State Consumer Disputes Redressal Commission
Naresh Kumar vs Bajaj Allainz Gic Ltd. on 8 September, 2020
IN THE STATE COMMISSION: DELHI
(Constituted under section 9 of the Consumer Protection Act, 1986)
Date of Hearing: 02.09.2020
Date of Decision: 08.09.2020
First Appeal No. 306/2013
IN THE MATTER OF
SH. NARESH KUMAR
S/o Late Sh. Rajender Singh
R/o A-19 2nd Floor,
Ramprastha Colony, GZB, U.P. ....Appellant
VERSUS
M/S BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
Through its Authorised Signatory
Regd. & Head Office:- GE Plaza Airport Road
Yerwada, Pune-411006
M/S BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
Through its Authorised Signatory
1, DLF, Industrial Plot, 2nd Floor
Moti Nagar, New Delhi-110015 ....Respondents
HON'BLE SMT. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
Present: Sh. Ankit Gupta, Counsel for the appellant
Sh. Himanshu Gambhir, Counsel for the respondents
PER: ANIL SRIVASTAVA, MEMBER
JUDGEMENT
FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 1 OF 7
1. The order dated 13.02.2013 passed by the District Consumer Disputes Redressal Forum, (East) in the matter of Naresh Kumar versus M/s Bajaj Allianz General Insurance Company Ltd., dismissing the complaint and upholding the repudiation done by the insurer, has been assailed before this Commission by way of an appeal under Section 15 of the Consumer Protection Act 1986, the Act, by Sh. Naresh Kumar, complainant before the District Forum, for short appellant, against the Insurance Company, hereinafter referred to as respondents, alleging unfair trade practice on the part of the insurer and praying for setting aside the order impugned herein and for the relief claimed before the forum.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The appellant got insured his vehicle bearing Registration No. HR-37-6186 make Chevrolet Tavera Model, 2005 insured with the respondents vide policy no. 0G-10-1003-1801-00025356. On 17th October, 2010 the insured vehicle was stolen from the market i.e. near CBD Ground, Cross River Mall, Main Road, Anand Vihar, Delhi. The police was immediately informed of the said theft by lodging a F.I.R at the police station of Anand Vihar, Delhi. Simultaneously the respondents were also informed of the theft of the vehicle.
4. However three months after, a letter dated 17.01.2011 was sent by the insurer intimating that the appellant had not followed the appropriate steps to safeguard the vehicle in question from loss or damage. The appellant in response thereto sent a letter to the OP narrating the facts that one original key is lying with the finance company and second original key was lost in the Karol Bagh Market on 25.12.2008. Infact they were using duplicate key to operate their vehicle no. HR-37B-61863. The loss of key was reported to the SHO, P.S. Karol Bagh. Even the duplicate key was left at the ignition switch of the vehicle.
5. Finally the claim was repudiated vide the OP's letter dated 11.02.2011 leading to filing of a complaint before the District Forum. The complaint having been dismissed this appeal has been preferred FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 2 OF 7 for the redressal of their grievances on the ground that the District Forum passed unjust, illegal and illegitimate order without properly considering the entire facts and circumstances of the case.
6. Respondents were noticed and in response thereto they have filed the reply resisting the appeal both on technical ground as also on merit stating that appellant/complainant has no cause of action to file the complaint. It is contended that the appellant/complainant is guilty of suppression of facts as he had failed to take proper safety measures for the security of the stolen vehicle at the time when it was stolen. It was further contended that the appellant/complainant failed to explain the circumstances regarding the key left inside the vehicle.
7. This matter was listed for final hearing before this Commission on 02.09.2020 when the counsel for both sides appeared and advanced their arguments, the appellant for setting aside the order and for the relief as sought for in the complaint while the Ops for the dismissal of the appeal no case for interference having been made out. The ld. Counsel for the appellant, relying on the judgement of the Hon'ble Supreme Court of India in the matter of Amalendu Sahu versus Oriental Insurance Co. Ltd. as reported in II [2010] CPJ 9(SC) argued that even if there was breach of the terms and condition as is alleged by the insurer the claim could have been passed to the extent of 75% of the claimed amount on non-standard basis and that having not been done the action of the insurer is coupled with malafide.
8. We have perused the records of the case and given our serious consideration to the facts of the case.
9. In the first instance we may advert to the letter dated 11.02.2011 sent to the complainant by the insurer repudiating the claim, the relevant contents of which are as under:-
This has the reference to the above claim lodged by your good self towards theft of the vehicle. As per the document submitted by your good self, following observation are made which require clarification at your end:
You had left the ignition key in the ignition switch, thus leaving your vehicle in the drivable condition, which has directly contributed to the theft of vehicle therefore why it FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 3 OF 7 should not be concluded that you have failed to take minimum reasonable steps to safeguard your vehicle from loss thereby violating the terms and conditions namely condition no. 4 of the policy which is stipulated as under:- The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in efficient condition.
We have already sent to you our letters dated on 17.01.2011 and 28.01.2011, but till date no reply has been given from your good self. Therefore, in view of above, your claim stands repudiated.
10. Short question for adjudication in this appeal is whether the complainant/respondent is entitled to the compensation and indemnification within the parameters of the policy due to the loss of the car. Issue is loss of the car. Point for determination is whether there was any carelessness on the part of the complainant in the matter of loss of the car and thus acting contrary to the terms of the policy in which case repudiation done would be justified.
11. The next argument of the respondents that necessary precaution was not observed in maintenance of the insured vehicle has to be examined. It is an indisputed fact that the keys of the vehicle remained inside when the driver came out. Whether this act amounts to breach of condition in which case the insurer would be under no obligation to approve the claim. The law on the subject as settled is indicated as under:-
12. The Hon'ble NCDRC in the matter of Oriental Insurance Co. Ltd.
versus Shyam Sunder as reported in III [2014] CPJ 567 (NC) was pleased to reject the insurance claim of the complainant based on the fact that the driver was negligent having left the ignition key in the ignition socket.
13. The Hon'ble NCDRC in yet another matter, in the matter of Oriental Insurance Co. Ltd. versus K.K. Valsalan, Revision Petition 4521 of 2013 decided on 07.05.2004 [MANU/CF/0233/2014] is pleased to hold as under:-
Normally, both ignition keys are never kept together in the unattended vehicle and theory of theft of the vehicle is suspicious. Petitioner has not committed any FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 4 OF 7 deficiency in repudiating claim and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and Revision Petition is to be allowed.
14. The Hon'ble NCDRC in the matter of Keer Hotels Pvt. Ltd.
versus TATA AIG General Insurance Co. Ltd., Revision Petition 2870/15 decided on 03.04.2018 [MANU/CF/0256/2018] has held as under:-
It is an admitted fact that the Complainant had left the engine in an idling condition and parked the car at Ville Parle leaving the keys in the engine. The Maxim "sicutere tuo ut alienum loedas"- A person is held liable at law for the consequence of his negligence is squarely applicable to the facts and circumstances of the case. Leaving of the keys in the ignition of the car and further leaving the engine in an idling condition, can be safely construed to be a negligent act and therefore, is a breach of condition No.4 of the policy. This lapse on the part of the driver can be inferred to be a willful default of the subject condition of the policy. Having considered the instant case on the touchstone of the afore-noted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the Petitioner must fail on the short ground that there was a breach of the afore-extracted condition incorporated in the policy.
15. The Hon'ble National Commission in the matter of M/s New India Assurance Co. Ltd. vs. Sh. Ajit Kumar in Revision Petition No.1896 of 2008 had also referred to earlier judgment of Jagdish Parshad vs. ICICI Lombard General Insurance Co. Ltd. (II (2013) CPJ 578 (NC) wherein National Commission had taken a view that leaving the vehicle unattended and unlocked was itself sufficient to hold that there was violation of terms and conditions of the policy.
16. The Hon'ble NCDRC in yet another matter, in the matter of Shamsur Alam versus Reliance General Insurance Co. Ltd. & Anr. as reported in II [2016] CPJ 385 (NC) is pleased to hold as under:-
FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 5 OF 7 On reading of the above, it is clear that as per the insurance contract it was obligation of the insured to take all reasonable steps to safeguard the vehicle from any loss or damage and it was also the obligation of the insured that the insured vehicle should not be left unattended without proper precaution being taken to prevent further damage or loss. Admittedly in the instant case, the driver of the vehicle left the vehicle unmanned with keys in the ignition which facilitated the theft of the vehicle. This clearly amounts to breach of condition no.5 of the insurance contract. Therefore, we do not find any fault with the order of the State Commission holding that repudiation of the insurance claim was justified. There is no material irregularity or jurisdictional error in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.
17. In the matter of Amit Kumar versus New India Assurance Co.
Ltd. & anr. as reported in I [2012] CPJ 256 (NC) the Hon'ble NCDRC held as under:-
The question to be seen under these circumstances is, as to whether there is a violation of any terms and conditions of the insurance policy or not.
Condition no. 4 of the Insurance Policy, is reproduced as under:-
The insured shall take all reasonable steps to safeguard the Motor Car from loss or damage and to maintain it in efficient condition and the company shall have at all time free and full access to examine the Motor Car or any part thereof or any driver or employee of the insured. In the event of any accident breakdown the Motor Card shall not be left unattended without proper precautions being taken to present further damage or loss and if the Motor Car be driven before the necessary repairs are affected any extension of the damage or any further damage to the Motor Car shall be entirely at the insured's own risk. According to the above condition, the insured has to take reasonable steps to safeguard the vehicle from loss or damage, as it clearly stipulates that "In the event of any accident breakdown the Motor Car shall not be left unattended without proper precautions being taken to prevent further damage or loss.
Accordingly, we do not find any infirmity or illegally in the impugned order passed by the State Commission. As such, present revision petition is not maintainable and the same is hereby dismissed.
FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 6 OF 7
18. Having regard to the discussion done and the legal position explained we are of the considered view that there exists no infirmity in the repudiation done by the insurer. The judgement and orders passed by the District Forum under these circumstances having upheld the repudiation done by the insurer cannot be faulted with and the appeal accordingly fails, leaving the parties to bear the cost. The reliance of the judgement in the matter of Amalendu Sahu (Supra) by the appellant is misplaced since the facts of that case is on a different footing having no relevance with the facts of the present case. Finally the act of the appellant leaving the key with the finance company is beyond our comprehension as there exists no rule or guidelines warranting the one set of the key to be deposited with the finance company. Secondly there exists no cogent evidence available on record.
19. Ordered accordingly.
20. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information.
21. File be consigned to records.
(Dr. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 08.09.2020 sl FA-306/2013 MR. NARESH KUMAR VERSUS M/S BAJAJ ALLIANZ GIC LIMITED PAGE 7 OF 7