State Consumer Disputes Redressal Commission
New India Assurance Company Limited, vs Ajit Kumar, on 10 March, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 10-03-2008 Appeal No. FA-07/849 (Arising out of Order dated 24-09-2007 passed by the District Forum, Janakpuri, New Delhi, in Complaint Case No. 778/2006) M/s. New India Assurance Company Limited, Regional Office-I, Jeevan Bharti Building, Connaught Place, New Delhi. . . . Appellant Versus Mr. Ajit Kumar, B-1, Suneja Tower-I, District Centre Janakpuri, New Delhi 110058. . . . Respondent In person 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 (Oral)
1. The respondent has appeared of his own, without notice, and argued the matter in person and, therefore, this appeal is being decided on merits.
2. Against the insurance claim of the vehicle arising from total loss by way of theft, the appellant-Insurance Company has been, vide impugned Order dated 24-09-2007 directed to pay the insured amount of Rs.2,65,000/-, besides Rs.7,000/- as compensation and cost of litigation. Feeling aggrieved, the appellant has preferred this appeal.
3. The case of the respondent before the District Forum leading to the impugned Order was that he got his Maruti Zen car bearing registration No. DL 09 CE 8578 insured for Rs. 2,65,000/-
for the period 29-06-2004 to 28-06-2005. On the night of 18/19th February, 2005 at about 11.30 PM when he was coming back to his residence from his office at District Centre Janakpuri and when he reached Bharti College, he had a very strong urge to urinate and he stopped his car on the left side of the road, switched off the engine and took out the ignition key. At that hour of night the road was completely unmanned. On his return he did not find his car there. Respondent had kept his brief case in the car containing a second key as well as the documents of the car. The respondent lodged a complaint with P.S. Janakpuri which was converted into FIR No. 85/2005 U/S 379 IPC.
On 25-05-2005 the respondent lodged a claim with the appellant-company and waited for over an year and when the appellant-company failed to settle the claim he visited the appellants office on 28-08-2006 he was handed over a letter dated 24-08-2006 stating that the claim had been repudiated. The respondent thereafter sent a legal notice to the appellant-company but to no avail.
Feeling aggrieved the respondent filed the instant complaint before the District Forum.
4. While justifying the repudiation of the claim, the appellant-company pleaded that the respondent had not taken due care and precaution as he had let the car unlocked and the key was in the ignition which was tantamount to negligent attitude towards the insurance cover. Further that the respondent had given in writing to the Investigator appointed by the Company that at the time of incident the key was in the car which was taken away with the car and duplicate is with me. It was contended by the appellant-company that since the respondent violated condition No.4 of Private Car Package Policy with stipulates that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage, the claim was rightly repudiated by the company.
5. The impugned order has been assailed mainly invoking condition No.4 of the Policy which is as under:-
The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition. 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 precaution being taken to prevent further damage or loss or if the vehicle be driven before the necessary repairs are effected any extension of the damage to vehicle shall be entirely at the insureds risk
6. Further, the Ld. Counsel for the appellant-company also referred to and relied upon the Surveyors report dated 18-07-2005, wherein it is specifically arrived at that the insured, no doubt, seems to have lost his car, but not as per the circumstances as narrated in his statement or as mentioned in the FIR although the insureds statement and the FIR corroborate with each other.
7. Another circumstance, pointed out by the Ld. Counsel for the appellant is the statement of the respondent recorded by the appellant-company, last lines of which are as under:-
At the time of incident the key was in the car which has been taken away with the car and duplicate is with me.
8. All the aforesaid contentions raised by the appellant-company have been convincingly dealt with by the District Forum and rightly did not find favour with the District Forum. The observations of the District Forum while dealing with the aforesaid contentions are as under:-
Complainant in categorical terms has stated that when he felt strongly for natural call of pissing, he stopped his car on the left side of the road and that at that hour of night the road was completely unmanned, i.e. no one was there in the vicinity. The time of incident is stated to be 11.30 PM at night. It is also evident from the statement of the complainant that the second key of the car was there in his briefcase lying inside the car with important documents. He has also stated on oath that before getting down from the car, he switched off his car and took out the ignition key and went for pissing in the kachcha. At that time at night when there was none in the vicinity, complainant having got down from the car after switching off the car and taking away the ignition keys are certainly the precautions one would like to take for reasonable car of his vehicle. In view of these averments of the complainant, it cannot be said that the complainant did not take reasonable care for safeguard of his Maruti Zen to disentitle him of his claim for violation of condition No.4 of the terms and conditions of the insurance policy.
Merely having left the car unlocked is not sufficient to attract the provisions of condition No.4 of the terms and conditions of the insurance policy in the facts and circumstances of this case.
9. It appears that much is being made of three lines recorded by the appellants officials that at the time of incident the key was inside the car which has been taken away with the car and the duplicate is with me.
10. In this regard, the version of the respondent lends more credence than the version of the appellant-company as the entire report preceding thereto specifically makes out a case of theft and does not refer to these things and it could have been that the last two-three lines at the end were incorporated. The entire statement recorded is as under:-
This is the statement for car of which I am the owner of DL 9CE 8576. This car, I have purchased from Mr. Anil Jolly and financed by ICICI Bank in the month of October, 2005.
I was maintaining my car very honestly as well as I was self-driving the car throughout the period. My car was well equipped with audio set etc. On 18 Feb. 05 I was going to my home after finishing my work from District Centre Janak to C4G Janakpuri. On the way I felt like pissing very badly and I stopped the car at the side of the road and went for pissing near the drain near Bharti College. When I came back my car was not available. Then I reported to Dabri Thana at 11.30 hrs night. After that Janakpuri police has taken over this case. Then I reported next day to Bank and Insurance H/O Karampura.
Since then to till date I could not get my car back but I am regularly paying the bank amount and the last payment had been made on 07 May05.
At the time of incident the key was in the car which has been taken away with the car and duplicate is with me.
11. We have taken a view that whenever a criminal offence takes place, no Insurance company has the right to appoint Investigator as investigation into a criminal offence is within the statutory jurisdiction of the police as prescribed by the Code of Criminal Procedure. No parallel investigation can be allowed to run. The insurance company may appoint a Surveyor to assess the loss or other things but not to investigate into the offence registered under the IPC like offence of theft, robbery, dacoity etc. Insurance companies are obliged to act upon the result of investigation given by the police and if the insurance company has any doubt about the veracity of the police report, it can make a representation to the police to go into the aspects but it cannot assume or arrogate the power of investigation agency to investigate into a criminal offence.
It may investigate into any other aspect than the criminal aspect.
12. Merely because the car was taken away when the respondent had a strong urge to urinate and when he went to piss, while the duplicate key was inside, was no ground repudiating the claim by invoking Clause-4 of the policy. Every case has to be determined by its own facts and circumstances. Even if we accept that the key was left in the car, it was not during the hours of the day when a thief would be looking for a person who would suddenly have full pressure and go for pissing, as if the criminals or thieves are on the prowl. To accuse the insured that he did not take reasonable care to attend to the car is far fetched and highly preposterous.
13. We do not perceive any reason to differ with the grounds of rejection arrived at by the District Forum. However, in such cases, we have taken a view that the insured is not entitled to the entire insured amount and is entitled to only market value, which in such cases, is the depreciated insured value of the vehicle by 5% for passenger vehicles and 10% for commercial vehicles, on the premises that once the market value has been assessed by the insurance company by physical verification and a corresponding premium is charged, every term of the contract as to the market value stands concluded and no service provider can be allowed to rake up the issue again by assessing the market value, which in most of the cases is assessed at half of the insured amount. This is against the interests of the consumers. At the time of concluding the contract of insurance, the insurance company receives requisite amount of premium and while indemnifying the loss it wants to make itself unjustly rich under the garb of re-assessment of market value. This is nothing short of unethical and unscrupulous practice of making oneself unjustly rich. The interests of the consumers are paramount and have to be protected in any eventuality. The contracts of insurance are beneficial contracts and have to be interpreted and provided beneficial interpretation. This is the universal rule of interpretation of any statute and for that purpose a beneficial contract.
14. Foregoing reasons, persuade us to allow the appeal only to the extent of reducing the amount of Rs. 2,65,000/- by 5% depreciated value and maintain the rest of the orders. Appeal is disposed of in above terms.
15. Payment shall be made within one month from the date of receipt of a copy of these orders.
16. Copy of Orders, as per statutory requirement, be forwarded to the parties and also to the concerned District Forum and thereafter the file be consigned to record.
17. FDR / Bank Guarantee, if any, be released under proper receipt.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK