Haryana

Ambala

CC/250/2020

Jitender Singh - Complainant(s)

Versus

Tata Aig General Insurance Co Ltd - Opp.Party(s)

Vikas Surya

16 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :    250 of 2020

                                                          Date of Institution           :     26.10.2020

                                                          Date of decision     :     16.08.2022.

Jitender Singh S/o Sh.Tirth Singh R/o VPO Kambasi District Ambala, Haryana.

                                                                                ……. Complainant.

                                                Versus

1. Tata AIG General Insurance Company Limited 301-308, Third Floor, Aggarwal Prestige Mall, Plot No.-2, Road No. 44, Near M2K Cinema Rani Bagh, Pitampura, New Delhi-110034 through its Managing Director.
2. Tata AIG General Insurance Company Ltd. Branch office 3rd floor, Shanti complex, opp. Civil hospital, Jagadhri Road Ambala Cantt-133001 through its Branch manager

                                                                                       ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.            

                            

Present:       Shri Shishan Dutt, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i)        To pay sum assured amount of Rs.50,255/-, alongwith   interest @12% per annum from the date of      repudiation, till realization.

 (ii)    To pay Rs.1,00,000/-, as compensation for the mental    agony and physical harassment suffered by the    complainant.

(iii)    To pay Rs.11,000/- as litigation expenses.

                             OR

 Grant any other relief which this Hon’ble Commission may deem fit.

2.           Brief facts of the case are that, on 08.11.2018, complainant purchased TVS Jupiter Scooter (in short the vehicle) from Ashutosh Automobiles, Barara, Ambala on making payment of Rs.52,900/-, vide invoice Annexure C-1. The said vehicle got insured from the OPs, on making payment of premium of Rs.8,736/-, vide  Policy no.064001/ABIL/0187555604/000000/00, Annexure C-2. The said policy was valid for a period of five years from the date of purchase of the same i.e. from 08.11.2018 to 07.11.2023 for own damage against an IDV of Rs.50,255/-, yet, no terms and condition thereof were ever provided separately to the complainant. Thereafter, the complainant applied for the Registration No. of said vehicle from Registering Authority-SDM Barara District Ambala and got Registration No. HR-54E-6956. On 15.01.2019, the complainant parked the aforesaid vehicle in front of Canara Bank, SST Nagar Patiala at about 10.30 a.m. However, when he came back at 11.30 a.m. he found that it was stolen. He gave written complaint of theft in the Police Station on same day i.e. 15.01.2019, Annexure C-5. When, despite his best efforts, he could not trace it, he registered FIR dated 02.02.2019, under section 379 IPC at Lahori Gate Police Station, Patiala. Theft of the said vehicle was also intimated to the OPs. Alongwith claim form,  all the relevant papers i.e. Non traceable report dated 27.06.2019, identification documents i.e. FIR, RC Copy, Copy of insurance etc. were supplied to the surveyor, who took signatures of the complainant on blank papers to complete the formality regarding the claim. To the utter shock of the complainant, the OPs vide letter dated 07.05.2019, Annexure C-7 repudiated the claim of the complainant, on false and frivolous grounds.  By not reimbursing the claim amount, despite the fact that the vehicle in question was under insurance cover at the time of  theft, the OPs have committed deficiency in service. Hence, the present complaint.
3.           Upon notice, OPs No.1 & 2, appeared and filed written version, raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts, cause of action etc. On merits, it has been stated that the fact of issuance of the insurance policy in question, in respect of the vehicle in question, as mentioned in the consumer complaint; and theft took place in respect of the vehicle in question, during the subsistence of insurance cover, has not been disputed by the OPs. It has been stated that the complainant himself was responsible for the said theft. On receipt of claim no.0821279835A of the complainant, with regard to the theft of his vehicle, the Investigator namely M/s Probe Services was appointed to investigate the matter and to give his fact finding report about the loss and other factors related to this case. After going through the papers submitted by the said Investigator, and also after scrutinizing the entire record, it was also established that the complainant intimated the loss in question to the police on 02.02.2019, vide FIR no. 15 dated 02.02.2019 meaning thereby that there was a delay of 17 days in lodging the same. It was also observed that apart from late intimation, the complainant who was having the custody of the insured vehicle at the relevant time was very negligent and failed to take reasonable care to safeguard it from any loss, as he left keys in the ignition of the vehicle, which resulted into theft of the same. Furthermore, there was delay of 31 days in giving intimation to the OPs, by the complainant, regarding the said theft, without any plausible reason for the same.  Since there was a breach of fundamental terms and conditions of the policy in question, as such, the claim of the complainant was rightly rejected by the OPs vide letter dated 07.05.2019, Annexure C-7. The complainant was duly informed about the fate of his claim vide letter dated 27.05.2019.  Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW-1/A alongwith documents Annexure C-1 to C-10 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavit of Shri Amit Chawla, Chief Manager and Authorized Signatory of Tata AIG General Insurance Company Limited, as Annexure OP-A alongwith documents Annexure OP-1 to OP-3 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant has submitted that because the said theft in respect of the vehicle in question took place during the subsistence of insurance policy in question, as such, the OPs were under legal obligation to pay the claim amount but his genuine claim was repudiated on flimsy grounds, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on the part of OPs. 
7.           On the contrary, the learned counsel for the OPs has submitted that since there was a breach of fundamental terms and conditions of the policy in question, on the part of the complainant in intimating the police as well insurance company, regarding the said theft, after a huge delay and also at the same time, he was negligent in taking care of his vehicle, as he had left the keys in its ignition, as such,  his claim was rightly repudiated by the OPs, strictly, as per terms and conditions of the insurance policy in question.
8.           A bare perusal of repudiation letter dated 07.05.2019, Annexure C-7 reveals that the claim of the complainant was rejected by the OPs, on following three grounds:-
   1. Firstly, there was delay of 17 days in lodging FIR to the police concerned, from the date of theft;
   2. Secondly, there was delay of 31 days in intimation to the OPs, from the date of theft; and
   3. Thirdly, at the time of theft, one ignition key was left inside the ignition lock of the vehicle while parking. 
9.           Under above circumstances, the only issue for consideration in this case is, as to whether the OPs were justified in repudiating the claim of the complainant on the basis of the above said grounds or not?  
10.           First coming to the ground taken by the OPs in the repudiation letter  07.05.2019, Annexure C-7 that there was delay of 17 days in lodging FIR to the police concerned, from the date of theft, it is submitted here that the said ground seems to be unjustifiable on the face of the document Annexure C-5, which reveals that the complainant had given intimation of theft regarding the said vehicle to the Police Officer, Police Station Lahori Gate, Patiala on 15.01.2019 itself i.e. on the very same day of theft. The said document, Annexure C-5 has been acknowledged by the Police Officer concerned, by affixing the stamp of the Police Station alongwith his signatures, as such, its authenticity cannot be doubted. Thus, if the complainant had intimated the police regarding theft of the said vehicle on the very same day of theft i.e. on 15.01.2019 and on the other hand, the Police concerned had prepared the FIR and untraced report after delay of 17 days, the complainant cannot be said to be at fault in the matter. Under these circumstances, it is held that to this extent, the OPs were not justified in taking one of these grounds to repudiate the claim of the complainant.
11.           Now coming to the second ground  taken by the OPs in the repudiation letter  07.05.2019, Annexure C-7 that there was delay of 31 days in intimation to the OPs-insurance company, from the date of theft. It may be stated here that in catena of judgment the Hon’ble Superior Courts have already held that mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
12.           Now coming to the third ground taken by the OPs in the repudiation letter  07.05.2019, Annexure C-7 that at the time of theft, one key was left inside the ignition lock of the vehicle while parking by the complainant, which resulted into theft of the said vehicle, it may be stated here that this ground has been taken by the OPs keeping in mind condition no.4 of the insurance policy, relevant part of which is reproduced hereunder:-

“…….Policy 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 times 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 damage or loss and if the vehicle e driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk............”

         

Furthermore, to prove their case that the complainant had left the keys in the ignition of thevehicle on 15.01.2019, the OPs have placed on record thestatement dated 06.04.2019, Annexure OP-3 given by the complainant himselfbefore the Investigator appointed by the OPs. In this statement, it has been clearly admitted by the complainant that on 15.01.2019 at around 10.15 a.m., when he parked the said vehicle in front of his office, he forgot to pull out the keys thereof, and thereafter, when he came back at 10.30 a.m., on the same day, he found that theft of his vehicle has taken place. It is significant to mention here that the complainant did not challenge the contents of the saiddocument06.04.2019, Annexure OP-3, wherein, he himself has admitted in writing that he left the keys in the ignition of the vehicle, meaning thereby that he failed to take all reasonable steps to safeguard his vehicle  from the loss of theft., thereby violating the breach of fundamental condition no.4 of the insurance policy in question. Thus, from the facts narrated above, it has been proved on record that the keys of the vehicle were left within the vehicle, by the complainant, which is a gross negligent act, which has definitely led to the incidence of the insured vehicle being stolen. Sufficient care was not taken by the insured-complainant, which a prudent man ought to have taken, to safeguard his vehicle and on the other hand, an invitation to theft had been given by him. In our considered opinion, this is therefore a breach of fundamental terms and conditions of insurance policy which states-The insured shall take all reasonable steps to safeguard the vehicle from loss or damage. As such, under those circumstances, if the insurance company-OPs have repudiated the claim of the complainant on this ground, they cannot be held to be deficient in providing service or guilty of adoption of unfair trade practice. Our this view is fully supported by the principle of law laid down by the Hon’ble Supreme Court in the case titled as Kanwarjit Singh Kang vs M/s ICICI Lombard General Insurance Company Limited,   Petition(s) for Special Leave to Appeal (C) No(s). 6518/2018, decided on 29 March, 2022 wherein it was held that leaving the keys within the vehicle, is a gross negligent act, and in case, the said act leads to incidence of theft of the said vehicle, it is a breach of a fundamental terms and conditions of insurance policy and in that case, the insurer is not under obligation to pay the claim raised in that regard to the insured. Relevant part of the said order is reproduced hereunder:-

“…Moreover, the other pertinent part of the matter, that there had been want of reasonable care on the part of the petitioner or his employees in taking reasonable care of the insured vehicle, operates heavily against the petitioner. It is specifically found that the truck in question was left unattended on the roadside with ignition keys therein. Though learned counsel for the petitioner has referred to the assertions made by the driver in his affidavit that they had parked the vehicle on the road side after properly locking the same, but such a statement is incompatible with the statement given by the petitioner himself that the vehicle was stolen with the ignition keys. That being the position, repudiation of the claim of the petitioner cannot be faulted at…….”

13.           As far as plea taken by leaned counsel for the complainant that terms and conditions of the policy in question were never supplied to the complainant, as such, the conditions which were imposed for repudiation of the claim were not binding upon him, it is significant to mention here that the policy in question was issued on 08.11.2018 for the period of 05 years. Not even a single document has been placed on record by the complainant to prove that since he was not supplied the policy documents, as such, he requested the OPs by way of sending any letter/reminder in that regard. In this view of the matter, plea taken by the complainant, for the first time in his complaint i.e. after more than 2 years of issuance of the policy in question, that policy terms and conditions were not supplied to him and that too, after his claim has been repudiated, being devoid of merit stands rejected.
14.           In view of peculiar facts and circumstances of this case, it is held that the claim of the complainant was not payable by the OPs, on the ground that he failed to take all reasonable steps to safeguard his vehicle, by leaving the keys thereof within the ignition, which resulted into theft thereof, and it amounts to violation/breach of fundamental terms and conditions of insurance policy in question. Consequently, this complaint stands dismissed with no order as to cost. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 16.08.2022.

 

 

 

 

                (Ruby Sharma)                                                         (Neena Sandhu)

                     Member                                                      President