Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 302.
Instituted on : 09.05.2012.
Decided on : 12.03.2015.
Dharam Pal son of Shri Hukam Chand since deceased through his L.Rs.
- Smt. Kamlesh widow of Dharam Pal
- Manisha daughter of Dharam Pal
- Minor Satender son of Dharam Pal
- Minor Jitender son of Dharam Pal,
All residents of village Garhi Sisana, Sonepat, District Sonepat (Minor Satender and Jitender through their real mother as a next friend and natural guardian Smt.Kamlesh complainant no.1).
………..Complainants.
Vs.
- The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office at Jawahar Market, Rohtak.
- The Regional Manager, Oriental Insurance Co. Ltd., Regional Office LIC Building IInd Floor, Jagadhari Road, Ambala Cantt.
- ICICI Bank Limited, Rothak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.M.L.Sehgal, Advocate for the complainant.
Sh.A.S.Malik, Advocate for the opposite party no.1 & 2.
Sh. Pankaj Sharma, Advocate for the opposite party no.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that initially the present complaint was filed by Dharam Pal before the Distt. Consumer Forum, Sonepat on 27.07.2009 but unfortunately Dharam Pal expired on 15.11.2009 leaving behind the L.Rs. of Dharam Pal and the application for bringing the L.Rs of Dharam Pal on record was allowed by the District Forum, Sonepat on 10.03.2010. It is averred that the alleged complaint was decided by the District Forum, Sonepat vide order dated 14.12.2010 and opposite party no.1 & 2 were directed to make the payment of the claim amount to the L.Rs of the insured Dharam Pal. It is averred that the opposite party no.1 & 2 preferred an appeal against the order dated 14.12.2010 of District Forum, Sonepat which was decided by the Hon’ble State Commission vide order dated 31.01.2012 whereby the appeal was accepted and the order passed by the District Forum, Sonepat was set aside with liberty to the complainant to approach the court of competent jurisdiction/authority to get his grievances redressed in this case on the same cause of action and the benefit u/s 14(2) of Limitation Act for the period during proceeding under the Consumer Protection Act remained pending before the District Forum as well as the State Commission was also allowed to the complainant provided the complainant approach the court of competent jurisdiction within 60 days from the date of receipt of this order. Accordingly the present complaint is filed by the L.Rs. of the deceased Dharam Pal before this Forum with the facts that the complainant was registered owner of Turbo no.HR-69/5825 which was insured with the opposite parties for the period from 15.04.2007 to 14.4.2008 and the IDV of the vehicle was Rs.10 lacs. It is averred that on 2.2.2008 the above said vehicle was parked in the Sanjay Gandhi Transport Nagar, Delhi in front of Andhra Orissa Roadways after locking the same by the driver and all the documents were in the vehicle and the same was stolen by some unknown person. An FIR No.66 of 2008 was lodged by the complainant with P.S. Samaypur Badli, Delhi. The untraced report was filed by the police which was made final by the Court on dated 20.01.2009. It is averred that the complainant informed the opposite parties within time and all the documents were submitted by the complainant for settlement of the claim as required by the opposite parties but uptil now the opposite parties have failed to settle the claim without any reasonable cause or excuse. The complainant issued a registered legal notice dated 15.6.2009 to the opposite parties but no reply was given by the opposite parties. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to pay the claim amount of Rs.1000000/- alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, the opposite parties appeared and filed their written reply. Opposite party no.3 in its reply has submitted that the O.P. bank is financier, who has financed the vehicle in question to Late Sh. Dharampal and it is only the insurance company i.e. opposite party no.1 & 2 who has to settle the claim and handover the same to the answering opposite party bank to credit the same towards the outstanding in loan account of late Shri Dharampal, in terms of the IMT rules and terms and conditions of the loan agreement.
3. Opposite party no.1 & 2 in their reply has submitted that the vehicle was parked and left unattended which in itself is gross violation of the condition no.5 of the policy. It is apparent that neither the driver nor the cleaner or any other employees were present when the said vehicle is allegedly to have been stolen. It is averred that on receipt of information the opposite party deputed Sh. Major Mehar Singh, Surveyor & Loss Assessor for finding out of the facts regarding the theft of the vehicle and the surveyor wrote letter on 10.3.2008 regarding the insured to supply the documents as mentioned in that letter. The letter was accepted but no reply was received from the complainant side. It is averred that some documents were supplied but the information as required were not made available to the surveyor. The original documents and ignition keys were inside the vehicle. The opposite party taking all the facts into consideration and violation of condition no.5 of the insurance policy, the claim is not found payable. It is averred that there is no deficiency in service on the part of opposite parties. It is prayed that the present complaint may kindly be dismissed with costs.
4. Both the parties led evidence in support of their case.
5. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C16 and has closed his evidence. On the other hand, ld. Counsel for the opposite party no.1 & 2 has tendered affidavit Ex.R1, documents Ex.R2 to Ex.R8 and has closed his evidence. Ld. Counsel for the opposite party no.3 has tendered documents Ex.R9 to Ex.R10 and has closed his evidence.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. It is on record that earlier the complaint was filed before the District Forum, Sonepat and as per copy of order placed on record as Ex.C1 the same was decided on 14.12.2010 and against the alleged order, the opposite party no.1 & 2 filed an appeal before the Hon’ble State Commission, Panchkula which was decided on 31.10.2012 as per which it was held that District Forum, Sonepat had no jurisdiction to try the alleged complaint and accordingly the order passed by the District Forum, Sonepat was set aside and complainant was directed to approach the Court of competent jurisdiction within 60 days from the date of receipt of order. As per copy of order C2, the alleged order was received by the complainant on 03.04.2012 and the complainant through L.Rs. has filed the present complaint on 09.05.2012 before this Forum which is filed within time. In the present complaint insurance and theft of the vehicle is not disputed. It is also not disputed that the alleged vehicle was got financed from the opposite party no.3. As per cover note Ex.C12 and policy schedule Ex.C13 the vehicle of the complainant was insured with the opposite party for the period from 15.4.2007 to 14.04.2008 and the IDV of the vehicle is Rs.10 lacs. As per copy of FIR Ex.C6, the vehicle of the complainant was stolen on 02/03.02.2008. The untrace report Ex.C8 was filed by the police on 22.06.2008. Application for non-transfer of R.C. Ex.C9 is also placed on record by the complainant Dharampal(since deceased). Complainants lodged the claim with the opposite parties but the opposite party no.1 vide its letter Ex.R3 has repudiated the claim on the ground that due care was not taken at the time of theft and original ignition key was left in the vehicle which is a gross negligence on the part of the complainant and violation of terms and conditions of our policy.
8. After going through the file and hearing the parties it is observed that the claim of the complainant has been repudiated by the opposite party no.1 & 2 on the ground that at the time of theft the vehicle was lying unattended and key was left inside the vehicle. To prove its contention the opposite party no.1 & 2 have placed on record copy of investigation report Ex.R4 as per which it is submitted that: “The insured was in possession of one key of cabin. As per the insured and driver documents of vehicle and ignition keys were inside the cabin which was locked by Sh. Ashok Kumar prior to leaving the vehicle”. It is also mentioned in the report that “Key of cabin has been shown”. Hence from the report of surveyor Ex.R4 it is proved that the original documents of the vehicle and ignition keys were inside the cabin and the cabin was locked and the key of cabin was submitted by the insured. From the copy of FIR Ex.C6 also, it is proved that the vehicle was locked at the time of theft. Hence the plea taken by opposite party no. 1 & 2 that the vehicle was unattended at the time of theft is not tenable as the same was locked at the time of theft. In this regard reliance has been placed upon the law cited in First Appeal no.1015 of 2014 decided on 18.11.2014 titled New India Assurance Co. Ltd. Vs. Devinder whereby Hon’ble State Commission, Haryana, Panchkula has held that: “The complainant had submitted both the original ignition keys which were provided by the manufacturer. Meaning thereby, both the ignition keys were with the complainant. Therefore it cannot be said that the complainant had left the motorcycle unlocked. Appeal dismissed”, as per 2014 CJ 9(N.C) titled Sukhwinder Singh Vs. Cholamandalam-MS General Insurance Company Ltd. and another Hon’ble National Commission, New Delhi has held that: “Vehicle was stolen while driver of vehicle had gone after parking car leaving keys in ignition-Leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy-Whether or not there is breach of condition will always depend upon facts of case-Impugned order set aside and order of District Forum restored”, as per law cited in II(2011)CPJ 252 titled Reliance General Insurance Co. Vs. Amit, Hon’ble Haryana State Commission, Panchkula has held that: “Vehicle left unattended by its driver and cleaner, hence deficiency in service-Not accepted-Breach of policy condition not germane in cases of theft of vehicle”. Therefore in view of the aforesaid law which are applicable on the facts and circumstances of the case it is observed that repudiation of claim by the opposite party is illegal and unjustified and the L.Rs of complainant are entitled for the claim as per IDV of the vehicle.
9. In view of the facts and circumstances of the case, it is observed that opposite party no.1 & 2 shall pay the amount of Rs.1000000/-(Rupees ten lacs only) along with interest @ 9% p.a. from the date of filing the present complaint before the District Forum, Sonepat i.e. 27.07.2009 till its actual realization and shall also pay a sum of Rs.2200/-(Rupees two thousand two hundred only) as litigation expenses to the L.Rs of complainant maximum within one month from the date of completion of formalities by the complainants e.g. transfer of R.C. & Subrogation letter etc. to the opposite party failing which the awarded amount shall fetch interest @ 12% p.a. from the date of decision. Opposite party no.1 & 2 are further directed to deposit the awarded amount in the loan account of complainant with the opposite party no.3 against the outstanding loan amount, if any, pending against the complainant. Complaint is allowed accordingly.
10. Copy of this order be supplied to both the parties free of costs.
11. File be consigned to the record room after due compliance.
Announced in open court:
12.03.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
