BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 251
Date of Institution: 30.11.2016.
Date of Decision: 01.10.2019.
Amerjit age 26 years son of Sh. Hari Singh resident of village, Kalali, Tehsil- Ch Dadri, District Bhiwani, Haryana.
..….Complainant.
Versus
1. National Insurance Company Limited, S.C.O 41-43, Sector-31, Gurgaon, Haryana through its Sr. Divisional Manager.
2. Branch Manager, National Insurance Company Limited, Circular Road, Near Ghanta Ghar, Bhiwani-127021, Tehsil & District Bhiwani
…...Opposite Parties
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Nagender Singh, President.
Hon’ble Mr. Shriniwas Khundia, Member.
Present: Shri Rajesh Dhaka, Advocate for the complainant.
Shri M.L. Sardana, Advocates for Opposite parties.
ORDER:-
PER NAGENDER SINGH, PRESIDENT
Brief facts of the case are that the complainant was owner of a vehicle Motor Cab/Car Taxi (Jayilo) of Mahendera and Mahendera Ltd. bearing registration No.HR61A-7326, which was insured with the Opposite parties vide policy No.361400/31/13/6365000612 having validity from w.e.f. 31.01.2014 to 20.06.2014 for Rs. 5,49,647/-. Unfortunately, the vehicle in question was stolen on 09.05.2014 and regarding this FIR No.209 dated 11.05.2014 under Section 379 IPC was lodged with P. S. Civil Line Bhiwani. The complainant informed the Opposite parties and also lodged claim on 18.03.2016 vide letter reference no. 361400/Motor/14/173 and submitted all the documents including police report but despite that the Opposite parties have wrongly and illegally denied to pay the claim without any reason. Thus, there is deficiency in service on the part of Opposite parties. Hence, the present complaint. In evidence, the complainant has tendered affidavits Ex.CW1/A, Ex.CW1/B and documents Annexure C1 to Annexure C5.
2. On appearance, the Opposite parties filed their joint reply wherein several preliminary objections such as maintainability, cause of action, estoppal, concealment of material facts and locus standi etc. have been taken. It has been further submitted that on receipt of information, the Opposite parties had deputed an independent Surveyor and Investigator i.e. Lachhman Dass Arora and Associates, Surveyors and Investigators for Investigations, who in his report dated 09.02.2015 had opined that at the time of theft of vehicle, the insured left the key of the vehicle in the vehicle itself, which amounts to violation of the terms and conditions of the insurance policy. The Opposite parties have rightly repudiated the claim of the complainant vide letter dated 18.03.2016 as he himself has violated the terms and conditions of the policy. There is no deficiency in service on the part of the Opposite parties. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the Opposite parties have tendered documents annexure R1 to R4.
3. We have heard both the parties at length and have gone through the case file carefully.
4. Undisputedly, the vehicle of the complainant bearing registration No.HR61A-7326 was insured with the opposite parties for the period from 31.01.2014 to 20.06.2014 (Annexure C-2) having IDV of Rs.5,49,646/- and the vehicle of the complainant in question was stolen on 09.05.2014 and regarding this FIR was registered on 11.05.2014 (Annexure C- 3). The vehicle in question could not be traced out and police has filed the untraced report to Illaqa Magistrate which was accepted by the court on 25.03.2015 (Annexure C5) (page 2).
5. Learned counsel for the complainant has argued that the complainant has not violated any terms and conditions of the policy and the vehicle was stolen by unknown person during the subsistence of the policy and regarding this untraced report has already been accepted by the court, but despite that the insurance company has wrongly and illegally repudiated the claim of the complainant.
6. On the other hand, learned counsel for the Opposite parties has argued that there is inordinate delay of two days in lodging the FIR and even the complainant has not intimated the insurance company immediately after the incident. It has been further argued that the complainant has not taken reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it as he left the key of the vehicle in the vehicle which is clear cut violation of the terms and conditions of the policy, therefore, the insurance company has rightly repudiated the claim of the complainant. In support of his arguments, he drew the attention of this Forum towards condition No.5 of the policy, which is reproduced as under:
“The insured shall take all reasonable steps to safeguard the vehicle insured from 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 insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected any extension of the damage of any further damage to the vehicle shall be entirely and the insured on risk”.
7. As per complainant the vehicle was stolen on 09.05.2014 and perusal of Annexure C5 (page 1) reveals that the complainant had duly intimated the police on the same day regarding the theft of the vehicle and thereafter, the police had registered the FIR on 11.05.2014.
8. Another plea of the Opposite parties that the complainant has not taken reasonable care in attending the vehicle is also not sustainable as it appears that the Opposite parties/insurance company are trying to take the word reasonable care as a weapon in order to repudiate the claim without any reason. On this point learned counsel for the complainant has rightly relied upon the case law titled as New India Assurance Company Ltd. Vs. Pravin Krushna Takari (2018) CPJ 80 (NC) wherein Hon’ble National Commission has held that Insurance-Theft of vehicle- “Proper precautions” allegedly not taken - Claim repudiated- Alleged deficiency in service - Contention, when vehicle was parked in open space and door had no lock, complainant ought to have appointed some one as security personal for vehicle- Not accepted- Theft took place during validity period of insurance policy and the incident was duly intimated to the Insurance company and an FIR was also lodged in concerned police station- Term ‘reasonable care’ cannot be construed to advantage of insurance company- No fundamental breach of any of conditions stipulated in contract- claim allowed on non-standard basis-interest @ 9 % p.a. awarded.
9. The authority cited (supra) by learned counsel for the complainant squarely covered the case of the complainant, therefore, we allow the complaint on non-standard basis and the Opposite parties are directed to comply with the following direction within thirty days from the date of order:-
(i) To pay 75% of Insured Declared Value of vehicle (Rs.5,49,646/-) which comes to Rs.4,12,234.5/- alongwith interest @ 9% from the date of filing of the complaint till its realization.
(ii) Also to pay a sum of Rs.5,000/- on account of litigation charge, mental harassment & agony alongwith cost of litigation.
(iii) The complainant is directed to provide requisite documents such as Form No.29, Form No.30, requisite affidavit alongwith letter of subrogation/indemnity bond to the insurance.
Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced in open Forum.
Dated: - 01.10.2019.
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
