BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

  Complaint No.223 of  2020

      Date of Instt. 07.08.2020

      Date of Decision: 30.01.2024

The Designers, 147, Ganga Road, Jalandhar Cantt, Jalandhar, Punjab Through its Partner Lalit Sayal.

..........Complainant

Versus

New India Assurance Company Ltd. First Floor, 422-R, Model Town, Jalandhar-144001 Through its Branch Manager/Principal Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Atul Malhotra, Adv. Counsel for the Complainant.

                   Sh. A. K. Arora, Adv. Counsel for the OP.

Order

Jyotsna (Member)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is a registered partnership firm and Lalit Syal is one of the partners of Complainant firm. Complainant is the registered owner of Hero Honda Splendor Pro make Motor Cycle bearing RC No.PB 08 BS 3227 which was fully insured with OPs against all perils particularly theft. The OP had insured the said vehicle after receiving the due payment of the premium from Complainant. On 10-6-2019 and during the pendency of the said insurance policy issued by OPs, the said vehicle was got stolen from outside the RTA track near, Punjab Roadways Depot no.1, Jalandhar. All of the documents which were placed in the said vehicle particularly original Registration Certificate of the said vehicle etc. were also stolen along with the said vehicle. The driver Rajesh Kumar Khanna had immediately informed the police control room. An FIR no.0096 was also got registered by the police. Thereafter complainants applied and requested OP to settle the claim and make the payment of the claim and supplied all of the documents as and when demanded by OP and there was no delay on behalf of complainants in supplying any of the documents. There was a lengthy communication in between Complainant and OPs, but OPs failed to settle the claim of complainant on one pretext or the other. Despite the receipt of all of the required documents from complainants, OP has failed to settle and further failed to make the payment of the claim to Complainants till present date and repudiated claim as No Claim. When OP failed to settle or make the payment of the claim of the said stolen vehicle of Complainant, Complainant was constrained to issue a legal notice dated 18-3-2020 through his advocate. Even after the receipt of the claim form duly completed and all of the required documents OP has failed to settle and further failed to make the payment of the said claim to complainants till present date on flimsy grounds. Due to the above mentioned facts, there is deficiency in services, negligence, unfair trade practices and restrictive trade practices on the part of OP and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to make the payment of claim of complainant for Rs.15,000/- alongwith interest @ 18% per annum from the date of theft and further OP be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.11,000/- as litigation expenses.

2.                Notice of the complaint was sent to the OP, who filed reply and contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practices on the part of answering OP and that being so the present complaint is not maintainable and is liable to be dismissed with costs. It is further averred that immediately on the receipt of information qua the theft of vehicle on 10.06.2019, insured with the answering respondent vide policy of insurance for the period 31.10.2018 to midnight of 30.10.2019, claim was lodged by the complainant. Letter dated 12.08.2019 was written to the complainant by the OP asking for both keys of the stolen vehicle and so also untraceable report issued by the concerned authorities duly stamped and signed in original. The complainant vide their letter dated 23.08.2019 told the OP that the original key was misplaced and the complainant was using only one key for running a vehicle, which is a duplicate key of the vehicle. Further letter dated 10.09.2019 was written by the OP to the complainant, requesting the OP as under:-

          ‘After going through the contents of the file, we may request you as under.’

i.        In practice, every new vehicle sold by any dealer is delivered with two original keys of the vehicle. You have provided one duplicate key of TVS Make while your stolen vehicle is of Hero Honda Splender Make. So, please inform us when both keys of your above vehicle were misplaced and whether you had informed to any police station about the same. If yes, please provide a copy of information given to the police.

ii.       Please provide us driving license in original along with a copy of the same of Mr.Rajesh Kumar Khanna, who was driving the vehicle, when it was got stolen afterwards.

iii.      Please provide untraceable report issued by concerned authorities duly stamped and signed, in original.

                   The copy of said letter dated 10.09.2019 is on record. Thereafter reminder dated 24.09.2019 was sent by the OP to the complainant requesting the complainant once again to provide the information called vide letter dated 10.09.2019. The said letter was replied by the complainant vide letter dated 06.11.2019, the copy of which is Ex-OP/6 stating therein that both the original keys were misplaced after the purchase of the vehicle and no complaint was lodged with the police station. The copy of driving license of Rajesh Kumar Khanna along with original verification was supplied by the complainant to the OP vide letter. The complainant has approached the police station for the untraceable report and it was told that the case was under process and the untraceable report would be given by next week. Further the complainant vide letter dated 04.03.2020 supplied the untraceable report duly attested by police station authority to the OP. Thereafter letter dated 11.03.2020 was written by the OP to the complainant stating therein that both the original keys of the stolen vehicle were not submitted by the complainant with the OP and as such the claim file of the complainant remains ‘No Claim'. It is further averred that the OP has asked for both the original keys of the stolen vehicle as per the procedure for settlement of Theft Claims as per Claims Manual of the OP i.e. New India Assurance Co. Ltd. As per clause 8.4 (c) qua the total loss claim due to theft of the vehicle all Ignition Keys should be collected from the insured before making payment. The said clause of asking for both the Ignition Keys of the stolen vehicle is as per the terms & conditions of policy of insurance i.e. condition no.4 of policy of insurance which reads as under:-

"The insured shall take all reasonable steps to safeguard of the vehicle from loss or damage…..”

                   Since the original keys of the vehicle has been lost and no report whatsoever has been lodged by the complainant with the police and as such the insured i.e. the complainant has not taken reasonable steps to safeguard the vehicle from loss/theft, thus there is breach of condition no.4 of the policy of insurance and as such the claim file of the complainant has been rightly made no claim by the OP. On merits, the factum with regard to ownership of the vehicle and insurance of the vehicle is admitted and the factum with regard to payment of premium at the time of insurance, theft of the vehicle, lodging of FIR in respect of theft of the vehicle is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OP very minutely.

6.                It is not disputed that the complainant is a registered owner of Hero Honda Splendor Pro make Motor Cycle bearing RC No.PB08 BS 3227, which was fully insured with OP against all perils particularly theft. Insurance policy for Rs.15,000/- was valid from 31.10.2018 to 30.10.2019. On 10.06.2019, the said vehicle was stolen from outside the RTA Track near, Punjab Roadways, Depot No.1, Jalandhar. FIR Ex.C-4 bearing No.0096 dated 27.06.2019 was also registered by the police immediately. Necessary documents were submitted by the complainant to OP for settlement of the claim of Rs.15,000/-. OP vide their letter dated 12.08.2019 Ex.OP-2 asked for both keys of the stolen vehicle and untraceable report issued by the concerned authority. The complainant vide their letter dated 23.08.2019 Ex.C-6/Ex.OP3 told the OP that original keys were misplaced and the complainant was using only duplicate key of the vehicle. The OP vide their letter dated 10.09.2019 Ex.OP-4 and letter dated 24.09.2019 Ex.OP-5 asked the complainant to submit both the original keys of the vehicle, original driving license of the driver and untraceable report issued by the concerned authority. The said letter was replied by the complainant on 06.11.2019 Ex.C-7/OP-6 stating that both the original keys were misplaced after the purchase of the vehicle and no complaint was lodged with the police station. The copy of the driving license of Rajesh K. Khanna, the driver, alongwith the original verification was supplied by the complainant to the OP. The complainant also supplied the untraceable report duly attested by the police station authority to the OP on 04.03.2020 vide letter Ex.C8/OP7. Ultimately, the claim was repudiated by the OP vide letter dated 11.03.2020 Ex.C10/OP-8 on the basis that both the original keys of the stolen vehicle were not submitted by the complainant. It needs to be mentioned that the theft of the vehicle, in question has been truly proved on record from FIR. The vehicle has not been traced and untraced report has also been proved. It has been held by the Hon’ble Supreme Court in Civil Appeal No.21552 of 2017, case titled as ‘Manjeet Singh Vs. National Insurance Company & Anr.’ that ‘the vehicle was snatched by the passengers, to whom the driver had given the lift. In those circumstances, it has been held that there was no fault on the part of the owner of the vehicle and if there is breach of any condition of the insurance policy, then the claim can be allowed on Non- standard Basis i.e. 75% of the IDV.’

                   It has further been held by the Hon’ble Supreme Court in a case titled as ‘Amalendu Sahoo v. Oriental Insurance Co. Ltd.’ 2010 (1) CPC 653 (SC), wherein considered the identical question and held in Paras No. 12 to 15 as follows:-

                   "12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of  National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-

                   "...The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.

                    In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.

                   In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis, the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims.

                   From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached."

                   In view of the law laid down by the Hon'ble Supreme Court in the above noted authorities, the claim of the complainant is liable to be settled on non-standard basis, even though there was violation of the terms and conditions of the policy.

7.                In view of the above detailed discussion and the law liad down by the Hon’ble Supreme Court, the complaint of the complainant is partly allowed and the claim is allowed on non-standard basis i.e. 75% IDV i.e. Rs.15,000/-. Further, OP is directed to pay a compensation of Rs.8000/- for causing mental tension and harassment to the complainant and Rs.4000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

8.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

30.01.2024         Member                          Member               President