State Consumer Disputes Redressal Commission
Vivek Mahajan vs The New India Assurance Co. Ltd., on 31 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 147 of 2013 Date of Institution : 04.04.2013 Date of Decision : 31.05.2013 Vivek Mahajan, R/o Spangal Condos, Flat No.179, Block-H, Village Gazipur, P.O. Dhakoli, Distt. SAS Nagar, Mohali. Appellant/Complainant V e r s u s The New India Assurance Co. Ltd., Regional Office: SCO No.36-37, Sector 17-A, Chandigarh, through its Deputy Manager, Claim Hub. ....Respondent/ Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Sunil K. Dixit Advocate for the appellant. Sh. R.C. Gupta, Advocate for the respondent. ------------------------------------------------------------------------------------------------ First Appeal No. : 162 of 2013 Date of Institution : 12.04.2013 Date of Decision : 31.05.2013 The New India Assurance Company Limited, Regional Office, SCO No.36-37, Sector 17-A, Chandigarh, through its Deputy Manager, Claim Hub. Appellant/Opposite Party V e r s u s Vivek Mahajan, R/o Spangal Condos, Flat No.179, Block-H, Village Gazipur, P.O. Dhakoli, District SAS Nagar, Mohali. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. R.C. Gupta, Advocate for the appellant. Sh. Sunil K. Dixit, Advocate for the respondent. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid two First Appeal Nos. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., and 162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, arising out of the order dated 28.02.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which, it accepted Complaint Case No.367 of 2012- Vivek Mahajan Vs. The New India Assurance Co. Ltd., and directed the Opposite Party, as under:-
The Opposite Party is accordingly directed to make payment to the Complainant for the loss at 75% of the admissible claim. The Opposite Party is also directed to pay Rs.25,000/- as compensation for unnecessary delaying the payment of claim. Opposite Party will also pay Rs.10,000/- as costs of litigation.
This order be complied with by the Opposite Party within 45 days from the date of receipt of its certified copy, failing which, the Opposite Party shall be liable to pay further interest @ 9% p.a. on the decreed amount from the date of this order, till it is paid, besides the cost of litigation.
2.
The facts, in brief, are that the complainant, being the owner of Tata Tipper, bearing registration no.HR-68-9629, got the same insured, from the Opposite Party, for the period from 18.02.2011 to 17.02.2012, for the Insured Declared Value of Rs.13,25,000/-, vide Policy Schedule-cum-Certificate of Insurance, Annexure C-1. On the night intervening 30.06.2011/01.07.2011, the said tipper was stolen. It was stated that all the documents, such as registration certificate, insurance Policy, route permit, fitness certificate etc. etc., were also stolen, at the time of the said theft. D.D.R. regarding the incident was lodged on 01.07.2011. F.I.R. No.110 dated 02.09.2011, under Section 379 of Indian Penal Code, was registered, in respect of the theft of said tipper, with Police Station Lalru, Distt. SAS Nagar, Mohali. The complainant obtained the complete description, with regard to the registration certificate and permit, from the District Transport Officer, Panchkula, vide Annexure C-2. The complainant, immediately, contacted the Opposite Party, and lodged his claim, vide claim no.31/11/82. The complainant supplied each and every document to the Investigator/Surveyor, who was appointed by the Opposite Party, to investigate the matter. It was further stated that the complainant also cooperated with the Investigator/Surveyor, and supplied him, all the remaining relevant documents, as and when called for. The complainant received a letter dated 30.04.2012, whereby the Opposite Party, demanded some more documents. The said letter was duly replied to by the complainant, vide letter dated 07.05.2012, wherein, he clarified each and every thing, regarding the submission of documents. The complainant again received a letter dated 17.05.2012, from the Opposite Party, vide which, they again demanded the documents, from him. It was further stated that the complainant, in the hope, that his claim would be settled, supplied all the relevant documents, vide his reply dated 20.06.2012. In this reply, the complainant again wanted to clear everything, to the Opposite Party.
3. It was further stated that despite all this, the Opposite Party, did not settle the genuine claim of the complainant. The complainant then served a legal notice dated 05.07.2012, Annexure C-8, upon the Opposite Party, to settle his genuine claim, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. 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, directing the Opposite Party, to pay Rs.13,25,000/-, the Insured Declared Value of the tipper, in question; compensation, in the sum of Rs.4 lacs, for mental agony, physical harassment, deficiency, in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.55,000/-.
4. The Opposite Party, in its written version, admitted that the complainant, being the owner of Tata Tipper, bearing registration no.HR-68-9629, got the same insured, from it, for the period from 18.02.2011 to 17.02.2012, for the Insured Declared Value of Rs.13,25,000/-, vide Policy Schedule-cum-Certificate of Insurance, Annexure C-1. It was stated that the complainant informed the Opposite Party, on 01.07.2011, with regard to the theft of vehicle, in question, on 26.06.2011. The complainant was asked to submit claim intimation on Proforma of the Company, which was supplied by him, on 18.07.2011. It was further stated that the Opposite Party appointed the Investigator/Surveyor, to find out the genuineness of claim. It was further stated that the Investigator/Surveyor, wrote a letter dated 23.07.2011, to the insured, to supply the relevant documents. In the mean time, the Investigator/Surveyor, also contacted the concerned persons, to record their statements. It was further stated that the Investigator/ Surveyor, pointed out that the vehicle was not locked, at the time of theft, as the locks of both the windows were out of order. It was further stated that, thus, the complainant did not take reasonable steps, for safeguarding the same (vehicle), which amounted to violation of the fundamental condition of the Insurance Policy, and, as such, he was not entitled to the amount of claim. It was further stated that even the complainant did not supply all the required documents to the Investigator/Surveyor, appointed by the Opposite Party, though he was asked again and again, to do so. It was further stated that the route permit of the vehicle, was got verified, by the Investigator/Surveyor, and it was found that the same was issued for the States of Punjab, Haryana, Chandigarh and Himachal Pradesh, valid upto 25.03.2011, and, as such, the complainant was not entitled to the indemnification of loss. It was further stated that the claim of the complainant was legally and validly repudiated by the Opposite Party, as per the terms and conditions of the Insurance Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., was filed by the appellant/complainant, for modification of the order of the District Forum, by granting indemnification, in respect of the Insured Declared Value, instead of on non-standard basis, awarded by the District Forum, whereas, on the other hand, First Appeal No.162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, was filed by the appellant/Opposite Party, for setting aside the impugned order.
8. We have heard the Counsel for the Parties, in both the appeals, and, have gone through the evidence, and record of the cases, carefully.
9. The Counsel for the appellant/Opposite Party in First Appeal No.162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, submitted that during the course of investigation, by the Investigator/Surveyor, it was found that the vehicle, in question, was unlocked, as the locks of both the windows were not working. He further submitted that, thus, the insured did not take reasonable steps to safeguard the vehicle, as a result whereof, there was violation of the fundamental Condition No.5 of the Insurance Policy. He further submitted that even there was a contradiction, with regard to the date of theft of the vehicle, as in some documents, the complainant mentioned the date of theft as 26.06.2011 and, in other documents, he mentioned that the incident took place, on the night intervening 30.06.2011/ 01.07.2011. He further submitted that the FIR was lodged by the complainant, after about two months of the theft of vehicle, and, thus, there was even violation of Condition No.1 of the Insurance Policy.He further submitted that, as such, the claim of the respondent/ complainant was rightly repudiated by the appellant/ Opposite Party. He further submitted that there was no deficiency, in rendering service, on the part of the Opposite Party, but the District Forum, fell into a grave error, in granting the Insured Declared Value, to the extent of 75% on non-standard basis. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
10. On the other hand, the Counsel for the appellant/complainant, in First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., submitted that no cogent and convincing evidence, was produced by the respondent /Opposite Party, to prove that the vehicle was lying open, as the locks of both the windows were not working, at the time of theft thereof. He further submitted that reasonable care was taken by the insured, in safeguarding the vehicle. He further submitted that the theft of vehicle, in question, took place on the night intervening 30.06.2011/01.07.2011, and DDR Annexure C-9 was lodged by the complainant, on 01.07.2011, with Police Station Lalru. He further submitted that, the complainant, immediately reported the matter, to the Police, regarding the theft of vehicle, and if, it (Police) did not register the FIR, on lodging the DDR, then the fault lay with it (Police). He further submitted that there was no contradiction, regarding the date of theft. He further submitted that the appellant/complainant was holding the National Permit, for plying the vehicle, valid upto 25.03.2012. He further submitted that the District Forum, instead of awarding the full Insured Declared Value of the vehicle, as the same was never traced by the Police, was wrong, in awarding 75% of the Insured Declared Value of the same (vehicle), on non-standard basis. He further submitted that the order of the District Forum, deserves to be modified, to this extent.
11. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, both the appeals, and the evidence, on record, we are of the considered opinion, that First Appeal No. 162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, is liable to be accepted, for the reasons to be recorded hereinafter. There is, no dispute, about the factum that the vehicle, in question, of which the complainant was owner, was got insured with the Opposite Party, for the period from 18.02.2011 to 17.02.2012, for the Insured Declared Value of Rs.13,25,000/-, vide Policy Schedule-cum-Certificate of Insurance, Annexure C-1. The parties are bound by the terms and conditions of the contract of insurance. The question that falls for consideration, is, as to whether, the insured took all reasonable steps, to safeguard the vehicle, from loss or damage. Condition No.5 of the terms and conditions of the Insurance Policy, Annexure R-11, reads as under:-
The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all the times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured`s own risk.
12. It is evident, from the afore-extracted Condition No.5 of the Insurance Policy, that it was the responsibility of the complainant, or his driver, or any other person, who was in possession of the vehicle, at the relevant time, to take reasonable steps, to safeguard the same, from loss or damage. M/s Royal Associates, Investigating and Detective Agency, which was appointed as Investigator/Surveyor, during the course of investigation, recorded the statements of Sh. Vivek Mahajan, complainant, who was owner of the vehicle, in question, at the relevant time, Sh. Surjit Singh s/o Sh. Bachitter Singh and Sh. Avtar Singh son of Sh. Bhagwan Singh, the driver of the vehicle. Sh. Vivek Mahajan, complainant, in his statement, dated 30.07.2011, copy whereof is at page 197 of the District Forum file, stated that Sh. Avtar Singh, driver of the tipper, after obtaining his permission, parked the same, outside the house of Sh. Surjit Singh, at his village, and on the night intervening 30.06.2011/01.07.2011, it was stolen. Sh. Surjit Singh, son of Bachitter Singh, in his statement dated 02.08.2011, which was recorded by the Investigator/Surveyor, stated that on 27.06.2011, on account of heavy rain, the work came to stand still and he took the machinery and the vehicles, including the tipper, in question, belonging to Sh. Vivek Mahajan, to his village. He further stated, in his statement, that the said Tata Tipper, was parked near his house, and it remained there, from 27.06.2011 to 30.06.2011. He further stated, in his statement, that the said Tata Tipper was lying open, as the locks of both the windows were not working. Sh. Avtar Singh son of Sh. Bhagwan Singh, driver of the Tata Tipper, at the relevant time, also stated that the same (Tata Tipper), was parked near the house of Surjit Singh, son of Bachitter Singh, alongwith other vehicles. He also stated, in his statement, that, on the night intervening 30.06.2011/01.07.2011, the said Tata Tipper was stolen. He further stated that Tata Tipper was lying unlocked, as the locks of both the windows thereof were not in working order, at the time of theft thereof. He further stated that since the vehicle was lying unlocked, some person committed theft thereof. The Investigator/Surveyor, in his report Annexure R-5, at page 191 also briefly reiterated the statements of Sh. Vivek Mahajan, complainant, Sh. Surjit Singh s/o Sh. Bachitter Singh and Sh. Avtar Singh son of Sh. Bhagwan Singh, aforesaid. He also came to the conclusion, that since the vehicle, in question, was not locked, at the time of parking, as the locks of both windows thereof, were out of order, it tantamounted to breach of the fundamental Condition No.5 of the Insurance Policy. Sh. Vivek Mahajan, complainant, was certainly not present, at the time, the vehicle was stolen. Sh. Surjit Singh s/o Sh. Bachitter Singh and Sh. Avtar Singh son of Sh. Bhagwan Singh, driver, could be said to be the best persons, to know, as to in which condition, the vehicle was parked. As stated above, they, in unison, stated that the vehicle was parked unlocked, as the locks of both the windows thereof were out of order, at the time of theft thereof. Even, Kashmir Singh, Proprietor of M/s Royal Associates, Surveyor/Investigator, S.C.F. No.132, 2nd Floor, Sector 13 Market, Urban Estate, Kurukshetra (Haryana), submitted his affidavit, wherein, he, in clear-cut terms stated that he contacted Sh. Surjit Singh s/o Bachitter Singh, Avtar Singh s/o Bhagwan Singh and Bahadur Singh s/o Baldev Singh, all residents of Village Bairmajra, Tehsil Derabassi, District Mohali, and recorded their statements, who disclosed that the vehicle was unlocked, as the locks of both the windows were out of order. Since, the vehicle was left unattended, unlocked, any thief could be easily attracted to the same. It means that the complainant did not take reasonable steps to safeguard the vehicle, from loss or damage.
13. In Devinder Kumar Vs. National Insurance Company Ltd., Revision Petition No.3840 of 2011, decided on 02.04.2012, by the National Consumer Disputes Redressal Commission, New Delhi, the driver of the vehicle, left the keys, in dumper-truck itself, and the cabin of the same (dumper-truck), could not be locked, as its lock was out of order. In these circumstances, the National Consumer Disputes Redressal Commission, New Delhi, held that since, reasonable steps were not taken for safeguarding the vehicle, the repudiation of claim by the Insurance Company was legal and valid. In United India Insurance Company Ltd. Vs. Smt. Maya, 2008 CTJ 580 (CP) (NCDRC), the claim of the insured was repudiated, on the ground, that proper care had not been taken, to safeguard the truck, by leaving it unattended, with its ignition key, on the dashboard and that the validity of the driving licence of the driver was also in dispute. The District Forum allowed the complaint and awarded Rs.one lac alongwith compensation. The State Consumer Disputes Redressal Commission turned down the appeal of the Insurance Company. However, in the Revision Petition, filed by the United India Insurance Co. Ltd., in the aforesaid case, the orders of the District Consumer Disputes Redressal Forum, and the State Consumer Disputes Redressal Commission, were set aside by the National Consumer Disputes Redressal Commission, New Delhi. It was held that reasonable steps were not taken for safeguarding the vehicle, from loss or damage. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that since the Opposite Party legally and validly repudiated the claim of the complainant, there was no deficiency, in rendering service, on its part. The District Forum was wrong, in holding to the contrary, and awarding Insured Declared Value at 75%, on non-standard basis, forgetting that the complainant was guilty of breach of the fundamental Condition No.5 of the Insurance Company.
14. The Counsel for the appellant/complainant, in First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., however, placed reliance on New India Insurance Co. Ltd. Vs. Jagtar Singh, Revision Petition No.3619 of 2012, decided on 01.02.2013, by the National Consumer Disputes Redressal Commission, New Delhi, Royal Sundaram Alliance Insurance Co. Ltd. Vs. Sanju Dongre, II (2012) CPJ 197 (NC) and Rafia Sultan and Others Vs. Oil & Natural Gas Commission, 1986 ACJ 616, to contend that, no worthwhile evidence, was produced by the respondent/Opposite Party, that no reasonable steps to safeguard the vehicle, were taken by the appellant/complainant. In New India Insurance Co. Ltd.`s case (supra), it was found that the terms and conditions of the Insurance Policy, had not been supplied to the respondent/complainant, by the petitioner/Opposite Party. It was, under these circumstances, held that in the absence of supply of terms and conditions of the Insurance Policy, the Insurance Company could not take shelter, under the exclusion Clause, to repudiate the claim of the respondent/complainant. In Royal Sundaram Alliance Insurance Co. Ltd.`s case (supra), no sufficient proof was adduced by the Insurance Company, that the complainant was negligent, by leaving key, in ignition hole of the vehicle. It was, under these circumstances, held that the repudiation of claim was illegal. In Rafia Sultan and Others` case (supra), it was held that the report of accident, prepared by the Deputy Director of Mines Safety, could not be said to be a public document. In the instant case, it was not averred by the complainant, in the complaint, that the terms and conditions of the Insurance Policy were not supplied by the Opposite Party to him. On the other hand, the complainant stated, in the complaint, that he was supplied the terms and conditions of the Insurance Policy Annexure C-1. Had he not been supplied the terms and conditions of the Insurance Policy, he would have certainly taken a stand, in relation thereto, in the complaint itself. As discussed above, sufficient evidence was produced by the Opposite Party, to prove that the vehicle was lying unlocked, as the locks of both the windows were out of order, at the time of theft thereof. The report submitted by the Investigator/Surveyor was duly proved by him, through his affidavit. Not only this, he also stated, in clear-cut terms, that he recorded the statements of Sh. Surjit Singh s/o Bachitter Singh, Avtar Singh s/o Bhagwan Singh and Bahadur Singh s/o Baldev Singh, all residents of Village Bairmajra, Tehsil Derabassi, District Mohali. Since, the facts of the aforesaid cases, are completely distinguishable, from the facts of the instant case, no help can be drawn by the Counsel for the appellant/complainant, from the principle of law, laid down, therein. The submission of the Counsel for the appellant/complainant, in First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
15. From the documents, on record, it was proved that the theft of vehicle took place, on the night intervening 30.06.2011/01.07.2011. The DDR was lodged on 01.07.2011. It means that the information to the Police, with regard to the theft of vehicle, was immediately given by the complainant. If the Police did not register the FIR immediately, on lodging the DDR, then the complainant could not be blamed for the same. This ground could not be said to be valid, for repudiating the claim nor was the claim repudiated on the basis thereof.
16. No other point, was urged, by the Counsel for the parties, on both the appeals.
17. In view of the above discussion, it is held that the claim of the complainant, was legally and validly repudiated by the Opposite Party. Thus, the Opposite Party was not deficient, in rendering service. The findings of the District Forum, to the contrary, being perverse are reversed.
18. For the reasons recorded above, First Appeal No.162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, is accepted, with no order as to costs. The order of the District Forum is set aside.
19. In view of the decision, in First Appeal No.162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan, First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., having been rendered infructuous is dismissed, with no order as to costs.
20. Certified copy of the judgment be placed in First Appeal No.162 of 2013, titled as The New India Assurance Company Limited Vs. Vivek Mahajan.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The files be consigned to Record Room, after completion.
Pronounced.
31.05.2013 [JUSTICE SHAM SUNDER (RETD.)] PRESIDENT [DEV RAJ] MEMBER Rg STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
162 of 2013 Date of Institution :
12.04.2013 Date of Decision :
31.05.2013 The New India Assurance Company Limited, Regional Office, SCO No.36-37, Sector 17-A, Chandigarh, through its Deputy Manager, Claim Hub.
Appellant/Opposite Party V e r s u s Vivek Mahajan, R/o Spangal Condos, Flat No.179, Block-H, Village Gazipur, P.O. Dhakoli, District SAS Nagar, Mohali.
....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by: Sh. R.C. Gupta, Advocate for the appellant.
Sh. Sunil K. Dixit, Advocate for the respondent.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded, in connected First Appeal No. 147 of 2013, titled as Vivek Mahajan Vs. The New India Assurance Co. Ltd., this appeal has been accepted, with no order as to costs. A copy of that order be placed on this file.
2. Certified copies of the main order, alongwith this order, be sent to the parties, free-of-charge.
3. The files be consigned to Record Room, after completion.
Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg