Before the District Consumer Disputes Redressal Forum, Amritsar.

Consumer Complaint No  : 96of 2018

Date of Institution                      : 09.02.2018

Date of Decision               : 13.02.2019

Harjit Singh son of Joginder Singh resident of House No. 11, Baba Darshan Singh Avenue, Ram Tirath Road, Amritsar                                                                                                                                  …..Complainant

Versus

The New India Assurance Company Ltd. having its Divisional Office at 80 Court Road Amritsar through its Divisional Manager.

                                                                                      …Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act.

Present: For the Complainant: Sh.B.S.Rajput, Advocate.

              For Opposite Party :   Sh.Vikas Mahajan,Advocate

 Coram

Sh.Charanjit Singh, President

Mr.Anoop Sharma, Member

Ms.Rachna Arora, Member

Order dictated by:

Sh.Charanjit Singh, President

1        The complainant Harjit Singh has filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called   as 'the Act') against the New India Assurance Company Ltd. having its Divisional Office at 80 Court Road Amritsar through its Divisional Manager(Opposite Party) on the allegations of deficiency in service and negligence in service on the part of the opposite party with prayer that the opposite party be directed to pay the insurance amount of Rs. 7,44,487/- with interest of 12% per annum from the date of lodging the claim till the payment of the amount on account of theft and total loss of the Hyundai i-20 bearing registration No. PB-02-CM-5550. The opposite party be also directed to pay Rs. 1,00,000/- as compensation

2        The case of the complainant in brief is that he is owner of a Hyundai I-20 Car having registration No. PB02-CM-5550 having chassis No. MALBSIRLEMO27770 and Engine No. D4FLEM215700. The complainant has got the above said car insured with the opposite party vide Policy No. 1130003140300232653 dated 19.10.2014 for an amount of Rs. 7,44,487/- valid till 18.10.2015. On 27.9.2015, the complainant had gone to Pritam Dhaba, Railway Station Road, Amritsar to have a dinner. At about 12.30 A.M, the complainant came out of the said Dhaba after having dinner and he took out his purse from the dash board of the car and went inside of the Dhaba to pay the bill. During that time, two unidentified persons have stolen away the car of the complainant from there. The complainant immediately informed the police and on his complaint, an FIR No. 331 dated 27.9.2015 under Section 379 of the IPC was registered in the police Station Civil Lines, Amritsar on his statement. The opposite party was also intimated about the theft of car by the complainant by submitting a copy of FIR No. 331/2015 regarding the theft of the car. On 14.10.2015, the complainant received an information from the police station Kanwan, district Pathankot that the stolen car No. PB02-CM-5550 has been recovered in a burnt condition by the police officials on 5.10.2015 at Farida Nagar and a separate FIR No. 95 dated 5.10.2015 under section 436/427/160 and 2015 of the Indian Penal Code was also registered at the said police station in this regard. The complainant was called in the police station Kanwan District Pathankot to identify the said burnt car. On  15.10.2015, the complainant visited the police station Kanwan, District Pathankot and identified the burnt car as his own car No. PB02-CM-5550. The complainant also informed the opposite party about the recovery of the car in question in a burnt condition by the police of Police Station Kanwan, District Pathankot. The complainant completed all the formalities as required by the opposite party and all the relevant documents were supplied for the payment of the insurance claim as per terms of the insurance policy No. 11300031140300232653 dated 19.10.2014 but the opposite party kept on delaying the settlement of the claim of the complainant about disclosing anything to him for about two years for months. The complainant was utterly shocked when he received a letter dated 18.1.2018 issued by the opposite party whereby he was intimated that he was negligent for not locking the vehicle properly at the time of theft of vehicle and the claim was not admissible under the policy, thus, the opposite party repudiated the insurance claim of the complainant. The reputation of the insurance claim of the complainant for the theft and total loss of the car in question is totally illegal, unjustified and illogical. The opposite party is trying to avoid its legal liability under the policy of the payment of insurance amount on the false grounds. The opposite party is liable to pay the insurance amount for theft and total loss of the car of the complainant.

3        Upon notice of the complaint, the opposite party appeared through counsel and filed written version taking preliminary objections that the present complaint is legally not maintainable as the same is an abuse of process of law. The complainant has no locus standi to file the present complaint against the opposite party as the complainant is not consumer within the definition of consumer as defined in the Consumer Protection Act, 1986. The complainant is estopped by his own act and conduct from filing the present complaint qua the opposite party. As per condition No. 4 of the terms and conditions of the policy, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition” and in the present case, complainant left the car unlocked and keys were lying in the car and car was ignited/ on and as such complainant was negligent and he did not lock the car properly and has made breach of condition No. 4 of terms and condition of the policy and as such, claim has been repudiated by the opposite party. No cause of action has arisen in favour of the complainant to file the present complaint against the opposite party. On merits, it was pleaded that on 27.9.2015, the complainant had gone to Pritam Dhaba, Railway Station Road, Amritsar to have a dinner and at about 12.30 A.M. when the complainant came out of said Dhaba after having dinner he went to his car and took his purse from the dashboard of the car and left his car unlocked and ignited and went back to Dhaba to pay the bill and in the meantime two unidentified persons have stolen the car of the complainant from there. The complainant informed the police and the police lodged FIR No. 331 dated 27.9.2015 Under Section 379 of IPC P.S. Civil Line, Amritsar on his statement and in the FIR it is clearly mentioned that complainant left the car unlocked and keys were lying in the car and car was ignited/on and as such, the complainant was negligent and he did not lock the car properly. The opposite party has denied the other allegations of the complaint and prayed for dismissal of the complaint.

4        In order to prove his case, Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. C-1 alongwith documents Ex. C-2 and Ex. C-13 and closed the evidence. On the other hand, Ld. counsel for the opposite party tendered in evidence affidavit of Sh. S.K. Sharma Divisional Manager Ex. OP1 alognwith documents Ex. OP2 to Ex. OP6 and closed the evidence. 

5        We have heard the Ld. counsel for the parties and have carefully gone through the record.

6        Ld. counsel for the complainant contended that the complainant he owner of a Hyundai i-20 Car having registration No. PB02-CM-5550, chassis No. MALBSIRLEMO27770 and Engine No. D4FLEM215700. The complainant has got the above said car insured with the opposite party vide Policy No. 1130003140300232653 dated 19.10.2014 for an amount of Rs. 7,44,487/- valid till 18.10.2015 vide insurance policy Ex. C-6. He further contended that on 27.9.2015, the complainant had gone to Pritam Dhaba, Railway Station Road, Amritsar to have a dinner. At about 12.30 A.M, the complainant came out of the said Dhaba after having dinner and he took out his purse from the dash board of the car and went inside of the Dhaba to pay the bill. During that time, two unidentified persons have stolen away the car of the complainant from there. The complainant immediately informed the police and on his complaint, an FIR No. 331 dated 27.9.2015 under Section 379 of the IPC was registered in the police Station Civil Lines, Amritsar on his statement and the FIR is Ex. C-2. The opposite party was also intimated about the theft of car by the complainant by submitting a copy of FIR No. 331/2015 regarding the theft of the car. On 14.10.2015, the complainant received an information from the police station Kanwan, District Pathankot that the stolen car No. PB02-CM-5550 has been recovered in a burnt condition by the police officials on 5.10.2015 at Farida Nagar and a separate FIR No. 95 dated 5.10.2015 under section 436/427/160 and 201 of the Indian Penal Code was also registered at the said police station in this regard. The complainant was called in the police station Kanwan District Pathankot to identify the said burnt car. On  15.10.2015, the complainant visited the police station Kanwan, District Pathankot and identified the burnt car as his own car No. PB02-CM-5550. The photographs of the burnt car are Ex. C-7 to Ex. C-11. The complainant also informed the opposite party about the recovery of the car in question in a burnt condition by the police of Police Station Kanwan, District Pathankot. He further contended that the complainant completed all the formalities as required by the opposite party and all the relevant documents were supplied for the payment of the insurance claim as per terms of the insurance policy No. 11300031140300232653 dated 19.10.2014 but the opposite party kept on delaying the settlement of the claim of the complainant about disclosing anything to him for about two years for months. He further contended that the repudiation of the claim of the complainant is unjustified and illogical and prayed that the present complaint may be allowed. On the other hands, Ld. counsel for the opposite party contended that the present complaint is legally not maintainable. The complainant has no locus standi to file the present complaint against the opposite party as the complainant is not consumer within the definition of consumer as defined in the Consumer Protection Act, 1986. The complainant is estopped by his own act and conduct from filing the present complaint qua the opposite party. As per condition No. 4 of the terms and conditions of the policy, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition” and in the present case, complainant left the car unlocked and keys were lying in the car and car was ignited/ on and as such complainant was negligent and he did not lock the car properly and has made breach of condition No. 4 of terms and condition of the policy and as such, claim has been repudiated by the opposite party. He further contended that on 27.9.2015, the complainant had gone to Pritam Dhaba, Railway Station Road, Amritsar to have a dinner and at about 12.30 A.M. when the complainant came out of said Dhaba after having dinner he went to his car and took his purse from the dashboard of the car and left his car unlocked and ignited and went back to Dhaba to pay the bill and in the meantime two unidentified persons have stolen the car of the complainant from there. The complainant informed the police and the police lodged FIR No. 331 dated 27.9.2015 Under Section 379 of IPC P.S. Civil Line, Amritsar on his statement and in the FIR it is clearly mentioned that complainant left the car unlocked and keys were lying in the car and car was ignited/on and as such, the complainant was negligent and he did not lock the car properly and in this regard has placed reliance upon  Sr. Divisional Manager, IFFCO Tokio General Insurance Co.Ltd Vs. Smt.Sheeba Jaiman 2017(3) CLT 151 of the Delhi State Consumer Disputes Redressal Commission. As such Ld. counsel for the opposite party prayed for dismissal of the complaint.

7        We have heard the contentions of Ld. counsel for the parties.

8        In the present case, insurance of the vehicle in question is not disputed. The theft of the vehicle in question is also not disputed. The main stand of the opposite party in the present case is that on 27.9.2015, the complainant had gone to Pritam Dhaba, Railway Station Road, Amritsar to have a dinner and at about 12.30 A.M. when the complainant came out of said Dhaba after having dinner, he went to his car and took his purse from the dashboard of the car and left his car unlocked and ignited and went back to Dhaba to pay the bill and in the meantime two unidentified persons have stolen the car of the complainant from there and as per condition No. 4 of the terms and conditions of the policy, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition”.  The other plea taken by the opposite party is that as the complainant has not taken proper care of the vehicle as the ignition key of the vehicle was left inside the vehicle, as such, complainant has also violated condition No. 4 of the policy and had placed reliance upon Sr. Divisional Manager, IFFCO Tokio General Insurance Co.Ltd Vs. Smt.Sheeba Jaiman (Supra). But we are not agreed with the opposite parties as the vehicle in question has been insured from the opposite party and the occurrence took place during the period of insurance policy and the complainant has lodged the FIR to the police and has also intimated the matter to the insurance company-opposite party and the complainant has also placed on record photographs of the burnt vehicle which are also on the file and FIR No. 95 dated 5.10.2015 Under Section 436/427/160/201 IPC is on the record as Ex. C-2 in which it is written that the vehicle in question has been burnt and the complainant identified the same. Further, learned counsel argued that even if for arguments sake it is admitted that the complainant has violated condition No. 4, the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. Learned counsel in support of his above contention has relied upon the case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. vs. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency vs. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. vs. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. vs. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court wherein the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), Hon'ble Apex Court held in the matter of theft of a vehicle, breach of condition of the policy was not germane and also held further that : “ the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to, The Hon'ble Supreme Court has further held that; the insurer”. “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on Hon'ble Apex Court in back drop of these features, in these cases, allowed“non-standard basis.” 75% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company  Hon'ble National Commission in the case  Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672 referred to above relying upon the National Insurance Company Limited versus Kamal Singhal law laid down by the Hon'ble Supreme Court has held that;

“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.

Having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire insured amount, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 75% of the claim of the complainant on 'non-standard' basis” i.e. 75% of the IDV of the vehicle in question at the time of insurance of the said vehicle with Opposite party.

(Charanjit Singh)

                   President    

             (Anoop Sharma)            (Rachna Arora)

                    Member                         Member