Haryana

Yamunanagar

CC/1171/2012

Anis Mohammad S/o Asgar Mohammad - Complainant(s)

Versus

Tata AIG General Insurance Co. - Opp.Party(s)

S.S.Nehra

30 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                          Complaint No. 1171 of 2012.

                                                                                          Date of institution: 06.11.2012    

                                                                                          Date of decision: 30.03.2017

  

Anis Mohammad aged about 50 years, son of Shri Asgar Mohammad resident of Khadda Colony, Old Hamida, Yamuna Nagar.

 

                           …Complainant.

                                    Versus

1. TATA AIG Insurance Co. SCO 232-234, Sector 34 A Chandigarh, through its Manager.

 

2. The Kotak Mahindra Mahindra Bank Limited, SCO 153-154-155, Sector-9, Madhya Marg, Chandigarh, through its Manager.

 

3. Shri Sanjeev Kumar son of Shri Ram Kumar, Authorised Agent of Kotak Mahindra Bank Ltd./Respondent No.2 resident of House No.839, Sham Sunder Puri, Jagadhri, District Yamua Nagar.

                                                                                                                          ...Respondents

 

BEFORE:        SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Sh. SS Nehra, Advocate for complainant.

                        Sh. Karnesh Sharma, Advocate for OP No.1.

                        Sh. SL Kashyap, Advocate for OP No.2.

                        OP No.3 already ex parte.

 

ORDER (Ashok Kumar Garg, President)

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act 1986 amended upto date.

2.                     Brief facts of the present complaint, as alleged in the complaint, are that complainant is registered owner of Tractor make Eicher 485, Model 2010 bearing registration No. HR02-W-4859 which was insured with the respondent No.1 (hereinafter referred as OP No.1) for the sum of Rs.4,37,000/-  which was valid from 26.06.2010 to 25.06.2011 vide insurance policy bearing No.010049971700 and cover note No. WM-107617 dated 26.06.2010. The Tractor in question was also got financed by the complainant from the OP No.2 Bank through its authorized agent i.e. OP No.3. On 09.06.2011, in the night i.e. about 02.00 am, the younger brother of the complainant Shri Gul Bahar took the above said tractor with trolley, loaded with Fodder to be delivered in Bala ji Plywood Factory, Radaur Road, Yamuna Nagar when at about 02.30 am the said Shri Gulbahar reached near Prem Dharam Kanda (Weigh Bridge) Joriyan Yamuna Nagar,  he parked the same on road side, and went in search of Location of the Bal Ji Plywood Factory and it took a long time. When after some time, Shri Gul Bahar came back to the Tractor Trolley, he was surprised to see that the tractor in question was missing and trolley loaded with fodder was standing at that place, detached from the tractor and the tractor was stolen and taken by some unknown person. Thereafter, the complainant as well as brother of the complainant made thorough search for tractor in question nearby in area, but of no use and failed to trace out the tractor in question. Then the brother of the complainant, Shri Gul Bahar got the case registered with the police, PS Farakpur and FIR No.200 dated 21.06.2011 under Section 379 IPC. The police of the PS Farakpur made thorough search but of no use and could not trace out the tractor in question despite best efforts, then submitted untrace report vide memo No.587-R dated 14.05.2012  in the Court of Chief Judicial Magistrate and the same was accepted on 22.08.2012 by the Hon’ble  Court. As the Tractor in question was fully insured with the OP No.1 Insurance Company, so after the theft of Tractor in question, the OP No.1 Insurance Company was bound to make the payment of the insured amount but the OP No.1 did not pay the same in spite of repeated visits and requests of the complainant. The tractor in question was financed with the OP No.2 and some loan amount is still outstanding against the complainant which is to be paid by the complainant to the OP No.2, on receipt of payment from the OP No.1 Insurance company. So, from the above act on the part of the OP No.1 it is clear that there is deficiency in service or unfair trade practice on the part of the OPs and lastly prayed for directing the OP No.1 to pay Insurance amount, amounting Rs.4,37,000/- along with interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 insurance company filed its written statement by taking some preliminary objection such as complaint is not maintainable; claim of the complainant was repudiated as it was found out during investigation based on the affidavit given by the complainant, reiterated by him in the claim form and the statement given by the driver Shri Gulbahar that he had left the insured vehicle with the key intact in the ignition point, which was in gross violation of condition No.5 of the policy which states that

“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 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”.

 

Since there was violation of policy condition No.5 of the policy as stated above a letter dated 03.11.2011 was sent to the complainant seeking his comments. However, since no response was received from the complainant, the claim of the complainant was rightly repudiated vide letter dated 21.02.2012; complainant has not come before this Forum with clean hands; complainant has no locus standi to file the present complaint and on merit it is not denied that tractor in question was insured with the OP No.1 Insurance company. Further, it has been mentioned that complainant had got the FIR registered only on 21.06.2011 i.e. after a delay of 12 days and had intimated to the OP No.1 only on 22.06.2011 i.e. after the delay of 13 days for the loss that occurred on 09.06.2011 which was also in gross violation of the policy condition No.1 which states that

“Notice shall be given in writing to the company immediately upon occurrence of any accident loss or damage and in the event of any claim …….. insured shall give immediate notice to the police and to operate with the company in securing the conviction of the offender.”

 

The complainant by delay in intimating the theft to the police has not only prevented the concerned authorities to take immediate steps to recover the vehicle but has also not acted in way which a prudent person would do in case he is not insured. The delay in intimation has hampered the investigations by the authorities. Lastly prayed for dismissal of the complaint as the claim of the complainant is rightly repudiated by the OP No.1 Insurance Company.

4.                     OP No.2 filed its written statement taking some preliminary objections such as complainant has no locus standi to file and maintain the present complaint complainant has concealed the true and material facts from this Forum, complainant has no cause of action against the OP No.2 who has been unnecessarily impleaded in the present litigation. However, it has been submitted that the complainant obtained the loan from OP No.2 for purchase of tractor in question vide agreement dated 29.06.2010 and tractor in question stand hypothecated with the OP No.2 Bank to the tune of Rs.3,05,001/-. But, the complainant after depositing some installments did not deposit any other installment by alleging that the vehicle has been stolen and now a sum of Rs.4,05,386.20/- is outstanding against the complaint and on merit rest contents of the complaint were denied for want of knowledge and reiterated the stands taken in preliminary objections. Lastly prayed for dismissal of the complaint qua the OP No.2.

5.                     OP No.3 not appeared despite service, hence he was proceeded ex parte on 08.02.2013.

6.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and affidavit of Gul Bahar as Annexure CW/B and copy of FIR bearing No.200 dated 21.06.2011 as Annexure C-1 and certified copy of untrace report issued by CJM Jagadhri and SP Yamuna Nagar as Annexure C-2, photocopy of Insurance cover note as Annexure C-3, photocopy of purchase bill as Annexure C-4, photocopy of registration certificate of tractor bearing No.HR02-W-4859 as Annexure C-5, photocopy of election card, ID as Annexure C-6 and closed the evidence on behalf of complainant.

7.                     On the other hand, learned counsel for OP No.1 tendered into evidence affidavit of Shri Arun P Bhutani, Claims recovery consultants as RW/A, affidavit of Mr. Mohd. Azhar Wasi as RW/B, insurance policy along with its terms and conditions as Annexure R-1, copy of affidavit of Shri Anis Mohd. Complainant as Annexure R-2, photocopy of claimant Form submitted by complainant as Annexure R-3, photocopy of repudiation clarification dated 03.11.2011 as Annexure R-4, photocopy of repudiation letter dated 21.02.2012  as Annexure R-5, photocopy of Investigator Report dated 12.10.2011 as Annexure R-6, photocopy of intimation letter as Annexure R-7 and closed the evidence on behalf of OP No.1.

8.                     Counsel for the OP No.2 also tendered into evidence for-closure account statement as Annexure R2/1, photocopy of account statement as Annexure R2/2 and closed the evidence on behalf of OP No.2.

9.                     We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

10.                   The only version of the complainant is that the OP No.1 Insurance company has wrongly and illegally repudiated the claim of complainant whereas the tractor in question was duly insured by the OP No.1 Insurance company vide insurance policy for a sum of Rs.4,37,000/- and was stolen during the currency of his policy and draw our attention towards copy of FIR bearing No.200 dated 21.06.2011 (Annexure C-1) and untrace report issued by SP Yamuna Nagar, CJM Jagadhri (Annexure C-2). Learned counsel for the complainant further draw our attention towards photocopy of registration certificate which stands in the name of complainant (Annexure C-5). Learned counsel for the complainant further contended that leaving of key on all occasion in the vehicle cannot be termed as so serious breach, so as to disentitle the insured from seeking claim under the Insurance policy. It is submitted that it depends upon facts and circumstances of the each case as to whether there is breach of condition or not. It is contended that taking into account the facts and circumstances of the present case, it cannot be said that there was willful breach of the condition No.5 of the policy by the complainant. In respect of this condition has relied upon judgment of “Bajaj General Insurance Ver. Sagar Tour and Travelers and another 2011(164) PLR, 290”, and lastly prayed for acceptance of the complaint.

11.                   On the other hand, Learned counsel for the OP No.1 Insurance company has contended that liability of the OP No.1 under the insurance policy was subject to terms and conditions stated therein. In the present case, the driver of the tractor Shri Gul Bahar had gone away and had left the key in ignition switch leaving the tractor in a drivable condition. The tractor in question was left unattended. It is contended that even elementary precautions to remove the key from ignition switch was omitted by the driver of the tractor in question which assisted the miscreants to easily get away with the vehicle. It is contended that there was gross negligence on the part of driver in leaving the ignition key in the ignition switch in the night i.e. 02:00 am. In these circumstances, there was a clear violation of the terms and condition of the policy i..e condition No.5 on the part of Insured/Complainant.

12.                   Learned counsel for the OP No.1 further argued that even the complainant has lodged the FIR on 21.06.2011 whereas the alleged theft took place on 09.6.2011 i.e. after a period of 12 days. Even, the complainant intimated to the Insurance company on 22.06.2011 i.e. after a period of 13 days which also in gross violation of the policy in condition No.1 and draw our attention towards terms and conditions of the insurance policy (Annexure R-1) specifically condition No.1 and condition No.5. Learned counsel for the OP No.1 insured company further draw our attention towards the affidavit of the complainant (Annexure R-2) and claim form submitted by the complainant (Annexure R-3) and further investigator report dated 12.10.2011 (Annexure R-6) and argued that the complainant has himself admitted in his affidavit that his brother had left the tractor in question unattended and the key of the tractor in question was in ignition switch of the tractor in question, lastly prayed for dismissal of the complaint.

13.                   Learned counsel for the OP No.1 in support of his version referred the case law titled as “Reliance General Insurance Company Limited Vs. R. Muthukrishnan, 2016 (4) CLT 80(NC)” which is reproduced here as under:-

 

Consumer Protection Act, 1986, Section 2(1)(g)- Theft of Insured truck- The door of the driver cabin were left unlocked, even the keys of the truck were left I the ignition when the driver went to the hotel- Breach of condition of Insurance Policy- Held- Since the complainant committed the breach of condition of the insurance policy by not taking all reasonable steps to safeguard the vehicle from loss or damage- The insurer stood relieved of all its obligation to reimburse him on account of theft of the vehicle and it was well within its right in repudiating the claim- Revision petition allowed.

                       

                        Learned counsel for the OP No.1 also referred the case law titled as “Maria Selvam Vs. Royal Sundaram Alliance Insurance Company Limited and anr. 2016(3) CLT 42 (NC) which is reproduced here as under:

Consumer Protection Act, 1986, Section 2(1)(g) Theft of vehicle- Driver left ignition keys in the vehicle and returned after taking tea and found that vehicle was missing-Held- Leaving ignition keys in the vehicle and going to tea stall in the night for taking tea and returning after sometime can be said that complainant’s driver left the vehicle unattended without proper precautions- Thus, has violated Condition No.5 of the Insurance policy –Claim rightly repudiated by insurance company-Revision petition dismissed.

 

                        Learned counsel for the OP No.1 also referred the case law titled as “Jaina construction company Vs. Oriental Insurance Company Limited and anr. 2016(4) CLT 87 (NC) which is reproduced here as under:

Consumer Protection Act, 1986, Section 2(1)(g) Theft of vehicle- Delay in intimation- Plea of OP that insurance claim of the complainant was rightly repudiated because of the failure of the complainant t intimate the theft to insurance company in writing within a reasonable time, which amounts to violation of the terms and conditions of the insurance contract- Held- In the event of any accidental loss or damage to the insured vehicle, it was contractual obligation of the insured complainant to immediately inform insurance company- Admittedly, the complainant has violated the said condition by delaying the intimation of theft to the insurance company for about five months- The complainant has violated the above noted stipulation of the insurance contract.

 

14.                   After hearing both the parties we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OP No.1 Insurance Company and claim of the complainant has been rightly repudiated vide letter dated 21.02.2012 (Annexure R-5). The evidence on record clearly establishes violation of condition  No.5 and condition No.1 by the complainant. From the contents of the FIR (Annexure C-1), it is duly evident that brother of the complainant left the tractor in question unattended, in the mid night at 2.00 am and even elementary precautions to remove the key from the ignition switch was omitted by the driver of the tractor in question which assisted the miscreants to easily get away with the vehicle which proves gross negligence on the part of the driver. Further, the complainant has admitted in his affidavit (Annexure R-2) submitted to the investigator during the investigation that he left the tractor in question unattended and the key of the tractor in question was also in the ignition switch. This fact has also been mentioned by the complainant in his claim Form (Annexure R-3). Further from the perusal of FIR (Annexure C-7) it is also duly evident that tractor in question was stolen on 09.06.2011 whereas the FIR bearing No.200 dated 21.06.2011 was lodged by the complainant on 21.06.2011 with the PS Farakpur i.e. after a period of 12 days and no explanation has been disclosed by the complainant as to why he kept mum for a such long time of 12 days. It is not case of the complainant that complainant or his brother informed the police immediately as this fact is not mentioned either in the compliant or in the FIR.

15.                   In universal Sompo General Insurance Company limited Vs. Chander Singh and another, RP No.3222 of 2015 decided on 04.04.2016 where the driver had left ignition key in the dash board in the vehicle the Hon’ble National Commission has held that the repudiation of the claim by the insurance company justified. In the aforesaid case Hon’ble National Commission has also relied on following judgments:

 

“This commission in Revision Petition No.3251 of 2013 titled as “Oriental Insurance Company Limited Vs. Sham Sunder” decided on 05.05.2014 held that “complainant and his son were negligent in leaving the key in the vehicle”.

 

                        Hon’ble Supreme Court in Special Leave Petition (Civil) No.29576 of 2014 dismissed the same, in limini on 19.01.2015. Both the Fora erred in granting the compensation to the complainant. We, therefore, accept the revision petition, set aside the order passed by both the Fora below and dismissed the complaint”. In case titled as Jagdish Parshad Vs. ICICI Lombard General Insurance Company Limited 2013(2) CPJ 578, NC, in which repudiation of claim was upheld as complainant had left key in the vehicle and further the facts of the case titled as “New India Insurance Company Limited Vs. Ajit Kumar 2013(IV) CPJ 137 NC” wherein repudiation of claim was held proper by National Commission as complainant had not taken ignition key of the car when he went for urination. Similar view was taken by the National Commission in RP No.4477 of 2010 titled as “Ranjit Singh Vs. United India Insurance Company Limited. Furthermore, in the case titled as “Jaina Construction Company Vs. Oriental Insurance Company Limited & anr., 2016(4) CLT 87 (NC) (Supra)” and also fully applicable to the facts of present case as in the present case also there is a delay of 12 days in lodging the FIR and 13 days delay in intimating to the Insurance company which also violate condition No.1 of the Insurance policy in question.

16.                   In the circumstances noted above and after going through the case law referred by the counsel for the OPs, we are of the considered view that there was violation of the terms and conditions of the Insurance Policy specifically Condition No.1 and 5 on the part of the complainant, hence the claim of the complainant has been rightly repudiated by the OP No.1 Insurance Company.

17.                   Resultantly, there is no merit in the present complaint and the same is hereby dismissed with no order as to cost. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court:

Dated:30.03.2017.                                                                   (ASHOK KUMAR GARG)

                                                                                           PRESIDENT              

                                          (S.C.SHARMA)                     DCDRF Yamuna Nagar 

                                           MEMBER