BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.478 of 2020

      Date of Instt. 29.12.2020

      Date of Decision: 29.03.2023

Puran Singh aged 60 years son of Darbar Singh R/o 724, Karol Bagh, PO Chuggitti, Distt. Jalandhar.

..........Complainant

Versus

1.       United India Insurance Co. Ltd. 6-7, GT Road, Shaheed Bhagat        Singh Market, Moga-142001, Punjab through its Branch   Manager/General Manager/Authorized Representative

2.       United India Insurance Co. Ltd. Registered and Head Office:24         Whites Road, Chennai-600014, through its    MD/Chairman/Authorized Representative etc.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                          Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Sushant Kumar, Adv. Counsel for the Complainant.

                   Sh. A. K. Arora, Adv. Counsel for the OPs No.1 & 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased the second hand vehicle i.e. Toyota Innova G3 car bearing no.PB08-DG-6718 from dealer Baba Deep Singh Car Bazar, and got his above said vehicle insured with the OP No.1 vide insurance policy number/certificate no.2012003117P114770155 issued on 19.1.2018 and OP No.2 is its Head office. The complainant has also obtained a loan for a sum of Rs.3,00,000/- in the year 2016 from Shriram Transport Finance Co. and agreed to repay the said loan amount in 36 installments i.e. 10 of Rs.11,400/- each and two of Rs. 12,500/- each in every year. The said insurance policy was valid for the period starting from 19.1.2018 till the midnight of 18.01.2019. The said vehicle was hypothecated with Shree Ram Transport Finance Co. in this regard endorsement made in the Registration certificate. The above said vehicle was unfortunately stolen from New Delhi where the same was parked by the complainant on 8.11.2018. The complainant immediately made a complaint to the concerned police station Adarsh Nagar, North West Delhi and also informed/intimated telephonically to the authorized person of the OPs. The police of Police Station Adarsh Nagar, North West Delhi had registered the case FIR no.039937 dated 9.11.2018 under Section 379 of IPC in this regard, started further investigations and raided so many places with or without the complainant to recover the vehicle and to arrest the persons responsible for theft. However, the vehicle in question was not recovered by the police and the police of Police Station Adarsh Nagar North West Delhi gave the non traceable report and report under section 173 Cr. P. C to the complainant. The complainant thereafter approached the OPs at different times and visited offices. of the company/OPs so many times, again and again with the request to settle the claim of the complainant as earliest as possible, but the officials made excuses every time on one pretext to another and every time new reason stated to complainant regarding delay of the claim. The OPs time and again refused to entertain the claim of the complainant by demanding one document or the other every time. On 03.1.2020 the OP gave a letter to the complainant and finally refused to entertain the claim of the complainant. The complainant then served a legal notice dated 28.1.2020 to the OPs whereby the complainant requested the OP for the claim of the complainant, but no heed has been paid by the OPs to the request of the complainant and finally refused to entertain the claim of the complainant. The act of the OPs to repudiate the claim of the complainant is wrong, illegal, uncalled for the arbitrary and the same are nothing but clear cut case of the deficiency in service, unfair trade practice and negligence on the part of the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a compensation of Rs.7,00,000/- and Rs.5000/- as litigation expenses and counsel fee of Rs.33,000/- alongwith interest @ 18% per annum till its realization.

2.                Notice of the complaint was given to the OPs, who filed its joint written reply and contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practice on the part of the opposite parties and that being so, the present complaint is liable to be dismissed with special cost. It is further averred that immediately on the receipt of information qua the theft of vehicle of the complainant, claim was registered by the company, matter was got investigated and the complainant was called upon to submit both the keys of vehicle in question as per Guidelines/requirements of settlement of theft claim issued by Insurance Regulatory and Development Authority of India. In response to the same, the complainant submitted two keys of the vehicle, which were not resembling with each other. The complainant admitted the said fact in the letter dated 13.09.2019 written to the company. The matter was referred for legal opinion to Sh. Pawan Kumar Sharma Advocate, who after taking into consideration Insurance Regulatory and Development Authority of India's Guidelines qua the non submission of both the keys of vehicle, expressed his opinion dated 28 12 2019 vide which he has opined that the claim is not payable. Guidelines downloaded from the official website of Insurance Regulatory and Development Authority of India. These Guidelines in respect of settlement of theft claim have been issued by Insurance Regulatory and Development Authority of India to avoid fraud in the Insurance claims qua theft of vehicles. Since the complainant has not produced both the keys of the vehicle with the OP and as such the complainant has failed to take reasonable care of vehicle in question to avoid theft of the vehicle. The complainant has not reported the matter qua the loss of key of the vehicle to the police. Thus there is a breach of condition no.4 of the policy of insurance, which reads as under:-

                   ‘The Insured shall take all reasonable steps to safeguard         the vehicle from loss or damage and maintain it in efficient         condition…………’

                   It is further averred that the claim of the complainant has been rightly repudiated by the OP, since the complainant has failed to produce both the keys of the vehicle in question and has failed to take reasonable steps to safeguard the vehicle from loss/theft. The OP No.2 has been unnecessarily made party to the complaint and has nothing to do with the claim of the complainant, which has been settled and repudiated by OP No.1. On merits, the factum with regard to taking insurance of the Vehicle from 19.01.2018 to 18.01.2019 by the complainant as well as lodging of the FIR by the complainant and the facts regarding lodging the claim by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove his respective version, the complainant has produced on the file his respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.

6.                The complainant has proved that he is the owner of Toyota Innova G3 Car bearing registration No.PB 08 DG 6718 by proving the certificate of registration Ex.C-2. The complainant has proved that he had insured the vehicle comprehensively and the OPs were to meet all the claims and liabilities for the future. The policy was valid from 19.01.2018 to 18.01.2019. The copy of the insurance policy has been proved as Ex.C-1. The contention of the complainant is that on 08.11.2018 the vehicle was stolen from New Delhi and an FIR to this effect was lodged by the complainant, which has been proved as Ex.C3. The further contention of the complainant is that the police submitted untraced report, which has been accepted by the Court as per Ex.C-4 and the OPs have repudiated the claim wrongly, vide Ex.C-5.

7.                The contention of the OPs is that on the information qua the theft of the vehicle, claim was registered by the company and complainant was called upon to submit both the keys of the vehicle and the complainant submitted two keys, but the same was not resembling with each other and then the matter was referred for legal opinion to Sh. Pawan Kumar Sharma, Adv. and he gave his opinion dated 28.12.2019 Ex.OP1-2/2 vide which he has opined that the claim is not payable. Due to the fault of the complainant, the vehicle was stolen. In such circumstances, the OPs are not liable to make the loss of the complainant.

8.                The complainant has alleged that the vehicle was stolen from New Delhi on 08.11.2018, when the same was parked by the complainant. He has proved the FIR Ex.C-3 registered on 09.11.2018. Ex.C-4 shows that the untraced report was filed by the police station regarding motor vehicle theft and the same was accepted by the Court and the Order is dated 18.12.2018. The OP has alleged that after receiving of the claim, the matter was investigated and the complainant was called to submit both the keys of the vehicle and when the complainant submitted two keys, which were allegedly not resembling with each other. He has relied upon the letter written by the complainant Ex.OP1-2/1. Perusal of this letters shows that he had purchased a second hand car and got two keys. As per the complainant, the vehicle got started with one key and with another key the lock was opened and he has deposited both the keys. The OP has relied upon the opinion of the Advocate Pawan Sharma, who has given the opinion vide Ex.OP1-2/2 that both the keys of the vehicle were not resembled to each other, therefore the claim is not payable in the absence of the keys. He has further relied upon the document Ex.OP1-2/6 and has submitted that the complainant has violated the terms and conditions of this policy as he could have taken much care and should remain vigilant by taking care of his vehicle, but he has not done so, therefore the claim has rightly been repudiated. The OP has relied upon the law laid down by the Hon'ble National Commission, in a case titled as “Tata AIG General Insurance Co. Ltd. Vs. Mahendra Singh and Anr.”, decided on 21.05.2019, wherein it is held that ‘where the keys are left in the ignition, the driver is negligent and the theft taking on place on account of his negligence, the insurer cannot be made liable.’

9.                To rebut this law, the complainant has relied upon the law laid down by the Hon'ble National Commission, titled as “United India Insurance Co. Ltd. & Ors. Vs. Sushil Kumar Godara”, decided on 11.12.2020, wherein it is held as under:-

                   “Insurance Company after accepting the premium, cannot      escape from its liability and repudiate the claim on this technical ground- Parking the vehicle locked outside the guest house where          complainant was staying for the right cannot be dubbed as     leaving the vehicle unattended-Impugned order upheld.”

                   It has been held by the Hon’ble Punjab & Haryana High Court, cited in 2014 (3) R. C. R. (Civil) 610, in a case titled as “National Insurance Company and another Vs. Baldhir Singh and another”, wherein it is held as under:-

                   “Owner of car alighted from car for a while and kept the        key in key slot – Immediately two persons took away the car –       Insurance Company liable to pay the compensation – In the facts      of case it is not a case of lack of any care on the part of the           owner of the insured vehicle.”

10.              In the present case, the complainant has alleged in the complaint that he parked the vehicle at New Delhi on 08.11.2018, which he found missing and it was unfortunately stolen by some unknown person. Despite the FIR, the person could not be traced and ultimately the untraced report was furnished and accepted. So, it cannot be said that there was a lack of care. The insurance company has accepted the premium and cannot escape from its liability. The OP has wrongly repudiated the claim on the ground that the keys are not matching. Once the vehicle is not with the complainant and untraced report has been accepted by the Court then he has nothing to do with the keys and it will be of no use to keep the keys in his possession. Whichever keys were available with him, he has given the keys to the OP as admitted by them. If the keys do not resembled, it cannot be said that there is a bad intention of the complainant. More so, the vehicle was second hand and as per the contention of the complainant, the vehicle got started with one key and with another key the lock was opened. Thus, the OPs have wrongfully repudiated the claim of the complainant. Resultantly, it is held that the insurance company is liable to indemnify the complainant on account of loss of vehicle and thus the complainant is entitled for compensation on account of theft of insured vehicle.

11.              In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.3,00,000/- i.e. IDV (Insured’s Declared Value)  alongwith interest @ 6% per annum from the date of lodging the claim till realization and further OPs are directed to pay a compensation of Rs.10,000/- to the complainant for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

29.03.2023         Member                          Member              President