Haryana

Ambala

CC/191/2013

KAMLESH DEVI - Complainant(s)

Versus

SHRIRAM GENERAL INSS,CO. - Opp.Party(s)

V.S. KHATKER

18 Jul 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No.   191 of 2013

                                                        Date of instt:     02.08.2013

                                                        Date of decision:18.07.2017

 

Kamlesh Devi wife of Sh. Jarnail Singh son of Sh. Sadhu Ram, resident of village and post office Pasiala, District Ambala (Haryana).

 

         

                                                                           ...Complainant.

Versus

1.     Shriram General Insurance company Limited, SCO-178, Ist         Floor, Secor-38C, Chandigarh, through its’ Authorized Signatory.

2.     Naresh Gulati, at Gulati Traders, Shahzad, Road, Opposite         Balwinder property Adviser at Saha, District Ambala.  

                                                                         …Opposite party.

Complaint under section 12 of

 

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                Sh. PUSHPINDER KUMAR, MEMBER

                SH. ANAMIKA GUPTA, MEMBER

 

Present:-     Sh. V.S. Khathar, counsel for complainant.

                   Sh. Mohinder Bindal, counsel for OP No.1.

                   OP NO.2 already exparte.

 

Order:-

 

                   In nutshell, the brief facts of the complaint are that the husband of the complainant namely Sh. Jarnail Singh was registered owner of a Hero Honda Splendor Plus Motor Cycle bearing Registration No.HR-01-W-3840 and he got the same insured with the OP No.1 through the OP NO.2 vide policy No.105009/31/12/009812 valid with effect from 16.12.2011 to 15.12.2012. Further submitted that on 01.08.2012, the said motor was in possession of Sh. Pardeep Kumar son of Sh. Ram Sharan, resident of Village Pasiyala, District Ambala and unfortunately, the aforesaid vehicle was stolen by someone from the outside of Plot No.34, Industrial area, Saha, District, Ambala and at that time, all the documents pertaining to the Motor cycle were also in the Motorcycle and husband of the complainant attempted to search the same but it could not trace out the same and FIR bearing No.93 dated 02.08.2012 was got lodged with the P.S. IA Saha under Section 379 IPC and information about the steeling of motor cycle was also given to the OP No.1 and after conducting the investigation, the Police submitted their untraced report dated 17.11.2012 and thereafter, the husband of the complainant lodged his said claim for stealing his aforesaid motor cycle, with the OP NO.1 bearing claim No.10000/31/13/C/029647 and submitted all the requisite documents with the OP NO.1 but the Ops paid no heed. Unfortunately, the husband of the complainant namely Sh. Jarnail Singh son of Sh. Sadhu Ram died on 06.02.2013 and the complainant being widow has become owner of the aforesaid motor cycle on the basis of natural succession and as such the complainant wrote for early settlement of the above said claim to the OP No.1 by way of written application in May,2013 and all the requisite formalities were got completed but the OPs have flatly refused the genuine and legal claim of the husband of the complainant by way of letter dated 09.07.2013. Hence, the present complaint.

2.                Upon notice, OPs appeared and filed written statement raising the objections of not maintainability, no jurisdiction, ex-facie misconceived, vexatious, untenable and no cause of action. Further submitted that it is the complainant who is responsible for the non-payment of the claim and as a matter of fact the claim of the complainant’s husband was duly entertained in due course without going into the aspect of its maintainability due to late intimation but since the complainant’s husband had violated the terms and conditions of the insurance policy, the competent authority was compelled to repudiate the claim legally within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws. Inspite of the fact that the present claim was out rightly liable to be discarded due to late intimation of claim by the insured i.e. after 17 days of the loss against law and the terms of the insurance policy but after going through the papers submitted by the insured i.e. after 17 days of the loss against law and the terms of the insurance policy. In the present case, the person having the custody of the insured vehicle under the insured behaved negligently and failed to take reasonable care as well as legally expected from him. Not only that he left the insured vehicle in question carelessly un-attended but also left the vehicle unlocked itself thus aided the miscreants in their act of stealing the vehicle in question and the insured  failed to give any reply to the letters dated 01.01.2013, 08.02.2013, 18.03.2013 & 07.05.2013 written by him to explain in this regard. In the given circumstances, the OP was having no other alternative but to repudiated the claim due to clear and gross violation of the condition No.4 of the Motor Policy and the complainant was duly informed about the fate of his claim vide letter dated 09.07.2013 but the complainant in order to put undue pressure filed this false complaint. In this way, there is no negligency on the part of the OPs and prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X & C-Y alongwith documents as Annexure C-1 to C-7 and close his evidence. On the other hand OP also tendered an affidavit as Annexure R-X along with document as Annexure R-1 and R-6 and closed the evidence on behalf of OP.

4.                    We have heard counsel for the parties and carefully gone through the case file. Admittedly, motor cycle of the complainant was insured with opposite parties vide policy No.105009/31/12/009812 valid w.e.f. 16.12.2011 to 15.12.2012. It is case of complainant that the motor cycle in question was stolen on 01.08.2012 by someone from the outside of plot No.34, Industrial Area, Saha, District Ambala and FIR in this regard has been lodged on 02.08.2012 bearing FIR No.93 (Annexure C-6) but the OP has repudiated the claim of the complainant due to late intimation of claim by the insured i.e. after 17 days of loss against law and the term and condition NO.5 of the policy which is reproduced 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 (Annexure R-1).

                        The Counsel for the Ops argued on the two points that as per the contents of the FIR, it is clearly mentioned that the vehicle in question was left unattended by the driver of the vehicle in question and he left the key in the motorcycle and same was stolen by leaving the key in the motorcycle in the ignition and not locking the vehicle. 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. It is totally carelessness on the part of the driver of the vehicle in question and another ground is that the complainant has intimated the OPs after period of 17 days. Hence, OPs are rightly repudiated the claim of the complainant and there is no deficiency in service on the part of the opposite party and also 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. The Hon’ble National Commission in case titled as Om Parkash Vs. National Insurance Company Ltd. 2012 (III) CPJ page 59 has also observed that insurance-theft of vehicle-delay in intimation-claim repudiated-alleged deficiency in service-District Forum allowed complaint-State Commission allowed appeal-Hence revision-terms and conditions of insurance policy are required to be strictly construed and no exception can be made on the ground of equity-Even delay of few days in  not intimating insurance company about incident of theft is fatal-insured loses its right to be indemnified when he himself is not vigilant about his rights and his obligations in regarding to compliance of terms and conditions of policy-impugned order upheld.

                   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 01.08.2012 while the complainant had gone outside of plot No.34, Industrial Area, Saha, District Ambala and leaving the key in the ignition and complainant has taken the prompt action and approached to the policy on same day, the police has lodged the FIR on next day bearing FIR No. 93 dated 02.08.2012 with P.S. Ambala Saha with regard to above said instance & the police had also submitted the final report (Annexure C-6) in the court of Illaqua Magistrate. Admittedly, the vehicle in question had not been traced out till date & the contention of the OPs is that the complainant had violated the condition No. 5 of Insurance Policy which says that “the insured shall take all reasonable steps to safeguard the Motor Cycle 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 motor Cycle or any part there of any driver or employee of the insured. In the event of any accident or breakdown the motor cycle shall not be left unattended without proper precaution being take to prevent further damage or loss and if the Motor Cycle be driven before the necessary repair are effected any extension of the damage or any further damage to the motor cycle shall be entirely at the insured’s risk”. The 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 motorcycle outside of plot No.34, Industrial Area, Saha, District Ambala and forgotten to remove the keys from ignition. Then, lapse on the part of the driver of the vehicle 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) that Consumer Protection Act, 1986 Section 2(1) (g), 14(1) (d), 21(b)- Insurance-theft of vehicle –driver left key in vehicle-violation of condition of policy alleged-claim repudiated-deficiency in service-District Forum dismissed complaint – State Commission allowed appeal – Hence revision – Driver alighted from vehicle to answer call of nature – leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy. Lapse on part of driver not willful breach- Repudiation not justified 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 also drawn out attention the law laid down by the 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 17 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 17 days in giving intimation but to prove the same no evidence worth the name has been led. The vehicle in question was stolen on 01.08.2012 and FIR was lodged on 02.08.2012 and submitted final report, the question of breach of trust by will not affect the right of the complainant, who lost his motorcycle. 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.                The law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C) is fully applicable in the present case and the claim of the complainant is liable to be accepted on non-standard basis.

6                 In view of above discussion, we have opinion that 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 which comes to Rs.16,500/- from the date of complaint alongwith interest @ 9% till its realization.

(ii)     Also to pay a sum of Rs.3,000/- 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:18.07.2017

                                                                                       (D.N. ARORA)

                                                                                         PRESIDENT

 

                                                                               (PUSHPINDER KUMAR)

                                                                                        MEMBER

 

                                                                        (ANAMIKA GUPTA)

                                                                                          MEMBER