State Consumer Disputes Redressal Commission
M/S Tata Aig General Insurance Co. Ltd, vs Nikhil Seth on 10 February, 2009
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 10-02-2009 Appeal No. FA-2007/619 (Arising from the order dated 19-06-2007 passed by District Forum(Central), ISBT, Kashmere Gate, Delhi in Complaint Case No.544/2005) M/s Tata AIG General Insurance Co. Ltd, -Appellants Regd. Office at Peninsula Corporate Park, Through Nicholas Piramal tower, 9th Floor, Ms. Anjalli Bansall, Ganpatrao Kadam Marg, Advocate. Lower Parel, Mumbai-400013. Zonal Office at 1st Floor, Barjeye Towers, Community Centre, New Friends Colony, New Delhi-110065. Versus Nikhil Seth, -Respondent S/o Late Sh. N.K.Seth, Through 14A/92, W.E.A., Mr. Amit Bajaj, Karol Bagh, New Delhi. Advocate. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) This appeal is directed against the order dated 19th June 2007 passed by the District Forum whereby the appellant-Company has been directed to pay the entire insurance amount of Rs. 2,91,734/- towards total loss of the vehicle by way of theft against insurance cover with the direction to the respondent to execute the letter of subrogation for resting the title of the car in favour of the appellant and also to pay Rs. 20,000/- as compensation for mental agony and harassment and Rs. 3,000/- as cost of litigation.
2. Allegations of the respondent leading to the impugned order, in brief, are that he obtained insurance policy for his Tata India Car bearing No. DL-4CU 2672 and paid premium of Rs. 9,301/- to appellant for the period from 10-09-2004 to 09-092005. This vehicle was stolen from Chandigarh on 04-03-2005 and a FIR was registered at Police Station Sector 34, Chandigarh on 05-03-2005. the respondent lodged the claim with the appellant with car key, copy of FIR, copy of RC etc. The claim of the respondent was repudiated by the appellant.
3. While justifying the repudiation of the claim the appellant-Company took the plea that respondent violated all the mandatory condition of the terms of the contract by not taking reasonable care in as much as that he left the key of the car in the dash board to make an STD call and moreover he lodged FIR after two days which again was violation of the term of contract providing that the report shall be lodged immediately the object of which is that the vehicle may not be taken away if the police is not aware of the theft of the car. It is also contended by the appellant that the owner of the car was informed by the driver immediately but he took two days time in lodging report with the police. So much so even the driver did not lodge report with the police as the vehicle was stolen from Chandigarh.
4. During the course of arguments learned counsel for the appellant contended that respondent has wrongly taken the stand that it was not stated by him before the police that keys were left in the dash board whereas the complaint was recorded in his presence by the police on the written complaint. Lastly that respondent did not come out with full facts in the claim form and concealed aforesaid factum of leaving the key in the dash board.
5. Admittedly the respondent was having one key with him though he has claimed that financer also had one key of the vehicle but the financer ICICI bank denied having any keys.
6. As against this the respondent averred that the driver of the respondent had taken the car to Chandigarh on his private visit and also for official work and he went to make STD call and when the driver returned he found the car missing and there was no question in not exercising any reasonable care as the car was fully closed at the time he left for making STD call.
7. As regards the allegation that the respondent had not given full facts in the claim that wrong information was given to the Manager of the appellant-Company, details of which are as under:-
Roop Lal my driver had taken the vehicle on 03-03-2005 toMohali since there was some problem at his sisters place near Mohali. At about 2:00 p.m. he had parked the vehicle near sector 46 temple to make STD call and had left keys in the vehicle dashboard. When he returned back the vehicle was not there and despite searching for it he cold not find it and the matter was reported to the police and a case under section 379 IPC was registered vide FIR NO. 49 dated 05-03-2005 at PS 34, Distt Chandigarh. The car has not been found by the police till date and hence I am making the present claim.
8. So far as the proposal form is concerned, only basic details are given as per information sought through the columns whereas in the claim form all the details are given. There is distinction between proposal form and claim form.
9. There is a surveyor report of the surveyor appointed by the appellant which specifically mentioned that actual facts should be verified by going to Chandigarh but the insurance-Company did not allow him to go there.
10. So far as delay in lodging FIR the driver after putting all efforts to trace the car and for which some time must have been spent and when the car was not traced a report was made with the police. After all the efforts to trace out the vehicle failed the police registered the FIR on 5th March 2005. As per the final report of the police the car remained untraced.
11. After according careful consideration to the rival contentions of the counsel for the parties we are of the view that it was not such a breach or violation of term of the contract of such a nature which may have disentitled the benefit of the insurance policy. The driver of the vehicle had taken the vehicle to Chandigarh. Even if it is accepted that the driver left the key on the dash board for making STD cal the negligence or careless ness was not such that he abandoned the car unattended on the place which could have been taken away or stolen. It was a busy market place and therefore question of abandoning the car wilfully or negligently did not arise.
12. It is common practice that whenever a person goes to lodge report of theft of the vehicle the police always makes efforts to first search out the vehicle and in this the driver has taken the vehicle to a far off place at Chandigarh and when he realized that the vehicle had been stolen he immediately informed the owner of the vehicle who reached Chandigarh and all efforts were made to trace out the car and ultimately a FIR was lodged. There will be some delay in registering FIR where criminal offences are committed by offenders. But so far as the provision of lodging information to the police or to the insurance companies is concerned, these are only of directory nature. What is important is the result of enquiry. Whether the vehicle had been recovered or not. Had the insured created such circumstance that a ploy was created with the motive to claim the insurance amount then the insurance company is within its right to take these pleas.
13. Whenever such offence takes place the solitary authority to investigate is the police and final report of the police is binding upon the Insurance Company. We have impressed upon the Insurance Companies not to reject the claim of the insured on flimsy grounds rather they should be consumer friendly to earn better business particularly the private players as the public sector has already earned bad reputation in this regard.
14. In our view the insured is entitled for the market value of vehicle at the relevant time and not the insured value of the vehicle at the time of taking the policy. Market value is assessed by way of depreciated value of 5% in case of private vehicle and 10% in case of commercial vehicle. We have also taken a view that Insurance Companies cannot reassess the market value by appointing surveyor as the market value was assessed at the time of issuing the policy by declaring the value and charging corresponding premium.
Otherwise the concept of charging corresponding premium has no meaning and will be rendered nugatory.
15. Proceeding on the aforesaid premise we partly allow the appeal by directing the appellant to pay the insured amount of the vehicle less 5% by way of depreciated value and pay lump sum compensation of Rs. 20,000/-, which shall include cost of litigation also. Respondent shall complete all the formalities for transferring the vehicle in the name of the appellant within one month from receipt of this order.
16. Payment shall be made within one month from the date of receipt of this order.
17. Appeal is partly allowed and disposed of in aforesaid terms.
18. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
19. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
20. Announced on 10th February, 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj