State Consumer Disputes Redressal Commission
Sri Anup Kumar Ghosh vs Bajaj Allianz General Insurance Co . Ltd on 9 September, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA-700 087. S.C. CASE NO- FA/1104/13 (Arisen out of Order Dt. 06/09/13 in Case No. CC/160/2012 of District Consumer Disputes Redressal Forum, Paschim Midnapore ) DATE OF FILING: 07.10.13 DATE OF FINAL ORDER: 09.09.14 APPELLANT: Sri Anup Kumar Ghosh, S/O Late Surendra Nath Ghosh Of Village- Koja, P.O. Sirsha, P.S. Keshpur, District Paschim Medinipur. RESPONDENTS : 1. Bajaj Allianz General Insurance Co. Ltd. Of 3rd floor, Block-B, Eco Space Plot no. 11/F/11, New Town , Rajarhat, Kolkata- 700 156. 2. The Branch Manager, Contai Co-operative Bank Ltd, At P.O. Contai, P.S. Contai, District- Purba Medinipur. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. Barun Prasad, Mr. Subrata Mondal, Ld. Advocate. FOR THE RESPONDENT: Mr. Debasish Nath. Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Order dated 06.09.2013, passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur , in Complaint Case No. 160/2012 , whereby the complaint was dismissed on contest without costs.
The complaint case , in brief , was as follows:
The Complainant purchased a Truck which was financed by OP No.2 i.e., Contai Cooperative Bank Ltd. and insured with OP No.1 . The insurance policy was valid from 19.05.2011 to 18.05.2012. On 17.02.2012 at night the vehicle, which was parked near Singh Hotel under Debra P.S, by the side of N.H. 6, was stolen, while the driver went to ease himself out . The Complainant lodged FIR before the Officer-in-Charge , Debra P.S. on 18.02. 2012. A Police case was started under Section 392 IPC and after long investigation final report was submitted before the Ld. CJM , Paschim Medinipur. The Registering Authority , the Insurance Company as well as the Financier Bank were informed of the theft of the vehicle. OP No.1 engaged a Surveyor . The Complainant supplied all relevant documents about the stolen vehicle. The Insurance Company repudiated the claim on the ground of violation of policy terms and conditions. In the circumstances, a complaint case was filed before the Ld. Forum against repudiation of the claim by the Insurance Company.
The complaint was contested by the OP -1 by filing of W.V., contending, inter alia, that the vehicle was kept unattended and according to the condition of the policy the Complainant can not claim compensation against the Insurance Company.
OP No.2 i.e., Contai Cooperative Bank Ltd.
also contested the case by filing W.O. and asserting that they were entitled to the amount of money to the extent of their dues after adjustment as the vehicle was reportedly stolen and the OP -1 had no scope to repudiate the claim of the petitioner.
Ld. Forum below after hearing Ld. Advocate appearing for OP No.1 and Ld. Advocate appearing for the Complainant observed that the loss of vehicle was not effectively supported by legal evidence . Accordingly, the complaint was dismissed .
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Appellant has come up before this Commission with prayer for direction upon the Insurance Company to pay the insured sum of Rs. 10,00,000/- as the vehicle has been stolen during the validity of the insurance policy.
Ld. Advocate appearing for the Appellant submitted that the Insurance Company wrongly repudiated the insurance claim , though it is incumbent upon them to indemnify the loss. It is evident from the Police report that the theft occurred and the Appellant incurred the total loss of the vehicle which was insured for a sum of Rs.10,00,000/-. The violation of the policy condition as alleged by the Insurance Company, is not established with any evidence . In fact, the driver of the vehicle was sleeping inside the vehicle to ensure that the vehicle was not left unattended. It was for a few minutes that he went out of the vehicle to attend natures call and the vehicle was stolen by the miscreants. Relying upon the decision of the Honble National Consumer Disputes Redressal Commission as reported in 2013 (3) CPR 729 (NC), Ld. Advocate asserted that leaving of key in ignition of vehicle on all occasions can not be termed as so serious breach so as to disentitle insured from seeking claim under Insurance Policy . In the present case also the driver of the vehicle appears to have left the Truck only for a few minutes and this can not be construed as a wilful or serious breach of policy condition.
Further, citing the decision of the Honble National Commission as reported in 2013(4) CPR 96 (NC), Ld. Advocate argued that the Insurance Company having accepted value of a particular vehicle could not disown that very figure on one pretext or other when they are called upon to pay compensation. It was also argued that in the case of theft of a vehicle , the breach of policy condition is not germane as decided by the Honble Supreme Court in National Insurance Company Ltd vs- Nitin Khandelwala, reported in 2008 (7) SBR 63 . The impugned order of the Ld. Forum below suffers from illegality and needs to be set aside. The Insurance Company may be directed to pay the insurance claim as prayed for with cost, it was asserted.
Ld. Advocate appearing for the Respondent Nos. 1 and 2 submitted that at the material time , the driver of the vehicle left the ignition key inside the vehicle and the cabin was in unlocked condition which is a clear violation of the policy terms and conditions i.e., condition No. 5. The complaint has been rightly dismissed without cost by the Ld. Forum below. The decisions of Honble National Consumer Disputes Redressal Commission in RP No. 3840 of 2011 and RP No. 1896 of 2008 were referred to in support of their argument.
Decision with reasons We have gone through the memorandum of appeal together with copies of the impugned Order, the petition of complaint , the W.V. filed by the Insurance Company and the W.V filed by OP No. 2 among other documents including the repudiation letter and FRT .
There is no dispute that the vehicle of the Complainant was lying insured with the Respondent Insurance Company while the incident of theft occurred on 17.02.2012. The matter was reported to concerned Police Station and from FRT it appears that the vehicle was stolen and not recovered till the time of submission of FRT. It is true that the driver of the vehicle left the key in the ignition, while he went out for easing himself that created an opportunity for the miscreants to take away the vehicle. This was violative of the policy condition. As such , the claim was repudiated. Honble National Commission in deciding the Case of Sukhwinder Singh
-vs- Cholamandalam MS , General Insurance Company Ltd. in Revision Petition No. 375 of 2013 observed that though it is undisputed that the vehicle in question was stolen while the driver of the vehicle had gone to ease himself after parking the car on the road side and leaving the keys in the ignition, leaving of the key in the ignition of the car on all occasions can not be termed as so serious breach so as to disentitle the insured from seeking claim under the Insurance Policy. Whether or not there is breach of condition will always depend upon the facts of the case. Honble National Commission in the case of New India Assurance Company Ltd. -vs- Narayan Prasad Appaprasad Pathak reported in II (2006) CPJ 144 (NC) set out in their judgment , the guidelines for settling claims on non-standard basis and it was mentioned that percentage of settlement of claim in case of breach of warranty / condition of policy , including limitation as to use may be upto 75% of the admissible claim . Honble Supreme Court in their judgment in the case of Amalendu Sahu vs- Oriental Insurance Company Ltd., as reported in II (2010) CPJ 9 (SC), observed that in view of the guidelines as set out by the National Commission in case of certain violations of policy condition , the insurance company can not repudiate the claim in toto.
In the present case it appears that the vehicle has been stolen and the Complainant / Appellant suffered total loss as evident from the Final Police Report. In such circumstances, repudiation of the claim in toto on the ground of violation of policy condition will not be fair on the part of the insurance company. Settlement of the claim on non-standard basis in the line of guidelines of the National Commission as aforesaid may be just and proper. In such view of the fact, a sum of Rs. 5,00,000/- is considered to be fair enough against the insurance claim . Hence, Ordered that the appeal be and the same is allowed in part on contest . The impugned order is set aside . The Respondent Insurance Company is directed to pay a sum of Rs. 5,00,000/-( Five lakh) only to the Appellant as compensation on non-standard basis within a period of 6 weeks from the date of this order, failing which , this amount will carry an interest @ 9% p.a. from the date of expiry of the said period of 6 weeks till the date of actual payment .
There shall be no order as to costs.
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Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)