Haryana

StateCommission

A/49/2016

L&T GENERAL INSURANCE CO. - Complainant(s)

Versus

UMESH - Opp.Party(s)

GAURAV SHARMA

23 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      49 of 2016

Date of Institution:    15.01.2016

Date of Decision :     23.05.2016

 

M/s L&T General Insurance Company Limited, 6^th Floor, DCM Building, 16 Barakhamba Road, Connaught Place, New Delhi-110001, through Shri Gaurav Ahuja, Assistant Manager (Legal).

 

                                      Appellant/Opposite Party No.1

Versus

 

1.      Umesh s/o Sh. Chand Roop, Resident of Shahpur Turk, Tehsil and District Sonipat, Haryana.

Respondent/Complainant

 

2.      M/s L&T Finance Limited, having its Branch Office at SCO 224, Sector 12, Karnal through its Branch Manager.

3.      M/s Vijay Agro Engineering Works, Gurudwara Road, Sonipat, through its Proprietor/Manager.

                                      Respondents/Opposite Parties No.2 & 3

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Gaurav Sharma, Advocate for appellant.

                             None for respondent No.1.

                             (Service of respondents No.2 & 3 dispensed with). 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Notice of appeal was sent to the respondents. None has appeared on behalf of respondent No.1 despite service. Learned counsel for the appellant has stated that respondents No.2 & 3 are proforma, so they are not required to be served upon. Hence, the service of respondents No.2 and 3 is dispensed with.

 2.               M/s L&T General Insurance Company Limited-Opposite Party No.1, is in appeal against the order dated September 18^th, 2015 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.31 of 2013.

3.                Tractor bearing registration No.HR-10R-9523 owned by Umesh-complainant/respondent was insured with M/s L&T General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party No.1/appellant, for the period August 30^th, 2010 to August 29^th, 2012, vide Insurance Policy Exhibit C-2. The Insured Declared Value (IDV) of the tractor was Rs.5,51,000/-.

4.                During the intervening night of January 16^th/17^th, 2012 the tractor was stolen when it was parked inside the premises of the complainant. F.I.R. No.30 (Exhibit C-11) was lodged in Police Station Sonipat Sadar, on the same day, that is, January 17^th, 2012. The Police submitted untraced report and the same was accepted by Judicial Magistrate Ist Class, Sonipat, vide order dated October 10^th, 2012 (Exhibit C-12). The Insurance Company was also informed. Claim being filed, the Insurance Company repudiated vide letter dated December 27^th, 2012 (Exhibit R-1). Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

5.                The Insurance Company/appellant in its reply pleaded that there was delay of eight months in giving information, so the complainant violated condition No.1 of the insurance policy. It was further stated that the ignition key of the tractor was left in the ignition switch and thus the complainant himself was negligent for the theft of the tractor. It was prayed that the complaint be dismissed.

6.                M/s L&T Finance Limited-Opposite Party/respondent No.2 admitted the tractor having been financed with it.  The respondent No.3-M/s Vijay Agro Engineering Works, did not contest the complaint; it was proceeded exparte.

7.                After evaluating the pleadings and evidence of the parties, the District Forum vide order dated accepted complaint and directed the Insurance Company as under:-

“…we hereby direct the respondent No.1 to make the payment of the Rs.5,51,000/- alongwith interest at the rate of 09% per annum from the date of filing of the present complaint. the respondent No.1 is further directed to make the aforesaid payment to respondent No.2, financer of the tractor and to satisfy the loan liability in respect of the tractor in question and after doing so, if any amount is found in excess, then the same be paid to the complainant. Further even after this, if any amount is found due towards the complainant in respect of the financed tractor, the complainant shall pay the same to the respondent No.2 financier of the tractor.”

8.                In the grounds of appeal, the appellant has raised two fold pleas; firstly that the complainant was required to inform the Insurance Company regarding the theft immediately after the tractor was stolen during the intervening night of January 16^th/17^th, 2012; however, the Insurance Company was informed on September 11^th, 2012. Second plea is that the complainant left the key of the tractor in the ignition and thus was himself negligent and violated the terms and conditions of the policy.

9.                Learned counsel for the appellant/Insurance Company did not press his first arguments with respect to delay in giving information for the reason that the complainant has placed on the file Certificate (Exhibit C-4) to prove that he was confined in District Jail, Sonipat with effect from 02.02.2012 to 25.08.2012. So, it cannot be said that the complainant committed default in giving information to the Insurance Company.

10.              Besides, Hon’ble National Commission in Revision Petition No.629 of 2015, New India Assurance Company Limited versus Gurmeet Kaur & others, decided on August 3^rd, 2015, cited as 2015(3)CLT 476, held as under:-

“(i)     Consumer Protection Act, 1986 Section 2(1)(g) – Insurance claim – Theft of vehicle – Delay in intimation to Insurance company – The clause in the Insurance Policy require to give immediate intimation of accident, but did not require the Insured to give immediate intimation of any loss of the vehicle to the Insurance Company – Held –That it applied only to the occurrence of an accident where a claim is to be lodged with the Insurance Company – The above referred clause does not require the Insured to give immediate intimation to the Insurance Company in case of theft of the vehicle – It is settled law that the terms of an Insurance Policy have to be strictly construed and the Court can neither add to nor subtract anything from the terms and conditions contained in the policy – A theft being a deliberate dishonest act, cannot be said to be an accident – Therefore, the complainant was not required, in this case, to give immediate intimation of the theft to the Insurance Company.”

11.              Second argument is that the Investigator appointed by the Insurance Company recorded statement of complainant Umesh (Exhibit R-4) wherein it was mentioned that the key was left in the ignition. Even this argument does not carry any force for the multiple reasons. Firstly, that the appellant/Insurance company has not examined the Investigator who recorded the alleged statement (Exhibit R-4). Therefore, it cannot be said that Umesh ever had made the statement (Exhibit R-4) to the Investigator. Any admission on the part of complainant (a party to litigation) has to be proved by positive evidence. The person, who recorded and in whose presence the alleged statement was recorded, have not been examined. Therefore, no reliance can be placed upon the photo copy of a document purporting to the report of the Investigator.

12.              In Manikant vs. New India Assurance Co. Ltd., 2012(2)CLT 621, Hon’ble National Commission held as under:-

“…Producing a document in Court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the Surveyor’s Report in the absence of which the Surveyor’s Report has little evidentiary value. In view of these facts, we are unable to accept the contention of the Respondent that he has been able to show substantial and credible evidence that the tractor was being used for transporting goods and thus violating the terms and conditions of the insurance policy and the driving licence. The State Commission by solely relying on this document erroneously concluded that there is violation of terms and conditions of the policy and that the claim was rightly repudiated.”

13.              In Revision Petition No.590 of 2014, New India Assurance Company Ltd. and another vs. Shri Girish Gupta, decided on July 31^st, 2014, Hon’ble National Commission held as under:-

“21.   This condition in our considered view requires insured 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 car 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. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5. In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV – (2011-4)”

14.              From the evidence available on the record it is established that the tractor was stolen from the premises of the complainant wherein where it was parked during night hours and in the morning it was found stolen. No cogent evidence has been produced by the Insurance Company that the key of the tractor was left in the ignition. Thus, it cannot be said that the complainant was negligent. In view of this, no case for interference is made out.

15.              Hence, the appeal fails.  It is dismissed.

16.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 23.05.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL