BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.209 of 2017

Date of Instt. 06.07.2017

Date of Decision: 27.11.2018

Saraswati Sindhu Nyas (Regd.), EG 1083, New Gobindgarh, Near S. D. College, Jalandhar through its Authorized Person/Representative Miss Kusumlata D/o Shri Satpal.

..........Complainant

Versus

1. Royal Sundram General Insurance Company Ltd., Rider House, Ground and First Floor, Plot No.136, Sector-44, Gurgaon, 122002, Haryana Through its Chairman/Directors/Principal Officer/Manager.

2. Lovely Autos, The Lovely Mall, Dr. Ambedkar Chowk, Jalandhar Through its Chairman/Directors/Principal Officer/Gurjit Singh Kalsi.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Atul Malhotra, Adv Counsel for the Complainant.

Sh. Raman Kumar Sharma, Adv Counsel for the OP No.1.

Sh. Arun Gupta, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint has been presented by the complainant, wherein alleged that the complainant is a registered society duly registered under The Societies Registration Act bearing Registration No.DIC/JAL/226/2005-06. At present complainant is having its office at the address mentioned in the head note of the complaint. The complainant is non profit and non commercial society engaged in providing education, living, assistance and facilities to girls, who are alone, abandoned or do not have any one to take care of them. The complainant has fully authorized Miss Kusum Lata for filing, pursuing, engaging an advocate, giving evidence and do everything else on behalf of the complainant, vide resolution dated 18.05.2017. OP No.1 is engaged in providing insurance services to the general public through out India particularly at Jalandhar through OP No.2 and accordingly, the complainant got insured a car bearing No.PB08DK 0806 from OP No.1 through OP No.2. The car was fully insured with OP No.1 against all particularly accidents, theft etc.

2. That in the morning of 27.11.2016, son of Panditji of said Mahavir Mandir at New Delhi was reaching New Delhi. Many persons saw the said car of the complainant parked at the same place till about 4 AM, but at about 06:15 AM, complainant came to learn that the said car was not there and the same was missing, unfortunately, the said car was stolen in between 4 AM to 6:15 AM. Thereafter, Miss Kusum Lata lodged an FIR bearing No.034795 with Ranjit Nagar Police Station, New Delhi/e-police station regarding the theft of the said car. Soon after reaching back Jalandhar, said Miss Kusum Lata on 28.11.2016, approached OP No.2 and enquired about the office of the OP No.1, but she was informed that OP No.1 is not having their office at Jalandhar and accordingly, Miss Kusum Lata requested officials of the OP No.2 to inform OP No.1 and lodge a claim. At the time of getting insurance policy, only insurance policy was supplied to the complainant. No other terms and conditions or any other documents were provided or delivered to the complainant. Even after the receipt of the claim form duly completed and all of the required documents, OP No.1 repudiated the claim of the complainant illegally, arbitrarily and without any justification, vide letter dated 23.02.2017 citing baseless and vague reasons that intimation of theft was given to the insurance company late and further, the complainant had not taken proper care of the said car. Whereas the said car was properly locked and second key was kept in the Dash Board and taken along because the said car was going out of station. Due to the above mentioned facts, there is a deficiency in services, negligence and unfair trade practice on the part of the OPs, which gave a cause of action to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay lump-sum compensation of Rs.15,00,000/- and further be directed to pay litigation expenses of Rs.11,000/-.

3. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable against the OPs, as such the same is liable to be dismissed. It is further averred that the complainant cannot take advantage of its own wrongs. The complainant failed to immediately intimate/notify the loss to the OP No.1. There is a delay of 8 days of intimating the loss to the OP No.1 violating the condition No.1 of the insurance policy. It is an admitted fact that the complainant had not taken reasonable steps to safeguard the vehicle from the loss. It is an admitted fact that the second key of the car was kept in the Dash Board of the car resulting in the theft of the car and further alleged that there is no deficiency in service or negligence or unfair trade practice on the part of the OP and further submitted that the claim of the complainant has been rightly repudiated as per terms and conditions of the insurance policy, vide letter dated 23.02.2017. On merits, it is admitted that the complainant got insured the car in question from the OP and also submitted a claim, which was admittedly repudiated. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that no cause of action has arisen to the complainant to file the present complaint qua OP No.2 and even the complainant has concealed the material facts from the Forum and further alleged that complainant is not a consumer as defined under the provisions of Consumer Protection Act and further submitted that the OP No.2 is a dealer of Maruti Suzuki and running its business at Jalandhar. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-16 and closed the evidence.

6. Similarly, counsel for the OP No.1 tendered into evidence affidavit of Aneesh Nair, Sr. Executive as Ex.OP1/A along with some documents Ex.OP1/1 to Ex.OP1/9 and closed the evidence.

7. Similarly, counsel for the OP No.2 tendered into evidence affidavit as Ex.OP2/A along with terms and conditions of Policy as Ex.OP2/1 and closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. First of all, we are going to discuss the involvement of OP No.2 in the case in dispute and find that the OP No.2 is a dealer of the Maruti Suzuki car and running its business at Jalandhar and at the time of purchase of new car, the OP No.2 obviously provided an insurance policy being an agent of the Insurance Company and as such, we find there is no direct or indirect role of the OP No.2 in deficiency of service, if any proved. So, no alleged claim is made out against the OP No.2.

10. So, for the concern of OP No.1 is related, the OP No.1 obviously an insurance company and who admitted in its reply that the complainant got insured its car bearing No.PB08 DK 0806 from OP No.1 after paying insurance premium and it is also admitted that the car of the complainant was stolen some where from New Delhi and regarding that the complainant submitted an insurance claim, which has been repudiated by OP No.1 on 23.02.2017 on a valid and reasonable ground because the complainant had miserably failed to obey by the terms and conditions of the insurance policy and copy of the same produced on the file by the OP No.1 i.e. Ex.OP1/2 and further referred condition No.1 and 4, which has been violated by the complainant and due to that reason, the claim of the complainant has been repudiated, vide letter Ex.C-12 and further allegations of the OP that the complainant himself not take reasonable steps to safe guard the vehicle from the loss.

11. The said repudiation letter Ex.C-12 has been challenged by the complainant through this complaint, we like to make it clear that the other facts of the complaint in regard to ownership of the car, theft of the car, submitting of insurance claim and repudiation of the same are not in dispute. The dispute is only whether the repudiation letter Ex.C-12 is legal and valid and we will examine this question only and accordingly, go through the terms and conditions No.1 as well as 4. First of all, if we see the condition No.1 and from the scrutiny of condition No.1, we find that there are two parts of said condition, first part, whereby immediate intimation is required to give to the Insurance Company upon the occurrence of any accidental loss or damages and in the second part, in case of theft or criminal act, which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. Obviously, the insurance company i.e. OP No.1 applied the first part of condition No.1 and repudiated the claim of the complainant illegally, arbitrarily and without applying its mind because the first part related to the accidental loss or damages, whenever there is accident or damages, then immediately intimation is required to be given to the insurance company, but in case of theft, immediate intimation is required to give to the police and accordingly, in the present case, admittedly the theft took place on the intervening night of 26/27.11.2016 at Delhi and on the same day, the representative of the complainant lodged an FIR on 27.11.2016, the photocopy of the same is available on the file Ex.C-10. So, the OP No.1 has wrongly and illegally applied the first part of the Condition No.1. So, for the concern of other condition i.e. Condition No.4, but the same is also not applicable in the present case because the complainant has taken all measures to protect the car from un-warranted incident, the complainant locked the car and properly parked in the parking place, where other cars were also parked, despite that if car has been stolen, then we cannot say there is any negligence on the part of the complainant, simply retaining second key in the Dash Board will not lead to negligence of the complainant because the said second key is not accessible to anybody, which is lying in the Dash Board and if anybody open the car by using any instrument/tools, then he can reach to the key and if anybody has sufficient tools and gadgets, then he would enable to open the car and start it and as such, the application of Condition No.4 is also not applicable in the case in hand and in support of above observation, we like to refer a judgment of the Hon'ble National Commission, cited in 2016 CPJ 138 NC, titled as “Future General India Insurance Co. Ltd. Vs. Anshita Chaudhary”, wherein his Lordship held as under:-

“Theft of vehicle, Lack of reasonable care alleged, Breach of policy condition, Claim repudiated, Deficiency in service, District Forum allowed complaint, State Commission dismissed appeal, Hence revision, Car of complainant was duly locked at the time it was stolen, Theif was well equipped with necessary tools and gadgets which would enable him to drive the sotlen car, Act of complainant in keeping the second key in the bag left inside car not led to the theft of car or in any manner, facilitated the same, Complainant took reasonable steps to safeguard the vehicle against possible theft, Repudiation not justified.”

12. In the light of above detailed discussion, the complaint of the complainant succeeds and accordingly, the same is partly accepted and OP No.1 is directed to pay insured value of the car i.e. 6,76,622/- with interest @ 9% per annum from the date of repudiation of the claim i.e. 23.02.2017, till realization and further OP No.1 is directed to pay compensation as well as litigation expenses, to the tune of Rs.30,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

27.11.2018 Member President