State Consumer Disputes Redressal Commission
Sukhram Kashyap vs National Insurance Company Limited on 27 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/272
Instituted on : 11.04.2013
Sukhram Kashyap, Age 42 years,
S/o Late Shri Budhram Kashyap,
R/o : L.I.C. Road, Kangoli,
Jagdalpur, District Baster (C.G.) ... Appellant
Vs.
National Insurance Company Limited,
Through : Branch Manager,
National Insurance Company Limited,
Above Central Bank, In Front of Head Post Office,
Sadar Bazar,
Jagdalpur, District Baster (C.G.) ... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri R.K. Bhawnani, for appellant.
Shri V.K. Bajpai, for respondent.
ORDER
Dated : 27/05/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 22.03.2013, passed by District Consumer Disputes Redressal Forum, Baster at Jagdalpur (C.G.) (henceforth District Forum") in Complaint Case No.13/02. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. It is undisputed facts that the appellant (complainant) purchased a Hero Honda Motorcycle bearing registration NO.C.G.17/KA/2901 from Vijaypal Automobile, Rajwada, Jagdalpur on 10/07/2009. The appellant (complainant) took an insurance policy for said motorcycle from the respondent (O.P.) for the period from 13/07/2009 to 12/07/2010. In midnight on 20.11.2009 - 21/11/2009, the motorcycle of the appellant (complainant) was stolen by miscreant from the house of the appellant's (complainant's) friend Ramesh Nag. In this regard a First Information Report was lodged with Police Station, Frazerpur. The appellant (complainant) also filed a claim before the respondent (O.P.), but it was rejected on the ground that motorcycle was not locked at the time of incident and thereby the condition of insurance policy was breached by the appellant (complainant). The respondent (O.P.) committed deficiency in service by repudiating the claim of the appellant (complainant). Therefore, the appellant /complainant filed consumer complaint before the District Forum seeking direction to the respondent (O.P.) to pay a sum of Rs.32,015/- towards cost of motorcycle and Rs.10,000/- towards compensation for mental agony and the cost of litigation.
3. The respondent (O.P.) filed written statement before the District Forum and denied the allegations made by the appellant (complainant) in the complainant. The respondent (O.P.) pleaded that // 3 // the claim of the appellant (complainant) was rejected on the ground that the appellant (complainant) did not take all reasonable steps to safeguard the vehicle in question. He did not lock the vehicle in question at the time of incident which is breach of condition 4 of the insurance policy. The appellant (complainant) did not inform the respondent (O.P.) immediately after theft of the vehicle in question. The information should have been given immediately after the incident but appellant (complainant) gave information regarding the incident after six months. This is also a breach of condition of Clause 1 of the policy. On above grounds the claim was rightly repudiated by the respondent (O.P.). Hence the complaint should be dismissed with cost.
4. Learned District Forum, after having considered the material placed before it, District Forum has dismissed the complaint by the impugned order.
5. Shri R.K. Bhawnani, learned counsel for the appellant (complainant) has argued that the impugned order passed by learned District Forum, is contrary to law and is liable to be set aside. He further argued that learned District Forum has ignored this fact that the vehicle of the appellant (complainant) was stolen and in this regard the appellant (complainant) had produced document relating to Khatma Report from which it was apparently clear that the vehicle // 4 // of the appellant (complainant) was stolen and he suffered loss and therefore, he is entitled for getting compensation. Shri Bhawnani, further argued that the learned District Forum, has passed the impugned order ignoring the Circular of Insurance Regulatory & Development Authority wherein it is mentioned that claim of the claimant regarding theft should not be rejected on the ground of delay. He further argued that the District Forum, has also ignored this fact that the appellant (complainant) had immediately intimated the concerned Police Station regarding the incident and had also orally intimated the respondent (O.P.) and the appellant (complainant) had also parked the vehicle properly, but inspite of this fact, the District Forum has ignored this fact and passed the impugned order which is liable to be set aside.
6. Shri V.K. Bajpai, learned counsel for the respondent (O.P.) has supported the impugned order.
7. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
8. The appellant (complainant) has filed documents. Document No.1 is letter dated 08.08.2011 sent by the respondent (O.P.) to the appellant (complainant), document No.2 is khatma swikrti adesh, document no.3 is Police Antim Janch Adesh, document No.4 is Sale // 5 // letter, Document No.5 is Registration Certificate of vehicle bearing registration No.C.G.17-KA-2901, document No.6 is Two Wheeler Certificate Cum Policy Schedule.
9. The respondent (O.P.) has also filed documents. Ex.D-1 is First Information Report (Under Section 154 Cr. P.C.), Ex.D-2 is Motor Claim Form, Ex.D-3 is letter dated 10.03.2011 sent by National Insurance Company Limited to the appellant (complainant), Ex.D-3 is letter dated 08.08.2011 sent by the respondent (O.P.) to the appellant (complainant), Ex.D-5 is Two Wheeler Certificate Cum Policy Schedule, Ex.D-5 is Standard Forum for Two Wheelers Package Policy.
10. The respondent (O.P.) has filed copy of First Information Report (F.I.R.) (document Ex. D-1). According to the First Information Report, the date and time of the incident was 20.11.2009 between 12.00 mid night to 3.00 A.M. and the matter was reported to the Police Station, Frezerpur, District Bastar (C.G.) on 21.11.2009 at about 10.00 A.M. It appears that the matter was reported to the Police Station, Frezerpur, District Bastar (C.G.) without delay. In the First Information Report, it is mentioned that on 19.11.2009 there was function in the house of Ramesh Nag and he had brought the vehicle of his friend Sukhram Kashyap (appellant (complainant) bearing registration No.C.G.17-KA- 2901 and after completing the work he parked the vehicle in the courtyard of his house and he had not locked the handle of the vehicle.
// 6 // After watching T.V. till 12.00 night he went for sleeping and at about 3.00 mid night when he woke up for going bathroom, then he found that the vehicle in question was not parked in the place where he parked it and same was stolen by unknown person along with cash amounting to Rs.400/-. The value of the motorcycle was Rs.20,000/-. The unknown person had stolen the property valuing Rs.20,400/-.The respondent (O.P.) also filed order sheet dated 22.07.2010 recorded by Shri V.K. Chanakya, Chief Judicial Magistrate, Jagdalpur. The Police submitted final report which was accepted by the concerned Chief Judicial Magistrate.
11. In the case of National Insurance Company Ltd. Vs. Kamal Singhal, IV (2010) CPJ 297 (NC), Hon'ble National Commission has held that "There has been catena of decisions of the National Commission and also Hon'ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition (s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (R.P No.643 / 2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (R.P. No.2097), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar, (RP No.3294 / 2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009).
// 7 // There has been a landmark judgment of Hon'ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon'ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further "the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on 'non-standard 'basis".
12. In case of M/s New India Assurance Co. Ltd. & anr. Vs. Sh. Ajit Kumar, 2013 (4) CPR 4 (NC), Hon'ble National Commission has observed thus :-
"6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and // 8 // submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at 'C' Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim "sic utere tuo at alienum loedas" - A person is held liable at law for the consequence of his negligence."
13. In the case of Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Hon'ble Supreme Court has observed thus :
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC) = 2006 CTJ 221 (CP) ((NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been // 9 // held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held :
"...... The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis."
14. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), Hon'ble Supreme Court has observed thus :
"12. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.
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14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission"
15. In the case of Baljeet v. United India Insurance Company Limited., 2014 (1) CPR 61 (NC), Hon'ble National Commission has observed thus :
"12. The above issue is no more resintegra. Similar question came up for consideration before the National Commission in the matter of United India Insurance Company Limited Vs. Gian Singh (2006) 2 CPJ 83 (NC) wherein it has been held that in case violation of conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a non- standard basis.
13. The question whether the insurance company is justified in repudiating the claim of the insured for violation of the terms and conditions of the insurance policy in the case of theft of vehicle came up before the Hon'ble Supreme Court in the matter of National Insurance Company Limited Vs. Nitin Khandelwal (2008) 11 SCC 259, wherein the Hon'ble Supreme Court observed thus :
"In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained // 11 // comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission".
16. In the case of Mohd. Unis vs. United India Insurance Company Limited, II (2014) CPJ 382 (NC), Hon'ble National Commission has observed thus :-
"8. It may not be out of place to mention that in the aforesaid case of Suraj Mal Ram Niwa Oil Mills the question before the Hon'ble Supreme Court was regarding claim in respect of dispatch of goods which had not been declared so as to cover them in terms and conditions of the policy. Also, there was an allegation of Insurance Company regarding the complainant exceeding the limit of coverage.
// 12 // It was with reference to these two questions that the Apex Court in the case of Suraj Mal Ram Niwas Oil Mills had dismissed the appeal of the complainant, namely, M/s Suraj Mal Ram Niwas Oil Mills (P.) Ltd. by holding that the rights and obligations of the parties under an insurance contract are governed by the terms of the said contract which have to be strictly construed and no exception can be made on the ground of equity. In the present case admittedly the petitioner had taken a comprehensive policy for the vehicle in question and, as such, keeping in view the ratio in the case of National Insurance Company Limited v. Nitin Khandelwal, IV (2008) CPJ 1 (SC) = 2008 (7) SCALE 351, reiterated in the case of Amalendu Sahoo, the District Forum rightly accepted the claim of the petitioner on non-standard basis. The State Commission failed to appreciate the find distinction between the two judgments of the Hon'ble Supreme Court and hence, the impugned order cannot be sustained in the eye of law and is liable to be set aside. Accordingly, we accept the revision petition, set aside the impugned order and confirm the order of the District Forum with the parties bearing then own costs."
17 The respondent (O.P.) (Insurance Company) sent letter of repudiation dated 08.08.2011 to the appellant (complainant), in which the ground for repudiating the claim of the appellant ( complainant) is mentioned as that at the time of incident of theft, the vehicle in question was unlocked and thus he violated the condition no.4 of the insurance policy.
18. Looking to the above letter of repudiation of letter dated 08.08.2011, it appears that the respondent (O.P.) (Insurance Company) repudiated the claim of the appellant (complainant) on the ground that // 13 // at the time of incident of theft, the vehicle in question was unlocked and thus he violated the condition no.4 of the insurance policy.
19. Looking to the judgment of Hon'ble National Commission passed in Mohd. Unis vs. United India Insurance Company Limited (Supra) & Baljeet v. United India Insurance Company Limited (Supra), it appears that the breach was not a fundamental breach and hence the respondent (O.P.) (Insurance Company) was required to pay compensation at least on non-standard basis to the appellant (complainant).
20. In the instant case, the copy of the insurance policy was filed by both the parties. In the insurance policy, the Insured Declared Value (I.D.V.) of the vehicle is mentioned as Rs.32,015/-, but the learned District Forum, has dismissed the complaint of the appellant (complainant) and the District Forum should have awarded compensation to the appellant (complainant) on non-standard basis i.e. 75% of the I.D.V. of the vehicle. The I.D.V. of the vehicle is Rs.32,015/- and its 75% comes out to Rs.24,011/-.
21. Therefore, the appeal filed by the appellant (complainant) is partly allowed and the impugned order dated 22.03.2013, passed by the District Forum, is set aside and the respondent (O.P.) is directed to pay a sum of Rs.24,011/- (Rs. Twenty Four Thousand and Eleven // 14 // Only) on non-standard basis to the appellant (complainant). No order as to cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/05/2014 /05/2014