District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.200/2021.
Date of Institution: 06.04.2021.
Date of Order: 06.12.2022.
Rohit Kumar S/o Nand Kishor R/o 1155/2, Samaypur Road, Near Khan Market, Rajiv colony, Ballabgarh – 121004, Aadhar card No. 2313-2629-84
…….Complainant……..
Versus
Bajaj Allianz General Insurance Co. Ltd., Block NO. 04, 7th floor, DLF Tower 15, Shivaji Maarg, Deli – 110 015.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Dharamveer Dagar, counsel for the complainant.
Sh. R.K.Sahota, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant purchased a CNG Auto Rickshaw bearing vehicle No. HR38AA1039, Model/Make Bajaj RE CNG 4S , chasis No. MD2A27AY8KW. The complainant got his vehicle insured by above mentioned opposite parties vide policy NO. OG-20-1149-1803-00005736. On 08.02.2020, brother of complainant Raj Kumar Raj S/o Nand Kishor R/o 1155/2, Samaypur road, Near Khan Market, Rajiv Colony, Ballabgarh above mentioned vehicle was stolen by fellow passengers and to that effect FIR was duly registered. The complainant filed claim with the opposite parties vide claim NO. OC-20-1103-1803-00003529. Same was rejected vide office memo dated 10.08.2020 & 18.08.2020 citing in violation of policy terms and conditions NO. 04 which was as below:-
“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient conditions.”
The complainant vehicle was stolen on 08.02.2020. It had categorically mentioned in all the statement made to the investigation officer that no deficient and negligent act of any kind had been done by above mentioned client with regard to safety of the vehicle. All preventive steps were taken against theft by complainant and his brother and duly intimation and report was lodged by him hence the violation of policy terms and conditions was not applicable while considering claim denial on the part of the complainant. Rejection of claim was not properly scrutinized as per policy condition and partial and incomplete evidences submitted by surveyor on the basis of which claim had been rejected. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) pay the insured declared value with interest @ 18% p.a. from the date of filing of complaint for vehicle No. HR38AA1039 against claim NO. OC-20-1103-1803-00003529 for policy No. OG-20-1149-1803-00005736.
b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant neither had any cause of action nor locus standi in lodging the present complaint before this Commission. It was submitted that the insurance company received an intimation from the complainant on dated 10.02.2020 regarding the alleged theft of Auto rickshaw No. HR-38AA-1039 that took place on 08.02.2020 in the area of Sikrona Chowki, Samaypur Road, Sector-56, Faridabad within the jurisdiction of Police Station Dhauj, Faridabad. The said claim was registered vide claim No. OC-20-1103-1803-00003529 and the insurance company immediately deputed an independent and qualified investigator in regards to verify the alleged occurrence, if any. At the same time, the insurance company vide its letter dated 14.02.2020 advised the complainant to extend co-operation to the investigator and also listed the requisite mandatory claim documents therein to be supplied to the investigator during investigation. It was submitted that the investigator carried out the investigation and furnished his investigation report dated 31.03.2020 to the insurance company. It was further submitted that during the course of investigation, inter-alia the insured viz. Rohit Kumar and the driver – Raj Kumar Raj tendered their respective statement in writing and also FIR Ni, 0029 dated 09.02.2020 u/s. 379 IPC, P.S.Dhauj, Faridabad which was lodged by the driver – Raj Kumar. It was further submitted that during the course of investigation, the complainant handed over one number of ignition key to the investigator, which was grazed enough to look used one. Pursuant to the investigation carried out by the investigator, it was observed that the complainant had produced one ignition key, which was grazed enough to look used one and marks found on the key was not normal wear & tear, hence, it construe that material facts regarding key were misrepresented and concealed. Further, no lockset was changed after being lost one original key nor given any intimation to police authority regarding loss of key, hence, it construe that no reasonable steps had been taken to safeguard the vehicle which was violation of policy condition No.4. Thus, the insured had failed to safeguard the vehicle from loss & damages. Furthermore, gross negligence of the driver was there, as the driver left the vehicle with two unknown passengers to answer the call of nature in the nearby field (per version of FIR No. 0029 dated 09.02.2020). During the scrutiny of documents submitted by the insured while investigation, the following was observed:
i. insured had submitted only key after being observed found key had been grazed to make looks used one & mark found on the key was not normal war & tear, hence, it construe that material facts regarding key were misrepresented and concealed.
ii. As per the call center recording found that at the material time of theft one original key was left in the vehicle and hence, it construe that no reasonable steps had been taken to safeguard the vehicle which was violation of policy condition NO.4, which was stipulated as under:_
“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition”
As a result, the insurance company vide its letter dated 09.07.2020 followed with reminder dated 10.08.2020 seek clarification from the insured within 07 days as to why the claim should not be repudiated due to violation of terms & conditions of the insurance policy. But on receiving no reply, no other option was left with the insurance company except to repudiate the subject claim vide its letter of “Repudiation” dated 18.08.2020, duly communicated to the insured. Hence, decision arrived at by the insurance company in repudiating the claim cannot be termed unconscionable at all. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file as well as written arguments filed by opposite party has been perused.
5. In this case the complaint was filed by the complainant against opposite party– M/s. Bajaj Allianz General Insurance Co. Ltd. with the prayer to: a) pay the insured declared value with interest @ 18% p.a. from the date of filing of complaint for vehicle No. HR38AA1039 against claim NO. OC-20-1103-1803-00003529 for policy No. OG-20-1149-1803-00005736. b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shir Rohit Kumar, Ex.CW1 – insurance policy,, Ex. CW2 –FIR, Ex.CW3 –reminder letter dated10.08.2020, Ex.CW3 – repudiation letter dated 18.08.2020, Ex.CW4/1 – legal notice,, Ex.CW4/2 – track consignment,
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.O/1 – insurance policy with terms & conditions, Ex.O/2 – Claim summary sheet, Ex.O/3 – letter dated 14.2.2020 regarding required the documents, Ex.O/4 – investigation report, Ex.O/5 – statement of loan account, Ex.O/6 – Form 28, Form 29,Form 30, Ex.O/7 - letter dated 11.02.2020,, Ex.O/8 – letter dated 11.02.2020, Ex.O/9 – Claim Form, Ex.O/10 – Declaration Form, Ex.O/11 (colly) – statement of Rohit Kumar, Ex.O/12 (colly) statement of Raj Kumar, Ex.O/13 – FIR, Ex.O/14 (Colly) – Tax invoice, Ex.O/15 – Delivery Challan, Ex.O/16 - Copy of permit, Ex.O/17 – photocopy of RC, Ex.O/18 – letter dated 09.07.2020, Ex.O/19 – reminder letter dated 10.08.2020, Ex.O/20 – insured admitted dated 18.08.2020, Ex./21 - repudiation letter dated 18.08.2020.
6. In this case, the complainant has purchased a CNG Auto Rickshaw bearing vehicle No. HR38AA1039, Model/Make Bajaj RE CNG 4S , chasis No. MD2A27AY8KW. The complainant got his vehicle insured by above mentioned opposite parties vide policy NO. OG-20-1149-1803-00005736. On 08.02.2020, brother of complainant Raj Kumar Raj S/o Nand Kishor R/o 1155/2, Samaypur road, Near Khan Market, Rajiv Colony, Ballabgarh above mentioned vehicle was stolen by fellow passengers and to that effect FIR was duly registered. The complainant filed claim with the opposite parties vide claim NO. OC-20-1103-1803-00003529. Opposite party repudiated the claim of the complainant vide letter dated 18.08.2020 Ex.O/21 on the ground that “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient conditions.”, Ex.O/22 – Forensic Audio/Video Authentication report, Ex.O/23 – 65B Certificate, Ex.O/24 – envelop.
The counsel for the complainant has placed on record order passed by the Hon’ble Supreme Court of India in case titled Amalendu Sahoo Vs. Oriental Insurance company Ltd. in Civil Appeal No. 2703 of 2010 (Arising out of SLP© No. 11227/2009) decided on 25.03.2010.
7. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
8. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of any breach of condition upto 50%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
9. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle : Rs.1,66,878.00
Less Excess Clause : Rs. 1,000.00
: Rs.1,65,878.00
Deduction 25% on non standard basis on total : - Rs. 41,469.50
Total : Rs. 1,24,409.50
10 The opposite party is directed to pay Rs. 1,24,409.50 alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 06.12.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
