ORDER

16.05.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant, Furniture & Interior Rental Pvt. Ltd. is a company incorporated under the Companies Act 1956 having its registered office at 195, Jor Bagh, New Delhi-110003. It is stated that the present complaint is being signed, verified and presented by Mr. Gurdeep Singh for an on behalf of the complainant company by virtue of Power of Attorney/Resolution executed in his favour.
2. It is stated that complainant is the registered owner of Toyota Innova bearing registration no. DL 7CG 3161. It is further stated that the said vehicle was got insured from respondent vide policy no.0151493780 for which a premium of Rs.11,428/- was paid and the policy period was from 27.09.2014 to 26.09.2015 with insured value of Rs.4,14,811/-. It is stated that at the time of taking the policy it was represented that all the risks were covered and at no point of time was complainant told, apprised or put to notice of any of the exemptions or limitations in the said policy. It is further stated that the complainant was merely issued with a cover note and apart from the same no other policy documents were furnished to complainant.
3. It is stated that the said vehicle was being used by the directors of complainant and driver had been engaged who has been working with complainant since past 9-10 years. It is further stated that on 22.12.2014 the vehicle was parked in front on the H.No.195, Jor Bagh, New Delhi-110003 and driver Mr. Salekh Chand was cleaning/washing the car. While he was standing nearby drinking water some unknown person barged I the car and drove it off before anyone could stop him. It is stated that the driver chased the car but the thief was able to escape with the car. It is further stated that the directors of complainant had immediately lodged complaint with PS Lodhi Colony in respect of the said theft and FIR No.374/2014 was registered under section 379 IPC on the same day.
4. It is stated that the directors of complainant had also immediately intimated to respondent about the theft/loss of the car and also lodged claim vide reference no.000785923, which is also accepted by respondent in your communications. It is further stated that alongwith the claim complainant had  duly submitted copy of RC, FIR, MoA and PAN card, PAN card of Director, Insurance Policy, Photographs as was asked for by complainant. It is stated that intimation of theft was also given to MLO office by the SHO concerned requesting them to maintain look out for the vehicle. Thus all possible and immediate steps to recover the vehicle were thus taken by complainant.
5. It is stated that despite the aforesaid respondent by way of their communication dated 09.02.2015 have rejected the claim lodged by complainant relying on alleged policy condition no.4 and stating that there was gross negligence on the part of complainant which led to theft of the vehicle, which is totally arbitrary, illegal and unlawful. It is further stated that the vehicle at the time of the said theft was duly insured with the respondent, insurance was valid and subsisting, risk was duly covered by the policy and thus complainant was fully entitled to the claim for the vehicle and there is no impediment in the grant of the claim. It is stated that the rejection of the claim of complainant is thus wrongful and without any legal or other basis.
6. It is stated that the respondent is wrongfully seeking to take shield of some exemption to shy away your liability undertaken under the contract of insurance which was issued for consideration in favour of complainant. It is further stated that the complainant is not barred by any of the conditions or exemptions claimed by respondent or otherwise. It is stated that there was no negligence what to say of any gross negligence at the end of complainant and the assertion to the contrary is completely false. It is further stated that the complainant had taken all reasonable steps that can be expected from the owner of a vehicle to safeguard the vehicle from any loss or damage. It is stated that a person cannot and is not expected to keep the thing insured within his eyesight at all points of time or in is protective custody and if a person is  required to do so and is expected to be a full time guard for protecting the insured article he need to take insurance at all.
7. It is stated that the vehicle was being driven and taken care of by the driver of complainant who is holding a valid driving license and who has been with complainant for the past 9-10 years. It is further stated that complainant had not handed over the custody of the vehicle to some new or some unprofessional person and vehicle at the time of incident was parked outside Jor Bagh House and the driver was cleaning/washing the car with key in ignition and had movementarily gone away for drinking water. It is further stated that the vehicle was not parked at some isolated or excluded area but at the house of complainant which is porsh and secure locality area. It is stated that driver and for that matter any reasonable person could not have fantum that something like this would happen and also not think of removing the ignition keys.
8. It is stated that at the time of taking the policy it was representated to complainant that all the risks were covered and at no point of time complainant was told or put to notice the condition referred and relied upon by respondent for rejection of claim. It is further stated that complainant was merely issued  with a cover note and apart from the same no other policy documents were furnished to complainant. It is further stated that the respondent never explained the printed documents and also not explained, the complainant was merely put signatures as per instructions of respondents agent. It is stated that the conditions are arbitrary whimsical and part  of a  standard form contract which was  prepared by respondent being a dominant party at its whims and discretion and does not bind the complainant.
9. It is stated that respondent have by their acts, omission and commission which are complete disregard  of service obligations of respondent and have cause severe mental agony, sufferings, harassment to complainant. It is further stated that omissions and commissions of respondent constitute gross deficiency of service. It is stated that respondent their agent and accomplinces, dishonestly and fraudulently induced complainant to get his vehicle insured  and pay amount towards premium. It is stated that respondent rejected the claim illegally and unlawfully and have misappropriated and usurped the amount lawfully belonging to complainant. It is stated that respondents their employees, agents and accomplinces are liable for their prosecution of the offence of criminal breach of trust and cheating punishable under section 406/420 IPC. They are also liable to be prosecuted for the offence with the aid of section 34 and 120B of IPC. It is stated that complainant got sent a legal notice dated 21.02.2015 to the respondent but respondent failed to act on the said legal notice.
10. The complainant is seeking direction against respondent to reimburse an amount of Rs.4,14,811/- alongwith interest @ 24% per annum, to direct the respondent to compensate the complainant with an amount of Rs.5,00,000/- for the mental agony, harassment and sufferings and also grant cost of proceedings and litigation expenses.
11. OP filed WS. All the allegations made in the complaint are denied. It is stated that vehicle no. DL 7CG 3161 was insured with OP for the period 27.09.2014 to 26.09.2015. It is further stated that complainant had intimated the occurrence of theft of vehicle and lodged complaint with OP. It is further stated that the vehicle is lost due to the gross negligence on the part of complainant/his driver, therefore, not entitled for the claim. It is stated that the rejection of the claim is based on the policy condition no.4.
12. It is stated that the OP had appointed M/s All India Claims Recovery Consultant for investigation and a report dated 01.01.2015 submitted by the investigators. It is further stated that policy specifies the risks covered by it and also the terms, conditions, stipulations and exceptions and the policy was issued to complainant on 17.09.2014.  It is stated that the terms and conditions of insurance policy are uniformly applied to all insurers in India since they are prescribed by the authorities under the insurance act  1938. It is stated that the terms and conditions of the contract are binding upon the parties to the contract and no benefit can be solved without making compliance. The complainant himself has committed breach of condition no.4 of the policy, therefore, claim was rejected. It is stated that the legal notice of complainant was replied on 21.05.2015 and copy filed on record. It is stated that there is no deficiency of service on the part of OP, therefore, present complaint is liable to be dismissed.
13. Complainant filed evidence by way of affidavit of Sh. Gurdeep Singh AR. In the affidavit contents of complaint are reiterated. Complainant relied on copy of power of attorney/resolution Ex.CW1/A, copy of insurance policy Ex.CW1/B, copy of FIR no.374/2014 Ex.CW1/C, copy of claim lodged by complainant Ex.CW1/D, copy of communication dated 09.02.2015 Ex.CW1/E and copy of legal notice alongwith postal receipts Ex.CW1/F (colly).
14. OP filed evidence by way of affidavit of Sh. Mohd. Azhar Wasi Zonal Head, North Zone Claims. In the affidavit contents of WS reiterated. OP relied on copy of insurance policy Annexure R1, copy of investigation report Annexure R2 and copy of reply dated 21.05.2015 Annexure R3.
15. Written arguments filed by complainant as well as OP1 and 2.
16. We have heard Sh. S.M Tripathi counsel for OP. The complainant despite ample opportunities did not address oral arguments although proxy counsel Ms. Isha Wadhavan appeared on 04.05.2023 and Ms. Jyoti Nair proxy counsel appeared  on 19.10.2023, thereafter none appeared. However, we have gone through the written arguments filed by complainant.
17. It is admitted case of parties that complainant company is the registered owner of Toyota innova bearing registration no. DL7CG3161 and insured with OP. The complainant paid premium of Rs.11,428/- for the period 27.09.2014 to 26.09.2015 for insured value Rs.4,14,811/-. It is admitted case of the parties that on 22.12.2014 when vehicle was parked in front of H No.195 Jor Bagh and driver Mr. Salekh was cleaning/washing the car some unknown person barged in the car and drove it and escaped with the car. It is further admitted by parties that an FIR no.374/2014 under section 379 IPC registered on the same day. The complainant filed complaint alongwith all documents. The OP rejected the claim by letter dated 19.02.2015. The ground of rejection is policy condition no.4.
18. The complainant challenged the repudiation letter dated 09.02.2015. The OP taken the stand that on receiving the information regarding the incident M/s All India Recovery Claims Consultants appointed for  investigation. After investigation report dated 01.01.2015 Ex.R2 was received by the OP Ins. Co. We have gone through the investigation report. It has been observed by the investigators that after enquiry the incident of theft was genuine but the vehicle was stolen by unknown culprit due to gross negligence of users paid driver Salekh Chand as he left the ignition key in the ignition point of the vehicle and admittedly he left the spot. These facts are also admitted by complainant in the complaint. The act and conduct of Salekh Chand driver constitute gross negligence and it attracts condition 4 of the policy. The policy  condition no.4 is reproduced here under-

“The insured shall take reasonable steps to safeguard the vehicle 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 or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not left unattended without proper precaution being taken to prevent the further damages or loss and if the vehicle driven before the necessary repairs are affected any extension of the damages or any  further damage to the vehicle shall be entirely at the insured’s own risk” stands violated.

19. We have gone through the record and in present case as per facts established on record the repudiation letter dated 09.02.2015 is legal and justified. The OP established violation of policy condition no.4. The complainants driver committed gross negligence which resulted in theft of vehicle.
20. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
21. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  16.05.2024.

   SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER