Punjab

Ludhiana

CC/19/471

Mahinder Singh - Complainant(s)

Versus

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

Maninder Khara Adv..

03 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 471 dated 09.10.2019.       

                                                Date of decision: 03.01.2023. 

 

Mahinder Singh S/o. Kishan Singh, R/o. H. No.1740/32/6, Street No.2, Bank Colony, Haibowal Kalan, Ludhiana                                                                                                                                                    ..…Complainant

                                                Versus

1. The Oriental Insurance Company Ltd., having its Head Office at Oriental House, A-25/27, Asaf Ali Road, New Delhi.

Regd. Office: SCO No.109-110-111, Surendra Building, Sector 17-D, Chandigarh through its Managing Director/Authorized person.

2. The Oriental Insurance Company Ltd., Madhok Complex, Ferozepur Road, Opp. Silver Arc, Ludhiana through its Branch Manager.                                                                                                 …..Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Maninder Khara, Advocate.

For OPs                         :         Sh. Gurjeet Singh Kalyan, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In nutshell, the facts of the case are that the complainant is the owner of the scooter Activa 4G make Honda bearing registration No.PB-10-GJ-3072. The complainant got the vehicle insured from opposite party No.2 under the two wheeler package policy for theft on 16.07.2017 vide police No.233406/31/2018/3935 valid from 16.07.2017 to 15.07.2018. On 17.05.2018 in order to attend his classes, Sahil Bisht son of the complainant took the aforesaid Activa scooter to go to his school i.e. Bhartia Vidya Mandir, Udham Singh Nagar, Ludhiana and parked the same alongside the outer boundary wall of the school which abuts the road. At about 1.15 PM when he came out of the school, he was shocked to see that the said vehicle is not standing at the place where he parked it in the morning and find out that the same has been stolen away by some unknown persons. The report with regard to theft of the vehicle was lodged at P.S. Division No.8 vide FIR No.119 dated 18.05.2019. The complainant intimated and lodged the claim with opposite party No.2 who appointed its investigator and asked the complainant to coordinate and assist him for the fulfillment of the documents. The complainant supplied all the documents as demanded by the officials of the opposite parties and the opposite parties assured the complainant that his claim will be settled at the earliest. The complainant further stated that the opposite parties vide letter dated 25.09.2018 repudiated the claim of the complainant on the ground of violation of the terms and conditions of the policy. The repudiation is wrong, illegal, without jurisdiction and arbitrary on the following grounds:-

a.       The theft has no nexus with the handing over of vehicle to the minor son of the complainant.

b.       The exclusion clause if any for handing over vehicle to minor son who does not possess and hold a valid and effective driving licence is not attracted in case of loss of vehicle by theft. The issue of the driver having a licence can only be relevant only when the damage to the vehicle is caused whilst it is being driven by an unauthorized person and when the vehicle was in motion.

c.       All the students who take their two wheelers to approach the Bhartia Vidya Mandir School park the two wheelers alongside the boundary wall of the school abutting the road.

The complainant has further alleged that the claim has been repudiated on the ground that his minor son did not possess a valid and effective driving licence and was not competent to ply the vehicle on the road. The repudiation of the claim on this ground is arbitrary, since absence of having a valid and effective driving licence has no relation with the theft of the vehicle. The complainant has suffered mental tension, pain, agony on account of non-payment of the claim by the opposite parties and as such, he is entitled for an amount of Rs.50,681/- being the value of the scooter along with interest @12% per annum and Rs.50,000/- on account of mental tension, pain, agony and deficiency of service on the part of the opposite parties. Hence this complaint whereby the complainant has sought issuance of direction to opposite parties to pay amount of Rs.50,681/- as value of the vehicle and Rs.50,000/- as compensation as well as Rs.33,000/- as litigation expenses.

2.                 Upon notice, the opposite parties appeared and filed joint written statement by taking preliminary objections that on receipt of the claim intimation dated 21.05.2018 regarding theft of Activa No.PB-10-GJ-3072 on 17.05.2018, the opposite parties immediately deputed K.K. Bhardwaj, Insurance Investigator, 55-B, Dhaulgiri Apartment, The Mall, Ludhiana to investigate the genuineness of the claim of the complainant. The said investigator investigated the matter and collected the claim documents and submitted his report dated 31.05.2018. Thereafter, the opposite party company gone through the claim file very minutely and applied their mind and repudiated the claim of the complainant vide letter dated 25.09.2018 on the following grounds:-

“On close scrutiny of the papers submitted, we regret to inform you that your claim is not tenable on the following grounds:-

You have violated the law which automatically amounts to breach of the policy and particularly in this case you have committed willful default and breach in the terms and conditions of the policy by handing over the vehicle to a minor son, knowing fully that he did not possess and hold a valid and effective driving licence issued by the competent authority and your son is not competent to ply the vehicle on road being minor.

However, you being given one more opportunity to substantiate your claim in view of the grounds of repudiation mentioned above before a final decision is taken at your end. Your representation/clarification must reach within 15 days from the date of receipt of this letter. Please note that in case, we receive no response from you within 15 days from the date of receipt of this letter, the claim shall stand No Claim for the reasons indicated above without further advices from us.”

Due to non-reply by the complainant, the claim of the complainant  was treated as “No Claim”. The opposite parties have also assailed the complaint on the ground of maintainability, lack of cause of action and it being false and frivolous.

                   The opposite parties further took a legal plea that the insured Mahinder Singh knowingly handed over Activa No.PB-10-GJ-3072 to his minor son Sahil Bisht (born in the year 2002 as per Adhar card No.2832-9198-5414) who negligently parked the above said Activa outside the BVM School without any guard and in this manner, the Activa was parked in such place where there is a direct open risk of loss. The alleged theft has been taken place due to the negligence of the insured himself as such, the complaint is liable to be dismissed on this score only.

                   On merits, the opposite parties reiterated the facts mentioned in the preliminary objections and submissions and once again denied for having indulged in unfair trade practice or there was deficiency in service and prayed for dismissal of the complaint also made.  

3.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments made in the complaint. The complainant also placed on record the documents Ex. C1 and Ex. C1/A is the copy of the insurance policy consisting of two pages, Ex. C2 is the copy of FIR No.119 of 2018, Ex. C3 is the copy of repudiation letter dated 25.09.2018, Ex. C4 is the copy of bill/invoice of the vehicle in question dated 16.07.2017, Ex. C5 is the copy of registration certificate of the scooter, Ex. C6 is the copy of untrace report dated 10.08.2018 and closed the evidence.

4.                On the other hand, the counsel for the opposite parties submitted affidavit Ex. RA of Sh. Yash Paul, Divisional Manager of the opposite parties along with documents Ex. R1 is the copy of repudiation letter dated 25.09.2018, Ex. R2 and Ex. C3 are the copies of opinion of Sh. Rajeev Abhi, Advocate, Ex. R4 is copy of untrace report dated 10.08.2018, Ex. C5 is the copy of verification report dated 31.05.2018, Ex. R6 is the copy of letter dated 25.05.2018 written by investigator K.K. Bhardwaj to DTO, Ludhiana, Ex. R7 is the copy of registration certificate of the vehicle, Ex. R8 is the copy of investigation dated 31.05.2018, Ex. R9 and Ex. R10 are the  copies of letter dated 23.05.2018 written by the complainant to the Secretary, Regional Transport Authority, Ex. R11 is the statement of Mahinder Singh complainant, Ex. R12 is the statement of Sahil Bisht, Ex. R13 is the statement of  Gopal Singh, Ex. R14 is the copy of Adhar card of Sahil Bisht, Ex. R15 is the copy of driving licence of the complainant, Ex. R16 is the copy of Adhar card of the complainant, Ex. R17  is the copy of cancelled crossed cheque, Ex. R18 is the copy of registration certificate of the vehicle, Ex. R19 is the insurance cover note, Ex. R20 is the copy of tax invoice, Ex. R21 is the copy of motor claim form, Ex. R22 is the copy of FIR No.119 of 18.05.2018, Ex. R23 is the motor claim intimation dated 21.05.2018, Ex. R24 is the motor insurance certificate cum policy schedule and again Ex. R24 is the copy of two wheeler package policy  and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through the written arguments submitted by both the parties.  

6.                 During the course of arguments, the counsel for the complainant contended that the opposite parties as well as the policy was immediately informed regarding the theft of the scooter and there is no malafide or willful breach of the policy on the part of the complainant. He further contended that the theft has no nexus with the handing over of the vehicle to the minor son and the exclusionary clause is not attracted in case of loss of vehicle by theft. The issue of driver having a valid licence can only be relevant when the damage to the vehicle is caused whilst it is being driven by unauthorized person. The counsel for the complainant has relied upon 2009(1) CPJ 123 in ICICI Lombard General Insurance Co. Ltd. and others Vs Radha Devi and another whereby it has been held by the Hon’ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur that in case of theft of vehicle, breach of condition not germane, nature of use of vehicle should be looked into. The insurance company is bound to indemnify the insured for loss suffered in case the vehicle in question stolen away during the insurance period. The repudiation of claim is not justified. The counsel for the complainant has further relied upon 1994 (1) CPC 190 in Ashok Kumar Anand Vs The Oriental Insurance Company Ltd. passed by the Hon’ble Haryana State Consumer Disputes Redressal Commission, Chandigarh and 2010(1) CPJ 167 in National Insurance Company Ltd. and others Vs Balwant Singh whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the theft of the vehicle had no nexus with the user and purpose for which vehicle actually was being plied and the insurance company rightly held liable to indemnify the insured for the loss suffered by him by the State Commission. The counsel for the complainant has further relied upon 2008(3) ALL MR 875 in National Insurance Co. Ltd. Vs Nitin Khandelwal whereby it has been held by the Hon’ble Supreme Court of India that the insurance company cannot reject the claim on the ground that driver did not possess valid driving licence.

7.                On the other hand, the counsel for the opposite parties has vehemently contended that there is a willful default and breach of terms and condition of the policy on the part of the complainant as he was fully aware that his minor son does not hold any valid and effective driving licence issued by competent authority and he is not competent to ply the vehicle on the road. In support of his contentions, the counsel for the opposite parties has relied upon 2017(2) C.P.R. 513 in Ashish Kumar Walecha  Vs Manager, Cholamandalam General Insurance Company Ltd. whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the on account of breach of condition of insurance policy, the insurer not liable to reimburse as the loss suffered by the complainant on account of his own negligence.

8.                It can be borne from the contents of the FIR Ex. C2 = Ex. R22 which has been registered at the instance of Sahil Bisht, minor son of the complainant that he parked the scooter on 17.05.2018 at about 08.00 AM on the side of the road and went inside the school and when he came back at 01.15 PM, he found the Activa stolen. In the present case, the opposite parties as well as the police was promptly intimated by the complainant. FIR was also got registered at the instance of son of the complainant by stating true and actual facts. There was ample scope for the complainant to conceal and distort the facts in order to bring his case within four corners of law for the purpose of securing the insurance claim. The act and conduct of the complainant is bonafide from the word go. The intimation of theft has also been corroborated by Mr. K.K. Bhardwaj, Insurance Investigator vide his report Ex. C3 = Ex. R1. Mr. K.K. Bhardwaj has also concluded that risk of theft is covered within the scope of insurance policy. The insured has also submitted both keys of the scooter to him. Therefore, it is evident that the claim of the theft of the scooter is apparently genuine one. Therefore, it was for the opposite parties to establish that there was willful breach on the part of the complainant to avoid the liability.

9.                Now the question arises whether in case of theft of a vehicle, the nature of use of vehicle can be looked into or not or whether the insurance company was justified in repudiating the claim on that basis?

10.              As per repudiation letter dated 25.09.2018 Ex. C3 = Ex. R1, the claim was not found tenable on the following grounds:-

“You have violated the law which automatically amounts to breach of the policy and particularly in this case you have committed willful default and breach in the terms and conditions of the policy by handing over the vehicle to a minor son, knowing fully that he did not possess and hold a valid and effective driving licence issued by the competent authority and your son is not competent to ply the vehicle on road being minor.”

In this repudiation letter, no specific condition or term has been mentioned which has been invoked by the opposite parties to treat the claim case of the complainant as “No Claim”.  Perusal of repudiation letter dated 25.09.2018 Ex. C3 = Ex. R1 also shows that the opposite parties were tentative in closing the claim case as “No Claim”. After 25.09.2018, no specific order was passed by the opposite parties. It is settled proposition of law that the exclusionary clause in contract of insurance of motor vehicle on the ground that his driver was not having a valid driving licence is not at all attracted in case of loss of said vehicle by theft or burglary. The issue of driver having a valid driving licence can only be relevant when damage to the vehicle is caused whilst it is being driven by an unauthorized person when the vehicle was in motion. Even assuming that there was a breach of condition of the insurance policy, the insurance company ought to have settle the claim on non-standard basis and the opposite parties were not justified in repudiating the claim in toto in case of loss of the vehicle due to theft. In our considered view, considering the fact that there is no dispute about the loss by way of theft, it would be just and proper if the OPs are directed to pay Rs.50,681/- the price of stolen Activa scooter to the complainant along with composite cost of Rs.5000/-.

11.              As a result of above discussion, the complaint is allowed with  direction to the opposite parties to the opposite parties to pay Rs.50,681/- being the price of stolen Activa Scooter to the complainant within 30 days from  the date of receipt of copy of order failing which the complainant shall be held entitled to interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                    (Jaswinder Singh)         (Sanjeev Batra)

 Member                         Member                        President

 

Announced in Open Commission.

Dated:03.01.2023.

Gobind Ram.

 

 

Mahinder Singh Vs Oriental Insurance Co. Ltd.              CC/19/471

Present:       Sh. Maninder Khara, Advocate for complainant.

                   Sh. G.S. Kalyan, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with direction to the opposite parties to the opposite parties to pay Rs.50,681/- being the price of stolen Activa Scooter to the complainant within 30 days from  the date of receipt of copy of order failing which the complainant shall be held entitled to interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)                    (Jaswinder Singh)         (Sanjeev Batra)

 Member                         Member                        President

 

Announced in Open Commission.

Dated:03.01.2023.

Gobind Ram.