State Consumer Disputes Redressal Commission
Raheja Qbe General Insurance Limited vs Sameeksh Gaonkar on 17 September, 2024
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 24 of 2024 in Consumer Complaint
51 of 2022.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Raheja QBE General Insurance Limited,
Through its Manager,
Having its office at Fifth Floor,
Fulcrum, IA Project Road,
Sahar, Andheri, East,
Mumbai 400059. ....Appellant
V.
Mr. Sameeksh Gaonkar,
Son of Anant Gaonkar,
Age 30 years,
Occupation: service in G.M.C.
R/o Flat No. FF2, Vasudev Residency,
Near Kamat Nursing Home Shanti Nagar,
Ponda Goa 403401. ....Respondent
Adv. Shri. James Lopes present for Appellants.
Respondent present in person.
DATE: 17/09/2024
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order shall finally dispose off Appeal filed by the Appellant challenging the Judgment and Order dated 26/04/2024 passed by District Commission North in CC/51/2022 wherein the complaint was partly allowed with certain reliefs.
12. The Appellants herein was Opposite Party before District Commission, North and the Respondent was the original Complainant.
3. The brief facts are A. The Contention of the Appellant is i. That the Respondent had filed a complaint before District Commission, North on 18/08/2022 on account of alleged deficiency in service against the Appellant and the Appellant had filed Written Version along with record copy of Insurance Policy with its wordings and the investigation report by M/s My Risk solution and repudiation letter dated 25/03/2022 and that the insurance policy is subject to terms and conditions of the insurance policy and its validity.
ii. That the Respondent had intimated the theft claim to the Appellant 18/11/2021 and immediately the Appellant appointed investigating agency M/s My Risk solutions for investigating the claim of the Respondent.
iii. That on scrutiny of investigation report and documents submitted by the Respondent, the Appellant observed the following anomalies.
a) The subject vehicle was alleged stolen on 23/10/2021 and the intimation to police (through FIR) was made on 13/11/2021 i.e. 21 days from the date of the theft.
b) Further the theft claim was intimated to insurer on 18/11/2021 i.e. after 26 days from the date of theft and as per Respondents statement and description of loss in claim form provided, the vehicle got stolen after the Respondent had packed the vehicle at roadside, left 2 unattended overnight at unsecured placed, which was not in Respondents vicinity or nearby to the residence or workplace of Respondent. Also no reasonable care was taken to protect the insured vehicle by the Respondent.
c) The Appellant stated that this act of the Respondent is a violation of policy condition no. 2.1(a), 2.1(c) and 2.1(g).
d) Further that the Respondent has committed breach in respect of terms and conditions of the Insurance policy and thus reported the theft claim is not admissible as per the terms and conditions of the policy and hence by way of letter dated 25/03/2023, the Appellant repudiated the claim on the grounds of breach of policy terms and conditions.
e) Additionally as stated by Appellant that there is a serious breach of policy on behalf of the Respondent for not intimating the theft immediately to the Appellant as per the terms and conditions of the policy and that no averment by the Respondent has been made in the complaint regarding the reasons for such delay and though there was a breach of terms and conditions of the policy the District Commission, North was pleased to allow the complaint of the Respondent with directions to the Appellant to pay an amount of Rs.7,50,000/- with interest of 8% p.a. from February 2022 till actual date of payment to the Respondent and get an amount of Rs.25,000/- towards the mental stress and financial loss to the Respondent. Also that the award is not within the terms of contract and hence bad in law.
f) Therefore being aggrieved by the Impugned Judgment, the Appellant filed the Appeal on the following grounds.3
i. That District Commission North has passed the Impugned Order without going into details of the facts of the present case and the evidence on record has not been considered.
ii. That the District Commission, North has neglected the fact that the Insurance is a contract between two parties and the Insurance policy is subject to its terms and condition.
iii. That the District Commission has failed to record in the Judgment that how it came to the conclusion that there is deficiency of service by the Appellant.
iv. That the District Commission, North has neglected the fact that it is the duty of the Insurer/Respondent to inform the police and also to intimate to the insurance company regarding the theft of the vehicle within the time limit framed under the insurance company.
v. That the Judgment on the face of it is ex-facie, bad, contrary to known principles of law, unjust and ought therefore to be set aside.
The Appellant prayed That the Impugned Judgment dated 26/04/2024 be set aside and the original complaint be dismissed with cost against this Appellant.
B. The Contention of the Respondent is i. That the vehicle Honda WRV bearing no. GA-05-D-8832
is duly insured with the Appellant and the policy documents are on record. Also that the insurance is duly paid as per the policy of Appellant and it is a private car used by the Respondent.
4ii. That the vehicle was stolen from the church parking from the village of Brittona Penha de Franca, Porvorim which is within 3 km from capital city of Goa and the Respondent is a busy professional doctor (Assistant lecturer in Department of Cardiothoracic and vascular surgery at Goa Medical College) and the Respondent had gone out for dinner with friends on 23/10/2021 at around 8.30 pm, but had to rush back to hospital late at night due to some emergency in the Hospital and hence could not collect the car that night.
iii. The next day i.e. 24/10/2021, the Respondent got the shocking news of untimely death of his senior cardiologist, father figure, role model and mentor Dr. Manjunath Desai, and then went to collect the car early that morning before going for the funeral, but the car was missing from the parked location and the car could not be found after searching in nearby areas. But due to lack of time the Respondent informed the Porvorim Police Station telephonically and GMC Outpost Police immediately regarding missing of the car and left for Borim for the funeral.
iv. On 25/10/2021 the Respondent went to Porvorim Police Station in order to write the missing report and give the statement and was informed by the Police that as per their protocols they search for vehicle before they register/lodge a complaint (FIR) and if they are unable to trace the vehicle only then FIR is filed and 13/11/2021, the FIR was finally filed and that the date of the FIR copy is the date on which the case is filed and not the actual date of complaint as the filing of FIR is computerised.
5v. Thereafter, there was a slight delay in intimating the insurance company after having received the FIR copy due to the Respondents medical issue which is not a negligence but a genuine reason for delay in intimation to insurance company.
vi. That the claim of the Respondent was rejected based on the finding of the investigation report of third party by some M/s Risky Solution for the Appellant.
vii. That the Respondent is still paying the car loan EMI of the car which stolen.
viii. The Respondent prayed that the Appellants be directed to settle the claim of the Respondent as it has caused financial losses, physical and mental stress to the Respondent at least by partly granting to recover the losses as prayed for by the Respondent. That the Appeal be dismissed.
4. Documents relied upon by both parties were the same documents that were relied upon before the District Commission, North.
Written Arguments were filed by the Appellants and Respondent before this Commission.
5. Arguments were heard on behalf of Adv. Shri. James Lopes on behalf of the Appellants and Respondent in person.
Adv. Shri. James Lopes submitted that the vehicle was stolen on 23/10/2021 and that the Respondent intimated the Insurance only on 13/11/2021 he further pointed out that FIR was lodged after 21 days.
6The Advocate further argued that the act of the Respondent is in clear violation of policy condition 2.1(a), 2.1(c) and 2.1(g).
He further placed reliance on P. Khamar Pasha Vs Branch Manager, Oriental Insurance Company Limited wherein the Hon'ble N.C held that the Appellant (i.e Insurance Company) cannot be saddled with the liability to pay compensation to the Respondent despite the fact that he had no complied with terms of the policy. The Respondent was duty bound to inform about the theft of the vehicle immediately after the incident on account of delayed intimation, the Appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same.
The Advocate then placed reliance on another Judgment, National Insurance Company limited vs. Nitin Khandelwal where the Hon'ble National Commission observed that, in the case of theft of vehicle breach of condition is not germane. The Appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the Insurer. The Respondent submitted that even assuming that there was a breach of condition of the insurance policy, the Appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to the theft. In the instant case the State Commission allowed the claim only on non- standard basis, which has been upheld by the National Commission.
On the other hand the Respondent submitted the facts before this Commission and further added that he had informed the police of the missing vehicle on 25th 7 October itself but was informed that as per the protocols of the police they search for the vehicle before they register/lodge a complaint (FIR). He also submitted that on 13/11/2021 the FIR was filed. He prayed that Appellants be directed to settle the claim as has been subjected to financial loss, physical and mental stress and that the Appeal be dismissed.
6. Heard Arguments and ongoing through the pleadings and documents placed on record, we observed that:
i. The Respondent has clearly delayed in reporting the missing vehicle to the police.
ii. The vehicle was stolen on 23/10/2021 and the police was intimated (through FIR) on 13/11/2021 i.e. after 21 days from the date of theft.
iii. Also the theft claim was intimated to the insurer on 18/11/2021 i.e. after 26 days from the date of theft.
iv. Further we observed that the Respondent has himself admitted that intimation was given to the police and insurance company after a huge delay which in factum has clearly violated the terms and conditions of the policy.
v. The Respondent was duty bound to inform about the theft of the vehicle immediately after the incident and delay in intimation deprives the insurance company of its legitimate right to get inquiry conducted in terms of the missing vehicle and also for recovery of the same.8
vi. Also on going through the records, the vehicle was parked on roadside, left unattended overnight and no reasonable care was taken to protect the vehicle.
vii. We are not in agreement with the reasoning given by the District Commission, North that the Complainant is a busy doctor/cardiologist. The onus lies on an individual to conduct follow ups and abide by the law laid down and follow procedures and this cannot be accepted that one is busy with professional constraints or engagements.
viii. Also what we ponder upon is the finding/reasoning in terms of 'the ratio applied in all the above cases gets squarely attracted to the facts of the present case', which is quite contrary to the Order passed.
ix. We observed that the deficiency of the Appellant has not been established by the Respondent and the District Commission has failed to appreciate the same.
x. Although this is a beneficial legislation that deserves liberal construction, we cannot, but ignore the fact that the Respondent has chosen not to take reasonable care in terms of protecting his car.
xi. What we observed in the matter before us, is that we cannot overlook the fact that the Respondent has not complied with the terms and conditions of the policy and then the deficiency too, on part of the Appellant has not been established by the Respondent.
The lapse on part of the Respondent cannot be glossed over as he was duty bound and directing the Appellant to settle his claim on non-standard basis would only set a precedent in a direction for claims that abhor the law 9 laid down and one has to act the within that framework of law and the Judgment relied upon by the Respondent cannot be considered in terms of the matter before us.
Hence, in the light of the above discussions we pass the following.
ORDER
1. The Appeal is allowed and the Judgment and Order dated 26/04/2024 passed by District Commission, North is quashed and set aside.
2. Pronounced in open court.
3. Proceedings closed.
[Adv. Mrs. Varsha R. Bale] Officiating President [Adv. Ms. Rachna A. M. Gonsalves] Member KK 10