BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 29 of 2017
Dr. Gias Uddin Laskar, S/o Md. Abdul Rahman Laskar,
Vill- Loknathpur,P.O-Bhagabazar,P.S-Dholai, Dist.Cachar
Pin-788120 …………………………………………………………………….. Complainant.
-V/S-
1. The National Insurance Co. Ltd,
(Represented by the Divisional Manager),
The National Insurance Co. Ltd,
Clud Road, Capital Travels Building,
P.O- Silchar-1, Dist. Cachar, Assam. O.P. No.1
2. Sri Debodutta Chanda,
C/o The Divisional Manager,
The National Insurance Co. Ltd,
Clud Road, Capital Travels Building,
P.O- Silchar-1, Dist. Cachar, Assam. O.P No.2
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared: - Sri Rajat Ghosh, Advocate for the complainant.
Sri Debasish Som, Advocate for the O.Ps.
Date of Evidence………………. 23-02-2018, 14-03-2018
Date of written argument……… 11-04-2018 (both sides)
Date of oral argument ………….. 10-05-2018 (both sides)
Date of judgment……………… 31-05-2018
JUDGMENT AND ORDER
(Sri Bishnu Dednath) President,
- Dr. Gias Udding Laskar brought the complaint under the provision of Consumer Protection Act 1986 against the National Insurance Company. Ltd. and another for award of direction to Insurance Company to pay sum insured of vehicle bearing Regd. No. MZ-05/7772 and compensation on account of stolen of the vehicle by unknown miscreant.
- The story is as below:-
The complainant purchased Maruti WagonR VXI bearing Regd. No. MZ-05/7772 from Jain Udyog , Silchar for Rs.4,25,581/- and insured the vehicle with O.P-Insurance Co. vide policy No. 35101031116130853340. The period of insurance was from 03-03-2012 to 02-03-2013. The sum assured was Rs.4,10,641/-. But very unfortunately the said vehicle has been stolen from his residential garage on 25-11-2012 night. Accordingly, he lodged FIR to Dholai Police station. The Dholai police station registered the FIR and started Dholai police station Case No. 438/2012 U/S 379IPC but after investigator submitted FR with comment that fact of stealing is correct but miscreant is not identified.
- The matter of theft was informed to the insurance company. The insurance company then appointed an investigator. The investigator investigated the case and collected relevant papers form the complainant including vehicle Enquiry Report dated 16-09-2015 from C.I.D. But the insurance company again asked to submit 2nd ignition key of the vehicle vide letter dated 24-03-2015. Then the complainant informed the insurance company that the 2nd ignition key has been lost and in that aspect a GD entry made in the Dholai Police Station vide GDE No.233 dated 11-04-2012 and on asking the copy of FIR of missing of 2nd ignition key submitted the insurance company. But very surprisingly the insurance company repudiated the claim vide its letter No.200501/Tech (Mt)/LM/bs/16/267 dated 30-09-2016. In that letter stated the reason for repudiation is as below:-
“With reference to the above, we would like to inform you that the instant claim has been repudiated by the Competent Authority on the basis of file of papers as submitted by you, which clearly indicates that the instant claim violates the clear cut Police Condition No.4, of the Standard Form for Private Car Package Policy, which states that-“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in excellent condition”.
- The O.P-Insurance Company in its W/S admitted all materials fact and also stated that the claim has been repudiated due to violation of policy condition No.4 above. To justify the reasoning of repudiation the O.P stated inter-alia that the complainant did not inform the insurance company regarding missing of 2nd ignition key, for which it is doubtful case of stealing of the vehicle. To justify the plea stated that the vehicle having inbuilt immobilizer system which protects vehicle being stolen. The security device aforesaid, called the intelligent computerized Anti-Theft System (iCATS), works on the principle of multiplexed communication. It has a transponder on inbuilt electronic chip inside the car key-carrying a unique identification code (ECU) or the computer in the engine also carries a corresponding secret code. That is why, the moment the key is inserted and the ignition switched on, the secret code is communicated from the key to the ECU. The engine starts only if the code is correct. If there is a mismatch in the password, the immobilizer system shuts off. The engine, thereby preventing the car from being stolen. The locally fabricated key under no circumstances can start the engine. The O.P also stated that if the key gets lost, the complainant has to go to dealer’s workshop to electronically delink the key but the complainant did not take the necessary step and such violated the condition No.4, so the complainant is not entitle any relief.
- During hearing the complainant submitted his deposition supporting affidavit and also exhibited all relevant documents including insurance policy, copy of police report, copy of FIR, copy of FR, copy of NCRB Report. Copy of Police Report in respect of GDE No. 233 dated 11-04-2012 etc. After closing evidence the Ld. Advocate of the complainant has submitted written argument.
- The O.P-Insurance company also submitted deposition of Sr. Assistant Sri Suroj Kr. Das and exhibited repudiation letter dated 30-09-2016, investigation report, iCATS manual etc. After closing evidence the Ld. Advocate of the O.P submitted written argument too.
- I have heard oral argument, perused evidence on record and also written argument.
- It is admitted fact that the vehicle has been missed and during the period of insurance coverage the claim submitted stating inter-alia that vehicle has been stolen. The complainant also by adducing evidence and exhibited FIR. It is established that the fact of stealing of his insured vehicle has been informed. The FR vide Ext-5 and vehicle enquiry report vide Ext-8 it is crystal clear that vehicle has not yet been recovered.
- The above facts are remaining un-rebutted in the evidence on record. However, the plea of the O.P is that the complainant did not take proper care to safeguard his vehicle for which violated condition No.4 of the insurance. By adducing evidence the O.P tried to explain what precaution ought to take by the complainant when 2nd ignition key loss vide Ext-K.
- Whatsoever may the plea of the complainant but from evidence on record it is clear that after loosing 2nd ignition key he lodged FIR but police did not traced out the 2nd ignition key. Of course the fact regarding loosing of 2nd ignition key was neither informed the O.P-Insurance company nor takes any attempt to delink the key.
- But after going through the entire record and evidence and hearing of the Ld. Advocate of the O.P it is observed that the insurance company wants to convince key. The said opinion of the O.P is nothing but presumption and not scientifically proved. Anyhow, it is a fact that the insured vehicle has been missing from the garage of the complainant which is not yet recovered.
- The insurance company repudiated the claim only on the ground that the complainant did not take proper precaution to safeguard the vehicle. To clarify the precautionary measure the insurance company indicated that when 2nd ignition key lost the complainant ought to delink the key electronically. Whether such situation is coming under the perview of take all reasonable steps to safeguard the vehicle mentioned under the policy condition No.4 in the standard Form is not convincingly establish by the O.P because no such interpretation of higher court is submitted. Moreover, no such explanation is available in the insurance condition that if an ignition key is lost the insured must delink the key electronically.
- Nothing established against the complainant for his negligence in support of any explanation from the insurance condition or with support of any convincing case law. I have also do not find observation of the higher court in that aspect to held that the complainant was negligent for not delinking ignition key electronically as soon as the 2nd ignition key was lost.
- That is why in this case keeping in mind all the material facts and evidence in record I am of opinion that when vehicle has been stolen from the custody of the complainant, it is the liability of the insurance company to pay the sum insured to the complainant. But the insurance company repudiated the claim unjustifiedly. So, the insurance company is liable not only to pay the sum insured but also liable to compensation of Rs.20,000/- (Rupees Twenty Thousand) only for mental agony. The insurance company is also liable to pay cost of the proceeding of Rs.5,000/-(Rupees Five Thousand) only.
- With the above reliefs the insurance company is directed to pay total awarded amount of Rs.4,10,461+20,000+5,000=4,35,641/- (Rupees Four Lac Thirty Five Thousand Six Hundred forty one) only within 45 days from today. In default, interest @ 10% P.A. to be added to the aforesaid awarded amount till realization of the full. Of course, the complainant must put signature of subrogation letter. Acknowledgement etc. if placed by the O.P at the time of payment of awarded amount, so that in future if the stolen vehicle is recovered the complainant cannot claim the vehicle and at the same time it will be property of the insurance company.
- Thus, this case is disposed of on contest. Supply free certified copy to the parties. Given under my hand and seal of this District Forum on this the 31st day of May, 2018.
