliance upon judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.88 of 2019 decided on 31.01.2020 in case titled as Ranbir. Vs. Bajaj Allianz Genneral Insurance Co. Ltd. In this case Hon'ble National Commission had restored the order of District Commission while allowing the compensation and in this case Hon'ble National Commission had found that the keys were left in the ignition and the driver had not gone far away and if the vehicle was stolen then no fault can be found with the insured.
15. We have next placed reliance upon judgment of Hon'ble Punjab & Harayna High Court at Chandigarh in case titled as Bajaj Allianz General Insurance Company Limited. Vs. M/s Sagar Tour and Travels reported in C.W.P.No.8380 of 2011 decided on 11.08.2011 wherein Hon'ble Punjab & Harayna High Court was upheld the decision of Permanent Lok Adalat where the claim was allowed by the Permanent Adalat in respect of theft of the car which took place when the was parked by the driver in front of his relative's house but did not remove the keys and Hon'ble Punjab & Harayna High Court held "that if no willful act could be attributed to the insured then, in my view this clause cannot operate to exclude the liability of the insurance company". It was further held that "a human fallibility to forget is not the same as committing violation of terms and conditions".
16. As such by relying upon the above referred judgments we have no hesitation in holding that ground for repudiation of claim under the key clause is not proved on record and is not legally acceptable and accordingly repudiation of the claim on the above referred ground is totally unjustified and unacceptable.
17. The second ground for repudiation of the claim is delay in intimation. Perusal of record shows that the truck was stolen on 08.07.2017 and FIR Ex.C4 shows that the same was registered on 13.07.2017 i.e. after four days and the intimation to the insurance company is also proved to be given on the same day i.e. 13.07.2017. We are of view that if vehicle is stolen then it is expected from the prudent man or owner of the vehicle to make efforts for search of the vehicle himself and thereafter report the matter to the police and insurance and in the present case also just within four days the intimation to the insurance company has been given and FIR was also lodged within four days. We have also placed reliance upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Mitesh Lavji Thacker. Vs. Iffco-Tokio General Insurance decided on 30.01.2023 where delay in intimation was held to be immaterial where the insured had promptly given intimation to the police.
18. The third issue for adjudication is regarding commercial purpose. We are of the view that it has come on record that brother of the complainant was plying the truck which is itself evident from the copy of the FIR which proves that truck was being plied by the complainant for earning livelihood by way of self employment through his brother who is close family member. Moreover, as per settled law the insurance policy is taken for reimbursement or for indemnity of loss as such service insured cannot be set to have been availed for commercial purpose. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Harsolia Motors V. National Insurance Co. Ltd. I, (2005) CPJ 27 (NC) decided on 03.12.2004 held since an Insurance Policy is taken for reimbursement or for indemnity of the loss which may be suffered on account of insured perils, the services of the insurer cannot be said to have been hired or availed for a commercial purpose. This Commission does possess the requisite jurisdiction to entertain a Consumer Complaint wherever a defect or deficiency in the services rendered by an insurer is made out. In view of the above, the Complaint is held maintainable.
As such from the above discussion and case law referred above it cannot be held that the truck was being used for commercial purpose and insurance company has no authority to decline the claim on the said ground.
19. In view of the above facts, circumstances and evidence on record and by relying upon the above referred judgments we have no hesitation in holding that repudiation of the claim by the insurance company i.e. opposite party is totally unjustified and amounts to deficiency in service.
20. Accordingly, present complaint is partly allowed and opposite party is directed to pay Rs.18,25,000/- i.e. IDV of the policy of insurance without interest. However, it is made clear that if amount is not deposited within 30 days from the date of receipt of copy of this order the amount of Rs.18,25,000/- shall carry interest @ 9% P.A. from the date of filing of the present complaint i.e. 21.01.2019 till realization. Opposite party is further directed to pay Rs.25,000/- to the complainant for mental tension, harassment, agony and cost of litigation within the above referred given period.
21. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
22. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Dec. 06, 2023 Member.
*YP*
