Tamil Nadu

South Chennai

CC/142/2022

M.Harish - Complainant(s)

Versus

The Manager, Iffco Tokio General Ins Co Ltd - Opp.Party(s)

M/s. G. Purushothaman

23 Jan 2023

ORDER

                                   Date of Complaint Filed :18.04.2022

                                  Date of Reservation      :09.01.2023

                                   Date of Order               :23.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:  TMT. B. JIJAA, M.L.,                                              : PRESIDENT

                      THIRU. T.R. SIVAKUMHAR, B.A., B.L.,             :  MEMBER  I 

                     THIRU. S. NANDAGOPALAN., B.Sc., MBA.,       : MEMBER II

 

CONSUMER COMPLAINT No.142 /2022

MONDAY, THE 23^rdDAY OF JANUARY 2023

Mr. M.Harish,

S/o Mohan,

No.55, Vallieeswaran Koil Street,

Mangadu,

Chennai-600 122.                                                                                                                    ... Complainant              

 

..Vs..

The Manager,

IFFCO TOKIO General Ins Co Ltd.,

No. 128, Habibullah Road, 4^thFloor,

Iffco Bhawan, T.Nagar,

Chennai-600 017.                                                                                                                ...  Opposite Party

******

Counsel for the Complainant          :  M/s. G. Purushothaman

Counsel for the Opposite Party       :  M/s. Stanley John

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to pay the Vehicle IDV amount for a sum of Rs.1,33,570/- and to pay a sum of Rs.1,00,000/- on account of unfair trade  practice deficiency in service and causing mental and physical harassment and to pay a sum of Rs.1,00,000/- towards compensation along with litigation cost of Rs.1,00,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainant was registered owner of the vehicle Yamaha MTIS (Black) bearing Registration No.TN-85-M-9771 which was insured with opposite party company for the period from 04-01-2021 to 03-01-2022 and Premium Paid for a sum of Rs.8165 at an IDV of Rs.1,33,570/- during the period of validity of insurance policy. On 01-12-2021 at about 11.30 A.M. the above said vehicle was parked at entrance of the Murugappa Polytechnic College at the material time, he left the ignition key inside the vehicle. His vehicle was stolen and with effect to find out the stolen vehicle, however the above mentioned vehicle has not been traced out. On 03.12.2021 the above said theft was intimated and also written complaint gave to the Thirumullaivoyal Police Station, based on complaint FIR has been registered on the same day in Crime No.879/2021 under Section 379 of the Indian Penal Code 1860, the FIR Copy has been sent to the Judicial Magistrate Court at Ambattur. On 07-12-2021 intimated to the opposite party company and also he had submitted FIR. Copy, Insurance Policy. Claim Application based on the claiming IDV amount a sum of Rs.1,33,570/- and opposite party insurance company also received the claim application, and appointed investigator Mr. Cindhan Rajanikanth.R  to investigate the above said theft of vehicle. The Opposite Party letter dated 27.01.2022 it has been mentioned on perusal of the investigation report and FIR given by Police, they observed that the key of the vehicle was kept on the insured vehicle itself at the time of theft. In this regard, attention was drawn to Condition No.4 of the policy, which stated that, the Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition with out taking proper and reasonable care and safe guard, the key was kept on the vehicle itself, inducing an unknown person to take the vehicle, resulting in theft. The opposite party insurance company wrongly repudiated the insurance claim, though it is incumbent upon them to indemnify the loss. It was evident from the police report that the theft occurred and the Complainant incurred the total loss of the vehicle which was insured for a sum of Rs. 1,33,570/- The violation of the policy condition as alleged by opposite party insurance company was not established with any evidence. Leaving of key in ignition of vehicle on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under Insurance Policy. The Insurance Company having accepted value of a particular vehicle could not disown that very figure on one pretext or other when they are called upon to pay compensation. In such circumstances, repudiation of the claim totally on the ground of violation of policy condition would not be fair on the part of the insurance company. He approached several times, for refund of IDV amount for a surn of Rs.1,33,570/- but the opposite party insurance company wantonly refused non refund of IDV amount of Rs.1,33,570/- till date with mala fide intention. The loss of money and waste of time and negligent committed by the opposite party insurance company clearly proves deficiency in service and unfair trade practice. He was put to unnecessary mental tension, physical harassment and inconvenience by claim of IDV amount of his theft vehicle, without any sufficient cause. Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

The above Complaint as against them is not maintainable and the same has to be dismissed in limini. The Complainant is the owner of the Yamaha Motorcycle bearing Regn No. TN-85-M-9771 and the said vehicle was insured with them under Policy bearing No. YIT/97609872 covering the period from 04.01.2021 to 03.01.2022. The Policy issued by the 2^nd Opposite Party is subject to the terms and conditions and to its limitation and exclusions. The Complainant had alleged that on 01.12.2021 at about 11:30 am, he had parked the above said motorcycle at the entrance of Murugappa Polytechnic College and he had left the key in the ignition itself. He had further alleged that the said motorcycle was stolen and could not traced. The Complainant had given the complaint to Police only on 03.12.2021 and a FIR under Crime No. 879 of 2021 was registered by the Thirumullaivoyal Police. The Complainant had intimated the occurrence of the alleged theft to this opposite party only on 07.12.2021. After investigating the above said claim and perusing all the documents, they had repudiated the claim on 27.01.2021, since the Complainant had violated the Policy conditions and failed to take reasonable care to safe guard the vehicle from loss or damage. It was seen from the FIR and also in the present Complaint that the Complainant had left the keys in the motorcycle with utter regard to safety. Therefore they had repudiated the claim of the Complainant on the violation of Policy condition following grounds:

(i) As per general condition no. 4 of the policy: The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient working condition" Leaving the motorcycle with ignition keys in it, is a gross negligence on the part of the Complainant and this clearly shows that the insured has not taken reasonable steps to safe guard the vehicle from loss and therefore constitute breach and violation of Condition No. 4 of the Policy.

(ii) As per General Condition No. 1 of policy:

"Notice shall be given in writing to the company immediately upon occurrence of any accidental or loss or damage in the event of any claim and thereafter the Insured shall give all such information and assistance as the Company shall require. In case of theft or criminal act which may be subject of a claim under this Policy the insured shall give immediate notice to police and co-operate with the company in securing the conviction of the offender,"

Here, the Complainant had given a delay complaint to the Police and intimating the Insurer only after 6 days from the date of alleged theft. Since there was a delay in reporting the loss to the insurance company, the act of non-reporting the loss constitutes breach and violation of Condition No. 1 of the Policy which requires the claim to be intimated immediately to the insurance company. The keys in the ignition is akin to gifting your vehicle to a third party. And since there is also a delay in filing the Complaint to the Police and also a delay in intimating to the insurer, there are more probable reasons to believe that the vehicle was taken with the knowledge of the owner. For these purposes the Opposite Party had repudiated the Claim by their letter dated 27.01.2022.Since it is a strong case of policy violation, they had repudiated the said claim. Hence there is no question of deficiency of service on their part. And the Complainant is not entitled to ask for the relief sought for. Hence prayed to dismiss the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as  Ex.A-1 to Ex.A-9. The Opposite Party submitted his Written Version and Proof Affidavit of Opposite Parties documents were marked as Ex.B-1 to Ex.B-3.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

It is an undisputed fact that the Complainant was the registered owner of the vehicle Yamaha MTIS (Black) bearing Registration No.TN-85-M-9771 and the said vehicle was insured with opposite party company for the period from 04.01.2021 to 03.01.2022 on payment of premium for a sum of Rs.8165 at an IDV of Rs.1,33,570/-.

The disputed fact of the Complainant was that though the vehicle was insured with the Opposite Party for the Insured declared value of Rs.1,33,570/-, the Opposite Party had repudiated his claim of total loss as the subject vehicle was stolen on 01-12-2021 at about 11.30 A.M. and in spite of the theft was intimated to Concerned Police station on 03.12.2021 and the intimation about the theft was informed to the Opposite Party on 07.12.2021 by submitting Claim form along with FIR Copy and Insurance Policy, it is incumbent upon the Opposite Party to indemnify the loss. The violation of the policy condition as alleged by opposite party was not established with any evidence. The Insurance Company having accepted value of a particular vehicle could not disown that very figure on one pretext or other when they were called upon to pay compensation. Leaving the keys in the ignition of the two wheeler on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the Insurance Policy. In such circumstances, repudiation of the claim totally on the ground of violation of policy condition would not be fair on the part of the insurance company. He approached several times, for refund of IDV amount for a sum of Rs.1,33,570/- but the opposite party wantonly refused non refund of IDV amount till date and with the mala fide intention refused for IDV amount. The loss of money and waste of time and negligent committed by the opposite party insurance company, very clearly proves deficiency in service. he was put to unnecessary mental tension, physical harassment and inconvenience by claiming the IDV amount for a sum of Rs.1,33,570/- and repudiated by the Opposite Party without any sufficient cause.

The Contentions of the Opposite Party were that after investigating the above said claim and perusing all the documents, they had repudiated the claim on 27.01.2022, since the Complainant had violated the Policy condition No.4 as the Complainant had failed to take reasonable care to safe guard the vehicle from loss or damage. Leaving the motorcycle with ignition keys in it, is a gross negligence on the part of the Complainant and the same clearly shows that the insured has not taken reasonable steps to safe guard the vehicle from loss and therefore constitute breach and violation of Condition No. 4 of the Policy. Further contended that from the FIR and also in the present Complaint it was clear that the Complainant had left the keys in the motorcycle with utter regard to safety. Further contended that the Complainant had given a delay complaint to the Police and intimating them only after 6 days from the date of alleged theft. Since there was a delay in reporting the loss to the insurance company, the act of non-reporting the loss constitutes breach and violation of Condition No.1 of the Policy which requires the claim to be intimated immediately to the insurance company. The keys in the ignition was akin to gifting the vehicle to a third party. And since there is also a delay in filing the Complaint to the Police and also a delay in intimating to the insurer, there are more probable reasons to believe that the vehicle was taken with the knowledge of the owner. Hence, no question of deficiency of service on their part and the Complainant is not entitled to ask for the relief sought for.

On discussions made above and on perusal of records , it is clear from Ex.A-3 the Insurance Policy in respect of the subject vehicle insured by the Complainant with the Opposite Party for a Declared value of Rs.1,33,570/-. From Ex.A-1 FIR dated 03.01.2021 the Complainant had reported about the lost of the subject vehicle taken place on 01.12.2021. From Ex.A-4 the Closure Letter dated 27.01.2022 sent by the Opposite Party to the Complainant, wherein it was clear that after investigation conducted by its surveyor and as it was found that the key of the subject vehicle was kept on the insured vehicle itself, which was in violation of Condition No.4 of the policy terms and conditions, the claim of the Complainant was repudiated. Now it is necessary to take up the contentions of the Opposite Party to whether the Complainant had violated Condition No.4 of the terms and conditions of the Insurance Policy and the repudiation made by the Opposite party is justifiable and if at all the Complainant has violated the terms and conditions as alleged by the Opposite Party, what is the remedy available for the Complainant having insured the subject vehicle for a declared value of Rs.1,33,570/- on payment of premium. The Complainant in his complaint had averred that he had left the key in the ignition of the subject vehicle on 01.12.2021 and the vehicle was stolen and in Ex.A-1 FIR dated 03.12.2021 it was mentioned that the Complainant had parked the subject vehicle in the entrance of Murugappa Polytechnic College, Thirumulaivayil at about 11.30 pm and had forgotten to take the keys and left the same in the ignition of the subject vehicle, and went inside the college and after receiving Certificate came out at about 12 pm and saw the subject vehicle was found stolen. The Complainant had contended that leaving the keys in the ignition on all occasions cannot be termed as so serious breach so as to disentitle him from seeking claim under the Insurance policy and having accepted the value of the subject vehicle, the Opposite Party has to compensate the same to the Complainant. The Opposite party had strongly contended on pointing out the violation of Condition No.4 of the Policy which is reproduced as follows :

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient working condition" and had submitted that having left the motorcycle with ignition keys in it, is a gross negligence on the part of the Complainant and this clearly shows that the insured has not taken reasonable steps to safe guard the vehicle from loss.

And had submitted relying on Condition No.1 of policy, which is reproduced as follows:

"Notice shall be given in writing to the company immediately upon occurrence of any accidental or loss or damage in the event of any claim and thereafter the Insured shall give all such information and assistance as the Company shall require. In case of theft or criminal act which may be subject of a claim under this Policy the insured shall give immediate notice to police and co-operate with the company in securing the conviction of the offender".

In the instant case, the complaint about loss/theft of the subject vehicle taken place on 01.12.2021 was lodged before the Concerned Police station on 03.12.2021 itself as per Ex.A-1 and the said fact was intimated to the Opposite Party on 07.12.2021 as found in Ex.A-4 and B-2, hence there is no violation of Condition No.1 of the policy committed by the Complainant, though the same was not the reason for repudiation of the claim. Further with regard to the violation of Condition No.4 of the Policy, in the instant case, the keys was found to be left in the Ignition of the subject vehicle as clearly admitted by the Complainant and as found by the surveyor of the Opposite Party on investigation, though the insured had agreed to take all reasonable steps to safeguard the vehicle from loss or damage under the policy, the breach pointed out by the Opposite Party as committed by the Complainant, that the Complainant had left the keys in the Ignition of the subject vehicle itself, as it is clear from FIR, Ex.A-1 that the Complainant on the date of Occurrence had went to the college for receiving Certificate and the keys left in the ignition of the subject vehicle would not have been done voluntarily and the Complainant having forgotten to take the keys from the Ignition of the subject vehicle, the loss to the subject vehicle had happened. And having taken the said incident more technically and having repudiated the claim in toto on the ground of violation of condition No.4 of the policy would not be reasonable on the part of the Opposite Party and in this regard the Order dated 09.09.2014 relied upon by the Complainant of Hon’ble State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No.FA/1104/13 in Sri Anup Kumar Ghosh Vs. Bajaj Alliance General insurance, the guidelines of Hon’ble National Consumer Disputes Redressal Commission’s Order in New India Assurance Company Ltd Vs- Narayan Prasad Appaprasad Pathak reported in II (2006) CPJ 144 (NC) was observed on settling claims on non-standard basis in case of breach of warranty/conditions of policy, including limitation as to use may be upto 75% of the admissible claim. As well as observed the Judgement of Hon’ble Supreme Court passed in Amalendu Sahu Vs- Oriental Insurance Company Ltd, reported in II (2010) CPJ 9 (SC), observed that in view of the guidelines as set out by the National Commission in case of certain violation of policy condition, the insurance company cannot repudiate the claim in toto.

The another Order dated 23.05.2014 relied upon by the Complainant of Hon’ble State Consumer Disputes Redressal Commission, Uttarakahand, Dehradun, in First Appeal No. 264/13 in The New India Assurance Company Ltd Vs- Sh. Khum Bahadur, the facts and circumstances of the case dealt with, will not be applicable to the instant case.

In the given facts and circumstances of the case, we are of the considered view that the repudiation of insurance claim in toto made by the Opposite party is not sustainable and clearly amounts to deficiency in service on the part of the Opposite Party and thereby had caused mental agony to the Complainant. Accordingly Point No.1 is answered against the Opposite Party.

Point No.2 and 3:

As discussed and decided in Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.1,00,177.50p being 75% of the ID Value of Rs.1,33,570/-, in respect of Yamaha MT 15 (Black) bearing Registration No.TN-85-M9771, also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony, along with cost of Rs.5,000/- to the Complainant. Accordingly Point Nos. 2 and 3 are answered. 

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.1,00,177.50p (Rupees One Lakh one Hundred Seventy Seven Rupees and fifty Paise Only)   being 75% of the ID Value of Rs.1,33,570/-, in respect of Yamaha MT 15 (Black) bearing Registration No.TN-85-M9771, also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards deficiency of service and mental agony, along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks  from the date of receipt of the order, failing which the above said amount of Rs.1,00,177.50p shall carry interest @9% p.a from the date of the  date of receipt of this order till the date of realization.                                                                                                                                                                                                                                                                                                                                                                                                                 

          In the result this complaint is allowed.          

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 23^rd of January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	03.12.2021	F.I.R Copy
Ex.A2	03.12.201	Complaint copy
Ex.A3	04.01.2021	Insurance Policy Copy
Ex.A4	07.12.2021	Opposite Party Letter
Ex.A5	11.03.2022	Legal Notice copy
Ex.A6	12.03.2022	Acknowledgement card
Ex.A7	-	Aadhaar Card Copy
Ex.A8	22.02.2021	Registration Certificate copy
Ex.A9	-	Driving Licence copy

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	04.01.2021	Insurance Policy
Ex.B2	27.01.2022	Repudiation Letter
Ex.B3	27.04.2022	Reply to the Advocate’s Notice by the Opposite Party

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT