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.186/2008
SH. ANKUR SHAH
S/O SH. V.K. SHAH
R/O H-4/13, KRISHNA NAGAR,
DELHI-110051
…………. COMPLAINANT
Vs.
THE GENERAL MANAGER
M/S IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
IFFCO HOUSE, 3RD FLOOR,
34 NEHRU PLACE, NEW DELHI
…………..RESPONDENT
Date of Order: 05.08.2016
O R D E R
A.S. Yadav, President
It is not in dispute that the car of the complaint was comprehensively insured with OP for IDV Rs.90,000/- for the period 23.05.2006 to 22.05.2007. The case of the complainant is that his car was stolen on 05.03.07 while the same was parked in the authorized parking area of Amity School, Noida. His friend Mr. Prateek Aggarwal was in possession of the car and he has taken the car and parked at Amity School, Noida and the car was duly locked. The matter was also informed to the police as well as OP. However, OP wrongly rejected the claim of the complainant on the ground that the FIR was lodged after 20 days of the theft of the car as well as on the ground that the insured has not taken all reasonable steps to safeguard the vehicle from loss. It is stated that it is a clear cut case of deficiency in service on the part of OP.
OP in the reply took the plea that the repudiation was justified as theft of the vehicle on 05.03.07 however the matter was reported to the police on 25.03.07 which is a violation of policy condition No.1 which specifically provides that “notice shall be given in writing to the company immediately upon the occurrence of any accident and in the event of any claim …. in case of theft or other criminal act which may be the subject of the claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
It is further stated that the theft was caused due to the gross negligence of leaving the keys inside the vehicle by Sh. Prateek Aggarwal. The matter was reported to the police and to the OP after considerable delay for which no plausible reason could be provided. The delay in reporting the matter to police also mitigated any chances of recovery of the vehicle. It is stated that there is no deficiency in service on the part of OP. It is prayed that the complaint be dismissed.
Complainant in rejoinder stated that Sh. Prateek Aggarwal, the friend of the complainant, made a call on 100 number to the police immediately at the time of theft of the vehicle and a complaint was lodged by Mr Prateek Aggarwal on the same day before police station, Sector-45, Noida. The copy of that complaint is also annexed by OP alongwith its reply.
It is further stated that even otherwise as per the report of the surveyor, it has been proved that OP appointed him on 06.03.07 and instructed him to investigate the report against theft of the vehicle which means that OP as well as police have been informed by the complainant immediately after the knowledge of theft.
It is further submitted that the insurance policy received form the office of the OP does not indicate or accompany with any terms and conditions as mentioned by the OP. The bare perusal of the insurance policy reveals that no such term and condition has been measured in the policy bond.
It is further stated that the friend of the complainant, Sh. Prateek Aggarwal, parked the vehicle in an authorized parking of the Amity Business School, Noida and the parking security guard Sh. Ram Kishore was also there in the school parking. All the doors of the vehicle were locked but the key was unintentionally left in the car.
We have heard Ld. Counsel for the parties and carefully perused the record.
In fact the report of the surveyor appointed by the OP clinches the entire issue. That report is placed on the record as Annex.R-3 by OP itself which shows that the surveyor contacted the insured on 06.03.07 and visited the place of theft meaning thereby that the insurance company has been informed about the theft of the vehicle on 05.03.07 itself and that is why the surveyor has contacted the complainant on 06.03.07 as well as he visited the place of incidence. The surveyor recorded the statement of Mr. Prateek Aggarwal who has clearly stated that he was pursuing BBA from Amity Business School, Amity University, Noida and on 05.03.07 at about 10 a.m., he parked the car in the parking lot of the school and moved towards his class and after the class he came to the parking lot and saw that the car was not there, he immediately informed the police at 100, police helpline to complaint. The police person arrived at the spot and thereafter he went to police station and lodged a complaint for the theft of the vehicle. The surveyor also visited the spot of the theft and met Mr. Ram Kishore, security guard of the Amity Business School, who told them that he was aware about the theft of the Maruti car which was stolen from outside the school main gate. The surveyor has reported that the car was stolen from Amity school and ignition key was left in the vehicle and the same was also written in the complaint made to the police.
The car was stolen form the parking of Amity Business School, Noida. Inadvertently the key of the car was left in the car though the doors were closed. The matter was immediately brought to the notice of the police on 100 number and a complaint was also given to the police on the same day. Simply because the FIR was registered after 20 days, no blame can be attributed on the part of insured.
So far as violation of terms and conditions of policy regarding taking of all reasonable steps to safeguard the vehicle from loss is concerned, the complainant has stated that those terms and conditions were never brought to his notice. In fact even alongwith reply, those terms and conditions have not been placed on record showing the signature of the complainant or that those were brought to the notice of the complainant.
Here it is relevant to refer to case of referred to the case of M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. 1(2000) CPJ 1(SC) where Hon’ble Supreme Court held that the insured was only supplied with a cover note and the terms and conditions containing the exclusion clause were never communicated to it. The said exclusion clause runs as follows:-
“In the case of second hand/used property the insurance hereunder shall however, cease immediately on the commencement of the test”
The Hon’ble Supreme Court further held that the as the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause.
It is a fact that the keys were in the vehicle but can that sole reason amounts for repudiation of claim for theft of the vehicle. Here it is useful to refer to judgment of 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 view of the law discussed above, there was no justification in repudiating the claim.
The OP is directed to refund Rs.90,000/- alongwith interest @ 9% p.a. from the date of the 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) (RITU GARODIA) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
