Delhi

East Delhi

CC/198/2018

NADIM - Complainant(s)

Versus

N.I.C. - Opp.Party(s)

14 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.198/2018

 

	SHRI NADIM S/O SHRI SHAMIM KHAN B-113, IIND FLOOR, MAIN SHALIMAR GARDEN, SHAHIBABAD, DISTRICT, GHAZIABAD, U.P. 201005	….Complainant
Versus
	NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, THROUGH ITS DIVISIONAL MANAGER, SCOPE MINAR CORE-II, 11TH FLOOR, NORTH TOWAR, DISTRICT CENTRE, LAXMI NAGAR, DELHI – 110092	……OP
	ALSO AT:   NATIONAL INSURANCE CO. LTD. GENERAL CLAIM HUB THROUGH ITS MANAGER, 2E/25, JHANDEWALAN, NEW DELHI – 110055

Date of Institution: 26.06.2018

Judgment Reserved on:10.10.2022

Judgment Passed on:14-10-2022

               

CORUM:

 

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Sh. S.S. Malhotra (President)

 

 

JUDGEMENT

1. The complaint pertains to deficiency in service on the part of OP in repudiating the claim on w.r.t. theft of a his vehicle having Registraion no. DL-1YE 1014.
2. Brief facts as stated by the Complainant are that the Complainant is a owner of Maruti, Swift (Desire) bearing registration No. DL-IY-E-1014. The Complainant got his Car insured from OP vide Policy No. 361700/31/16/6300003714 for a period of one year from 02.12.2016 to 01.12.2017 with IDV of vehicle as Rs.4,28,750/-  The car was stolen on 27.08.2017 by unknown person as it was parked on the road near the Petrol Pump, Seema Puri. Intimation of the theft was given to OP and FIR was lodged with Seema Puri, Police Station. A Complaint was lodged with OP and a surveyor was appointed. The Complainant sent a letter to SHO for intimation to the insurer in case the vehicle is recovered in future and a letter to MLO, Burai,  New Delhi to keep the original permit of the vehicle safety. The said car was financed by IndusInd Bank.  The Complainant also collected a letter from IndusInd Bank for non re-possession of vehicle.  An intimation of theft was also given to National Crime Record Bureau.  A final report was filed by Police in the Court stating that the vehicle was not traced. 
3. It is alleged that the Surveyor appointed by OP worked slowly despite the Complainant had provided all the requisite documents to the surveyor at the earliest.
4. The Complainant was repeatedly being asked by OP to explain as to why he had left the car on the roadside and not in an authorized car parking.  The Complainant explained that hundreds of vehicles are parked near the petrol pump as locality is crowded.  It is submitted that some problem occurred in the car and he had gone to search for a mechanic after locking the car along with gear lock.  In the meantime, someone has stolen the car.  The car also had a functional GPS tracking system as such there was no negligence on the part of the Complainant.
5. Complainant also sent a legal notice dated 17.1.2018 and received a reply dated 9.2.2018. The Complainant prays for a claim amount of Rs.4,28,750/- along with interest at the rate of 24% p.a., a sum of Rs.1,00,000/- as interest accrued on loan installments, and a sum of Rs. 2,00,000/- as damages for harassment and Rs.50,000/- towards litigation cost. 
6. OP in its reply has stated that there is no cause of action against the Insurance Company.  The vehicle was registered and insured for commercial purpose as the complainant is  in the business of transportation. 
7. OP had deputed an investigator/surveyor to conduct a survey.  As per the report, the Complainant has left his vehicle on the roadside in the morning at about 07.00 hour and then went to attend the engagement of his cousin.  He returned back at 03.00 hour on the next day without bothering to secure his car properly.  It is alleged that the place of parking was neither secured nor authorized as a parking place in any manner. A pre-repudiation letter dated 27.11.2017 was sent to the Complainant seeking a response to findings of the investigator. After receiving no reply, the Complainant’s claim was repudiated. 
8. OP alleges that the contents of the FIR and statement given to surveyor are contradictory.  It is further stated that the claim was repudiated due to negligence of Complainant.  OP prays that the complaint be dismissed. 
9. The Complainant in his Rejoinder has re-affirmed the averments made in the complaint.  The Complainant has annexed following documents in his evidence by way of affidavit:

1. Copy of Aadhar Card is  exhibited C-1.
2. Copy of Registration Certificate is exhibited C-2.
3. Copy of Insurance Policy is exhibited C-3.
4. Copy of FIR  is exhibited  C-4.
5. Copy of letter to SHO is  exhibited  C-5.
6. Copy of letter to MLO is exhibited C-6.
7. Copy of letter to Induslnd Bank is exhibited C-7.
8. Copy of letter to National Crime Record Bureau is exhibited  C-8.
9. Copy of final Order by Court is  exhibited C-9.
10. Copy of Pre-repudiation letter is exhibited  C-10.
11. Copy of legal notice and its reply are exhibited  C-11 and Annexure C-12.

 

10. OP has filed following documents/evidences by way of affidavit:

 

1. Copy of Policy exhibited as RW-1/1.
2. Copy of FIR exhibited as RW-1/2 and DD Entry is exhibited as RW-1/3.
3. Copy of statement of Complainant as RW-1/4.
4. Surveyor Report exhibited as RW-1/5.
5. Repudiation letter exhibited as RW-1/6.
6. Legal Notice and its reply as RW-1/7 and RW-1/8.

11. The Commission has considered the arguments by both the parties and the material on record.  It is admitted that the complainant has purchased a policy bearing No. 361700/31/16/6300003714 for a period of one year from 02.12.2016 to 01.12.2017.  The IDV of the vehicle was Rs.428,750/-.  It is also admitted that that car was stolen on 28.08.2017.  FIR was filed and the final report of MM-2/Shahdara/KKD/Delhi is also placed on record.  As per the final report the vehicle was untraced despite the best efforts of the Police.

It is also admitted that a Surveyor was appointed and he has filed a Report dated 07.10.2017. The Report has on spot verification along with photographs. The said photograph reveals that many vehicles and two wheelers are parked on that stretch of road. The report also states that there was no violation on the part of complaint. However, the surveyor concludes that there was negligence on the part of complaint. Relevant extract reads as follows:

CASE SUMMARY

“The insured had left his reportedly broken down vehicle on a road side in the morning at around 07:00 am & went to attend engagement of his cousin & returned back at 3:00 PM next day, without bothering to secure his car properly. The place of parking was also not any secured or authorized parking place & during this period, the vehicle got stolen. This is gross negligence on the part of insured as he could have easily taken care of getting his vehicle repaired or at least would have left it at a nearest workshop for repairing. In our opinion the insured's gross negligence resulted in theft of said vehicle.

Though the theft of vehicle took place, but in our opinion insured didn't take basic precaution of getting his vehicle towed to any nearest workshop or even get it repaired before leaving for attending a function. The vehicle was left abdoned for nearly 21 hours, & it become easy for thieves to steal it from road side. On the basis of above, we recommend insurers to disown the liability.”

12. In the case of National Insurance Company Ltd. V/s Nitin Khandelwal, IV (2008) CPJ 1 (SC), Apex Court has observed as under:-

“12. In the case in hand, the vehicle has been snatched or stolen. 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 ever 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 theft”.

13. National Commission in New India Assurances Vs Ltd. Narayan Prasad II (2006) CPJ 144 NC has given guidelines for settling the claim on non standard basis.

Non- standard claims following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:

Sr. No.		Percentage of Settlement
	Under declaration of licensed carrying capacity.	Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim.

 

14. It is undisputed that theft took place and vehicle was insured at the time of theft. It is undisputed that intimation of theft was given to insurance company and FIR was registered. As per law laid down by Hon’ble National Commission, no ground is made to reject the claim in toto in case of stolen of vehicle. The complainant may have parked his vehicle in a place which was not authorised but the photo graphs annexed with the investigator’s report show that there were many vehicles parked on the same stretch of road. This ground for repudiation in toto is not tenable as the complainant had duly locked the car, gear lock was on and GPS was activated. Further it is admitted in FIR that the complainant searched for his vehicle earnestly. The investigate report also states that narration of incident as per claim papers and e-FIR are almost similar and there are no discrepancies as alleged in OP’s reply. Even if we assume that car was not parked in authorized parking area and there was contributory negligence on the part of complaint, it would be construed as breach of terms and conditions and the claim is to be settled an non standard basis. Therefore, there is deficiency on the part of OP in rejection the claim of complainant in totality.
15. Hence, the commission direct OP to pay the claim to complainant on non-standard basis at 75% of the IDV i.e. 4,28,750/-. In these circumstances, the commission is neither granting interest nor any compensation to the complainant. However, if the OP would not pay the awarded amount within one month of the receipt of the order, the OP would pay interest @9% per annum from the date of order till actual payment.

Copy of the order be supplied/sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 14-10-2022

Delhi.