Haryana

Ambala

CC/15/2015

Randeep Singh - Complainant(s)

Versus

Regional Manager.National Insurance Company Ltd. - Opp.Party(s)

Harish Bakshi

27 Oct 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No.  15 of 2015

                                                        Date of instt:    19.01.2015

                                                        Date of decision:27.10.2017

 

          Randeep Singh S/o Sh. Kareshan Singh R/o Village Bihata Tehsil Barara,         District, Ambala.

                                                                           ...Complainant.

Versus

1.     Regional Manger, National Insurance Company ltd. Regional      office-II, SCO No.337-340, Sector 35-B, Chandigarh.

2.     Branch Manager, Divisional Office, National Insurance       Company, Ambala Cantt.

 

.                                                                        …Opposite party.

 

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                Sh. PUSHPINDER KUMAR, MEMBER

                SH. ANAMIKA GUPTA, MEMBER

 

Present:-     Sh. Harish Bakshi, counsel for the complainant.

                   Sh. R.K. Vig, counsel for OP No.1 and 2.

                   Sh. Puneet Sirpual, counsel for OP No.3.

Order:-

 

                   In nutshell, the brief facts of the present complaint are that the complainant purchased a Balero Camper for Rs.5,47,998 on 02.12.2013 and got insured from the OPs vide motor vehicle insurance cover note No. GY 31421309449222 book No. 42130917969 on 02.12.2013 at their divisional office Ambala Cantt and the complainant was issued policy No.420400/31/13/6300010804 on the basis of above said cover note. Further submitted that the complainant who himself was plying the bolero loaded rubber bundles of R.K. Company Ferozepur Jhirka and MS J B stone crasher Ghangora Chappra, Tehsil Pahari on 24.02.2014 and after unloading rubber bundles of R K company at Ferozepur Jhirka on 24.02.2014 itself proceeded for Ghangora Chhapra in Pahari Tehsil. Further submitted that the complainant halted  his vehicle near the hotel on the road side for taking tea near village Ghata on his way from Ferozepur Jhirka to Pahari at about 10 p.m. on 24.02.2014 after properly locking with all reasonable precaution and care but the complainant found his balero missing when he wanted to start his further journey after taking tae. Further submitted that the complainant tried his level best to trace out his vehicle but on failure he reported the matter to the police at police station Ferozepur Jirkha vide FIR NO.48 dated 01.03.2014. Further submitted that the complainant filed the claim of his lost vehicle alongwith all the necessary required papers but the claim of the complainant has not been settled by the OPs. Hence, the present complaint.

2.                          Upon notice, OPs appeared and filing written statement submitting that the Jeep Bolero Camper SC XL bearing registration NO. HR-37-D-1685 was parked by the complainant on the main road without locking the jeep before leaving the same on the road and the FIR No.48 dated 01.03.2014 under Section 379 IPC was registered at Police Station Ferozpur  Jhirka, District Mewat after a delay of more than a week. Further submitted that the local police of the District submitted untraced report to the IIaqua Magistrate thereby concluding that the vehicle could not be traced on account of the fact that at the place of theft no proof is available to find out the guilty person and investigation was conducted openly and secretly and it was found that the complainant was totally negligent in not keeping proper safety of the vehicle before leaving the same for taking tea for a while.  Further submitted that the complainant himself is liable for the theft whch took place on or about 24.02.2014 and the matter was reported on 01.03.2014 and it is the duty of the insured to inform the insurer in writing immediately qua the occurrence of any theft or damage or loss and the terms and conditions of the policy insured reads as under:

                   ”Notice shall be given in writing to the company immediately upon occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require”.

                   Further submitted that as per above said terms and conditions it is the legal duty upon both the parties i.e. insurer and insured are bound to follow the terms and condition of the policy issued for insuring the vehicle in question but the complainant violated the above said terms and conditions as he has informed to the OP firstly vide letter dated 03.02.2014 regarding theft of Balero Jeep in question after the delay of around 8 days and as per Report of Investigator vide para No.9 clearly mentioned that one set of original keys was left inside with the pick up which was stolen with the pick up, as per insurer’s statement, the loss is totally attributable to him and the company cannot go beyond the terms and conditions of the policy which had been highlightened in earlier para No.2 ibid the claim of the complainant was repudiated by the OP on 17.12.2014 and prayed for dismissal of the present complaint.

3.                To prove his version complainant tendered his affidavit as Annexure C-X alongwith documents as Annexure C-1 to C-13 and closed his evidence. On the other hand, counsel for OP also tendered an affidavit as Annexure R-X & R-Y along with document as Annexure R-1 to R-18 and closed the evidence.

4.                We have heard counsel for the parties and carefully gone through the case file.

 

5.                Admittedly, the Balero Camper is insured with the OPs vide cover note no. GY 31421309449222 from 02.12.2013 to 01.12.2014. It is case of the complainant is that the vehicle in question was stolen on 24.02.2014 and FIR in this regard has been lodged on 01.03.2014 bearing FIR No.48.

6                 Counsel for OP has argued that the complainant has  intimated to the OPs regarding theft of the vehicle in question on 03.03.2014 after a delay of more than 8 days and Surveyor has also investigated the matter and as per Report of Surveyor Annexure R-6 it is clearly mentioned that

                “The complainant went inside the hotel for taking tea after leaving key in the switch of the vehicle and also clearly mentioned in para No.9 is that Mahindra pickup was not duly locked at the time of theft and one set of original keys was left inside the pickup, which was stolen with pick up”.

                The Counsel for the Ops argued on the two points that as per the report of Surveyor, it is clearly mentioned that vehicle in question was left the unattented by the driver of the vehicle in question and he left the key in the vehicle in question and same was stolen when the key was left in the ignition of the vehicle and same was not locked. Complainant failed to reasonable step for safeguarding the vehicle from loss. Since leaving the key an ignition of the vehicle would tempt any thief to commit theft of the vehicle is left unlocked. Therefore, complainant contravention clause 5 of the terms and condition of the policy. Counsel for the OP has relied upon the judgment of Hon’ble National Commission in case titled as L&T General Insurance Company Ltd. Vs. Umesh & Anr. 2016 (4) CLT Page 504 has also observed that Insurance Claim (Tractor)-Key of the tractor left inside the ignition – Theft of tractor- Held – that the complainant was under an obligation to take all the steps which a tractor owner would ordinarily take in order to safe guard his tractor from any loss or damage including theft of the tractor-The complainant therefore, clearly committed a breach of the policy – As a result, the insurer got absolved of all its liability to reimburse the complainant on account of theft of the tractor and the another judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled as Dilbagh Singh Vs. OIC ltd Appeal No.358/2016 decided on 29.05.2017 has also observed that this constitutes breach of policy condition No.5 which is as under:

                   The insured shall take all reasonable steps to safeguard the vehicle from the 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 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 damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

                   Further observed that by leaving the key of the car in the ignition and not locking the vehicle, the complainant failed to take reasonable steps for safeguarding the vehicle from loss, since leaving the key in the ignition of the vehicle would tempt any thief to commit theft of the vehicle, when the vehicle is left unlocked. The complainant therefore, contravened conditions NO.5 of the insurance policy in the aforesaid manner. In view of the breach of the above referred condition, the insurer in not liable to reimburse the complainant for the loss suffered by him on account of his own negligence and the judgment of Hon’ble National Commission New Delhi in case titled Caina Construction Company Vs. Oriental Insurance Company Limited & Anr. 2016(4) CLT Page 87 has also observed that Insurance Claim – theft of vehicle- delay in intimation – plea of OP that insurance claim of the complainant was rightly repudiated because of the failure of the complainant to intimate the theft to insurance company in writing within a reasonable time, which amounts to violation of the terms and conditions of the insurance contract – held – In the event of any accidental loss or damage to the insured vehicle, it was contractual obligation of the insured complainant to immediately inform insurance company- Admittedly, the complainant has violated the said condition by delaying the intimation of theft to the insurance company for about five months – The complainant has violated the above noted stipulation of the insurance contract. Counsel for the OPs has further relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, Delhi case title Devider Kumra Vs. National Insurance company ltd. RP NO.3840 of 2011, Surender Vs. National Insurance co. ltd. 1(2013) CPJ 741 (NC) And Shimbhu Singh Shekhawat Vs. Cholamandalam Ms. General Insurance Co. ltd.

                   Counsel for the complainant has rebutted the arguments of the OPs and argued that the vehicle in question has been stolen by unknown person on 24.02.2014 while the complainant had parked the said vehicle in question and went to nearest hotel on the road side for taking tae near village Ghanta on his way from Ferozepur Jhirka to Pahari at about 10p.m. on 24.02.2014 after properly locking with all reasonable precaution and care and after taking tea, he wanted to start his journey again  but found his bolero missing and after traced out the vehicle in question, the complainant is  intimated the police station Ferozepur Jhirka. The police have told to the complainant that they will conduct the investigation and police has suggested to the complainant to search the said vehicle on his own level if the said vehicle was not found then the police will register the FIR. When the complainant has not found his vehicle after pursue of the complainant then police has registered the FIR bearing No.48 dated 01.03.2014. Counsel for complainant has further argued that there is no fault on the part of the complainant regarding delay in lodging the FIR. Even then, the surveyor of the Ops has also investigated the matter and submitted his report Annexure R-6, as per the Surveyor report the vehicle in question has been stolen on 24.02.2014 and contents of the FIR found genuine. Admittedly, the vehicle in question had not been traced out till date & contention of the OPs is that the complainant had violated the condition No. 5 of Insurance Policy is not sustainable as leaving of the key is the ignition of vehicle on all occasions cannot be turned as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is a breach of condition will always depend upon the circumstances and facts of the case. The vehicle in question is said to have been stolen when the complainant parked the vehicle in question near the hotel on the road side for taking tea near village Ghanta on his way from Ferozepur Jhirka to Pahari. Then, lapse on the part of the complainant cannot be treated as willful breach of condition No. 5 on the part of insured. Counsel for complainant had relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held in one similar case titled as New India Assurance Company ltd & anr. Vs. Girish Gupta reported in Revision Petition No. 590 of 2014  III(2014) CPJ 663 (NC) and another judgment of Hon’ble Punjab & Haryana High court in the matter of Baja Allianz General Insurance Company ltd. Vs. M/s Sagar Tour & Travels & Anr; P.L.R Vol CLX IV-(2011-4) has laid down that the lapse on the art of the driver cannot be treated as willful breach of condition No.5 on the part of the driver. If in the hurry to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terns of the above condition No.5.

                        Counsel for the complainant has lastly argued that if it is presumed there was any breach of condition of the policy, complainant is entitled the claim on non-standard basis as per judgment of Hon’ble Supreme Court titled as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), Hon’ble Supreme Court has observed thus:

                        “In the present case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft and another judgment of Hon’ble State Commission, Pandri, Raipur titled as M/s Bhagwati Trading Co. Vs. The Oriental Insurance Co. Appeal NO. FA/13/350. Counsel for complainant has argued that if, this Forum come to this conclusion, there is any breach of the conditions of the policy, this Forum can decide the claim of the complainant on non-standard basis as per the judgment of Hon’ble Supreme Court title as National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C).

                   Another contention of the Ops is that the complainant has informed the OPs after a period of 8 day is not tenable and the same no evidence worth the name has been led. Even otherwise, in the circular Ref: IRDA/HLTH/MISC/CIR/216/09/2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority, it has been mentioned that genuine claims should not be rejected on account of delay in intimation and that the insurer’s decision to reject a claim must be based on sound logic and valid grounds. In this case, although the insurance company has pleaded that there was delay of 8 days in giving intimation but to prove the same no evidence worth the name has been led. It is proved from the file that the vehicle in question was stolen on 24.02.2014 and has not been traced out and untraced report of the police has also been submitted before Illaqua Magistrate, Firozpur on 17.04.2014 (Annexure C-3). The Surveyor of the OPs has investigated the matter and submitted his report Annexure R-6 in which he never denied about the theft of the vehicle in question. The question of breach of trust by will not affect the right of the complainant, who lost his vehicle in question. From the above said facts and circumstances of the case, it is clear that the complainant has properly explained the delaying of the FIR regarding stolen of the vehicle in question. We observed that it is not a fault of the complainant regarding delaying the registration of the FIR. Usually, it has been seen that the police did not take the immediate action regarding the cases of the theft. Counsel for complainant has also relied upon the judgment of Hon’ble Punjab and Haryana High Court case title Bharti AXA General Insurance Company limited Vs. Ms. Monu Yadav Vol. CLXXVI-(2014-4) Page 861 has laid down that Insurance –Theft of car –delay in lodging claim with Insurance Company of 54 days – Instructions dated 20.09.2011, issued by Insurance Regulatory and Development Authority to all the insurance Companies- As per the said instructions, this condition should not prevent the settlement of genuine claims particularly when there is delay in giving intimation or in submission of documents due to unavoidable circumstances – The companies were advised that they must not repudiate such claims on the ground of delay, especially when the policy has been promptly informed in this regard.

5.                Keeping in view of the totality of the fact & circumstances of the present case and law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), it would be appropriate that if we allow the present complaint by giving 75% of the insured amount to the complainant on non-standard basis. Hence,  the present  complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay the 75% of Insured Declared Value of vehicle in question i.e. Rs.5,20,598/- which comes to Rs.3,90,448.5/- from the date of complaint alongwith interest @ 9% 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.

                   Copies 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 on:27.10.2017                                          (D.N. ARORA)

                                                                                       PRESIDENT

 

                                                                                    (PUSHPINDER KUMAR)

                                                                                        MEMBER

 

 

                                                                        (ANAMIKA GUPTA)

                                                                                          MEMBER