Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he insured his motor cycle bearing No.PB-10EM-8698 Bajaj Platina, Engine No.J12022 and Chassis No. J11782 insured with Opposite Party vide policy No. 233905/31/2014/12541 valid for the period w.e.f. 04.02.2014 to 03.02.2015. Further alleges that on 21.10.2014 the complainant had gone to Gobindgarh from Sherpur and when he reached at G.T.Road, Jugiana, then the complainant received one telephone call, and he stopped his motor cycle outside the road and after locking the motor cycle, started talking on talking on phone and waked some distance and started passing urine and after some time, he came back and found that motor cycle was not available at the spot and he tried his best to find out his motor cycle here and there, but to no affect and some unknown persons stolen the same. The complainant immediately lodged DDR No. 9 dated 28.11.2014 with P.S.Kanganwal, District Ludhiana. Thereafter, the complainant also lodged the claim with the Opposite Party and also completed all the formalities, but the Opposite Party repudiated the claim of the complainant on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party may be directed to make the payment of Rs.50,000/- as claim and also to pay of Rs.1,00,000 on account of compensation due to mental tension and harassment caused by the complainant besides costs of litigation amounting to Rs.5,000/- in additional to Rs.50, 000/- on account of negligence and deficiency in service and also to pay any other relief to which this District Consumer Commission may deem fit.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. On receipt of the claim, it was duly registered, entertained and processed. The complainant has obtained the insurance policy in question, but the said policy is a contract in itself and the parties are bound by the terms and conditions of the insurance policy. Sh.Zora Singh Deol, Investigator was appointed as investigator to investigate the theft claim who recorded the statements, took the documents and thereafter prepared the report dated 28.01.2015 and in nutshel, concluded that the motor cycle was left unattended alongwith the key at the spot and lead to the theft. So, the insured did not take proper care of his vehicle and the motor cycle was not locked as alleged by him. Accordingly, the complainant was informed that his claim is not tenable on the ground mentioned in the letter dated 21.01.2016 and violation of the terms and conditions of the policy. On merits, the Opposite Party took up almost same and similar pleas as taken up by them in the preliminary objections and the complaint may be dismissed with costs.
4. In order to prove his case, the complainants tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C16 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered into evidence the affidavit Ex.RA and Ex.RB alongwith copies of documents Ex.R1 to Ex.R23 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant as well as Opposite Party have mainly reiterated the facts as narrated in the complaint as well as in written statement respectively. We have perused the rival contentions of the parties. Admittedly, the complainant insured his motor cycle bearing No.PB-10EM-8698 Bajaj Platina, Engine No.J12022 and Chassis No. J11782 insured with Opposite Party vide policy No. 233905/31/2014/12541 valid for the period w.e.f. 04.02.2014 to 03.02.2015 for IDV of Rs.40,204/- copy of the policy is placed on record as Ex.C9. It is also not denied that said motor cycle of the complainant was stolen by some unknown person during the policy period on 21.10.2014 and in this regard, DDR No. 9 dated 28.11.2014 was also lodged by the complainant with P.S.Kanganwal, District Ludhiana. On the other hand, on the information, the Opposite Party appointed surveyor who made investigation and at last, repudiated the claim of the complainant on the ground that the motor cycle was left unattended alongwith the key at the spot and lead to the theft. So, the insured did not take proper care of his vehicle and the motor cycle was not locked as alleged by him. Accordingly, the complainant was informed that his claim is not tenable on the ground mentioned in the letter dated 21.01.2016 and violation of the terms and conditions of the policy. In similar matter, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in caset titled as Mahabir Singh vs Reliance General Insurance Co. . REVISION PETITION NO. 735 OF 2013.. decided on 16 January, 2018 has held that the theft of the vehicle took place within a short span of time and this does not necessarily means that the driver was negligent. To support his arguments, learned counsel for the complainant has cited the following judgment:- National Insurance Company Ltd.Vs.Sinitha and Ors,(2012) 2SCC 356. It has been held that:-
"36. It is difficult to understand the true purport of the first issue framed by the Tribunal. A person may be "responsible" for an act, yet he may not be "negligent". Illustratively, a child who suddenly runs onto a road may be "responsible" for an accident. But was the child negligent? The answer to this question would emerge by unravelling the factual position. A child incapable of fending for him would certainly not be negligent, even if he suddenly runs onto a road. The person in whose care the child was, at the relevant juncture, would be negligent, in such an eventuality. The driver at the wheels at the time of the accident is responsible for the accident, just because he was driving the vehicle, which was involved in the accident. But considering the limited facts disclosed in the illustration can it be said that he was negligent? Applying the limited facts depicted in the illustration, it would emerge that he may not have been negligent. Negligence is a factual issue and can only be established through cogent evidence."
8. On the other hand, the learned counsel for the Opposite Party stated that it was a clear case of breach of conditions of the policy as the complainant has left the vehicle unattended. It is the violation of the condition of the terms and conditions of the policy which reads as under:-
"The Insured shall take all reasonable steps to safeguard the vehicle from loss or 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 insured's own risk"
The learned counsel referred to the following judgments:- Shakuntla Devi Vs. Reliance General Insurance & 2 Ors. Revision Petition No. 2091 of 2012; decided on 05.06.2015 (NC). It has been held that:
"8. The above noted condition of the insurance contract requires the insured to take all reasonable steps to protect the insured vehicle from loss or damage. 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 damage has 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 judgment of coordinate bench of this Commission in the matter of Arun Lal Jat Vs. HDFC ERGO General Insurance Co. Ltd (supra)." Arjun Lal JatVs. HDFC IRGO General Insurance Co. Ltd. &Anr. RP No. 3182 of 2014, decided on 28.08.2014 (NC). It has been held that:-
"4. .......A vehicle cannot remain in start condition, once the key is taken out of the ignition. The vehicle, in case the key is taken out of the ignition, will immediately stop running. Therefore, it can hardly be disputed that the driver left the truck unattended with the key of the truck in the ignition. Had the driver not left the key in the ignition, it might not have been possible for the thief to commit theft of the vehicle. The driver of the vehicle was clearly negligent in leaving the truck unattended with the key inside the ignition. In our opinion, once it is shown that the theft took place solely on account of the driver, employed by the insured, the Insurance Company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured. For this reason alone, the order passed by the State Commission is eminently justified. This is without our going into the question as to whether leaving keys in the ignition, and leaving the vehicle unattended amounts to breach of the terms and conditions of the policy."
9. We have carefully gone through the material on record and have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties. The theft of the vehicle in the period of insurance is admitted by both the parties. The only contention on the basis of which the insurance claim has been denied by the Opposite Party is that the vehicle was stolen because proper care and precaution was not taken by the driver of the vehicle for safeguarding the vehicle as he left the vehicle unattended and hence, breached the terms and conditions of the policy. Hon'ble Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) has opined that even in cases where there is any breach of warranty/conditions of policy, an amount upto 70% of the admissible claim can be agreed to.
10. In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted.
11. Now come to the quantum of compensation. The Insured Declared Value (IDV) of the motor cycle in question as per the policy Ex.C9 is Rs.40,204/- and hence, having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire amount of IDV, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 70% of the assessed amount on 'non-standard' basis” of the Insured Declared Value.
12. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant partly and direct the Opposite Party to make the payment of Rs.28,142.80 paisa i.e. Rs.28,142/- in round off (Rupees twenty eight thousands one hundred forty two only) i.e. 70% of the Insured Declared Value of Rs.40,204/- of the vehicle in question to the Complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 24.10.2017 till its actual realization. Opposite Party is also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension and litigation expenses. The compliance of this order be made by the Opposite Party within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
