Haryana

StateCommission

A/1118/2015

IFFCO TOKIO GEN.INSURANCE CO. - Complainant(s)

Versus

RAJINDER SHARMA - Opp.Party(s)

YOGESH GUPTA

02 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1118 of 2015

Date of Institution:        24.12.2015

Date of Decision :         02.06.2016

 

1.     IFFCO Tokio General Insurance Company Limited, 1012/11, Opposite Indira Gandhi Public School, Dhand Road, Kaithal through its Branch Manager.

2.     IFFCO Tokio General Insurance Company Limited, Registered Office, IFFCO Sadan, C-1, District Centre, Saket, New Delhi-110017.

                                      Appellants/Opposite Parties

Versus

 

Rajinder Sharma s/o Sh. Mohan Ram, Resident of Village and Post Office Fatehpur Pundri, Tehsil and District Kaithal.

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Present:               Shri Yogesh Gupta, Advocate for appellants.

                             None for respondent.

 

                                                   O R D E R

 

NAWAB SINGH J.(ORAL)

 

This Opposite Parties’ appeal is directed against the order dated November 9^th, 2015, passed by District Consumer Disputes Redressal Forum, Kaithal (for short ‘District Forum’) in Complaint No.183 of 2014.

2.      Rajinder Sharma-Complainant/respondent, got his truck bearing registration No.HR-64/6372, insured with IFFCO TOKIO General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Parties, from November 22^nd, 2012 to November 21^st, 2013, for Rs.13,00,000/-, vide Insurance Policy (Exhibit C-1). During the intervening night of January 4^th/5^th, 2013, the truck was stolen. Information was given to the Police and the Insurance Company. F.I.R. No.3 (Exhibit C-2) was lodged in Police Station, Pundri. The Police submitted untraced Report (Exhibit C-7) and the same was accepted by Judicial Magistrate Ist Class, Kaithal, vide order dated November 1^st, 2013 (Exhibit C-5). The complainant filed claim with the Insurance Company but it repudiated the claim vide letter Exhibit C-16. The extract of the repudiation letter (Exhibit C-16) is as under:- 

“Please refer to your above mentioned claim lodged with us for theft of your vehicle. On perusal of the documents on record and investigation report of M/s Bhola & Associates, we have noted that the vehicle was stolen on 05.01.2013 when it was parked by your son Mr. Vikas Kumar, and had not only left the ignition key of the said vehicle in the ignition switch. He did not lock the cabin doors of the said vehicle and left the vehicle unattended due to which the thief succeeded to gain the entry into the cabin of the said vehicle and took away the insured vehicle.

Further, the investigator in his report has concluded as under:-

The Ignition keys of the vehicle were left inside the vehicle and the driver did not lock the cabin door lock and left it unattended. This has aided the miscreants in their act of stealing the vehicle, leaving the vehicle unlocked with its ignition key inside the vehicle is a gross negligence and a failure to take reasonable care to prevent and protect the vehicle from loss or damage.

Hence, there is a violation of Condition No.5 of the Policy which provides 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 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 or any further damage to the vehicle shall be entirely at the insured’s own risk.

xxx

“In view of the above, we regret to inform you that the captioned claim is not tenable under the policy and we are filing the papers as “No-Claim”.

3.      The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.

4.      The Insurance Company contested the complaint by filing reply reiterating the facts stated in the repudiation letter (Exhibit C-16) and prayed for dismissal of the complaint. 

5.      After evaluating the pleadings and evidence of the parties, the District Forum accepted the complaint and issued direction to the Insurance Company to pay Rs.9,75,000/- to the complainant. The Insurance Company was also directed to comply with the order within 30 days failing which the awarded amount shall be paid alongwith interest at the rate of 8% per annum from the date of the order till its realization.

6.      Learned counsel for the appellant/Insurance Company has argued that since the truck was left unlocked and unattended during night, the complainant violated condition No.5 of the Insurance Policy and therefore the Insurance Company was not liable to pay the benefits of insurance. In support, reference was made to the statement of Vikas son of the complainant (Exhibit R-2), alleged to have been recorded by the investigator. Reliance was also placed upon the judgments rendered by Hon’ble National Commission in Iffco Tokio General Insurance Company Limited versus Gaurav Bhargava, 2015 (2) C.P.J. 196 (N.C.) and Shriram General Insruance Company Limited versus Mahender Jat, 2015(1) C.P.J. 74 (N.C.).

7.      This Commission does not concur with the submission of the learned counsel for the Insurance Company. F.I.R. (Exhibit C-2) was recorded on the statement of Vikas son of the complainant. It has been specifically stated by him in (Exhibit C-2) that during the intervening night of January 4^th/5^th, 2013, the driver had parked the truck near complainant’s house and the truck was stolen.  This being so, it cannot be said that the truck was left attended. 

8.      So far as the plea that the truck was left unlocked, except the report of the investigator and statement (Exhibit R-2) purported to be of Vikas, allegedly recorded by the investigator, no other cogent evidence has been produced. The Insurance Company has not examined the investigator to establish that the statement Exhibit R-2 was recorded by him. Merely by producing Exhibit R-2, it does not by itself constitute proving the document. The document has to be backed by credible evidence and in the absence of it, Exhibit R-2 has little evidentiary value. So, no presumption can be raised that Exhibit R-2 was the statement of Vikas-son of the complainant. Thus, it cannot be said that the truck was left unlocked.

9.      The other plea of the Insurance Company that it was informed after 26 days is not tenable because to prove the same no evidence worth the name has been led. The Insurance Company has failed to produce any evidence in this respect. On the other hand, the complainant has produced a copy of letter (Exhibit C-9) wherein it has been clearly mentioned that he had informed the agent of the Insurance Company on his Mobile Phone No.9896136322 on the same day, that is, January 5^th, 2013 with respect to the theft of his truck. No evidence has been led by the Insurance Company to deny the said letter. The surveyor of the Insurance Company in his report (Exhibit R-1) has clearly mentioned that the truck of the complainant was stolen. The extract of the report is as under:-

“As per the Investigation conducted by us as investigator of the above said theft case, we came to this conclusion by all our efforts, statements of the insured, other people and the Police Record as well as NCRB Record that the above said case is a case of theft u/s 379 I.P.C. and theft has taken place.”

10.    The truck was stolen during the intervening night of January 4^th/5^th, 2013 and F.I.R. (Exhibit C-2) was lodged on the same day, that is, January 5^th, 2013. Thus, the question of breach of trust by the complainant does not arise. 

11.    The judgments Iffco Tokio General Insurance Company Limited versus Gaurav Bhargava (Supra) and Shriram General Insurance Company Limited versus Mahender Jat (Supra), relied upon by the learned counsel for the Insurance Company are not applicable to the instant case. In Gaurav Bhargava’s case the car was insured as a private vehicle whereas it was being used as a taxi at the time of accident. In Mahender Jat’s case the Insurance Company proved that the information was given after 21 days but in this case the Insurance Company has failed to prove its version.   

12.    In view of the above, it is established on the record that complainant’s claim was wrongly repudiated and the Insurance Company is liable to indemnify the complainant with respect to his truck, which was stolen during the subsistence of the Insurance Policy.  No case for interference in the order of the District Forum is made out. Hence, the appeal is dismissed being devoid of merits.

13.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 02.06.2016

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL