Haryana

Ambala

CC/51/2020

Ex. Sub Malik Singh - Complainant(s)

Versus

The Oriental Insurance Co Ltd - Opp.Party(s)

Navneet Singh

17 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

                                                                      Complaint case no. :     51 of 2020

                                                          Date of Institution :     14.02.2020.

                                                          Date of decision     :     17.06.2022.

 

Ex. Sub Malik Singh aged about 70 years son of Sharam Singh resident of Village Rajouli, Tehsil Barara District Ambala.

                                                                                       ……. Complainant.

                                                Versus

The Oriental Insurance Company Ltd., 170/2-5, Netaji Subhash Marg, Ambala Cantt., through its Branch Manager.

 

                                                                               ….…. Opposite Party.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.          

                            

Present:       Shri Navneet Singh Malhotra, Advocate, counsel for the                                complainant.

                   Shri R.K. Jindal, Advocate, counsel for the OP.

 

Order:        Ms. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) and prayed that OP may be directed, to pay compensation of stolen motorcycle of Rs.50,000/- and Rs.45,000/-, as compensation for the mental agony and physical harassment suffered by him alongwith interest @ 18% per annum till the final payment.

2.       Brief facts of the case are that complainant is the registered owner of Honda Livo, having registration No.HR-54D-3258, Engine No.JC71E71019626, Chassis No.ME4JC716LH7006874. The said vehicle was duly insured with the OP vide policy No.261191/31/2018/4636 for the period from 15.01.2018 to 14.01.2019. On 12.04.2018, in the evening, complainant parked his vehicle in the shed inside his house. Next day, early in the morning, when complainant wakes up, then he came to know that some unknown person had stolen his vehicle. FIR No.68 dated 13.04.2018 was duly registered in PS Mullana. Complainant lodged a claim with the OP. OP being the insurer was duty bound to compensate the complainant, but it illegally without assigning any reason had declined the claim vide letter dated 06.09.2018. After receiving the letter dated 06.09.2018, the complainant made several requests to the OP No.1, but all in vain. By rejecting the genuine claim of the complainant, the OP has committed deficiency in service. Hence, the present complaint.  

3.       Upon notice, OP appeared through counsel and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and concealment the true and material facts, non-joinder and mis-joinder of necessary parties and jurisdiction etc. On merits, it is stated that complainant parked the motorcycle in question negligently as he left the key inside the motorcycle, as such, he violated the terms and conditions of the policy, thus no amount is payable and the answering OP has rightly repudiated the claim vide letter dated 06.09.2018.  Rest of the allegations levelled by the complainant were denied and prayer has been made for dismissal of the present complaint filed by the complainant against it with costs.

4.       Learned counsel for the complainant tendered affidavit of complainant and affidavit of Shri Kulwant Singh son of Shri Sunder Singh, resident of Village Rajouli, Tehsil Barara, District Ambala as Annexure CA and C-B along with documents Annexure C-1 to C-8 and closed the evidence on behalf of the complainant. Learned counsel for the OP tendered affidavit of Shri Sanjiv Madaan, Senior Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Ambala Branch as Annexure OP-A alongwith documents Annexure OP-1 to OP-3 and closed the evidence on behalf of the OP.

5.                We have heard learned counsel for the parties and have also gone through the record of the case very carefully.

6.                From the perusal of Motor Insurance Certificate cum Policy Schedule Annexure C-1, it is evident that the motorcycle in question was duly insured with the OP, for the period from 15.01.2018 to 14.01.2019, for an IDV of Rs.47,394/-. Perusal of FIR, Annexure C-3, reveals that the said motorcycle was stolen on the intervening night of 12.04.2018 to 13.04.2018, while it was parked in the shed situated inside the house. In the said FIR, it is also stated that mistakenly key was left in the motorcycle. The learned counsel for the complainant has submitted that complainant by parking motorcycle at his residence had safeguard his motorcycle, even if he forget to remove the key from the ignition switch he cannot be said to have committed wilful breach/violation of the terms and conditions of the policy, the OP cannot be said to be right in repudiating the claim of the complainant in toto. In support of his contention, the learned counsel for the complainant has placed reliance on the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of New India Assurance Company Limited Vs. Girish Gupta, RP No.590 of 2014, decided on 31.07.2014 (NC). On the contrary, the learned counsel for the OP has submitted that the OP has rightly repudiated the claim because of the negligence of the complainant, who while parking, left the key in the ignition of the motorcycle, which facilitated the theft. As such, complainant has violated the terms and conditions of the policy in question and thus he is not entitled to get any claim and OP has rightly repudiated the claim. In the case of New India Assurance Company Limited Vs. Girish Gupta, (Supra), the Hon’ble National Commission, New Delhi, ordered that to settle the claim on non standard basis by observing the following:-

“Insured requires 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 motorcycle 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”.

          In the present case, complainant parked his motorcycle inside the house and mistakenly left the key in the ignition of the motorcycle thus it cannot be treated as wilful breach of condition, therefore, the decision of National Commission in the case of New India Assurance Company Limited Vs. Girish Gupta (Supra) can safely be applied in the instant case. The Hon’ble Supreme Court of India in the matter of Amalendu Sahoo Vs. Oriental Insurance Company Limited II (2010) CPJ 9 (SC) has opined that even in cases where there is any breach of warranty/conditions of policy, an amount upto 75% of the admissible claim can be agreed to. Since, the motor cycle in question was insured for an IDV of Rs.47,394/-, therefore, in view of the law laid down by the superior Courts, in the cases referred to above, the insurance company shall settle the claim on non standard basis and pay Rs.35,545/- i.e. 75% of the Insured Declared Value of Rs.47,394/-, to the complainant.

7.                Under these circumstances, we deem it appropriate to partly allow the complaint and to order that Rs.35,545/-, i.e. 75% of the Insured Declared Value of Rs.47,394/- alongwith interest @ 5% per annum from the date of filing of the complaint i.e 14.02.2020, be paid as settlement of the claim by the insurance company i.e. OP. The OP is further directed to comply with the aforesaid direction within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 17.06.2022.

 

(Vinod Kumar Sharma)          (Ruby Sharma)               (Neena Sandhu)

              Member                      Member                          President

 

 

 

Present:       Shri Navneet Singh Malhotra, Advocate, counsel for the                                complainant.

                   Shri R.K. Jindal, Advocate, counsel for the OP.

 

 

Vide our separate detailed order of even date, the present complaint has been partly allowed. File be consigned to Record Room, after due compliance.

Announced on: 17.06.2022.

 

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President