Delhi

North East

CC/304/2015

Preeti - Complainant(s)

Versus

The Branch Manager L&T General Insurance co Ltd. - Opp.Party(s)

16 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 304/15

 

In the matter of:

 

	Mrs. Preeti W/o Dr. Rajeev Kumar R/o C-59, Flat No. 7, Vivek Vihar I, Delhi-110095	Complainant
	Versus
	The Branch Manager L&T General Insurance Co. Ltd. DCM Building, 6th Floor 16 Barakhamba Road, New Delhi-110001	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

22.08.2015 16.10.2019 16.10.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the material facts of the present complaint are that the complainant was owner of Hyundai Accent Car 1.5 Petrol (The Vehicle) bearing Registration No. DL 7C J8001 insured with OP vide policy no. 915101002581470000 w.e.f. 13.11.2013 to 12.11.2014 for a total IDV of Rs. 3,18,000/- on payment of premium of  Rs. 7,283/- made by the complainant to OP. The complainant was travelling abroad to Botswana with her husband and was scheduled to return to India on 18.10.2014 and therefore had entrusted the said vehicle with her brother Mr. Yatin Kumar to use it in her absence. On 19.09.2014, when the complainant’s brother was going towards Tronica City, Loni, Ghaziabad, he lost his way and when he got down from the said vehicle near Sai Colony, two boys suddenly came near the said vehicle and drove it away. The mobile alongwith vehicle documents were in the said vehicle. Despite best efforts of complainant’s brother to stop the miscreants, they fled with the vehicle. The complainant’s brother lodged FIR bearing no. 270/2014 with PS Khekra, District Baghpat and the police filed closure report on 26.11.2014 and the concerned court passed untraced report order dated 22.02.2015 with respect to the said vehicle. The complainant in the interim intimated the OP about the theft on 29.09.2014 and lodged a written claim on 31.10.2014 alongwith covering letter for approval of the same. However the OP repudiated the claim vide letter dated 27.01.2015 on ground that “the vehicle was parked unattended in an unlocked condition with its original ignition key inside the ignition switch of the vehicle which led to the theft of the vehicle” which was violation of policy Condition No.4. The complainant has submitted that the OP and its surveyor have formed opinion on wrong presumption of facts since the said insured vehicle was stolen by the miscreants and the OP and its surveyor formed opinion on the basis of unsigned affidavit of the complainant. The complainant issued a legal notice dated 15.06.2015 through her counsel to OP demanding settlement of the claim for release of IDV of the subject vehicle alongwith interest and damages but to no avail. Therefore as a last resort the complainant feeling aggrieved and mentally harassed due to deficiency of service and unfair trade practice on the part of OP causing her financial loss, was constrained to file the present complaint before this Forum praying for issuance of directions against the OP to pay the IDV of the said insured stolen vehicle to the tune of Rs. 3,18,000/- alongwith interest @18% p.a. from date of repudiation and compensation of Rs. 1,00,000/- towards mental harassment and Rs. 25,000/- towards litigation charges.

Complainant has attached copy of retail invoice dated 12.11.2009 towards purchase of the car, copy of policy schedule cum certificate of insurance issued by OP in favour of the complainant with respect to coverage to the said vehicle w.e.f. 13.11.2013 to 12.11.2014 for IDV of Rs. 3,18,000/-, copy of FIR dated 19.09.2014 with PS Khekra, Baghpat with respect to the theft of vehicle, copy of closure report and untraced report dated 26.11.2014 and 22.02.2015 issued by Police Authorities and CJM Baghpat, copy of claim form dated 31.10.2014 submitted by complainant with OP alongwith covering letter for theft claim, copy of application by the complainant to NCRB for intimation of theft of the subject vehicle, copy of Vehicle Search Details, copy of repudiation letter dated 27.01.2015 by OP to the complainant rejecting the claim no. 93510100037695 of complainant and copy of legal notice dated 15.06.2015 by complainant’s counsel alongwith postal receipts.

2. Notice was issued to the OP on 27.08.2015. OP entered appearance on 10.12.2015 and filed written statement in which while admitting the factum of insurance coverage having been granted by it to the complainant with respect to the subject vehicle, took the preliminary objection that the theft claim of the complainant was rightfully repudiated for violation of Condition no. 4 of Motor Vehicle Insurance Policy by the complainant  which condition read as “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 insured or any part thereof or any driver or any 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 drive before necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insurer’s own risk.” Therefore the claim of the complainant was rejected by the competent authority of OP after due application of mine vide repudiation letter dated 27.01.2015 on the basis of investigator report vide which it was disclosed on the date of theft i.e. 19.09.2014, “the vehicle was parked unattended in an unlocked condition with its original key inside the ignition switch of the vehicle, which led to the theft of the vehicle.” OP therefore urge for dismissal of the complaint.
3. The OP filed application for dismissal of the complaint on ground of territorial jurisdiction since the theft occurred at Bagpat UP and policing issuing office of OP was located at Connaught Place, New Delhi, both addresses being outside the territory of this Forum. Complainant filed reply thereto opposing the said application on grounds that Delhi has been one district by Hon'ble Delhi SCDRC in the case of Holy Family Hosptial Vs Amit Kumar in FA no. 220/10 decided on 17.10.2003. The said application was dismissed by this Forum vide order dated 10.03.2016 allowing the maintainability of the complaint before this Forum.
4. Rejoinder and evidence by way of affidavit was filed by the complainant in which the complainant submitted that she had abided by the terms and conditions of insurance of policy by taking reasonable care of her vehicle but the investigator of OP on the contrary did not do proper investigation and OP did not file the complete investigation report of its surveyor. Complainant denied having left the vehicle unattended and unlocked condition and also disputed receipt policy terms and conditions and submitted that she had immediately intimated about the theft to the OP and lodged theft claim with it but OP instead repudiated the same illegally without going through the facts and circumstances of the incident. Complainant prayed for relief claimed.
5.  Evidence by way of affidavit was filed by OP reiterating the defence taken of repudiation of claim vide repudiation letter 27.01.2015.
6. Written arguments were filed by the both parties to reemphasize their respective grievance / defence. On direction of this Forum issued on 28.05.2018 to file investigation report and terms and conditions of the policy by OP, OP filed the same on 09.01.2019 highlighting the policy Condition no. 4 and investigation report dated 10.11.2014 filed by its investigator with regard to the subject theft claim. Complainant placed on record judgment of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs Nitin Khandelwal IV (2008) CPJ 1 (SC) relied upon by her for settlement of such cases on Non-standard basis as held by Hon'ble Supreme Court.
7. We have heard the arguments addressed by the counsel for the complainant and have given anxious consideration to the documentary evidence placed on record by both parties. It is not in dispute that the complainant had taken a comprehensive insurance policy with respect to the subject vehicle nor is the factum of theft of the said vehicle dated 19.09.2014 disputed. Therefore the validity of the policy and factum of theft are both admitted. What is disputed by the OP is that the complainant had since failed to take “reasonable care” of the subject vehicle and had left the key in ignition while living the vehicle unattended and vulnerable to theft, was therefore not entertained in so far as the theft claim is concerned for policy violation and on that basis the OP was well within its right to repudiate the claim.

The question then is; can the insurance company (OP) repudiate a claim made by the owner of the vehicle (complainant) which is duly insured with the company, solely on the ground that proper care and precaution was not taken by the driver of the vehicle for safeguarding the same as he left key in ignition while getting down from the vehicle? The Hon'ble Supreme Court in National Insurance Co. Ltd. Vs Nitin Khandelwal (supra) judgment had observed that where a vehicle had been snatched or stolen in a theft case, breach of condition is not germane and insurance company is liable to indemnify the owner of vehicle on Non-standard basis who had taken comprehensive policy for the loss caused to the insured and insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft. The Hon'ble Supreme Court in subsequent judgment dated 25.03.2010 of Amalendu Sahu Vs Oriental Insurance Company Ltd. in Civil Appeal no. 2703/2010 also followed the same guidelines for settlement of theft claim on Non-standard basis. Reference in this case was made to the decision of The Hon'ble National Commission rendered in United India Insurance Co. Ltd. Vs Gyan Singh 2006 CTJ 221 (CP) (NCDRC) in which it held that in case of violation of condition of policy as to the nature of use of vehicle, claim ought to be settled on Non-standard basis. The Hon'ble National Commission in New India Assurance Co. Ltd Vs Girish Gupta III (2014) CPJ 663 (NC) allowed the theft claim on Non-standard basis in a similar case of key being left inside the vehicle by observing the following:

The condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the drive parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as willful breach of condition No. 5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terms of the above Condition No. 5.

The Hon'ble National Commission in Mahabir Singh Vs Reliance General Insurance Co. Ltd I (2018) CPJ 497 (NC), relying on its earlier judgment Girish Kumar (supra) and Amlendu Sahu (supra) passed by Hon'ble Supreme Court, observed and decided to allow the claim on Non-standard basis on 60% of the IDV in case where the ignition key of vehicle was left inside the truck which facilitated the theft.

In the present case, as per the investigator report, the theft of the insured vehicle was found genuine and the user of the vehicle had confirmed that he had got down from the subject vehicle near Sekda, Baghpat (UP) to ask for way to Tronica City without taking the key from ignition point of the vehicle when two unknown person sat in the subject car and sped away. Therefore such an act of having left key in ignition inside the vehicle is clearly negligent act on the part of driver to which effect the statement was given to the investigator and OP as well therefore this fact / act of negligence is not disputed. The ignition key is an important instrument which facilitates the starting of motor vehicle which can be easily driven away by any miscreants with intention of theft and such an act of negligence has only facilitated, rather eased such an act. Therefore the main issue which was an ignition key was definitely left inside the vehicle facilitating its theft in an unattended / unguarded position.

However notwithstanding the said observation, in view of the settled proposition of law passed by Hon'ble Supreme Court and Hon'ble National Commission in catena of judgments in the legal discourse discussed in the forgoing parass, we are of the considered view that the complainant is required to be indemnified by the OP on Non-standard basis for settlement of the claim. We therefore deem it appropriate to partly allow the present complaint to the extent of 60% of the IDV of Rs. 3,18,000/- i.e. Rs. 1,90,800/- alongwith interest @ 6% p.a. from the date of filing of the complaint till realization. We further direct the OP to pay sum of Rs. 8,000/- as compensation for mental harassment and Rs. 5,000/- towards cost of litigation. Let the order be complied by OP within 30 days from the date of receipt of copy of this order.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  16.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member