National Consumer Disputes Redressal
Regional Manager, National Insurance ... vs Sunil Sharma on 28 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 204 OF 2015 (Against the Order dated 22/12/2014 in Complaint No. 132/2012 of the State Commission Delhi) 1. REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE NO. 1, JEEVAN BHARTI BUILDING, 124, CONNAUGHT CIRCUS, NEW DELHI-110001 ...........Appellant(s) Versus 1. SUNIL SHARMA PROPRITOR, M/S. SHYAM LALA & COMPANY, VILLAGE -CHOURA RAGHUNATHPUR, SECTOR-22, NOIDA-201301 UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : Mr. Pradeep Gaur, Advocate For the Respondent :
Dated : 28 May 2015 ORDER M. SHREESHA, MEMBER For the reasons cited in the affidavit, the delay of 5 days is condoned.
2. Aggrieved by the order of the Delhi State Consumer Disputes Redressal Commission (for short the 'State Commission') in CC No. 132 of 2012, the Opposite Party/Insurance Company preferred this first Appeal under Section 19 of the Consumer Protection Act (for short the "Act"). By the impugned order, the State Commission allowed the complaint and directed the Appellant to pay a sum of ₹19,21,750/- towards the claim amount with interest @ 9% from the date of filing of the Petition till the date of actual payment, together with compensation of ₹50,000/- and costs of ₹ 20,000/-.
3. Succinctly put, the brief facts which are material to the case are: that the Complainant insured his JCB Machine with the Appellant/Insurance Company covering the period 20.08.2008 to 19.08.2009 for an amount of ₹19,21,176/-. While so, the vehicle was stolen during the intervening night of 18/19.07.2009 on road No. 56, ISBT, Anand Vihar, Delhi. An FIR was lodged and the case was investigated and the Police submitted their final report on 02.09.2009 stating that the vehicle could not be traced. The Complainant averred that the intimation of theft was immediately given to the Insurance Company and a surveyor was appointed to assess the loss. The Complainant received a letter dated 11.8.2009 and 17.8.2009 from the Investigator, Mr. Lakshman Dass Arora, in which certain documents were demanded and the same were furnished by the Complainant. The Complainant also received another letter on 08.01.2010 seeking clarifications about the date of theft, DD Report of the Police and the statement of driver, for which the Complainant immediately replied giving all the details. Inspite of repeated requests, the Appellant did not choose to settle the claim and the Complainant sent a legal notice dated 31.7.2010 for which he received a reply on 3.5.2011 from the Opposite Party repudiating his claim. Vexed with the attitude of the Complainant, the Appellant approached the State Commission seeking direction to the Appellant herein for settlement of the claim with interest, compensation and costs.
4. The Insurance Company contested the Complaint justifying the repudiation on the ground that the Complainant's driver committed gross negligence by leaving the vehicle unattended at the place of the alleged theft and went home which amounted to violation of Condition No. 4 of the Insurance Policy. They pleaded that in the complaint made to the Police, the driver stated that the JCB in question had a mechanical breakdown just before the incident. They also averred that according to the Police complaint, the alleged theft took place during the intervening night of 17/18.7.2009, whereas according to the FIR the theft took place during the intervening night of 18/19.07.2009.
5. The State Commission observed as under:
"It is undisputed that vehicle was insured on 20.08.2008 against payment of Rs. 26,650/- towards premium. This vehicle was stolen during the intervening night 18/19.07.2009 i.e. approximately after one year. Therefore some amount has to be deducted towards depreciation, we fixed the amount of depreciation @ Rs. 20,000/- . After deduction, the depreciated value of the stolen vehicle comes to Rs. 19,01,750/-. The insurance company will have to pay this amount as insurance claim. Interest @ 9% p.a. will have also to be paid from the date of filing of the petition till the date of actual payment. Besides, a sum of Rs. 50,000/- will be paid as compensation for mental pain, agony and harassment to meet the ends of justice. A sum of Rs. 20,000/- will also be paid towards litigation expenses".
6. The facts not in dispute are that the JCB machine owned by the Respondent/Complainant has been insured with the Appellant/Insurance Company covering the period 20.08.2008 to 19.08.2009. It is the Complainant's case that the said JCB Machine was stolen during the intervening night of 18/19.07.2009 and despite furnishing all documents and co-operating with the Investigator, his claim was repudiated vide letter dated 3.5.2011 based on the following grounds:
"i. There was contradictory stand regarding the date of alleged occurrence of the theft as mentioned in the police complaint and FIR.
ii. As per averments made in the police complaint the JCB had a breakdown. It was left unattended by the driver in breakdown condition and driver did not turn up during the night, it was therefore unbelievable that a vehicle which had a breakdown could be stolen.
iii. Complainant did not fully cooperate in the investigation of the surveyor/investigator and failed to provide certain documents duly required".
iv. There was a blatant violation of condition No. 4 of the terms & conditions of the Insurance Policy.
7. The learned counsel for the Appellant has relied on the following condition (4) in their repudiation letter, which reads as follows:
"The Company may at its own option repair, reinstate or replace the Motor Vehicle or part thereof and/or accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed the actual value of the parts damaged or loss less depreciation plus the reasonable cost of fitting and shall in no case exceed the insured's estimate of the value of the Motor Vehicle (including accessories thereon) as specified in the Schedule or the value of the Motor Vehicle (including accessories thereon) at the time of the loss or damage, whichever is less."
8. A brief perusal of Condition No. 4 of the terms of the Insurance Policy filed before this Commission, shows that it has no relevance to the present case. The learned counsel for the Appellant drew our attention to Condition No. 5, which reads as follows:
"The insured shall take all reasonable steps to safeguard the Motor 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 Motor Vehicle or any part thereof of any driver or employee of the insured. In the event of any accident or breakdown in the Motor Vehicle shall not be left unattended without proper precautions being taken to prevent further repairs are effected any extensions of the damage of further damage to the Motor Vehicle shall be entirely at the Insured's expense".
9. The first ground of repudiation is not a genuine one as the right date of theft can easily be ascertained from the FIR, based on which the investigation was done. With respect to the second ground, it is the Respondent/Complainant's case that the driver of the JCB Machine on account of breakdown of the vehicle, stopped at the road side and went to fetch a Mechanic. Inspite of his best efforts, he could not find a Mechanic during those late hours and when he returned to the place where he had parked the vehicle, he found that it had been stolen. Immediately the owner was informed who reached the spot and informed the Police. The contention of the learned counsel for the Appellant that the driver of the insured vehicle ought not to have left it unattended but ought to have remained only by the side of the vehicle, to ensure safety, is totally unsustainable. In this case it was submitted that there was a breakdown of the JCB machine, which is a huge vehicle and as the said defect could not be immediately rectified by the driver, it is but natural that he should venture to fetch a mechanic who would be able to repair the same and make it roadworthy. The insured or the driver is not expected to remain present every moment on the spot to ensure safety of the vehicle, but he is only expected to take reasonable precaution and care. It is also not the case of the Appellant herein that the vehicle was left unlocked or that any specific aspect of safety was not taken by the insured. It is an admitted fact that the breakdown occurred during the late hours and to expect the driver not to take any action, but to just stand still by the side of the vehicle, keeping a watch on it every second, is unreasonable.
10. The learned counsel for the Appellant submitted that the Complainant did not co-operate with the Investigator. This ground for repudiation is completely baseless as the Appellant herein has not even listed out the documents, if any, which were not furnished by the insured, or given any specific allegations with respect to non-co-operation of the Respondent/Complainant. When the insured had proved by way of documentary evidence, that his vehicle was stolen, the repudiation by the Insurance Company based on such flimsy grounds is not justified.
11. We do not see any jurisdictional error or infirmity in the order of the State Commission and hence, this Appeal must fail. It is dismissed at the admission stage. Time for compliance four weeks from the date of receipt of this order. No order as to costs.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER