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UTKARSH GAUR filed a consumer case on 29 Jul 2024 against TATA AIG GENERAL INSURANCE CO. LTD. in the North Consumer Court. The case no is CC/25/2018 and the judgment uploaded on 08 Aug 2024.
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
Phone: 011-23969372; 011-23912675 Email: confo-nt-dl@nic.in
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, 3rd 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:-
II. Therefore, the present complaint has been filed praying that the Opposite Party may be directed to pay:-
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:-
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:-
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)
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