CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.549/2006
SMT. VIMLA DEVI
W/O SH. PARSHURAM
R/O D-46 A, GALI NO.-8, JYOTI COLONY,
SHAHDARA, DELHI-110032
…………. COMPLAINANT
Vs.
- M/S TATA AIG GENERAL INSURANCE COMPANY LIMITED,
LOTUS TOWERS, 1ST FLOOR, COMMUNITY CENTRE,
NEW FRIENDS COLONY, NEW DELHI-110065
- M/S TATA AIG GENERAL INSURANCE COMPANY LIMITED,
CORPORATE OFFICE : AHURA CENTRE,
4TH FLOOR, 82 MAHAKALI CAVES ROAD, ANDHERI(E),
MUMBAI-400093
- M/S TATA AIG GENERAL INSURANCE COMPANY LIMITED,
REGD. OFFICE : BOMBAY HOUSE,
24, HOMI MODY STREET, MUMBAI-400001
- M/S JKM MAKFIN PVT. LTD.
A-72, EAST OF KAILASH, NEW DELHI-110065
…………..RESPONDENTS
Date of Order: 19.05.2016
O R D E R
A.S. Yadav – President
The case of the complainant is that she purchased a Maruti Omni E van for her personal use on 25.10.2000 and got the same insured with National Insurance Company Ltd. The policy was renewed with same insurance company. Thereafter the van was got insured with OP-1. The policy was renewed and lastly the vehicle was insured with OP-1 for the period from 18.10.2004 to 17.10.2005 for IDV of Rs.1,12,750/-. On the night of 09.09.2005, complainant parked her van as usual on the road in front of her house i.e. D-46A, Gali No.-8, Jyoti Colony, Shahdara, Delhi. When complainant woke up in the morning of 10.09.2005 at 3.30 AM, she noticed that her vehicle was not at the place where it had been parked. Complainant and her husband tried their level best to trace the said vehicle but the vehicle could not be found. In despair, complainant suspecting that the vehicle could have possibly been stolen by someone, contacted the Shahdara P.S. Delhi in the morning of 10.09.2005 to lodge a FIR regarding the said vehicle but the same was not registered. Complainant however kept in regular touch with the Police and after repeated attempts, the Shahdara P.S. Delhi on 12.09.2005 ultimately agreed to register the FIR bearing No.432 for theft of her vehicle.
It is further stated that complainant lodged insurance claim with OPs. OPs appointed investigator. OPs with an ill and ulterior motive vide their letter dated 07.12.2005 repudiated the claim of complainant on misconceived ground that the said vehicle was being used for commercial purposes. The vehicle was never used for commercial purpose.
It is further stated that without prejudice for the sake of argument even if it is assumed that the said insured vehicle was being used commercially, the incident of theft of the vehicle did not occur during any commercial activity but actually occurred when parked in front of complainant’s house and therefore the incident was covered under the said policy of the insured vehicle. It is prayed that OP be directed to refund amount of the claim i.e. Rs.1,12,750/- alongwith interest @ 18% p.a. plus Rs.50,000/- towards compensation.
OP in the reply took the plea that there was a breach of condition in the insurance policy as the vehicle was used for commercial purpose whereas vehicle was insured for personal use. There is delay of two days in filing FIR. It is stated that there was no deficiency in service on the part of OP.
We have heard Ld. Counsel for the parties and carefully perused the record.
So far delay of two days in filing FIR is concerned, it is s significant to note that complainant in para 12 of her complaint specifically stated that she contacted Shahdara P.S. Delhi in the morning of 10.09.2005 to lodge a FIR regarding the said vehicle but the same was not registered. Complainant however kept in regular touch with the Police and after repeated attempts, the Shahdara P.S. Delhi on 12.09.2005 ultimately agreed to register the FIR bearing No.432 for theft of her vehicle. This fact was told by her to the investigator and same is mentioned in the report of investigator.
It is matter of common knowledge that there is always a reluctance on the part of police to record an FIR and generally they direct complainant to trace the vehicle and only after persistent efforts made on the part of complainant, ultimately complaints are recorded. Here in this case there is no reason to disbelieve the complainant that PS was contacted but FIR was not lodged and after much persistent efforts, FIR was recorded on 12.09.2005. So there was no lapse on this ground. It is significant to note that the claim has not been repudiated on the ground of delay. The claim was repudiated vide letter dated 07.12.2005 on the ground that there is violation of Policy schedule under ‘Limitations as to use’ which sates that “The Policy covers use of the vehicle for any purpose other than - Hire or Reward….”
It is significant to note that vide earlier letter dated 19.10.2005, complainant has been asked to explain the position in this regard. Complainant has specifically written a letter to insurance company whereby complainant has brought it to the notice of insurance company that the investigator visited on 24.9.05 and started asking questions regarding theft of the vehicle and he was asking from every member of the family including children as a result complainant told investigator that they will write whatever he wants them to write and investigator wrote the report in such a way showing that the vehicle was used for commercial purpose. In fact the vehicle was never used for commercial purpose. It is settled law that the report of investigator is not sacrosanct. Complainant has specifically written letter to insurance company stating therein that the vehicle was never used for commercial purpose. Assuming for the sake of arguments that the vehicle was used for commercial purpose also because investigator has reported that the vehicle was used for commercial purpose, it has nothing to do with the incident of theft. It is significant to note that when the vehicle was stolen it was not used for commercial purpose rather it was parked outside the house. Ld. Counsel for the insurance company has referred to the case of Jagdish Singh Vs United Indian Insurance Co. Ltd. III(2007) COH 160 (NC) where the claim was repudiated by the on the ground that the vehicle was used for commercial purpose. He has also reefed to judgement of Hon’ble Supreme Court in case of National Insurance Company Ltd. Vs Meena Aggarwal IV(2009) CPJ 25(SC). In fact the facts of the case were entirely different. The claim was repudiated on the ground that the driver was not holding valid driving licence and also at the time when the vehicle met with an accident, vehicle was being used as a taxi for carrying a marriage party i.e. it was used for commercial purpose. In this case, the vehicle was stolen while the same was parked outside the house of complainant. It was not being used for commercial purpose at that time. The matter came directly before the Hon’ble Supreme Court in case of National Insurance Co. Ltd. Vs Nitin Khandelwal Vs Nitin Khandelwal IV(2008) CPJ(SC) - in that case the vehicle was stopped by certain persons, the driver was tied and gunned on the way and the vehicle was snatched. The contention of the insurance company is that the vehicle was used for commercial purpose and passengers had hired the vehicle on the way i.e. some passenger snatched the vehicle from the driver. In that case the Hon’ble State Commission settled the claim on non-standard basis and directed to pay 75% of the insured amount. The order was upheld by the Hon’ble National Commission. The appeal preferred by the insurance company was dismissed. Para-13 and para-16 of the judgment is reproduced as under:-
“13. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy the appellant Insurance Company ought to have settled the claim on non-standard basis. The insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
16. The State Commission has allowed only 75% of the respondent on non-standard bass. We are not deciding whether the State Commission was justified in allowing the claim of the respondent on non-standard basis because the respondent has not filed any appeal against the said order. The said order of the State Commission was upheld by the National Commission.”
In fact in this case of theft of vehicle, breach of condition is not germane as the vehicle was stolen while parked outside the house of complainant. The repudiation of claim by the OP is unjustifiable.
OP-1 is directed to refund Rs.1,12,750/- to complainant alongwith interest @ 9% p.a. from date of filing of the complaint. OP is further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
