Haryana

StateCommission

A/412/2015

HDFC ERGO GIC LTD. - Complainant(s)

Versus

SHAMEEM - Opp.Party(s)

SANJEEV GOYAL

08 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    412 of 2015

Date of Institution:    05.05.2015

Date of Decision :     08.02.2017

 

HDFC ERGO General Insurance Company Limited, Unit No.502,504,506, 5^th Floor, Mahatta Tower, B-1 Block, Community Centre, Janakpuri, New Delhi through its Authorised Signatory Pankaj Kumar Manager Legal, available at Steelar IT Park, Tower-1, 5^th Floor, C-25, Sector 62, Noida-201301 (UP)

                                      Appellant-Opposite Party

Versus

 

Shameem s/o Sh. Abdul Gaffar, Resident of Village Khandawali, Tehsil Ballabgarh, District Faridabad.

                                      Respondent-Complainant

 

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

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member             

 

Argued by:                    Shri Inderjit Singh, Advocate for appellant.

                             None for respondent. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          HDFC ERGO General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party is in appeal against the order dated March 17^th, 2015 passed by District Consumer Disputes Redressal Forum, Palwal (for short ‘the District Forum’) whereby complaint filed by Shameem-complainant (respondent herein) seeking insurable benefits with respect to his auto rickshaw which was stolen during the subsistence of the insured period, was accepted. The operative part of the order is reproduced as under:-

“………..the present complaint is partly allowed and opposite party is directed to pay half of the IDV (Insured Declared Value) i.e. Rs.78,800/- with interest @ 9% per annum from the date of alleged theft till its realization alongwith Rs.5,000/- towards compensation for mental agony and harassment as well as Rs.2200/- as litigation expenses to the complainant within 45 days from the receipt of the copy of this order failing which opposite party would be liable to pay Rs.5,000/-alongwith above award.”    

2.                Auto-rickshaw bearing registration No.HR-38S-5819 owned by the respondent-complainant was insured vide Insurance Policy (Exhibit R-1) with the Insurance Company-Opposite Party (appellant herein) for the period April 19^th, 2013 to April 18^th, 2014 for Rs.1,57,600/-.  On 19^th July, 2013, Sazeed-complainant’s brother-in-law, was carrying passengers in the above said vehicle from Ballabgarh to Village Kalvaka. On the way, he suffered pain in his stomach. He parked the auto-rickshaw on roadside and went to ease himself in the nearby fields. When he returned, he found his vehicle missing and the passengers had fled with the vehicle. First Information Report (Exhibit C-2) was lodged in Police Station Palwal. The Police submitted Untraced Report (Exhibit C-1). The Insurance Company was also informed. Claim being filed, the Insurance Company repudiated the claim vide letter dated 27^th December, 2013 (Exhibit R-2) on the ground that there was delay of 14 days in lodging the FIR and that the vehicle was left un-attended. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Forum.

3.                The Insurance Company-opposite party contested the complaint by filing written version rising plea as stated in the repudiation letter and prayed for dismissal of the complaint.

4.                After evaluating the pleadings and evidence of the parties, the District Forum allowed the complaint and issued direction to the Insurance Company as detailed in paragraph No.1 of this order.

5.                Learned counsel for the appellant-Insurance Company assailed the order of the District Forum by raising two fold arguments. Firstly, that both the ignition keys were left inside the vehicle at the time of theft. Secondly, there was delay of 14 days in lodging the FIR.

6.                So far as the first contention is concerned, there is nothing in the FIR to show that the ignition keys were left inside the vehicle at the time of theft. Even in the repudiation letter (Exhibit R-2) no such plea was raised by the Insurance Company. More so, it cannot be said that the vehicle was left un-attended because one Kanya Lal son of Moharpal, Caste Harijan, Resident of Village Kailey, who was already known to the complainant and his brother-in-law (driver-Sazeed), was sitting in the vehicle alongwith two other passengers. In view of this, it cannot be said that the vehicle was left unattended.

7.                In Revision Petition No.590 of 2014, New India Assurance Company Ltd. and another vs. Shri Girish Gupta, decided on July 31^st, 2014, Hon’ble National Commission held as under:-

“21.   This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5. In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV – (2011-4)”

8.                In Revision Petition No.3251 of 2013, Oriental Insurance Company Limited vs. Shyam Sunder, decided on 5^th May, 2014, Hon’ble National Commission held that if driver was in hurry to answer the call of nature and the driver forgot to remove keys from the ignition switch, he cannot be said to have committed willful breach in violation of Condition No. 5 of the policy.  In the case in hand, it has come in evidence that the driver suffered pain in his stomach and went to answer the call of nature.  The driver is not expected to carry key of the vehicle with him while going to answer the natural call, particularly, when a passenger known to him was sitting in the vehicle.   Even otherwise, no evidence has been led by the Insurance Company that the keys were left in the ignition. 

9.                Secondly, the delay of 14 days in lodging the FIR has been duly explained in the application (Exhibit C-3) submitted to the Police. It has been clearly mentioned in the application (Exhibit C-3) that because known person was sitting in the vehicle at the time of theft, so the complainant tried his level best to trace out the vehicle. Nothing contrary to the above evidence has been produced by the Insurance Company. Moreover, District Forum has only allowed 50% of the IDV as compensation.

10.              As a sequel to the aforesaid discussion, the appeal filed by the appellant-Insurance Company is baseless. Hence, it is dismissed.

11.              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 08.02.2017

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL