Punjab

Ludhiana

CC/21/377

Naresh Walia - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Nitin Kapila Adv.

05 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  377 dated 13.08.2021.                                                       Date of decision: 05.06.2024. 

Naresh Walia son of Shri Dev Raj Walia, resident of House No.70, Bank Colony, Jamalpur, Ludhiana.

                                                                                      ..…Complainant

                                                Versus

United India Insurance Company Ltd., Branch Office: Above Bank of Baroda, Opp. SDM Residence, The Mall, Malerkotla, District Sangrur and having its Divisional Office at 4, Savitri Complex, 1^st Floor, GT Road, Ludhiana through its Divisional Manager.                                                                                                                                                                        …..Opposite party 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. J.K. Kapila, Advocate.

For OP                           :         Sh. M.R. Saluja, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is the owner of Truck make TATA M 2518 bearing registration No.PB-10DM-3443. In order to cover the risk of theft, the complainant got insured the truck from the OP vide insurance policy No.1117053118P100119052 having validity from 25.04.2018 to 24.04.2019 for a sum assured of Rs.10,99,800/-. The complainant stated that he sent the said truck to Balaji Goods Carrier, Shop No.7, Near HG Computer Kanda, Focal Point, Ludhiana for transportation and he employed Kamlesh Kumar Shukla son of Sh. Raj Karan Shukla as driver of the said truck. On 26.01.2019 at about 5/6.00 PM the driver parked the truck at vacant space near ICD Gate No.1, Ludhiana and handed over the keys in the office before leaving for his home. On 28.01.2019 at about 10/11.00 AM when driver Kamlesh Kumar Shukla reached at Near ICD Gate No.1, Ludhiana then he shocked to found the truck missing. On enquiry, he came to know that some unknown person has stolen the vehicle on the intervening night of 27/28.01.2019. The complainant further stated that he along with Kamlesh Kumar Shukla tried to trace the vehicle but to no effect. Intimation of theft was given to Police Station Focal Point, Ludhiana who registered FIR No.23 dated 29.01.2019 U/s.379 IPC against unknown person. The police could not caught the thieves and they filed untraced report before Sh. P.S. Kaleka, CJM, Ludhiana which was accepted vide order dated 17.12.2019. Even the complainant immediately informed the OP and submitted the claim along with all the required documents for processing and sanctioning the claim. However, the OP repudiated the claim vide letter dated 05.07.2021 without any reasonable and sufficient cause with remarks that the keys given to the OP are of different vehicle and that the complainant had not taken adequate safety/care of the vehicle and had made breach in the terms of the policy. The complainant further stated that he supplied all the requisite documents along with keys at the time of lodging the claim with the OP and the vehicle was parked properly and other vehicles also used to be parked there. The complainant is owner of five trucks and all the second keys of vehicle are being kept by him at one place. One key of each vehicle remains with the driver of the vehicle who after coming back from the work, returns back the key at the office. According to the complainant, both the original keys of vehicle were duly handed over to the OP but the OP has wrongly repudiated the claim on false plea. The OP closed the claim file of the complainant intentionally and deliberately to avoid payment of insured sum of Rs.10,99,800/- due to which the complainant has suffered physical harassment, mental pain, tension and torture for which he is entitled to compensation of Rs.1,00,000/- besides sum assured of Rs.10,99,000/-. The complainant approached the OP several time to process/sanction his claim but the OP always dilly delayed the matter. The complainant sent legal notice dated 25.06.2021 upon the OP but to no effect. Hence this complaint whereby the complainant has prayed for issuing directions to the OP to pay claim amount of Rs.10,99,800/- along with compensation of Rs.1,00,000/-.

2.                Upon notice, the OP appeared and filed written statement and assailed by complaint by taking preliminary objections on the grounds of maintainability; the complainant has not come with clean hands; misrepresentation of facts etc. The OP stated that the theft of the truck No.PB-10-DM-3443 is false and fabricated. In fact, Kamlesh Kumar Shukla, driver of the complainant parked the insured truck at unattended, unsecured place for security purpose and there was no any security authority, security guard and parking authority. The truck was parked unsafely, carelessly, negligently by the driver and the complainant and they did not take any step to safeguard the vehicle from future loss, damage and risk. Moreover, the policy is a contract between the complainant/insured and the OP and both are bound by all the conditions and terms of the said insurance policy. According to the OP, the complainant and his driver have violated the condition No.5 of the said policy by not parking at the parking place, safe place and left the truck unattended without any precaution due to which the OP is not liable to pay any claim to the complainant due to violation of condition No.5 of the policy, which is reproduced as under:-

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

 The OP further stated that the complainant is not entitled to any claim as he employed negligent driver. Even there is delay of three days in lodging FIR regarding the theft of the truck. On the asking of the OP, the complainant submitted two keys, which were got verified from SIFS (Forensic Science Laboratory), Jalandhar who after examination and analysis, prepared report dated 04.03.2021. In the report, as per examination by SIFS, several marks were found on bow and blade of keysNo.S-1 and S-2 and estimated use of the keys was not found due to using on blade part. Further the report dated 04.03.2021 concluded that the keys S-1 and S-2 belong to different lock of different vehicle. As such, the keys were not of the insured truck due to which the claim of the complainant was repudiated vide letter dated 05.07.2021    on the genuine ground.

                   On merits, the OP reiterated the crux of averments made in the preliminary objections and factual submission of the case. The OP has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 is the copy of registration certificate, Ex. C2 is the copy of fitness certificate, Ex. C3 is the copy of driving license of Kamlesh Kumar Shukla, Ex. C4 is the copy of insurance policy w.e.f. 25.04.2018 to 24.04.2019, Ex. C5 is the copy of goods permit, Ex. C6 is the copy of FIR No.23 of 2019, Ex. C7 is the copy of order of acceptance of untraced report, Ex. C8 is the copy of untraced report, Ex. C9 is the copy of legal notice dated 25.06.2021, Ex. C10 is the postal receipt, Ex. C11 is the copy of repudiation letter dated 05.07.2021, Ex. C12 is the copy of Adhaar Card of the complainant and closed the evidence.

4.                On the other hand, the counsel for the OP tendered affidavit  Ex. RA of Sh. Maneesh Kumar Singh, Official Manager of the OP along with documents Ex. R1 is the copy of insurance policy w.e.f. 25.04.2018 to 24.04.2019, Ex. R2 is the copy of Key Forensic Examination Report, Ex. R3 is the copy of repudiation letter dated 05.07.2021 and closed the evidence. 

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by both the parties. We have also gone through written arguments submitted by the OP.

6.                Undisputably, a vehicle make TATA M 2518 bearing registration No.PB-10-DM-3443 owned by the complainant, was stolen on the intervening night of 27/28.01.2019 from ICD Gate No.1, Ludhiana regarding which intimation was given to the police of Police Station Focal Point, Ludhiana which lead to the registration of FIR No.23 dated 29.01.2019, U/s.379 IPC (Ex. C6). The claim was also lodged with the OP and submitted all the requisite documents along with original keys. The OP sent the keys to Sherlock Institute of Forensic Science India who submitted Key Forensic Examination Report dated 03.04.2021 (Ex. R2) with the result which is reproduced as under:-

                   “Result of Examination

After considering all the forensic parameters which includes visual/morphological examination, metrological analysis, forensic tool marks examination and estimated usages of the key following opinion is furnished:-

1. The keys marked as S-1 and S-2 are Original in their make which are originally issued by the company.
2. The striation marks which are formed due to inserting the key in the ignition lock cannot be estimated due to rusting on the blade part of the keys marked as S-1 and S-2. Therefore, the usage of the keys as per the age of the vehicle i.e. 06 years, 10 months and 10/11 days cannot be concluded.
3. Intentional marks are absent on the bow and blade part of both the keys marked as S-1 and S-2, moreover several marks are observed on the bow and blade part of the key marked as S-2 which does not formed due to usages of the key in the ignition lock.
4. The keys marked as S-1 and S-2 are showing similarities from bow region as shape and colour of the bow along with embossed letters are showing resemblances, while the length of the bow, weight of the key etc. are showing dissimilarities when examined metrological. Therefore, there is a strong possibility that the keys marked as S-1 and S-2 are belongs to the different locks, but the keys are originally issued by the company.”

On the basis of said report  Ex. R2, the OP vide letter dated 05.07.2021 Ex. C11 = Ex. R3 repudiated the claim of the complainant. The operative part of letter Ex. C11 = R3 is reproduced as under:-

“ 1. That in case of stolen vehicle, both original keys of the vehicle in question are required to be deposited to the insurance company for settlement of the claim. This is a mandatory guideline/practice of insurance company and without fulfilling this requirement, the claim is not payable.

2. That you had submitted two keys of the stolen vehicle along with mandatory documents, but as per the Forensic Lab Report dated 03.04.2021, the aforementioned keys though original, belongs to different vehicles and are not of one vehicle. There is blatant manipulation of facts and therefore there is intention of fraud by you against the company.

3. That as per the FIR, Kamlesh Kumar driver parked the Truck near gate No.1 of ICD Focal Point, Ludhiana on 26.01.2019 at about 5.00 PM in isolated and unattended condition and without adequate safety, which shows the negligence on your part and your driver Kamlesh Kumar. You had breached the mandatory terms and conditions no.5 of the insurance policy.

          Therefore your claim is not tenable and hence the same is repudiated as mentioned above.”

                  

7.                The main reason for repudiation of the claim of the complainant is that the vehicle was left unattended in an isolated condition and without adequate safety as well as not handing over the original keys of some different vehicle than the stolen vehicle.

8.                As per pleadings of the complainant, he entrusted the vehicle to Kamlesh Kumar Shukla who on 26.01.2019 at 5/6.00 PM. parked the said Truck at a vacant space near ICD Gate No.1, Ludhiana and handed over the keys in the office. Further on 28.01.2019, when Kamlesh Kumar Shukla reached at Near ICD Gate No.1, Ludhiana  at about 10/11 AM but the same was stolen by some unknown person. An FIR Ex. C6 was registered in this regard. The police after due investigation had submitted untraced report which was accepted by Sh. P.S. Kaleka, CJM, Ludhiana vide order dated 17.12.2019 (Ex. C7). The claim lodged by the complainant with OP was repudiated vide letter Ex. C11 = EX. R3 firstly on the ground that the vehicle was left unattended and without any adequate safety violating the condition No.5 of the policy terms and conditions. The complainant stated in the complaint that there were other vehicles which were used to be parked on the place where the truck in question was parked and same was duly locked and keys were safely handed over in the office.

9.                In this regard, reference can made to Civil Appeal No.4758 of 2023 title as Ashok Kumar Vs New India Assurance Co. Ltd. In which the Hon’ble Supreme Court of India while relying the judgments in National Insurance Company Limited Vs Nitin Khandelwal (2008) 11 SCC 259 and Amalendu Sahoo Vs Oriental Insurance Company Limited (2010) 4 SCC (536) has held that even if there was breach of any clause in the insurance policy, the claim could not have been repudiated in toto and the claim should have been settled on non-standard basis. The Hon’ble Supreme Court made the following observations in Para No.15, 18 and 19 of the said Civil Appeal No.4758 of 2023:-

“15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-

"378. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative. It is noticed in the repudiation letter that the driver Mam Chand had, after alighting from the vehicle, gone to enquire about the location of Mittal's Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away. The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle.

18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

Sl. No.	Description	Percentage of settlement
(i)	Under declaration of licensed carrying capacity.	Deduct 3 years' difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim."

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct.

We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.” As such, the OP is not justified in repudiating the claim of the complainant. Bare reading of repudiation letter Ex. R11=R3 inevitably suggests that the OP was too technical and harsh. The insurance companies are required to be more liberal in their approach without being too technical. In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

10.              Perusal of insurance policy Ex. C4 and Ex. R1 shows that the IDV value of the insured vehicle is Rs.10,99,800/-. So by applying the ratio of the above cited cases, it would be just and appropriate if the claim of the insurance is allowed to the extent of 75% of the insured value of the vehicle.

11.              As a result of above discussion, the complaint is partly allowed with direction to the opposite party to reimburse the insurance claim of the complainant to the extent of 75% of the insured value of the vehicle. The amount of the claim shall be paid to the complainant with interest @8% per annum from the date of filing of the complaint till actual payment within 30 days from the date of receipt of copy of order. The interest paid on the amount shall be considered as composite compensation.  Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:05.06.2024.

Gobind Ram.