Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                                   ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 76/03.04.2019

Jagdev Singh son of Shri Suraj Mal

R/o H.No. 10, Singhu North, Singhu Vill,

West Delhi, Mandir Wali Gali, New Delhi-110040                    …Complainant

Versus

OP1-The Cholamandalam M.S. General Insurance Co.

Office at Plot No. 6, Adjacent to Metro Pillar No. 81,

Pusa Road, Karol Bagh, New Delhi-110005 

OP2-Cholamandalam Investment & Finance Co. Ltd.

Regional Office at, Plot No.6, Pusa Road, Karol Bagh,

New Delhi-110001                                                                                      ...Opposite Parties                                                  

                                                                                    Date of filing              03.04.2019

                                                                                    Date of Order:            30 09.2023

Coram: Shri Inder Jeet Singh, President

                Ms. Shahina, Member -Female

                 Shri Vyas Muni Rai,    Member

                                                       ORDER

Inder Jeet Singh , President

1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services against OP1, who insured complainant’s vehicle bearing registration no. HR 63C 4061, however, the vehicle was stolen but OP1 failed to reimburse the valid claim of total theft loss. Whereas, OP1 opposes the complaint that there was no deficiency of services but complainant or his driver was negligent who left the vehicle unattended by leaving key inside the vehicle, which was in violation of the terms & conditions of the policy. 

1.2. The complaint was initially filed against OP1/insurer but subsequently OP2 was impleaded by way of amended memo of parties (who is financer of the vehicle and vehicle was hypothecated to OP2). There was no reply by the OP2, however, at the stage of final argument, OP2 put his case that since vehicle was under its lien, therefore, OP2 has preference right over the subject matter of insurance claim. 

2.1. (Case of complainant) – The complainant took insurance policy/certificate no. 3379/01576221/01 w.e.f. 15.11.2017 to 14.11.2018, in respect of vehicle bearing registration no. HR 63C 4061, the IDV of vehicle was Rs. 16 lakhs against which premium was paid.

2.2. The said vehicle was stolen and FIR No.034030/2018 u/s 379 IPC e-PS MV Theft, District Crime Branch, was registered on 26.09.2018, the Police could not trace the vehicle and consequently the untraced report was filed on 17.01.2019 before the competent court. The complainant had also informed of theft of vehicle immediately to OP1 on 26.09.2018 at 04:45 pm at its toll free no. 1800-200-5544 vide complaint no. 337925 from mobile no. 9319804219. The OP had appointed surveyor Mr. Pawan Kumar, who visited the spot and collected the evidence and documents from driver inclusive of RC, insurance cover, keys. But the claim was not settled. The OP1 had avoided settlement of the claim and complainant also wrote letter date 19.03.2019 to the head office of OP1 at Chennai but no result. Legal notice was also sent but there was no response. The complainant is facing financial hardship. The complainant also faced trauma of harassment for want of settlement of claim, that is why this complaint for insured amount of Rs. 16 lakh, damages of Rs. 2,55,000/-, cost of Rs. 15,000/- and interest of 24% pa besides other relief.

2.3. The complaint is accompanied with copy of insurance cover, copy of FIR, copy of order dated 17.01.2019 of acceptance of untraced report, legal notice dated 12.03.2019 along with postal receipt and copy of letter dated 19.03.2019. Moreover, copy of order dated 19.03.2019 of CC No. 62/2019 is also filed that earlier complaint was filed but it was withdrawn with liberty to file fresh complaint. The present complaint 76 dated 23.04.2019 is fresh complaint.

3.1 (Case of OP1)-The OP1 does not deny about the comprehensive insurance policy for period from 15.11.2017 to 14.11.2018 for IDV Rs. 16 lakh as well as receipt of information of on toll free number about theft of the vehicle for which formal FIR was registered on 26.09.2018.

3.2. However, the surveyor appointed by OP1 had carried investigation and during that survey, he recorded the statement of the complainant and of his driver, which not only reveals that there is contradictory statement but also there is violation of condition no. 5 of the policy that the vehicle was left unattended by leaving a key inside the vehicle prone to any incident and driver was negligent. The reply reproduces the condition no.5, which read as under :-

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and or to maintain it in efficient condition and 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 precautions being taken to prevent further damage or loss and if the vehicle 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”.

            It is apparent on the face of insurance cover that the policy and its schedule are to be read together, that condition is also reproduced in the reply. The claim was repudiated by communicating it to the complainant vide registered letter dated 08.04.2019, which has been admitted by the complainant.

3.3. The OP1 relies upon Jagdish Parshad Vs. ICICI Lombard GIC Ltd. reported as II (2013) CPJ 578 (NC) held that leaving the vehicle unattended and unlocked with ignition keys in the vehicle amounts to gross negligence on the part of the complainant, which is sufficient to hold that there is violation of the policy terms & conditions.

3.4. Consequently, the complaint is without merit and neither there was deficiency of services nor any unfair trade practices on the part of OP1, it cannot be construed harassment or any trauma to the complainant since there is negligence on the part  complainant and his driver by leaving the vehicle unattended. The complaint is liable to be dismissed.

3.5. The reply is accompanied with insurance cover in one sheet, terms & conditions of policy, photocopy of statement of complainant and his driver, repudiation letter dated 08.04.2019.

4. (Replication of complainant) – The complainant filed rejoinder and complainant reiterates the contents of complaint correct. The other allegations of reply are denied vis-à-vis there is no violation of any condition of the policy and case law cited by the OP1 does not apply to the present case.  

5.1. (Evidence)- Complainant led his evidence by filing detailed affidavit having support from the documents filed along with additional document of settlement deed dated 21.10.2019 that once OP had settled it for  Rs. 11,20,000/- but it failed to pay that agreed amount.

5.2. OP1 led evidence by filing affidavit of Sh. Abhishek Nigam, Deputy Legal Manager, it is also on the pattern of written statement, however, one more fact beyond written statement has been introduced in respect of preferential rights of the Financer (i.e. OP2). It is also supported by documents which were filed with the reply.

6. (Final hearing)-The complainant, the OP1 and the OP2 filed their respective written arguments. The written arguments of complainant and of OP1 are hybrid of pleading and evidence but plea of OP2 is confining to secure its financial rights since the OP2 has preference right in respect of insurable interest in the vehicle. The OP1 has emphasized that leaving the vehicle in unattended situation with key in the ignition amounts to violation of policy and it further places reliance on  OIC Vs. K.K. Valsalan, [III (2014) CPJ 201], Arjun Lal V/s HDFC Ergo [2014 (3) CPR 721 (NC)], Batta Valji Laxman V/s ICICI Lombard GIC [2015 (1) CPR 801], Shamsur vs. Reliance GIC [II (2016) CPJ 385] Avatar Singh V/s Oriental Insurance Co. Ltd. 2016 (1) CPR 606 (NC) Cholamandlam MS General Insurance Co Ltd. Vs Ashish Kumar Walecha RP no.1893/2016 dod 20.4.2014 (NC).

The parties were also given opportunity to make oral submissions, consequently, Sh. Krishan Kumar, Advocate for complainant and Sh. N.K. Chauhan, Advocate for OP1 made the oral submissions but no oral plea by OP2.

7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record, in the form of oral narration given by the witnesses or certain admissions in the pleading besides statutory provision of law and case law/precedent.

            It is undisputed, that the vehicle belongs to the complainant but it is hypothecated with OP2. OP1 is insurer of  the vehicle. The IDV of the vehicle is Rs. 16 lakh. The episode of theft took place on 26.09.2018 during the life of insurance policy and as per FIR the vehicle was parked at Nangloi Railway Station Road. The vehicle remained untraced despite formal FIR and investigation. The final report was filed in the competent court and it was accepted.

7.2. The narrow question for determination is ‘whether or not complainant is entitled for compensation, or was there any violation of terms & conditions of the policy as the complainant’s driver had parked the vehicle road side at Nangloi Railway Station Road but as per statement recorded by the surveyor the driver had concealed key of the vehicle in the box of the temple established inside the vehicle but according to complainant statement the key of vehicle was kept in the box. The OP1 is construing the same as the contradictory statement but the key was kept in the vehicle and driver had gone to sleep, later the vehicle was founds stolen. According to OP1, it disentitles the complainant for any claim in the light of case law presented.

7.3. According to complainant there was no violation as such, it is a case of theft of total loss and there was nothing attributable to the complainant or his driver to be construed negligence on their part or the vehicle was not parked in a safe place, all precautions were taken, while parking the vehicle safely.

7.4. While reconciling the contentions of the parties, the following conclusions are drawn by deriving reasons from the case law:-  

(i) The case law presented on behalf of OP1 of the situation, when the keys were left in the ignition of the vehicle and the same was construed negligence on the part of insured. Whereas in National Insurance Co. Ltd. Vs. Nitin Khandewal appeal civil no. 3419/2008, dod 08.05.2008 (SC) it was held in case of theft of vehicle, breach of condition is not germane and 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. Further, the State Commission has settled the claim on non-standard basis being 75% of sum insured/IDV.

 (ii)  The complainant had also got the vehicle insured with comprehensive policy and the complainant has not denied in the rejoinder that key was suppressed/ left in the vehicle vis-à-vis the surveyor also recorded the statement of driver and of the complainant.

(iii) The vehicle was parked on road side of Nangloi Railway Station Road but the key was left inside the vehicle, it means that the doors of the vehicle were not locked by the driver of the complainant. One can have access to inside the vehicle. It is never the case of complainant either in the complaint or in the rejoinder or in the statement given to the surveyor that the door of vehicle was locked with the second key, which was subsequently handed over to the surveyor.  

(iv) The stolen of the vehicle is total loss and by reconciling with the other circumstances that in case of theft of the vehicle, breach of condition is not germane, therefore, it becomes a case to be settled on non-standard basis.

(v) In addition,  it is relevant to mention that as per proceedings dated 14.12.2019 there was settlement between the complainant and OP1, outside the Commission, and cheque was to be handed over by the OP1 but it was not done. The complainant has proved settlement deed dated 21.10.2019 to this effect of settled amount of Rs. 11,20,000/- but it was not handed over.

7.5.  In view of aforementioned discussion and conclusions, since the theft took place within the life of insurance period and theft is of  total loss and complainant had declared IDV of Rs.16,00,000/-, the complainant is held entitled for 75% of IDV on non-standard basis, the amount comes to Rs.12,00,000/-. This is to be reimbursed by the OP1. Accordingly, the issues stand determined to that extend.

7.6. Complainant also claims interest at the rate of 24% pa, however, there is no justification proved for this rate of interest, therefore, request for interest is at the rate of 24%  is declined. However, the parties got listed the matter for settlement in Lok Adalat pursuant to settlement, but OP1 failed to put its appearance, there was settlement for amount mentioned in the proceedings dated 14.12.2019. Had the complainant received the settled amount, he would not have deprived of the amount. Therefore interest at the rate of 6% pa annum from 14.12.2019 till realisation of amount is allowed in favour of complainant and against OP1.

7.7 The complainant also claims damages of Rs.55,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim.  The aforementioned circumstances are self-speaking and considering them, compensation of Rs. 10,000/- is quantified in favour of complainant and against OP1, cost of Rs. 5,000/- are also allowed in favour of complainant and against OP1.

7.8.  Accordingly, the complaint is allowed in favour of complainant/registered owner/insured and against the OP1/insurer to pay Rs.12,00,000/- along-with  interest at the rate of 6% pa annum from 14.12.2019 till realisation of amount besides damages/compensation of Rs.10,000/- apart from costs of Rs. 5,000/-.

7.9.  OP2 is financer of vehicle, the vehicle is under hypothecation being lien to it. OP2 has insurable interest and first right to receive the amount of hypothecated vehicle. Therefore, OP1 is directed to release the amount to OP2, which OP2 deserves to receive as outstanding amount, subject to furnishing further details of actual balance amount and requisite documents, which OP2 will cooperate in this regard. The excess amount, if any left with OP1 [after paying amount to OP2],  shall be paid by the OP1 to the complainant. The OP2 will inform both the complainant and the OP1 with statement in writing of balance amount on account of complainant immediately on preparing the same. OP2 & OP1 will also inform the complainant immediately on payment tendered by OP1 and received by OP2 .

The OP1 & the OP2 will cooperate by furnishing such details within six weeks (42 days)  from the receipt of this order,  requisite documents to OP1 and of balance amount payable to OP2, since the vehicle was under hypothecation with OP2. Further, the complainant will also cooperate to furnish required documents as per law, if so asked by the OPs in writing.

7.10  OP1 is also directed to pay the amount within six weeks (42 days)  from the date of receipt of documents from the other side (the complainant and the OP2) under acknowledgment.  In case amount is not paid within six weeks from the date of such documents, the OP1 will be liable to pay interest at the rate of 9% per annum (in place of 6%pa) on amount of Rs.12,00,000/- from 14.12.2019 till its realization.

7.10 In case complainant and the OP2 do not furnish further details required of amount and other requisite documents within 42 days, then such period of six weeks or other longer period will be excluded, while computing interest @ 6% pa, or 9% pa as the case may be.

8.  Announced on this 30th September, 2023 [अश्विन 8, साका 1945].

9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.

[Vyas Muni Rai]                                 [Shahina]                                 [Inder Jeet Singh]

      Member                                 Member (Female)                              President