State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance ... vs Chaya Sharadchandra Raje Etc. on 9 October, 2019
A/18/595 1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CIRCUIT BENCH AT KOLHAPUR.
FIRST APPEAL NO.A/18/595
(Arisen out of Order Dated 19/05/2018 in Consumer complaint no.136/2017 of District
Forum, Kolhapur)
Bajaj Allianz General Insurance Co.Ltd.
Through its Legal Officer- Mr.Aditya
Tambekar,
Tower 1, 1st floor, Commer Zone, Samrat
Ashok Path, Yerwada, Pune 411 006. ...........Appellant(s)
Versus
1] Chaya Sharadchandra Raje,
Plot No.304, Maharudra Plaza, Rajarampuri,
13th lane, Kolhapur.
2] Sai Service Pvt.Ltd.,
Plot No.1, E Ward, Near Parvati Multiplex,
Shivaji Udyamnagar, Kolhapur 416 008. ............Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, PRESIDENT
Hon'ble Dr.S.K.Kakade, MEMBER
For the appellant:
Adv.Pravin D. Alawekar For the Respondent:
Adv.R.R.Wayangankar ORAL ORDER Per Mr.Justice A.P.Bhangale, President Heard both the advocates at Bar.
By this appeal, appellant has questioned validity and legality of judgment and order passed in the consumer complaint no.136/2017 decided by the learned District Consumer Disputes Redressal Forum, Kolhapur on 19/05/2018 whereby learned District Forum awarded sum of Rs.4,62,770/- together with interest @9% p.a. from the date of repudiation till realization. Apart from, compensation for mental A/18/595 2 anguish in the sum of Rs.10,000/- and cost of litigation in the sum of Rs.5,000/-.
Brief facts of the case are that the complainant who is senior citizen, a lady resident of Rajarampuri, Kolhapur had purchased Maruti Dezire ZXI for price of Rs.6,59,600/- on or about 29/01/2014 from Sai Service Pvt.Ltd. at Kolhapur. The vehicle was insured under the Policy No.OG- 16-2047-1801-00045409 with validity period between 30/01/2016 to midnight of 29/01/2017 with insured declared value (IDV) in the sum of Rs.4,67,770/- under the insurance policy. Our attention has been invited to communication made between the parties. According to the advocate for the appellant, insurance company had demanded number of documents (copies) such as claim intimation form filed by the insured, intimation to RTO, original FIR, Panchnama, key of the vehicle, insurance policy schedule, certificate as stolen from RTO, copy of driving licence, Aadhar card etc. As the claim was on account of incident of theft of vehicle on or about 13/06/2016, when the complainant had returned to her residence at Kolhapur and had parked vehicle after locking the same in the parking space of the apartment. On following day, when she found that her car was missing, she made enquiry with the watchman, relatives, friends and finally lodged police complaint at Rajarampuri Police Station, Kolhapur in respect of theft of the vehicle and also informed the insurance company on 14/06/2016 at about 4.35 p.m. The police who had made enquiry reported 'A' summary final police report to the competent Magistrate indicating that the incident was true but not detected. Thereafter, it appears that parties discussed with each other for final settlement in the sum of Rs.4,61,770/-. Our attention is invited to Consent Letter for Theft Claim Settlement at Page 57 & 58 of the appeal in which it appears that complainant had agreed to accept sum of Rs.4,62,770/- less policy excess Rs.1,000/- = Rs.4,61,770/- as a mutually negotiated full and final settlement for theft of vehicle subject to policy cancellation from the date of loss. It appears that printed proforma in which signature of claimant and witness appeared in presence of notary. Be that as it may, the main contention of the appellant that there is a delay in intimating incident to insurance A/18/595 3 company for about 10 days and secondly, the original keys were not handed over to the insurance company though demanded.
It is mainly on these grounds, repudiation letter was sent on 25/06/2016 whereby insurance company contended that the vehicle was stolen on 14/06/2015, but insurance office intimated after 10 days in lodging the claim and that opportunity was deprived for the insurance company to establish the facts relative to the reported loss. Admittedly, there was no application to Ombudsman.
According to the appellant, the appellant was not responsible to pay an amount notwithstanding insurance declared value mentioned in the policy as the keys were not submitted by the complainant. The learned advocate for the appellant relied on Condition No.4 in the policy that "The insured shall take all reasonable steps to safeguard the 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 vehicle or any part thereof or any driver or employee of the Insured. In the event, of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss".
We have gone through the rulings relied upon in this regard in respect of submissions at the appeal. The first contention on behalf of the appellant is that there was a delay of about 10 days to intimate the insurance company. In our view, this contention would not support the defence to the extent of denial of the claim merely because there was 10 days delay. This is so, when the complainant loses vehicle on account of theft, the natural conduct would be to first enquire as to whereabouts of the vehicle. Thereafter, to intimate the police station concerned. Police would require reasonable period to investigate and enquire and for such reasons 8 to 10 days delay can occur reasonably to inform incident to the insurance company. That cannot be allowed to defeat substantive justice. For these reasons, in our view, rulings relied upon as - P.Khamar Pasha vs. Branch Manager, Oriental Insurance Co.Ltd., in Revision Petition No.724/2018 decided by the Hon'ble National Commission and Universal Sompo General Insurance Co.Ltd. vs. Roop Lal Dangi in Revision A/18/595 4 Petition No.2591/2016 decided by the Hon'ble National Commission. As also, Reliance General Insurance Co.Ltd. vs. Jai Prakash - in Revision Petition No.2479/2015 decided by the Hon'ble National Commission would not be attracted in the facts and circumstances of the present case. Considering that, it is a natural conduct of any person suffering theft of car to first enquire as to whereabouts of car, thereafter to intimate the police and then to intimate to the insurer about the loss of the car once the complainant is satisfied that his car is lost due to theft. Our attention is also invited to the judgment in - Keer Hotls Pvt.Ltd. vs. Tata A.I.G.General Insurance Co.Ltd. in Revision Petition No.2870/2015 decided on 03/04/2018 by the Hon'ble National Commission. In that case, the complainant had left the engine of the motor car in an idling condition and parked it at Ville Parle leaving the keys in the engine and according to the Hon'ble National Commission, the person is held liable for the consequences as to negligence, squarely applicable to the facts and circumstances of the case. Leaving of the keys in ignition of the car and further leaving the engine in an idling condition can be safely construed to be a negligent act and therefore, is a breach of condition no.4 of the policy. The lapse on the part of the driver can be inferred to be a willful default of the subject condition of the policy.
In the facts of the present case, the complainant had returned to her residence and parked her car in parking slot below in the building compound of her residence. Thus the rulings cannot be attracted in the facts and circumstances of the present case. In another ruling, Oriental Insurance Co.Ltd. vs. Shyam Sunder, in Revision Petition No.3251/2013 decided by the Hon'ble National Commission on 05/05/2014, the complainant's son was held under obligation to take key of the vehicle with him while going to ease out. While he himself had left the key in the vehicle, he violated Condition No.5 of the policy and in such circumstances: OP has not committed any deficiency in repudiating claim of the complainant. We find the facts and circumstances in present case are distinguishable considering make of the car as also model that it was Swift Dezire ZXI top model. In such top end cars which are automatic as such no key is required and mere presence of key anywhere inside the A/18/595 5 car may act a remote control to start ignition of car and by switching on the button of the car to drive it. Therefore, the case which relied upon before us would not be attracted in the facts and circumstances of the present case.
On behalf of the respondent, ruling - 1.Mr.Mohd.Idris Mehabub Shaikh & ors. vs. M/s.New India Assurance Co.Ltd., in the consumer complaint no.CC/16/736 which is decided by this State Commission on 16/08/2019 is relied upon. "We had in that case considered 'A' summary report which would mean that though police had been informed of the incident of theft they could not bring culprit to book. In such cases, the incident was genuine and the registered motor vehicle was covered to the extent of Rs.7 lakhs as Insured Declared Value and, therefore, observations made by the Hon'ble Supreme Court of India are attracted on the ground that genuine claims cannot be thrown aside merely on the ground of delay to inform the incident to the insurer, particularly, when incident was already informed to police and they investigated into the theft."
Our attention is also invited to the ruling - IFFCO Tokio General Insurance Co.Ltd. Vs. Nutan Sharma, III (2019) CPJ 201 (NC). In that case also, "there was a theft of vehicle. Keys were removed from guard room. It was held that in normal course of human conduct, a person would not suspect that someone will enter the guard room taking advantage of the temporary absence of the guard, remove the keys from there and the commit theft of the vehicle parked outside the house but in the gaze of the guard deployed by the owner of the vehicle." Thus, it cannot be concluded that the complainant who returned her residence and parked her car below her residence was negligent enough to deny her claim for insurance. In our view, it has to be a gross negligence on the part of the complainant who can be denied to receive the claim on the ground of violation of the expressed terms and conditions of the insurance policy. First of all, in such cases, insurance company is required to satisfy the trial forum that all terms and conditions of the insurance policy were read over, interpreted and explained to the insured A/18/595 6 in the language he or she understood. Then, it can be abided upon him or her. Particularly, in all such cases, terms and conditions of the insurance policy are readily available printed proforma wherein blanks are left to be filled in by the insurance agent and signature is obtained of the insured. Be that as it may, taking all facts and circumstances and documents into consideration, we do not find any unreasonable, unwarranted or unjust observations made by the learned District Forum to pass the award in the sum of Rs.4,62,770/- together with reasonable interest @9% p.a. payable by the insurance company to the complainant along with just and proper amount of compensation for mental anguish in the sum of Rs.10,000/- and cost of litigation in the sum of Rs.5,000/- only. That being so, we are not inclined to interfere the impugned judgment and award in exercise of our appellate power. Appeal is hereby dismissed. Additional cost of Rs.5,000/- is directed to be paid by the appellant to the respondent/complainant.
Dictated and Pronounced in the Open court on 9th October, 2019.
[ Justice A.P.Bhangale] PRESIDENT [Dr.S.K.Kakade] MEMEBR pg