Delhi

North

CC/25/2018

UTKARSH GAUR - Complainant(s)

Versus

TATA AIG GENERAL INSURANCE CO. LTD. - Opp.Party(s)

29 Jul 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.: 25/2018.

 

In the matter of

 

Sh. Utkarsh Gaur,

S/o Late Sh. S. C. Sharma,

323, Gali No.2, Chanderlok Colony,

Shahdara, Delhi-110093.                               …                         Complainant

                                                          Vs

M/s Tata AIG General Insurance Co. Ltd.

Through its Managing Director/ Director/

Authorised person,

301-308, 3^rd floor, Aggarwal Prestige Mall,

Plot No.2, Road No.44, Near M2K Cinema,

Rani Bagh, Pitam Pura, Delhi-110034.           …                          Opposite Party

 

ORDER

29/07/2024

 

Ashwani Kumar Mehta, Member:

 

I.        The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. The Complainant got his Car/Vehicle No. DL-9CT-2295, Chevrolet Aveo insured vide Insurance Policy No. 155355133 for one year i.e. w.e.f. 16-06-2016 to 15-06-2017 from the Opposite Party.
2. On 18-01-2017, the complainant went to Tis Hazari Court to meet his counsel for the discussion in respect of his property case, pending for disposal in the Court of Ms. Annu Aggarwal SCJ KKD Delhi presently. The said case was at the final stage and the same was fixed for final argument. On that day, there was election in Delhi Bar Association. Hence the complainant was not allowed to park his vehicle inside the court parking. The said vehicle, therefore, was parked in Advocates parking near Chota Gate of Tis Hazari Court. The other persons were also parking their vehicles there.
3. During the discussion and in preparing the final arguments with the counsel, the complainant felt sever pain in his stomach all of a sudden, and the complainant rushed at his home by metro and thereafter, the complainant reached at home by battery rickshaw on 18-01-2017. Thereafter, the father of complainant took the complainant to 'SAI Charitable Dispensary Nursing Home (Regd.)" at A-86, Jagat Puri, Nathu Colony, Shahdara, Delhi-110093 and the complainant took the treatment from Dr. Amar Gautam Physician MBBS MD DMC Regd. No. R/04734. It is relevant to mention that the complainant is a stone patient since long.
4. On 19-01-2017, the complainant went to take his car by metro at about 10:30 a.m. but found his car missing. He enquired about the same from traffic police and made a telephone call on 100 number. Thereafter,  as per instructions from the Police, the complainant went at P.S. Kashmere Gate, Delhi but the Police Officials didn't lodge the complaint and the complainant lodged complaint online immediately vide FIR No. 001986/2017 u/s 379 of IPC.
5. The information of theft was also sent to OP Company by Complainant. Thereafter, the surveyor Shri. Krishan Kumar surveyed the matter on 23-01-2017 but the OP did not respond to the complainant in any manner. However, on 12-07-2017 the OP sent a letter to the complainant and required some queries from the complainant and the complainant immediately sent the reply of the same in all respect vide reply dt. 06-08-2017 but the OP Company didn't send any response to the complainant in any matter in spite of several visits by Complainant.
6. The insurance Policy was taken by complainant from the OP company against his vehicle for Rs.1,74,267/- on 16-06-2016. However the said vehicle was stolen on 18-01-2017. The complainant is entitled for the insured amount from the OP Company alongwith interest thereon w.e.f. 18-01-2017 @ 12% p.a. to the actual date of payment against the said claim of complainant.
7. Complainant again sent another demand Notice dt.23-10-2017 demanding for compensation for Rs.1,74,267/- towards the principal amount of claim with interest thereon @ 12% p.a. w.e.f. 18-01-2017 to the actual date of payment. Thereafter, the Opposite Party sent a vague reply dt. 27-10-2017 refusing to pay any compensation amount to the complainant but no sufficient ground was mentioned in the reply.

 

II.       Therefore, the present complaint has been filed praying that the Opposite Party may be directed to pay:-

1. Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousands Only) towards claim/compensation against insurance policy No. 155355133 against the stolen vehicle No. DL-9CT-2295, Chevrolet Aveo and the future
2. pendentelite interest @ 12% p.a. on the abovesaid amount
3. Rs.60,000/- towards litigation expenses under the abovementioned circumstances of the case and also in the interest of justice.

 

III.      The Complainant has also filed copies of insurance policy, FIR, Surveyor documents list, statement taken by Surveyor, Untraced report, Untraced report issued by Court, letter of OP dated 12.07.2017, reply of querries dt. 06.08.2017 with postal receipts, documents of Transport department relating to vehicle, demand notice dated 23.10.2017 sent on 24.10.2017 with postal receipt, medical record, purchased receipts, RC of vehicle, intimation to Transport Authority, aadhar card, driving license of Complainant, Pan Card of Complainant, Election I-Card of Complainant alongwith the complaint.

 

IV.      Accordingly, notice was issued to the OP and in response, the OP has filed its reply stating that:-

1. the insured vehicle bearing No. DL 9CT 2295 (Chevrolet AVEO U-VA 1.2), make 2016, has been reported to be stolen on 18/19.01.2017.
2. Opposite Party immediately on receiving the intimation of claim under the policy appointed an independent investigator M/s. AA Insurance Services for verification and investigation of the claim.
3. After thorough verification and investigation of the claim, it transpired that on 18.01.2017 at about 6.15 PM, the Complainant parked the said Insured Vehicle near Chota Gate, towards Mori Gate side of Tis Hazari Court, Delhi and after parking, he went inside Tis Hazari Court, Delhi to meet his counsel to discuss a property matter pending disposal in the court Ms. Anu Aggarwal, SCJ, Karkarduma Court, Delhi. During discussion with the Advocate, the Complainant felt severe pain in his stomach and due to same, he left to his home by Metro without taking the said Insured Vehicle with him.
4. On 19.01.2017, he went to take his Car, which was parked by him on 18.01.2017 near Chota Gate, towards Mori Gate side of Tis Hazari Court, Delhi but he did not find his Car and the same was stolen.
5. It is evident from the cause of theft that the Complainant left the vehicle abandoned without taking proper care and safety of the said vehicle and due to the same the said insured Vehicle was allegedly stolen and therefore, the Complainant is guilty of gross negligence by leaving the vehicle at so called place of incident, thereby, compromising the safety and security of insured vehicle. The subject vehicle could not be stolen, if, proper and reasonable precaution would had been taken by the Complainant in parking the said insured vehicle.
6. since the Complainant failed to take proper safety and care in parking the subject vehicle due to which theft of the said insured vehicle took place, act of the Complainant amounts to gross negligent and careless and therefore, in terms of the policy, the Complainant is not entitled to the claim amount and accordingly, the claim of the Complainant was repudiated.
7. Copy of Intimation cum Preliminary Claim Form, Copy of Investigation report dated 02.03.2017 of AA Insurance Services and Written Statement of the Complainant have been annexed with the Reply as Annexure R-1 to R-3. Copy of Terms and Conditions of Policy have been annexed with the complaint as Annexure R-4.

 

V.       The OP has also contended that in terms of the policy or otherwise, the Complainant was under obligation to keep the said vehicle with utmost care and safety, however, in gross violation of the same, the Complainant parked the said insured Vehicle without taking proper safety and precaution, due to which the alleged thief/ thieves took advantage of the same and the vehicle was stolen. The Complainant has not acted like a reasonable and prudent person and has left the vehicle unattended in idling conditions. Due to this recklessness, theft of the said vehicle took place, which is a violation of terms of condition No. 4 and 8 of the policy and as such, the complainant is not entitled to the claim amount and accordingly, the claim was repudiated by the Opposite Party vide its letter dated 27.10.2017. The relevant Condition No. 4 and 8 of the insurance policy is reproduced herein for the ready reference of this Hon'ble Forum:-

 

CONDITION NO.4 OF THE POLICY

 

"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 precaution being taken to prevent further damage 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".

 

CONDITIONS NO. 8 OF MOTOR POLICY

"The due observance and fulfillment of the terms, conditions and endorsements of this Policy in so far as they relate to anything to be done or complied with by the insured shall be conditions precedent to any liability of the Company to make any payment under the Policy".

 

In view of above violation, the Complainant is not entitled to the claim and present complaint is liable to be dismissed at the threshold. Copy of letter dated 27 Oct 17 has been  annexed with the reply as annexure R-5.

 

VI.      It has further been contended by the OP that the answering opposite party had performed its duties as per the terms & conditions of the insurance policy promptly, without any delay and/ or negligence, therefore, the Opposite Party cannot be held guilty for rendering any defective or deficient services to the complainant and therefore, present complaint is not maintainable and liable to be dismissed. The Complainant has not approached this Hon'ble Forum with unclean hands and has suppressed and misrepresented the material facts in the present complaint and therefore, the present complaint be dismissed on this ground alone.

The OP has also filed copies of investigation report dated 02.03.2017 of M/s. AA Insurance Services, Insurance Investigator/ Surveyor in respect of the claim, written statement of the Complainant given to the Investigator, terms and conditions of insurance policy, letter dated 27.10.2017 of OP to the Complainant for repudiation of the claim alongwith its written statement.

 

VII.     Both the parties have filed evidence by way of affidavit and has also led arguments. Accordingly, the allegations levelled against the OP have been examined in view of the averments/documents/Evidence put forth by the parties and it has been observed that:-

1. It is not in dispute on the day of theft, there was election of the Bar Association of the Tis Hazari courts and the vehicles were not being allowed to park inside the court complex and therefore, the vehicles were being parked on the roads around the court complex. Normally on the other working days, the vehicles of the /advocates/visitors/public are also parked on the roads around the court complex. As such, the vehicle parked by the complainant was also parked at the place which is used for parking every day and therefore, it can not be said that the vehicle was parked at a deserted place. The area where the vehicle was parked remains lively all night long even.
2. As per IRDAI guidelines, the OP was supposed to decide the claim within 30 days from the receipt of claim but it failed to do so and issued repudiation letter only on 27-10-2017 which has been filed with the reply. Moreover, the OP failed to prove that this repudiation letter was ever served to the complainant.
3. The OP has also failed to share the surveyor/investigator report to the complainant
4. The complainant has filed Untrace report of the vehicle which has not been disputed by the OP.

VIII.    In the identical case of theft, the judgment dated 15-01-2021 passed by the Hon’ble NCDRC in First Appeal No. 549 OF 2020 (arising out of the Order dated 13/02/2020 in Complaint No. 27/2019 of the State Commission Chhattisgarh) in the matter of National Insurance Co. Ltd. Versus  Ram Surat Paswan is relevant which is reproduced below:-

 

“6. Learned Counsel for the Appellant has challenged these findings of the State Commission on the ground that the proper precautions were not taken when the vehicle was parked on the road. It is submitted that the vehicle had mechanical defects and therefore, could not have been moved from the road and that the claim submitted by the Complainant is false.

 

7. I have heard the arguments of learned Counsel for the Appellant and perused the record.

 

8. It is observed that the Appellant had taken only one ground in its repudiation letter that is breach of clause 5 of the terms and conditions of the insurance policy and no other. Clause 5 is reproduced as under:

 

“5. The insured shall take all reasonable steps to safeguard the vehicle insured 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 insured or any part thereof or any driver of employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be 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.

 

9. In the case of Galada Power and Telecommunication Ltd. Vs. United India Insurance Company Limited & Another, 2016 14 SCC 161, the Hon’ble Supreme Court has observed that the Insurance Company cannot proceed beyond the reasons specified in the repudiation letter. The Apex court has held as under:

 

“12. It is evincible, the insurer had taken cognizance of the communication made by the appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause.

In this regard, Mr. Mukherjee, learned senior counsel appearing for the appellant has commended us to a decision of High Court of Delhi in Krishna Wanti v. Life Insurance Corporation of India[1], wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view.”

 

10. A similar view was taken by the Hon’ble Supreme Court in the case of “Saurashtra Chemicals Limited vs. National Insurance Company Limited, 1 (2020) CPJ 93 SC" which is as under:

 

“22. Hence we are of the considered opinion that the law as laid down in ‘Galada’ on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC.”

 

11. Thus, the Hon’ble Supreme Court has clearly held that the only plea, as a defence, which can be taken by the Insurance Company is the one mentioned in the repudiation letter. Admittedly, in this case, the repudiation letter only mentions the breach of condition no.5 of the insurance policy wherein it is mentioned that the insured is not entitled for the benefit under this contract if he had not taken adequate security measures. The evidences on record which is the statement of the Complainant in the form of affidavit and another documents on record clearly show that the Complainant had taken adequate measures while leaving the vehicle on roadside. The Complainant had clearly stated that he locked the vehicle while leaving it on the roadside. There is no evidence on record to show the contra. The surveyor’s report clearly shows that the Complainant had handed over the two keys of the vehicle to the surveyor. This corroborates the testimony of the Complainant that he had properly locked the vehicle and then took the keys with him at the time of leaving the vehicle on the roadside. The findings of the State Commission, therefore, are based on the cogent evidences on record. I found no illegality or perversity in the impugned order. The present Appeal has no merit and the same is dismissed in limine.”

 

IX.      In view of the above facts and circumstances, we are of the considered view that the repudiation of the claim by the OP is unjustified and the complainant has suffered directly due to deficient service of the OP in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OP (M/s TATA AIG General Insurance Co. Ltd.) to pay Rs.1,74,267/- (Rupees  One Lakh Seventy-Four Thousand Two Hundred Sixty-Seven only) to the complainant within thirty (30) days from the date of receipt of this order, with simple interest at the rate of 9% p.a. from 27.10.2017 (the date of repudiation of the claim by the OP) till the date of the payment to the complainant. Besides, the OP is also directed to pay Rs.50000/-(Rupees Fifty Thousand only) to the Complainant, as compensation, for the mental pain, agony and harassment.

X.       It is clarified that if the abovesaid amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

XI.      Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

                ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA

                                Member                                                                                      Member                        

                        DCDRC-1 (North)                                                                     DCDRC-1 (North)

                                     DIVYA JYOTI JAIPURIAR

                                      President 

                    DCDRC-1 (North)