State Consumer Disputes Redressal Commission
1.Cholamandalam General Insurance Co. ... vs Sukhwinder Singh Son Of Shri Darshan ... on 3 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.987 of 2012 Date of Institution: 13.08.2012 Date of Decision: 03.10.2012 1. Cholamandalam General Insurance Co. Ltd., Dare House, 2nd Floor, NSC Bose Road, Chennai-600001, India through its Regional Manager. 2. Cholamandalam General Insurance Co. Ltd., SCO 236, IInd Floor, Sector 12, Urban Estate, Karnal-132001 through its Divisional Manager. Appellants (Ops) Versus Sukhwinder Singh son of Shri Darshan Singh R/o H.No.30-D, Model Town, Karnal. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Ms. Jaimini Tiwari, Advocate for appellants. Shri Rohit Goswami, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 04.05.2012 passed by District Consumer Forum, Karnal.
Undisputed facts of the present case are that the car bearing registration No.HR-05R-8713 of the respondent-complainant was insured with the appellants-opposite parties for the period 10.03.2009 to 9.3.2010 for Rs.2,25,000/-. On 15.09.2009 Joginder Singh driver of the complainant had gone to Delhi to drop his sister namely Pritpal Kaur and after dropping his sister, the driver started his journey for Karnal and reached at Pepsi Chowk, G.T. Road, Panipat. Joginder Singh stopped his car at Kacha berm of the road in order to answer the call of nature and left the keys in the vehicle ignition switch. When Joginder Singh returned, he found the car missing. F.I.R. No.271 dated 16.09.2009 was lodged under Section 379 IPC with Police Station Sadar, Panipat. Complainant informed the opposite parties on 17.09.2009 upon which surveyor deputed by the Company investigated the matter and in view of surveyors report, the opposite parties repudiated complainants claim vide letter dated 19.01.2010 on the ground that there was violation of the terms and conditions of the Insurance Policy as the vehicle was left un-attended by leaving the ignition key in the ignition switch and also that there was delay of two days in giving information to the Insurance Company whereas the intimation was to be given immediately after the incident/theft of the vehicle.
Challenging the repudiation of his claim, the complainant filed complaint before the District Forum alleging it a case of deficiency in service. On being issued notice, the opposite parties contested the complaint on the ground stated in the preceding para of this order and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint on the following terms:-
4. In our opinion only from the fact that ignition key was left by the driver in the car in question, it could not be said that there was any violation of the condition No.1 and 5 of the insurance policy. In our view legally the claim of the complainant could not be repudiated vide repudiation letter Ex.C10. We hold that there was deficiency in service on the part of the vehicle. Therefore, we direct the OP to make the payment of Rs.2,25,000/- (i.e. ID value of the car) to the complainant alongwith interest @ 9% per annum from the date of issuance of the repudiation letter i.e. 19.01.2010 till its actual realization. The present complaint is accepted accordingly.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Arguments heard. File perused.
There is delay of 53 days in filing of the instant appeal the condonation of which has been sought by moving an application under Section 5 of the Limitation Act. The application is supported with an affidavit of Shri Abhilash Chander, Assistant Manager of the appellants-opposite parties Company. While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case as well as the terms and conditions of the Insurance Policy and therefore, we think it a fit case to condone the delay. Hence, the delay of 53 days in filing of the present appeal is condoned.
Admittedly at the time of theft of the car, it was left unattended by its driver Joginder Singh by leaving the ignition key in the ignition switch and he went to answer the call of nature. The vehicle was stopped on the Kucha berm of the G.T. Road, in the area of Panipat. When Joginder Singh returned, he found that the car was taken away by some unknown person.
The question for consideration before us is whether there is any violation of the terms and conditions of the Insurance Policy. In this regard the terms and conditions of the Insurance Policy have to be taken into consideration.
From the perusal of the impugned order it reveals that the District Consumer Forum has reproduced the condition No.1 and condition No.5 of the Insurance Policy in the impugned order. Condition No.1 says about immediate information to the Insurance Company about the loss/damage of the vehicle and condition No.5 says about the safeguard of the vehicle. In this case Joginder Singh-driver of the car did not take care about the safeguard of his car and he left the car un-attended on the road side by leaving the ignition key in the ignition switch. Thus, there is a clear violation of the condition No.5 of the Insurance policy and therefore the complainant is not entitled for any insurable benefits.
Reference is made to case law cited as YETI PACKERS PVT. LTD. VS. UNITED INSURANCE CO. LTD. 1 (1997) CPJ 417 wherein the facts were that the van was left unattended and without locking the same and for that reason, it was held that the complainant had violated the Clause No.3 of the Insurance Policy and no claim was paid by the Insurance Company to the claimant. The facts of the instant case are at par with Yeti Packers Pvt. Ltd.s case (Supra).
It has been settled in catena of judgments that while settling the Insurance Claims, the terms and conditions of the Insurance Policy have to be construed strictly and no insurable benefit can be granted to the claimant beyond the terms and conditions of the Insurance Policy. This view has been settled by Honble Supreme Court in the judgment cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd and another, 2011 CTJ 11 (Supreme Court) (CP). This case is covered by Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra) because it is established that complainants vehicle was parked on the road side un-attended with the ignition key in the ignition switch. Thus, the complainant violated condition No.5 of the Insurance Policy and for that reason nothing is payable to the complainant by the opposite parties. District Forum has erred in allowing the complaint. Thus, the impugned order cannot be allowed to sustain.
Hence, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 03.10.2012 President B.M. Bedi Judicial Member