DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 34/2021

Date of Institution: 05.02.2021

Judgment Reserved on: 14.08.2024

Judgment Passed on: 14.08.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission would dispose off the complaint of the complainant alleging deficiency in not reimbursing the insured amount w.r.t. his stolen vehicle.

1. Brief facts as stated by the complainant in the complaint are that he purchased one motorcycle from Patparganj Industrial Area for an amount of Rs.1,40,091/- and the same was insured with the OP which policy was valid from 16.02.2018 to 15.02.2020, however on 17.04.2018 the said vehicle was falsely involved in one accident whereafter an FIR No.104/18 was registered at Police Station, Madhu Vihar U/s 279/338 IPC and the Police of Madhu Vihar Police Station impounded  the said vehicle alongwith RC, DL, Photocopy of Insurance and one original key from the complainant vide seizure memo dated 17.04.2018. The complainant thereafter got its vehicle released from the Court of Sh. Pranjal Aneja Ld. M.M. Delhi(SHD) on Superdari and gave to Police Station, Madhu Vihar whereafter although the motorcycle was returned to the complainant but original key was lost by the police & was not returned to him. The complainant unlocked the motorcycle with the second key and even lodged formal complaint to Police Station, Madhu Vihar for getting the said lost key recovered but the police on one pretext or the other had not returned the lost key of the complainant. On 28.07.2018 the complainant parked the said motorcycle infront of his uncle’s tea shop and locked the motorcycle properly but on next day i.e. 29.07.2018 at about 4:00 am, his cousin brother Sh. Hari Kishan informed him that his motorcycle has been stolen by someone, the complainant lodged a police complaint by dialing 100 number to SHO, Pandav Nagar, Delhi and an e-FIR was registered, the complainant also informed the OP regarding theft of the vehicle and claimed the insured amount and OP sent a letter dated 08.10.2018 thereby demanding all the documents of seizure memo, second original key alongwith untraced report which was supplied to the OP but the OP ultimately refused the claim on the ground that only one key has been submitted by the complainant out of the 2 keys although complainant had supplied the documents /complaint w.r.t. of loss of key by the police officer at Police Station, Madhu Vihar but ultimately rejected the claim. The complainant sent a legal notice to the OP which was duly replied by OP but simultaneously OP was ready to pay only 75% of the insured amount which was not acceptable to the complainant and as such he filed the present complaint case alleging deficiency in service thereby demanding insured amount of Rs.1,40,091/- alongwith interest @18% p.a., compensation of Rs.50,000/- and litigation charges of Rs.25,000/-.
2. The OP has filed its reply taking preliminary objection that as per demand of the complainant in the complaint itself and as per FIR complainant was informed by the police in April 2018, the original key of the insured vehicle had been lost and despite that complainant did not get the lock set of the vehicle changed and thus has made insured vehicle susceptible to theft and subsequently the insured vehicle was allegedly stolen on 29.07.2018 when the vehicle was parked unattended at his uncle’s tea shop which was 500 mtr away from his own house and he went to sleep. In view of such facts, the complainant had acted in negligent manner himself and has also left the vehicle unattended & therefore there is no deficiency on the part of OP and OP otherwise has already been willing to settle the matter with 75% of the sum insured invoking the lost key clause, mentioned in letter dated 22.01.2019 and therefore complaint of the complainant be dismissed. It is further submitted that as per the admission of the complainant the vehicle was financed by Tata Capital where the complainant has given only 4 installments and therefore the financer is also necessary party & the complaint of the complainant on this ground is also liable to be dismissed.
3. As far as merits are concerned, the contents of the preliminary objections are reiterated & in para-10 the condition no. 4 & 8 are reitereated.

Condition no.- 4 - "The insured shall take all reasonable steps to safeguard the vehicle from 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 left unattended without proper precaution being taken to prevent the further damage or loss and if the vehicle driven before the necessary repairs are affected any extension of the damages or any further damages to the vehicle shall be entirely at the insured's own risk."

Condition no.- 8 "The due observance and fulfillment of the terms, condition and Endorsements of this policy in so far as they related to anything to be done or complied with by the Insured and the truth of statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy." 

4. Complainant has not filed rejoinder and has filed his evidence where the OP has filed evidence of Sh. Amit Chawla AR of OP. Both the parties have filed written arguments. The Commission has heard the argument and perused the record.
5. All the facts are almost admitted i.e. the complainant is the owner of the vehicle, he has got vehicle insured, the vehicle met with an accident, the vehicle was taken into possession by the police alongwith one original key, the vehicle got released on Superdari, the key seized by the police as per the seizure memo was not returned to the complainant and got missed from the Police Station, Madhu Vihar for which separate complaint was also lodged by the complainant in the Police Station, Madhu Vihar, the vehicle ultimately has been stolen, claim has been lodged and OP was ready to refund the 75% of the insured amount of non-standard basis from the date of its reply. The only issue therefore is whether the complainant was negligent in parking his motorcycle at his uncle’s tea shop or was negligent in not replacing lock system of his motorcycle, keeping in view the fact that the key has not been lost by him rather has been lost by the investigating agency thereby having no fault on his own part.  Ld. Counsel for OP has argued that in view of the clause 4 & clause 8 as mentioned hereinabove, the complainant was bound to take proper care of his motorcycle and should have got the lock system changed once he was well aware of the fact that one key of his motorcycle is missing and his vehicle was susceptible to theft. The clause 4 & clause 8 as has been produced by the OP, no where state that in case of loss of one key the complainant is bound to change the lock system. If the OP can incorporate numbers of exclusion clauses then this clause/condition should also have been specified by OP in the exclusion clause. It is not done by OP.
6. The Commission is also of the opinion that this stand of the OP is too technical to be appreciated and would tentamount the complainant was under duty to get his lock system changed. No one apprehends that vehicle would be stolen if key is missing from the investing agency for which complaint has already been lodged and the same was provided to the OP as well. The complainant, in such circumstances generally would not apprehend that the vehicle is susceptible to theft. Further it is not a case that the motorcycle has been left over unattended by the complainant or had been stolen on account of any negligence on the part of complainant. The complainant has thoroughly been pursuing the matter i.e. when he handed over the vehicle to police, he got seizure memo in which it is specifically mentioned that key has been handed over to the police. When he did not receive the key from the police, then he again lodged a formal police complaint that his key is missing. Therefore whatever the necessary precautions were to be taken by the complainant had been taken by him & taking such objection by the OP that the complainant is negligent cannot be appreciated much and in these circumstances offering of 75% of the claim on non-standard basis in the considered opinion of this Commission amounts to deficiency of service on the part of OP. As far as the vehicle was financed by some financing company, the complainant would obtain NOC from the finance company & would be given to the OP, prior to release of this orders amount. 

• Therefore OP is directed to pay Rs.1,40,091/- alongwith interest @9% p.a. from the date of filing the complaint within the date of actual payment alongwith compensation of Rs.10,000/- and litigation charges of Rs.5,000/-.
• This Order is to be complied within 30 days from the date of receiving the copy of judgment & in case the OP would not pay the amount within 30 days then the rate of interest would be @12% from the date of filing the case upto the date of realization on the entire amount.           

Copy of the Order be supplied/sent to the both parties free of cost as per rules.

Announced on 14.08.2024.

File be consigned to Record Room.