CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.203/2014
- Mr. GURPREET SINGH ARORA,
RESIDENT OF A-4/424, PASCHIM VIHAR,
NEW DELHI-110063
- WIPRO LTD.,
HAVING ITS REGISTERED OFFICE AT
A-23, MOHAN COOPERATIVE INDUSTRIAL ESTATE,
SARITA VIHAR, MATHURA ROAD,
NEW DELHI -110044. …..COMPLAINANTS
Vs.
TATA AIG GENERAL INSURANCE COMPANY LTD.
LOTUS STAR, 1ST FLOOR,
COMMUNITY CENTRE, NEW FRIENDS COLONY,
NEW DELHI-110025 …….RESPONDENT
Date of Institution-30/04/2014
Date of Order- 02/05/2022.
O R D E R
RASHMI BANSAL– Member
- The present complaint is filed by the complainant against the repudiation of insurance claim for his vehicle stolen from hotel car parking on the ground of gross negligence on the part of complainant by leaving keys inside the car and praying for directing opposite party to settle the claim of the complainant as per the terms of the Insurance Policy of Insured Declared Value (IDV) of car along with interest from the date of the theft of car, compensation for mental harassment and agony, cost of litigation as well as expenses incurred in following up the claim and complying with requirements of opposite party and their investigator.
- The brief facts of the case are that the complainant no.1 is the employee of complainant no.2 and got a car from complainant no.2 as per his entitlement. The car, Toyota Corolla Altis diesel, bearing number HR 26 BF 1920 (hereinafter referred as said vehicle), was completely funded by official financer of complainant no.2 and the value of car was paid by complainant no.1 in the form of equal monthly instalments (EMIs) from his monthly salary. The vehicle purchase agreement is exhibited as CW1/1 and invoice is exhibited as CW1/2. The said vehicle was subscribed by complainant to an insurance policy with OP, valid for a period between 08.10.2011 – 07.10.2012. showing complainant No.2 as owner and complain no.1 as the user of the said car. The cover note is exhibit CW1/3.
- The said vehicle has been borrowed by complainant no.1 friend, hereinafter referred as ‘driver’, to travel to Amritsar on 08.04.2012. On reaching Amritsar, by 5:45 pm to hotel Clarks – Inn, he has parked the said vehicle in the parking area of the hotel. It is stated by the complainant that due to long driving, the driver was not feeling well, his sugar and BP had gone beyond the normal limit resulting in him having a low and sunken feeling with nausea and hypertension. That immediately on reaching the reception area of hotel, he realised that the car keys were not in his person and he went back to check the car which was there where it was parked but the keys were missing. He asked the guard if the car keys were seen by him to which he replied in negative, therefore, he specifically instructed the guard to keep a watch over the car. He then also informed the receptionist that he was unable to locate his car keys and hence the car should be kept a watch on while he search for the keys in the hotel room. This is averred that, the car was there in the parking lot at the time he was informing the hotel receptionist. Thereafter, he went to the room to check if the keys were left along with the luggage, and after carefully searching of the keys and taking medicine when he returned to the reception area within about 10 minutes, he found that the car was missing. He then and there questioned the hotel guard and called the police immediately.
An FIR (CW1/5) dated 08.04.2012 was registered at the concerned police station at Amritsar.The intimation -cum - preliminary claim form (exhibit CW1/4) was submitted to opposite party. An untraced report of the investigating agency (exhibit CW1/6), whichwas accepted by chief judicial magistrate vide its order dated 15.11.2012 (CW1/7), was submitted to OP. This is the allegation of complainant that despite submission of all the documents, the opposite party repudiated the claim of the complainant no.1 vide repudiation letter dated 18.12.2012 (CW 1/8) on the ground that vehicle got stolen due to gross negligence on the part of complainant no.1 and there is violation of clause 4 of the terms of the policy. The complainant further made allegation that the opposite party has demanded various documents arbitrarily and in free piecemeal fashion with the sole objective of delaying and frustrating the claim of complainant. The repudiation letter dated 18.12.2012 has been replied by complainant wide letter dated 28.12.2012 (Exhibit CW1/9) bringing out the facts and detail but despite much follow-up complainant received no favourable response from opposite party. Thereafter, complainant has written another letter dated 15.02.2013 and 19.02.2013 for having his grievances addressed but to no avail (Exhibit CW1/10 and CW1/11). Complainant has also submitted a letter of authority dated 19.02.2013 (Exhibit CA1/12) issued by complainant no.2to represent a claim on the complainant no.2’s behalf. This is the allegation of complainant that the conduct of the opposite party has consistently been negative and they have left no stone unturned to harass the complainant by insisting with compliance of procedures that are wholly irrelevant and not warranted for purpose of settlement of his claim. Complainant’s complaint with the customer complaint cell of the opposite party (exhibit CW1/13) and to Officer of opposite party No.1 (exhibit CW1/14) were also of no avail. A legal notice dated 16.05.2013 (exhibit CW1/15) and its reply dated 03.06.2013 (exhibit CW1/16) were also placed on record, whereby the claim of the complainant no.1 was denied.
At later stage, complainant no.1 has placed on record certain documents pertaining to emails between finance company and complainant no.1 showing that all EMI were cleared by complainant no.1. The Complainant alleges that the opposite party has failed to settle his bona-fide and honest claim, there is complete deficiency of service on the part of opposite party who are bound to settle the claim expeditiously.
- OP has filed his written statement, evidence by way of affidavit and written argument through his power of attorney, exhibit RW1/1. The preliminary objection taken by opposite party is that the complainant no.1 has no locus standi to file the present complaint as he is neither the owner nor the insured of the vehicle in question as the vehicle is insured by complainant no.2. There is no contract between complainant no.1 and the opposite party in respect of granting any benefit under the policy, and therefore, the complainant no.1 is not authorized and competent to file the present complaint against the opposite party. Further, it is submitted that the vehicle in question was being used for commercial purposes by the complainant no.2 for their business and therefore, under section 2 (1)(d)(ii) of the 1986 Act, the present complaint deserves to be dismissed on this ground alone.
The dismissal of the complaint is also sought on the ground that the complaint is not been filed through the authorized signatory of the complainant no.2. It is stated that that the circular resolution number 37/2011–2012 of the complainant no.2 authorizes one Mr. Nitin Goyal by the complainant no.2 to act on its behalf, but claim or action has not been initiated by Mr. Nitin Goyal. The authority letter given to complainant no.1 by the complainant no. 2 to represent with regard to the insurance claim as well as the power of attorney of the authorized signatory of the said letter is also not been signed by either Mr Nitin Goel or any other authorized signatory of complainant no.2. Even the present complaint filed by complainant no.2 through one Mr. Sanjay Kumar, who is not the authorized person by complainant no.2 since no board resolution or authority letter issued by complainant no.2 in his favour.
Opposite party further stated that there is a violation of the clause 4 of the terms of policy, exhibit RW 1/2 and complainant is not entitled to claim amount as complainant was under obligation to keep the said vehicle with utmost care and safety, however, in gross violation of the same, the complainant left the keys of the said vehicle unattended with trunk lock of the vehicle and due to complainant’s negligent and careless act, theft took place. Therefore, the claim of the complainant is rightly repudiated by the opposite party. Opposite Party prayed for the dismissal of the complaint with cost, stating that it has performed its duties as per terms and conditions of the insurance policy promptly, without any delay and/or negligence therefore, the opposite party cannot be held guilty for rendering any defective or deficient services to the complainant and therefore present complaint is not maintainable and liable to be dismissed. Condition No. 4 of the Policy, read as follows:
OP has also filed Investigation Report of the surveyor, statement of complainant no.1, statement of driver Mr Ravinder Pal Singh (friend of complainant no.1) and statement of Ashu Sharma, Hotel employee, however, strangely, the same are not exhibited.
- Rejoinder was filed by the complainant reaffirming his claim and denied the defence version.
- We have perused the document place on record and heard the arguments of complainant and opposite party at length. After given careful consideration to entire matter, hearing both the parties, and upon appreciation of the documents placed on record from both sides, following issues emerged:
- Whether the complainant is a consumer under Consumer Protection Act, 1986 and has locus standi to file the present complaint?
- Whether there is gross negligence on the part of complainant towards protection of the said car as mentioned in the repudiation letter dated 18.12.2012?
- Whether the claim of the complainant no.1 rightly repudiated by OP?
- The relief, if any?
- Shows that Record following facts are admitted
- That the said vehicle was duly insured with OP.
- That the vehicle got stolen on 08.04.2012 at about 5:45 pm to 6:45 pm as per investigation report
- That an FIR was immediately registered regarding the said theft and the vehicle could not be traced during investigation.
- That the driver of the vehicle had left the keys of the said vehicle unattended with trunk lock of the vehicle
- That the claim of complainant for insurance was rejected by opposite party on ground of gross negligence and violation of clause 4 of the policy.
- Consumer is defined u/ Section 2(1)(d)(i) of the Consumer Protection Act, 1986 as,
(d) “consumer” means any person who –
(i) buys any goods for a consideration which has been paid or promised orpartly paid or partly promised, or under any system of deferred payment and includes any driver of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or …
[Explanation – for the purpose of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment;]
The plain reading of the section clearly shows that ‘consumer’ includes any user of goods other than the person who buys such goods. In policy the complainant is shown as user and complainant no.2 as owner. Further, the documents on record shows the entire consideration of the said vehicle has been paid by the complainant from his salary in the form of EMI and paid in full. Vehicle purchase agreement, CW1/1 and invoice, CW1/2, show that car was purchased by complainant. Considering the above factors, this can fairly be deduced that the complainant is the consumer within the meaning of section 2(1)(d)(i) of the Consumer Protection Act, 1986 and has Locus standi to file the present complaint.
The objection taken by the opposite party relating to the authority to file the present complaint is not sustainable in view of the authority letter dated 19.02.2013 issued by the complainant no.2 in favour of complainant no.1 to represent with regard to insurance claim as well as the power of attorney issued by the authorised signatory to the said letter. The letter further confirms that the complainant no.1 can represent this claim. Moreover, complainant no.1 is the consumer himself and he needs no authority from complainant no.2 to file claim. He, in his own capacity as consumer, has right toraise and contest his claim. Therefore issue no. 1decided in favour of complainant no.1.
The second and third issue, are inter-connected, therefore, are being taken up together.
Punjab and Haryana High Court in Bajaj Allianz General Insurance Company Limited, Versus M/s Sagar Tour and Travels, C.W.P. No.8380 of 2011, 11.08.2011, has considered whether the act of 'leaving keys in car' can be termed as an act of gross negligence so as to disentitle the complainant from any insurance claim was addressed by in said case also, the insured had admittedly left the keys in the car itself. Dismissing the writ petition, it was interalia observed by High Court:
“This clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious a breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy.”
The facts of the instant case are squarely covered by above mentioned case. The act of the driver in the present case, at the most be termed as an act of 'absent mindedness' or ‘short forgetfulness’ or ‘slip from mind’ than a grossly negligent act. It was misfortune of the driver which led him to leave the car keys in trunk and the said misfortune can by no stretch of imagination be termed as a wilful breach of the terms and conditions of the policy.
The Supreme Court of India in United India Insurance Company vs. Lehru and Ors, 2003(3) SCC 338 lays down that unless the insurance company is able to show that there is a willful breach of the policy on the part of the insured, insurance company cannot avoid its liability. Hon'ble SC has held that this has to be seen as to whether there is a willful breach on the part of the insured or not so as to entitle the insurer to avoid the liability and in order to avoid the liability, the insurer must establish that there was a willful breach on the part of the insured.
In view of the judgment of the Supreme Court in Lehru (supra), OP has not been able to show any wilful breach on the part of the insured to avoid its liability. The documents on records show that driver realised within few minutes of parking the car that car keys are not with him and checked on the car. The car was there by that time. Then he went to his room to check for keys and returned in 10 minutes and in the meantime the car was stolen. No doubt,the task of the thief would have become easier because of keys in the car, however, to say that the theft took place only because driver left the key in ignition would not be a correct proposition. Moreover, it is not the case of OPthat the driver of the car was in the habit of leaving the key in ignition so as to term the same as a grossly negligent act. Therefore, in our view, rejection of claim by OP was not proper in the instant case as leaving the keys in car trunk inadvertently is not a wilful breach of terms and conditions by driver of the vehicle in the instant case. Therefore, issue no.2 and 3 are decided in favour of complainant.
Further, this has also been even reported by the investigating agencies in their report that many complaints of the theft of vehicle was received by them in the similar time frame and they opined that a gang of thieves might be operative in the city at that time, which is also an important factor to consider with respect to the theft at that crucial point of time. Moreover,
The version of the surveyor/investing agency of OP cannot be taken as complete truth as he has made the report for repudiation of the insurance claims by stating and relying upon the verbal/oral statements of people without any proof in the writing or under an affidavit given by the said people and there is just the repetition of the contents of FIR.
In view of the above discussion, this Commission is of considerate view since, there is no wilful breach of terms and conditions by complainant in the instant case, therefore, complainant is entitled to the claim amount equivalent to full insured value i.e. Rs. 10,88,415/-. The complainant has also claimed a sum of Rs. 1 lakh as compensation for mental agony and harassment, and cost of the complaint. However, in the absence of any evidence that complainant suffered damages to the tune of Rs. 1 lakh due to rejection of its claim by OP, same cannot be granted to him. Accordingly, the Opposite Party is directed to pay the claim amount of Rs.10,88,415/- towards IDV of the said car, Rs.5,000/- towards mental agony and harassment caused to complainant, and Rs.5,000 towards the litigation cost within 90 days from the date of the Order, failing which the entire amount shall carry interest at the rate of 9% p.a. till the date of actual realisation of the amount.
- The file be consigned to the record room after providing copy of the order to the parties free of cost.
- The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in
- The order contains … pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
