State Consumer Disputes Redressal Commission
Tejpal vs Bharti Axa General Insurance Company ... on 2 June, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 65 of 2016 Date of Institution : 23.02.2016 Date of Decision : 02.06.2016 Tejpal son of Sh. Dharam Pal, village Bataur, PO: Barwala, District Panchkula. ....Appellant/Complainant. Versus Bharti Axa General Insurance Company Limited through its Branch Office, SCO No.350-353, Sector 34-A, Chandigarh. .....Respondent/Opposite Party. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. Devinder Kumar, Advocate for the appellant.
Sh. Shakti Paul Sharma, Advocate for the respondent.
PER DEV RAJ, PRESIDING MEMBER This appeal has been filed by the complainant (now appellant), against the order dated 31.12.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short 'the Forum'), vide which, consumer complaint bearing No.72 of 2015 was dismissed by the Forum with no order as to costs.
2. The facts in brief are that the complainant got motorcycle No.HR-03P-2378 insured with the Opposite Party Company vide Annexure C-1, effective from 21.4.2013 to 22.4.2014 (in fact 20.07.2013 to 19.07.2014). However, the Opposite Party did not supply any terms & conditions of the insurance nor the same were incorporated in Annexure C-1. It was stated that on 24.12.2013 at about 7.00 PM, the complainant reached market of Barwala town for making some personal purchases and parked motorcycle in front of shop and forgot to take out keys after locking it and on reaching shop, realized that keys were left in the motorcycle and returned to the place of parking, but the motorcycle was missing from that place. It was further stated that the matter was reported to the police at Barwala, who registered FIR No.353, dated 30.12.2013 (Annexure C-4) and after investigation, filed the case as Untraced on 17.2.2014 (Annexure C-5). It was further stated that the Opposite Party appointed one Investigator Sh. K. N. S. Sodhi, who investigated the theft case and found the theft claim as genuine and confirmed the loss suffered by the complainant. It was further stated that the Opposite Party repudiated genuine claim of the complainant on the ground that complainant did not take proper care of insured property (Annexure C-6). It was further stated that the complainant explained to the Opposite Party that there was no fault of complainant as he forgot to take out keys from the lock after locking the motorcycle. It was further stated that a legal notice was also sent to the Opposite Party, but to no avail. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking various reliefs.
3. The Opposite Party, in its written statement, admitted the factum of insurance of the motorcycle, in question, its theft during currency of the Policy, intimation about the loss, lodging of complaint with police, appointment of Investigator to investigate the loss, filing of claim and repudiation thereof. It was stated that the motorcycle, in question, was stolen due to the gross negligent act of the complainant himself as he had not taken reasonable steps/care to safeguard the vehicle from loss or damage and sufficient care was not taken which a prudent man ought to have taken as the complainant left the vehicle unattended with key and went for buying vegetables, which led to theft of the motorcycle and this amounted to gross negligence on the part of the complainant. It was further stated that the Investigator, during investigation, found that the vehicle, in question, was stolen due to gross negligent act of the complainant himself, which was clear cut violation of Clause No.4 of the Policy and thereafter, the claim of the complainant was repudiated vide letter dated 18.12.2014 as per terms and conditions of the Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Party.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the Forum, dismissed the complaint, vide the impugned order, as stated above.
7. Feeling aggrieved, the complainant has filed the instant appeal.
8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. After hearing the Counsel for the parties and going through the evidence on record & written arguments of the respondent, we are of the considered opinion that the appeal is liable to be accepted, for the reasons to be recorded hereinafter.
10. The case of the appellant/complainant is that as per report of Sh. K. N. S. Sodhi, who was appointed as investigator, the theft claim was genuine and that the Forum dismissed the complaint relying upon Condition No.4 of the Policy, whereas the fact was that Condition No.4 was not part of the Policy and the respondent/Opposite Party misled the Forum. Reliance was placed on New India Assurance Co. Vs. Girish Gupta, Revision Petition No.590 of 2014, wherein the Hon'ble National Consumer Disputes Redressal Commission held that "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 willful breach of violation of terms of the conditions." Reliance was also placed on M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC) to contend that as the terms and conditions, wherein the exclusive clause was included, were neither part of contract of insurance, the respondent/Opposite Party could not claim the benefit of the said exclusive clause.
11. On the other hand, the case of the respondent/Opposite Party was that the insured was required to take proper care and the theft took place on account of negligence of the insured. During arguments, reliance was placed on M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. and another, 2010 (10) SCC 567, IFFCO TOKIO General Insurance Co. Ltd., Vs. Sanjay Bhagwar Malwade, IV (2015) CPJ 188 (NC); Paramjit Kaur Vs. Oriental Insurance Co. Ltd. Vs. Oriental Insurance Co. Ltd., III (104) CPJ 164 (NC); Jagdish Prasad Bakshi Vs. Oriental Insurance Co. Ltd., III (2014) CPJ 134 (NC); New India Assurance Co. Ltd. Vs. Ajit Kumar, IV (2013) CPJ 137 (NC); Balbir Singh Vs. New India Assurance Co. Ltd. and Anr., 2013 (1) C.P.J. 360 and Jagdish Parshad Vs. ICICI Lombard General Insurance Co. Ltd., 2013 (2) CPJ 578.
12. As is evident from record, the claim lodged by the appellant/complainant for the stolen motorcycle was repudiated by the respondent/Opposite Party on the ground that vehicle was stolen due to gross negligence of the complainant.
13. No doubt, duty is cast upon the insured to take proper care of the vehicle but nevertheless, the evidence, on record, does not prove that the terms and conditions of the Policy, on the basis of which, claim was repudiated, were supplied to the appellant/complainant. The appellant/ complainant placed, on record, Annexure C-1, which is Certificate of Insurance and Schedule (3 Pages) alongwith transcript of proposal of SMART Motor Two Wheeler - Package Policy. The respondent/Opposite Party has vide document (Exhibit R-1), which is letter dated 27.12.2013 addressed to the complainant (after the theft on 24.12.2013) apprised the complainant the Policy terms and conditions and has placed, on record, Certificate of Insurance and Schedule (pages 1 and 2 only), which are replica of Pages 1 & 2 of Annexure C-1. Apparently, Policy terms and conditions were sent to the complainant by the Opposite Party after the theft to cover up its deficiency in not supplying terms and conditions, to the complainant. Alongwith with the same, it enclosed Two wheeler Insurance Policy wordings starting from page 1 of 4, which are not part of Certificate of Insurance and Schedule supplied to the complainant earlier as these terms and conditions do not find mention either in Annexure C-1 or Pages 1 & 2 of Exhibit R-1. The respondent/Opposite Party has placed reliance on Condition No.4, which reads as under:-
"4. The Insured shall take all the reasonable steps to safeguard the vehicle from loss or damage or maintain in efficient condition and company shall have 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 and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any damages to the vehicle shall be entirely at Insured's own risk."
14. In M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of Insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. It was, thus, the duty of the respondent/Opposite Party to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of the respondent/Opposite Party, to apprise the complainant of the benefits of insurance, exclusion clauses etc., contained therein. It was, under these circumstances, the utmost duty of the respondent/Opposite Party to supply the Insurance Policy alongwith terms and conditions thereof, to the appellant/complainant, so as to enable him (appellant/complainant) to go through the same and understand the clauses contained therein. Clearly, the terms and conditions were not part of Certificate of Insurance/Policy as is clearly evident from the page numbering and on comparison of contents of Annexures C-1 and R-1. No cogent evidence has been produced by the respondent/Opposite Party that Two Wheeler Insurance Policy wordings were ever brought to the notice of the appellant/complainant. In United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr., III (2009) CPJ 246 (NC), it was observed that being aware of the existence of the Policy, is one thing, and being aware of the contents and meaning of the clauses of the Policy, is another.
15. In the instant case, theft took place on 24.12.2013. The appellant/complainant lodged claim with the respondent/Opposite Party on 06.01.2014. It has been averred by the appellant/complainant that the Surveyor submitted his report terming the claim to be genuine, recommending payment of Rs.34,692/-. Copy of surveyor's report has, however, not been placed on record by the Opposite Party. The Opposite Party repudiated the claim of the complainant on 18.12.2014 (Annexure C-6). Aggrieved by repudiation, the appellant/complainant filed consumer complaint on 10.02.2015.
16. The appellant/complainant has very fairly stated that he forgot to take the key of motorcycle and when on immediately realizing the same, he went to take the key, he found the vehicle missing/stolen. His claim is based upon truthfulness and he did not conceal true facts. The mistake on his part was, thus, bonafiide. Nobody would like to have his vehicle stolen. In the face of facts in the instant case, the judgment(s) relied upon by the respondent are somewhat distinguishable on facts. In IFFCO TOKIO General Insurance Co. Ltd., Vs. Sanjay Bhagwar Malwade's case (supra), in Para 17, it was held "....It was being used for hire and reward. Further, the driver on his own admission having left the key in the vehicle while going to buy medicines, leaving unidentified persons in the vehicle and this directly contributed to its theft......." In Paramjit Kaur Vs. Oriental Insurance Co. Ltd. Vs. Oriental Insurance Co. Ltd.'s case (supra), it was held that "......In FIR it has nowhere been mentioned that Tarsem Singh locked the vehicle and kept keys with him, but perusal of FIR reveals that either he left the keys in the vehicle or vehicle was not locked and unknown person was sitting in the vehicle when Tarsem Singh went for attending nature's call......." The respondent/Opposite Party was deficient in not supplying the terms and conditions of the Policy to the appellant/complainant. Not only this, it (respondent/Opposite Party) kept the fate of the appellant/complainant in lurch for one year as the claim was repudiated after almost one year of the incident of theft and lodging of claim. Under these circumstances, the claim of the appellant/complainant was wrongly repudiated by the respondent/Opposite Party. However, the appellant/ complainant, in our considered opinion, does not deserve to be compensated for the complete insured value of the stolen vehicle.
17. Considering all the facts and circumstances of the case, in our considered opinion, award of 75% of the Insured Declared Value of the vehicle, in question, which was Rs.34,300/-, would meet the ends of justice. Thus, the respondent/Opposite Party is liable to pay an amount of Rs.25,725/- being 75% of the IDV of the vehicle, in question, less Rs.100/- (compulsory deductible) = Rs.25,625/- to the appellant/complainant.
18. No other point was urged by the Counsel for the parties.
19. For the reasons recorded above, the appeal, filed by the appellant/complainant is accepted and the impugned order passed by the Forum is set aside. Consequently, the complaint filed by him (appellant/complainant) is partly accepted and the respondent/Opposite party is held liable and directed to pay an amount of Rs.25,625/- to the appellant/complainant (being 75% of the IDV of the vehicle, in question, less compulsory deductible) to the appellant/complainant, alongwith interest @9% per annum from the date of filing the complaint i.e. 10.02.2015, within a period of two months from the date of receipt of a certified copy of this order, failing which, the respondent/Opposite Party shall be liable to pay the same alongwith penal interest @15% per annum from the date of default till actual realization.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced June 02, 2016.
(DEV RAJ) PRESIDING MEMBER (PADMA PANDEY) MEMBER