DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.360/2016
Ajaib Singh
S/o Niranjan Singh
R/o H.No.3/96, DDA Flats
Garhi, East of Kailash
New Delhi. .…Complainant
VERSUS
The National Insurance Co. Ltd.
D O 31, E-13, Hauz Khas Market
New Delhi-110016.
The National Insurance Co. Ltd.
Delhi Region Office 2, General Claim Hub 2E 25, 3rd Floor, Jhandewalan Extension
New Delhi-110055. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Madan Mohan proxy counsel on behalf of Adv. Narender Sharma for complainant.
Adv. Pramod Singh for OP.
ORDER
Date of Institution:04.11.2016
Date of Order :20.11.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint refund of Rs.4,67,368/- to be paid along with interest @18% per annum from the date of theft of vehicle till realisation; Rs.4,00,000/-as compensation for mental agony and pain and litigation cost of Rs.71,000/-.
- Complainant has stated that he had purchased an insurance policy from OP after paying Rs.5,968/- for his vehicle Maruti SX4. It is stated that policy was issued for IDV of Rs.4,67,368/- which was valid from 02.09.2014 to 01.09.2015.
- It is further stated that terms and conditions of the policy were not issued to the complainant except the policy documents which are annexed along with the complaint as C-2.
- It is further stated that on 04.09.2014, the vehicle was snatched while the driver of the vehicle was coming back to Delhi and the matter was immediately reported to Police vide FIR No.684/14 registered under the Police Station, Sector-39 NOIDA. Copy of FIR is annexed as annexure C-3.
- It is further stated that OP was intimated about the said incident along with the copy of the FIR and Untrace Report. Copy of Untrace report is annexed as annexure C-4.
- A surveyor was appointed who took the signature of complainant and his driver on blank papers on the pretext that they would be used as and when required for speedy disposal of the claim, however, the claim of the complainant was repudiated on 17.03.2015 citing clause 3A of the policy but no such Clause is known to the complainant as terms and conditions were not supplied to the complainant. Copy of the repudiation is annexed as annexure C-5.
- It is the case of the complainant that no such clause of the Insurance Policy can be made available to the applicant as he does not know about the terms and conditions.
- In its reply, OP has not denied issuance of the policy to the complainant and it is stated that terms and conditions of the policy were already printed on the policy schedule annexed with the complaint.
- It is stated the complainant has not complied with the terms and conditions of the contract of insurance and as such the complaint needs dismissal.
- It is stated that complainant has used the vehicle for hire and reward purpose which is in contravention of the policy condition and limitation as to use clause which is reproduced as under:-
Limitation as to use Clause:-
Use only for social domestic and pleasure purposes and for the Insured’s business. The policy does not cover the use for : (1) Hire or Reward (2) Carriage of goods (other than samples or personal luggage) (3) Organised racing (4) pace making (5) speed testing (6) reliability trials (7) any purpose in connection with motor trade.
- It is stated by the OP that the complainant under the garb of present complaint is trying to take the benefit of its own wrong which is not permissible under any law. As such the complaint filed by the complainant is liable to be dismissed on this ground itself.
- It is stated that after receipt of the claim from the complainant, OP deputed M/s Laxman Dass Arora & Associates to investigate the insurance claim. Relevant extract of the report is under:-
- As per PCR record no intimation has been received regarding theft of vehicle on 04.09.2014.
- As per the FIR, the driver stated that the vehicle was stolen away when he went for urination. As per the driver’s statement to me, he stated that the vehicle was snatched away from him at gun point. So both statements are contradictory to each other.
- As per the statement of driver, he was doing the job at Satluj Taxi Service and the vehicle was attached with Shri R.K. Tiwari so it clearly shows that insured vehicle had been used for hire/reward or on commercial basis.
- It is further stated that the complaint needs to be dismissed as it involves complicated question of law and facts and requires elaborate and documentary evidence which cannot be entertained by this Commission. It is further stated that for the proper adjudication of the matter cross-examination of the complainant and witnesses from the department on terms and conditions of the policy issued by the OP is required to be done.
- In this regard, OP has placed reliance on the judgment of Hon’ble Supreme Court in Oriental Insurance Company Sony Cherian (1999) 6SCC 451 and National Insurance Company Limited Vs. Laxmi Narayan Dutt (2007) 258 SC on 02.03.2007.
- In his rejoinder, complainant has mostly denied the averments made by the OP in their WS. It is stated by the complainant that as per the PCR record, no intimation regarding theft of vehicle was given on 04.09.2014 but FIR was duly registered on 05.09.2014 and therefore the matter was reported to Police in time.
- It is further stated that as per the FIR, vehicle was stolen when the driver went for urination and as per the driver’s statement to the vehicle was snatched away from him at gun point. It is stated that robbery is an advance stage of theft, a theft which has done keeping a present under fear or threat is called robbery. It is stated that correct Sections have not been invoked by the Police.
- It is further denied by the complainant that the driver was doing the job at Satluj Tax Service that the vehicle was attached with Sh. R.K. Tiwari.
- Complainant has placed on record copy of the insurance policy which shows the period of policy from 02.09.2014 to 01.09.2015. As per the policy document placed on record by the complainant limitations “as to use” lists “hire and reward”. As per the FIR placed on record it has been clearly stated by the driver that the car was stolen while he was urinating. Complainant has also placed on record the untrace report. No document has been filed with the WS. OP has not been able to prove the grounds on which the claim has been repudiated OP has also not placed on record the surveyor report on which it has relied.
In Ashok Kumar vs New India Assurance Co. Ltd. Civil Appeal No. 4758 Of 2023 it was held
Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct. We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.
- In the present case, as per the FIR, the vehicle was stolen when driver of the complainant went down for urination. OP has not been able to substantiate his allegation of Hire and reward against the complainant. Therefore, OP is directed to pay to the complainant on non-standard basis i.e 75% of Rs. 4,67,368/ to the complainant within three months from the date of the order failing which OP shall be liable to pay interest @ 5% p.a till realization.
Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.
