Delhi

North East

cc/129/2012

Paruthi Engineers Pvt. Ltd. - Complainant(s)

Versus

Royal Sundaram Alliance Insurance Co. Ltd. - Opp.Party(s)

18 Mar 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  129/12

 

In the matter of:

 

		Paruthi Engineers Pvt Ltd 2-A/501, Rang Rasayan Apartments Plot -7/4, Sector-13, Rohini Delhi-110085.		Complainant
		Versus
	1.           2.	Royal Sundaram Alliance Insurance Co.Ltd 605, 6th Floor, Ashoka Estate Barakhamba Road Connaught Place New Delhi- 110001.   Bajaj Allianz General Insurance Co. Ltd Location Code No. 1100 Block No.4 DLF Tower 15, Shivaji Marg New Delhi-110015.		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		30.03.2012 18.03.2020 18.03.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane for disposal of the present complaint are that a Tata Indigo CS LS 1.5 (TDI) DL-3C-BG-0325 purchased by complainant company from M/s Vivek Automobile on 15.01.2009 for a sum of Rs. 4,10,287/- for use of travel of complainant company Executives was got insured by the complainant with OP1 vide Private Car Package policy bearing no. VPC0119146000100 w.e.f midnight 19.10.2009 to midnight of 18.01.2010 for a total lDV Rs. 4,07,822/- on payment of premium of Rs. 10,846/- made to OP1 by the complainant. The subject vehicle was since taken on loan availed from HDFC Ltd., the said vehicle was hypothecated with the said bank. On impending renewal of insurance of the vehicle, the complainant got the insurance cover from OP2 vide vehicle insurance policy bearing no. BZ0803102845 w.e.f. midnight of 19.01.2010 to midnight of 18.01.2011 for a total sum insured of  Rs. 3,67,000/- on payment of premium of Rs. 9,927/- paid by complainant to OP2. The subject car got stolen in the intervening night of 18.10.2010-19.01.2010 when the vehicle was last seen at 10:30 PM of 18.10.2010 by Kuldeep Verma, an official of complainant company who had parked the said vehicle outside his residence and was found missing the next morning i.e. 19.01.2010 at 7:30 AM. The complainant immediately informed the PCR and lodged a police complaint with PS Shahdara, Delhi vide DD no. 16A an FIR no. 49/2010 dated 20.01.2010 got registered u/s 379 IPC. The concerned police despite investigation could not trace the subject vehicle and therefore submitted its final report u/s 173 CPRC dated 12.02.2010 with the concerned MM, Karkardoma, Shahdara, Delhi as untraced. The complainant informed both OPs about the theft intimation and both OPs appointed surveyors for enquiry and assessment of loss. Since the loss in the present case had taken place in very peculiar circumstances the subject car having been stolen around midnight of 18.01.2010-19.01.2010, when the policy was also changing from OP1 to OP2 and vehicle having last seen at 10:30 PM on 18.01.2010 and discovered missing at 07:30 AM on 19.01.2010, both OPs were liable to indemnify the complainant but they throw the liability on to each other to evade making payment. OP1 vide letter dated 18.01.2011 informed the complainant of delay in intimation of loss in its part of two weeks and discrepancy in the keys handed over and further vide letter dated 04.03.2011, rejected the claim of the complainant on ground of no valid insurance cover on the date of theft and delay in intimation apart from failure to take reasonable steps to safe guard the vehicle from loss thereby violation policy terms and condition 1 and 4. The complainant vide legal notice dated 17.03.2010 to OPs demanded settlement of the claim to which the OP1 vide reply dated 22.07.2010 held complainant’s claim for theft as unsustainable and untenable justifying repudiation thereof. Therefore as a last resort, the complainant feeling aggrieved with wrongful repudiation of theft claim by OPs despite police investigation / untraced report and liability of both OPs to pay the IDV of the said vehicle, alleging deficiency of service file the present complaint against the OPs praying for issuance of direction to both OPs jointly and severally to pay a sum of Rs. 4,07,822/- (higher IDV) with interest @ 12% alongwith compensation of Rs. 15,000/- for harassment and Rs. 10,000/- towards cost of litigation.

Complainant has filed copy of board resolution dated 01.03.2012 for filing the present complaint, copy of MOA and AOA of complainant, copy of purchase invoice dated 15.01.2009 of the subject car alongwith copy ofRC in the name of complainant company, copy of insurance policy certificate issued by OP1 w.e.f. midnight 19.01.2009 to midnight 18.01.2010, copy of insurance policy certificate issued by OP2 w.e.f. midnight 18.01.2009 to midnight 19.01.2010, copy of FIR no. 49/2010, copy of final untraced report u/s 173 CPC, copy of letter dated 25.01.2011 by complainant to OP1 praying for waver of condition no. 1 of policy regarding delayed intimation, copy of undated letter by complainant to OP2 regarding theft intimation to be taken on record, copy of letter dated 18.01.2011 by OP1 to complaint, copy of repudiation letter dated 14.03.2011 by OP1 to complainant, copy of legal notice dated 17.03.2011 by complainant counsel to OPs and reply thereto dated 22.07.2011 by OP1 legal department.

2. Notice was issued to the OPs on 11.04.2012. Both OPs entered appearance.  OP1 filed its written statement vide which it took the preliminary objection of complaint having being barred by time as it has been filed after more than two years of the cause of action having arisen i.e. January 2010 and therefore liable to dismiss. On merits OP1 resisted the complaint on grounds that the complainant has not submitted any proof to the fact that the vehicle was allegedly stolen before its insurance with OP1 was expiring on 18.01.2010. OP1 further submitted that there was delay in intimation to the police as well as FIR and also delay in intimation by complainant to OP1, in breach of condition no. 1 of the policy which mandated immediate notice in writing upon occurrence of any accidental loss or damage but the complainant informed the OP after a delay of 14 days. Further, OP1 opposed the complaint on grounds that complainant has submitted un-identical / different keys of the subject vehicle and no clarification given in this regard by the complainant despite having been sought by OP1. Thereby violation policy condition no. 4 for taking all reasonable steps to safeguard the vehicle from loss. OP1 stated that the complainant has failed to adduce any evidence of admissibility of claim as to whether the same was falling within the period of insurance cover since vehicle cannot be deemed to have been stolen at 10:30 PM on 18.01.2010 when it was last seen. Therefore, OP1 prayed for rejection of complaint on grounds of untenable claim lodged by the complainant apart from other grounds taken as aforementioned. OP1 has attached copy of certificate of insurance and terms of condition of Private Car Package policy.
3. Written statement was filed on behalf of OP2 which took the preliminary objection of no immediate intimation of alleged theft given to it by the complainant and therefore, there was no deficiency of service on its part. On merits OP2 resisted the complaint on grounds that when the complainant had itself admitted that the alleged theft occurred on 18.01.2010 when the subject vehicle was insured with OP1, OP2 had no concerned with the theft claim which was made by the complainant vide present complaint belatedly after two years and despite the fact that there was no valid cover in force at the time of the alleged theft. OP2 further submitted that it is not liable to pay any amount to the complainant and therefore it never appointed any surveyor for assessment / investigation of loss. For defence so taken OP2 prayed for dismissal of complaint. OP2 has attached insurance policy certificate.
4. Rejoinder in rebuttal to the written statement of OP1 was filed by the complainant whereby complainant submitted that the complaint was well within limitation since its claim was repudiated vide letter dated 04.03.2011 sent by OP1. Complainant submitted that the vehicle was stolen well within its insurance period as it was last seen by company’s official on 18.01.2010 at 10:30 pm parked and was found missing and next day at 7:30 AM. Complainant submitted that the delay in intimation, if any, to OP1 by it had no nexus with the theft of the vehicle as has been held by Hon'ble Supreme Court that in theft cases, violation of terms and conditions of policy are not germane. Complainant also denied having submitted un-identical keys of the subject car to OP1.  Therefore complainant prayed for relief claimed.
5. Rejoinder in rebuttal to the written statement of OP2 was filed by the complainant whereby complainant submitted that OP2 has since not filed any document alongwith its written statement, it is therefore not entitled to file any documents or rely upon them. Complainant alleged deficiency of service on the part of OP2 for not having passed its genuine and valid claim and rejecting it and also having failed to appoint an independent surveyor in contravention to IRDA guidelines. Complainant disputed the allegation of OP2 of complaint being time barred and prayed for relief against OP2.
6. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon as Ex CW1/1 to Ex CW1/14.
7. Evidence by way of affidavit was filed by OP1 sworn by its Assistant Manager-Legal whereby OP1 submitted in addition to defence already taken that as per policy terms and condition OP1 could disclaim the liability to the complainant if the given claim is not made a subject matter of litigation in a court of law within 12 calendar of month from the date of repudiation but the complainant filed the present complaint in April 2012 though the claim was repudiated in March 2011 and therefore not entitled to the claim amount as it has waived its right to sue. OP1 urged that there was not valid cover in subsistence at the time of theft of vehicle since theft was noted on 19.01.2010 when the policy cover given by OP2 had come in to force and therefore it was liability of OP2 to pay the theft claim to the complainant. In this regard OP1 relied upon the investigation report dated 17.01.2010 filed by Allied Recovery & Investigation Bureau with respect to testimony of independent witness statement that the theft was noted on 19.01.2010. OP1 submitted that the complainant had casually intimated about the theft of the subject vehicle on 30.01.2010 to OP2 i.e. after a delay of 12 days from the date of alleged theft i.e. 18.01.2010-19.01.2011 and therefore theft not maintainable in view of violation of condition no 1 of the policy and to buttress its defence, OP1 relied upon the catena of judgments passed by Hon'ble Supreme Court and Hon'ble National Commission in this regard on “immediate intimation”. Lastly, OP1 urged that on investigation of the theft claim, it was discovered that the complainant had lost one of the original ignition keys of the vehicle and also gave a statement to this effect of having misplaced the same and therefore alleged negligence on the part of complainant in handling the original key being the primary reason for loss of vehicle since it rendered it vulnerable to theft and also that complainant did not take precautionary steps of changing the lock system in the vehicle. Therefore violating condition no 1 “reasonable care.” In addition to documents already relied upon, OP1 exhibited copy of theft investigation report dated 17.01.2010 and copy of statement of neighbor of the complainant with regard to the subject vehicle having beings stolen on 19.01.2010 from complainant’s official residence and copy of car shield private car package policy highlighting condition 1 and 4 thereof.
8. Evidence by way of affidavit was filed by OP2 sworn by its Senior Executive Legal and exhibited copy of attested computer generated insurance policy cover note as Ex- OP2/A.
9. Written arguments were filed by all parties reassertion / reiteration of their respective grievance / defence. Complainant placed on record catena of judgments relied upon by it. During the course of oral arguments, the counsel of complainant submitted that the subject vehicle was hypothecated with HDFC Bank on vehicle loan bearing no. 14434682 having been availed from it and on squaring off said loan, No-objection Certificate (NOC) dated 10.01.2012 with respect to the vehicle loan was issued by HDFC Bank Ltd. in favour of the complainant. Copy of the NOC alongwith closure letter dated 10.01.2012 has been submitted by the complainant‘s counsel and original of the same has been seen by Forum and returned to the complainant’s counsel.
10.   We have heard the rival contentions of all parties and given our anxious consideration to the documents relied upon by each one of them. The extension of policy cover by both OPs to the complainant is not in dispute as also the factum of theft of the subject insured vehicle. The dispute is primarily about the time of theft since that governs the liability or the lack of it in the present case. During the course of oral arguments to the specific query put by this Forum to the complainant regarding theft intimation given to OP2 since the letter to OP2 by complainant as exhibit CW1/10 is undated, the complainant admitted to the said discrepancy and could not place any cogent evidence in support of any theft intimation given to OP2 and also no claim form having been applied for or filled pertaining to the theft claim with OP2. Therefore, keeping in view the date of theft i.e. intervening night of 18.01.2010-19.01.2011 and the present complaint having being filed in April 2012 with no theft intimation or theft claim given / made to OP2, the claim of the complainant qua OP2 is clearly time barred u/s 24A of CPA and therefore not admissible.
11.  In so far as liability of OP1 is concerned, the insurance cover extended by it to the complainant was to end at midnight of 18.01.2010 and the subject vehicle was last seen by complainant’s executive on 18.10.2010 at 10:30 PM which period was well within under the insurance cover subsistence qua OP1. Macmillan Dictionary has defined the word “within” as ‘inside a period of time, before the end of a period of time’. The Cambridge Dictionary defines “Within” as ‘inside or not further than an area or period of time ’. “Within” means ‘inside or not further than a particular area of space’. Therefore the meaning of “Within” as relevant for the present case in hand is (i) in ; inside includes or encashed by (ii) before (a period of time) as elapsed and (iii) not beyond the limits ; not differing by more than (a specified amount) from. Thus, strictly construed the word “Within” means inside the time period. It is manifest that OP1 has taken a hyper technical objection in repudiating the claim on ground / assumption that the theft of the subject vehicle may have taken place around or after midnight of 18.01.2010 when the cover of OP2 was in operation. This was done in our view to take advantage of the peculiar circumstances of the case to wriggle out of its liability where the exact time of theft was not known and could not be ascertained.
12.  In so far as objection of delay in intimation of  taken by OP1 is concerned, delay in FIR and intimation of theft is concerned, the issue is no longer res integra in view of the recent land mark judgment passed by three Judge Bench of Hon'ble Supreme Court in Gurshinder Singh Vs Shriram General Insurance Co. Ltd. & Ors I (2020) CPJ 57 (SC) passed on 24.01.2020 in which the Hon'ble Supreme Court held that genuine theft claim cannot be denied on ground of mere delay in intimation, Consumer Protection Act being a beneficial legislation for protecting interest of consumers and deserving pragmatic construction. Be that as it may, we find it a fit case to accept the interpretation which favours the complainant / policy holders as the purpose for which the policy was taken would be in consonance with the object for indemnification of the loss. We therefore, direct OP1 to release the IDV amount of  Rs. 4,07,822/- to the complainant alongwith interest @ 6% p.a. from the date of institution of complaint till realization. We further direct OP1 to pay compensation of Rs. 13,000/- to the complainant towards mental harassment and Rs. 7,000/- towards cost of litigation.
13.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on 18.03.2020.

(N.K. Sharma)     President

(Sonica Mehrotra)  Member