State Consumer Disputes Redressal Commission
Ritesh Naredi vs Bharti Axa on 30 January, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 281 of 2011 Date of institution: 12.10.2011 Date of decision : 30.01.2012 Ritesh Naredi, son of Ajay Kumar Naredi, R/o # 6177, Modern Housing Complex, Mani Majra, UT Chandigarh. . Appellant Versus Bharti AXA General Insurance Company, office at 1st Floor, SCO 350-351-352, Sector 34-A, Chandigarh. .. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member
Sh.Jagroop Singh Mahal, Member Present: Sh.Hitesh Pandit,Advocate for the appellant.
Sh.Tejinder Joshi, Advocate for the respondent.
Per Justice Sham Sunder , President This appeal is directed against the order dated 7.9.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant(now appellant).
2. The facts, in brief, are that the complainant, being the owner of Vehicle No.CH-03Z-0136, make Toyota Inova Model 2007, got it comprehensively insured, with the opposite party(now respondent), for the period from 23.3.2010 to 22.3.2011, for the insured declared value of Rs.8 lacs, on payment of premium of Rs.17644/-. On 18.11.2010, Mr.Kuldeep Singh, driver of the vehicle, came to Delhi, alongwith some senior officials of the Company, of the complainant, for attending a wedding ceremony. After completion of the marriage, the driver of the vehicle dropped one person, at Live-In Hotel, Loha Mandi and went to drop two persons at the Inter-State Bus Terminus(ISBT). While returning from ISBT, the driver of the vehicle, lost his way, but somehow he reached back at the venue of the wedding, but by that time, everyone had departed from there. It was stated that while the driver was enquiring about the route, two persons who were returning from the same wedding venue, approached him and asked him to give them lift, with the assurance, that they knew the route and would guide him to reach the destination. The driver accepted their request. One of them, sat on the front passenger seat, and the other sat on the rear seat. When they reached near Janak Puri, B-1 Block, Petrol Pump, they asked the driver, to stop the vehicle, for answering the call of nature. When the vehicle was stopped, the person sitting on the rear seat and the driver of the vehicle came out, for answering the call of nature. The other person was still sitting in the vehicle. The driver left the keys in the vehicle. It was further stated that, one of the persons, after answering the call of nature, came back, and started the vehicle and drove away the same, at a fast speed, before the driver could chase the same(vehicle). The driver shouted for help, but no one was there to help him. FIR No.273, dated 19.10.2010, was got registered, at Police Station Janak Puri, Delhi West. The police investigated the matter, but failed to find the vehicle. The police then filed an untraced report. The complainant filed the claim, before the opposite party, but was shocked to receive the letter dated 4.4.2011 from it that his claim was repudiated, as he had violated condition No.4 of the Motor Policy. It was further stated that the complainant was not aware of any such condition of the Policy, nor any condition of the same was disclosed by the opposite party. It was further stated that the repudiation of claim of the complainant, was illegal and invalid. It was further stated that, by not making payment of the insured declared value, especially when the vehicle was not traced, the opposite party, was grossly deficient, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him.
3. The Opposite Party, put in appearance, and filed its written version. It was admitted that the car, in question, was got comprehensively insured, by the complainant, being the owner thereof, for the insured declared value of Rs.8 lacs on payment of premium of Rs.17644/-, for the period from 23.3.2010 to 22.3.2011. It was also not disputed that the car in question, was stolen and was not traced by the police. It was, however, stated that the driver of the complainant had not only given a lift to two unknown persons, but also left the ignition key inside the vehicle. It was further stated that failure of the driver to remove ignition key gave an ample opportunity, to the miscreants, to take away the vehicle. It was further stated that this act, on the part of the driver of the vehicle, amounted to grave negligence, and breach of condition NO.4 of the Policy. It was further stated that since the insured failed to take all possible steps to safeguard the vehicle, from any loss or damage, and violated condition No.4 of the insurance policy, as such, the claim submitted by him, was rightly repudiated vide letter dated 4.4.2011. It was further stated that the policy guidelines, the details of the insurance coverage, and the policy documents, were sent to the complainant vide letter dated 22.3.2010. It was denied that the Opposite Party was, in any way, deficient, in rendering service and indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The parties led evidence, in support their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated, in the opening para of the instant order, on the ground, that the insured did not take all possible steps to safeguard the vehicle, from any loss or damage, which amounted to violation of condition No.4 of the Policy.
6. Feeling aggrieved, the instant appeal, was filed by the appellant/ complainant.
7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant/ complainant, submitted that, no doubt, the driver of the complainant, gave lift to two unknown persons, on their representation, that they knew the route, which was to be followed by him and would guide him to reach the destination. He further submitted that since one of those persons, expressed his desire, to answer the call of nature, the driver stopped the vehicle. He further submitted that when the driver of the vehicle and one of the persons, alighted therefrom, and went to answer the call of nature, the ignition key was left inside, but the vehicle was within the sight of the driver. He further submitted that it was not at all required of the driver, all the times, to carry the key of the vehicle, as and when he alights therefrom, even for a while, with a view to answer the call of nature or urinate. He further submitted that since the vehicle was completely, within the sight of the driver, at the time of answering the call of nature, as such, it could not be said that there was violation of Condition No.4 of the Policy, or no possible steps were taken by the insured, to safeguard the vehicle, from any loss or damage. He further submitted that the District Forum was wrong, in dismissing the complaint, holding that the repudiation was legal and valid. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/opposite party submitted that even if, the driver of the vehicle alighted from the vehicle for a while, it was his duty to take away the ignition key and not to leave the same in the vehicle. He further submitted that, by giving lift to two unknown persons, in the first instance, and then leaving the ignition key while alighting therefrom, for answering the call of nature, he acted negligently. He further submitted that the parties are bound by the terms and conditions of the Policy. He further submitted that the terms and conditions of the Policy, are required to be, construed strictly by the Consumer Fora. He further submitted that it could not be said that the insured took all possible steps to safeguard the vehicle, from any loss or damage. He further submitted that the repudiation of the claim, being legal and valid, the District Forum was right in dismissing the complaint.
10. There is, no dispute, about the factum, that the vehicle, in question, was got comprehensively insured by the complainant, with the opposite party for the insured declared value of Rs.8 lacs, for the period from 23.3.2010 to 22.3.2011, vide Insurance Cover C1. There is also, no dispute, that two unknown persons were given lift, by the driver, as he did not know about the route. Those persons promised the driver that they would guide him, about the route, so as to enable him to reach the destination.
When one of those persons, desired to answer the call of nature, and the vehicle was stopped, the driver and that person alighted therefrom for answering the call of nature, while the ignition key, was left inside. None of the parties, produced on record, copy of the terms and conditions of the policy, before the District Forum. However, at the time of hearing the appeal, the terms and conditions of the policy C1, were submitted by the Counsel for the opposite party, which were admitted into evidence as C1/1. Condition No.4 of the terms and conditions C1/1 of the policy reads as under ;
4. The insured shall take all reasonable steps to safeguard the vehicle from any loss or damages and to maintain in efficient condition and company shall have full excess of vehicle or part there of or any employee of the insured. In the event of any accident or breakdown, vehicle shall not be left unattended without proper precautions to be taken to prevent further loss or damage and if the vehicle is driven before necessary repairs, the extension of damages and further damages shall be at insureds risk.
11. Now the question that arises, for consideration, is, as to whether, there was violation of condition No.4 of the Policy, referred to above, by the insured or not ? It was not a case, in which the driver left the ignition key inside, and went far away, for hours together, when the said vehicle, was not within his sight, and, in the meanwhile, the same was stolen by the miscreants. In the instant case, the driver of the vehicle, and another person, to whom the lift was given, by him, for the purpose aforesaid, alighted from the vehicle, to answer the call of nature.
In this view of the matter, it can very well be said that the vehicle was within the sight of the driver, when he was answering the call of nature. In National Insurance Company Ltd. Vs Kamal Singhal IV(2010) CPJ297(NC), relied upon by the Counsel for the appellant, the driver on his journey, picked up three persons. Those three persons took away the car when the driver went for answering the call of nature, by leaving the ignition key inside. The Insurance Company repudiated the claim, by relying on condition No.4 of the policy, as prevailing in the instant case. The National Commission held that the repudiation was illegal and invalid. It was further held that the driver was not expected to carry the key of the vehicle with him while getting down from the vehicle for answering the call of nature, particularly when the same was within his sight. In that case, similar defece was raised by the opposite party, but the same was negated by the District Forum, State Commission, as also the National Commission. The principle of law, laid down in National Insurance Company Ltd.s case(supra) is squarely applicable to the facts of the instant case. Under these circumstances, it is held that the repudiation by the Insurance Company, being illegal and invalid, it was grossly deficient, in rendering service, by not indemnifying the appellant, for the loss of his vehicle. The District Forum was, thus, wrong in holding to the contrary. The findings of the District Forum, in this regard, being perverse, are reversed.
12. The Counsel for the respondent, however, placed reliance on First Appeal No.173 of 2010 decided on 3.5.2011 by this Commission, titled as Jaswinder Singh Vs IFFCO-TOKIO General Insurance Company Ltd. & Ors, as also Reliance Geneal Insurance Co. Ltd. & ors Vs Shakuntla Devi, Fist Appeal No.1853 of 2010 decided on 1.8.2011 by the State Consumer Disputes Redressal, Haryana, Panchkula, in support of his contention, that since no reasonable care to safeguard the vehicle, was taken by the insured, there was violation of condition No.4 of the Policy, referred to above, and, as such, the repudiation of claim was legal and valid. In Jaswinder Singhs case (supra), it was admitted, by the complainant, that he left the ignition key, on the roof of the car, at night, and went to sleep inside the house. The vehicle was stolen by somebody at night. The vehicle was, thus, not within the sight of the complainant in Jaswinder Singhs case (supra). Under these circumstances, it was held that since the vehicle was left unattended and no reasonable care was taken, to safeguard the same, there was violation of condition No.4 of the policy, and, as such, the repudiation was legal and valid.
In Reliance General Insurance Co. Ltd.s case (supra) the driver of the vehicle had left the vehicle unattended without locking the same. Nothing is evident from the facts of said case that when the driver alighted from the vehicle by leaving the ignition key inside, the same was within his sight. The facts of the aforesaid cases, referred to, in this paragraph, and relied upon by the Counsel for the respondent, therefore, being distinguishable, from the facts of the instant case, no benefit can be drawn, therefrom, by him. The submission of the Counsel for the respondent, being devoid of merit, must fail, and the same stands rejected.
13. Coming to the factum, as to whether, the complainant, besides indemnification, is also entitled to compensation for physical harassment and mental agony, which he underwent, on account of the act and conduct of the opposite party. It may be stated here, that he is certainly entitled to the same. The complainant got his car comprehensively insured with the opposite party. He paid the premium. The car was stolen, during the currency of the policy. Though the FIR was lodged, and the claim was submitted, in time, yet the Insurance Company, on hyper-technical grounds, repudiated the claim of the complainant.
He was, thus, dragged into unnecessary litigation. He suffered physical harassment and mental agony, on account of the repudiation of his genuine claim illegally by the insurer. In case, the compensation in the sum of Rs.20,000/- is awarded that would be just, fair and reasonable. The complainant is, thus, entitled to compensation of Rs.20,000/-
14. The District Forum did not appreciate the facts and circumstances, as also the evidence, and the law, on the point, in proper perspective, as a result whereof, it fell into a grave error in dismissing the complaint. The order of the District Forum, suffers from illegality, and perversity, warranting the interference of this Commission.
15. For the reasons recorded above, the appeal is accepted with costs, and the impugned order, is set aside. The respondent/opposite party is directed as under ;
(i) The respondent/opposite party shall pay to the complainant a sum of Rs.8 lacs being the insured declared value of the vehicle.
(ii) The respondent/opposite party shall also pay to the complainant Rs.20,000/-, as compensation, on account of physical harassment and mental agony, caused to him, by its act and conduct.
(iii) The respondent /opposite party shall pay costs of litigation to the tune of Rs.5000/-, to the appellant/complainant.
(iv) The aforesaid payable amount, plus compensation, shall be paid by the opposite party, to the complainant, within 45 days from the date of receipt of a copy of the order, failing which, it (opposite party) shall pay penal interest @ 12% p.a, from the date of default, till realization, besides costs.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to the Record Room.
Sd/-
Announced (JUSTICE SHAM SUNDER) January 30,2012 President Sd/- (NEENA SANDHU) Member Sd/-
(JAGROOP SINGH MAHAL) Member STATE COMMISSION Appeal case NO.281/2011 Present: Sh.Hitesh Pandit,Advocate for the appellant.
Sh.Tejinder Joshi, Advocate for the respondent.
Dated the 25th day of January,2012 ORDER The Counsel for the respondent, alongwith written submissions, has submitted the terms and conditions of the policy C1/1. This document is essential for just decision of the appeal. The same is accordingly admitted into evidence.
The Counsel for the appellant does not want to file any rebuttal evidence.
Oral arguments also heard. Reserved for orders.
(Neena Sandhu) (Justice Sham Sunder) (Jagroop Singh Mahal) Member President Member STATE COMMISSION Appeal case NO.281/2011 Present: Sh.Hitesh Pandit,Advocate for the appellant.
Sh.Tejinder Joshi, Advocate for the respondent.
Dated the 30th day of January,2012 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been accepted with costs, as per the directions given therein.
(Neena Sandhu) (Justice Sham Sunder) (Jagroop Singh Mahal) Member President Member