PER MR.B.S.WASEKAR, HONBLE PRESIDENT
1) The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, she is the owner of the Toyota Corola car bearing No.MH-04-BS-7224. It was insured with the opponent as Private Car Comprehensive Policy covering the period from 31 October, 2010 to 30 October, 2011. Thest th complainant along with her husband went to Delhi on 21 November, 2010. She was there till 26st November, 2010. Her son Ayush aged 17 years was staying in the house. On 26 November,th th 2010, at about 6.30 A.M., she received phone call from her son Ayush that her vehicle met with an accident. The complainant reached at Mumbai on 29 November, 2010. She came to knowth that on 25 November, 2010, friends of her son gathered in her house. They went to sleep atth about 12.00 midnight. At about 2.30 A.M. to 2.45 A.M., one of his friend Balraj Kathuria received phone call from Shantanu Pendekar that the car bearing No.MH-04-BS-7224 met with an accident at Jogeshwari, Western Express Highway. Her son found that his friend Shantanu Pednekar and Aniruddha Munj were not present in the house. The key of the car was also not there. On further enquiry, she came to know that friends of her son had stolen the car key and took the car for joy ride to Bandra Sea Link. On way back at Jogeshwari, there was already an accident and police were present. Aniruddha was driving the car. He saw police there and got scared and lost control of the car. The car dashed against the road divider and turned turtle. The car gave dash to the bike and the bike rider died on the spot. Police registered offence against Shantanu and Aniruddha. The car was stolen without knowledge of the complainant and the accident took place.
2) The complainant submitted the claim with the opponent. The opponent appointed Surveyor for investigation. The opponent vide letter dated 25 January, 2011 repudiated theth claim on the ground that the person driving the vehicle was not holding valid driving license and he was below 18 years of age and he was under the influence of alcohol. In the accident, the car was damaged. It was beyond repairs. Therefore, the complainant was compelled to sell it as the scrap. The opponent has wrongly repudiated the claim therefore the complainant has filed this complaint for insurance claim of Rs.3,60,000/- with interest. She has also claimed compensation of Rs.1 Lakh for mental agony and Rs.50,000/- as cost of litigation.
3) The opponent appeared and filed written statement. It is submitted that the complicated question involve therefore it can not be adjudicated by the Forum. There is breach of terms and conditions of the policy. The complainant did not take proper care to keep keys in safe custody and allowed to drive it by the minor friend of her son. He was driving the vehicle without license and under influence of alcohol. As the complainant has committed breach of terms and conditions of the policy, she is not entitled for the claim. Therefore, the claim was repudiated. Hence, the complaint is liable to be dismissed.
4) After hearing both the parties and after going through the record, following points arise for our consideration. POINTS Sr.No.Points Findings
1) Whether there is deficiency in service ? Yes
2) Whether the complainant is entitled for the relief as claimed? Yes
3) What Order ? As per final order REASONS
5) :- There is no dispute that the complainant is the owner and the vehicle As to Point No.1 & 2 was insured. The policy document is on record. It is also not disputed that accident took place and the vehicle was damaged. According to the complainant, Surveyor was appointed. This fact is not denied by the opponent in the written statement. Surveyor Report is not produced on record by the opponent. The opponent repudiated the claim on the ground that the vehicle was driven by the minor friend of her son without valid driving license and under the influence of alcohol. According to the complainant, she was out of Mumbai and the vehicle key was stolen by the friend of her son. The said friend was not permitted by her to drive the vehicle. According to her, key was stolen by the friend of her son. The copies of F.I.R. and Spot Panchanama are on record. As per F.I.R., son of the complainant was not present on the spot at the time of accident. According to the opponent, proper care was not taken by the complainant for the safety of the vehicle. On the other hand, it is submitted by the learned advocate for the complainant that the car was stolen at night time when the complainant was out of station and her son was also sleeping. According to him, in case of theft of vehicle breach of condition is not germane. Therefore, the insurance company is liable to indemnify the owner of the vehicle. For this purpose, he has placed reliance on the judgment of Honble Supreme Court reported in 2008 (11) SCC 259, in Civil Appeal No.3409 of 2008, in the case of National Insurance Company Limited Versus- Nitin . In para 13 of the judgment, the Honble Supreme CourtKhandelwal, decided on 8 May, 2008 th has held as under : Para 13. 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 even 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. The facts before us are identical. The vehicle was stolen when the complainant was out of station and her son was sleeping in the house. The vehicle was not taken away by the consent of the complainant. Therefore, the claim is wrongly repudiated. In view of the law laid down by the Honble Supreme Court in the abovecited judgment, the complainant is entitled for the claim. According to the complainant, the vehicle was completely damaged and therefore she was compelled to sell it as a scrap. According to the complainant, Surveyor was appointed by the opponent but Survey Report is not produced on record by the opponent. Therefore, the submission of the complainant that the vehicle was completely damaged will have to be accepted.
6) In the abovecited judgment, the Honble Supreme Court has allowed the claim on non standard basis. As the facts before us are identical, we think it just to allow the claim of the complainant on non standard basis. As per insurance policy, the IDV of the vehicle was Rs.3,60,000/-. Therefore, the complainant is entitled for 75% of the IDV i.e. Rs.2,70,000/-.
7) The learned advocate for the opponent has placed reliance on the judgments Honble Supreme Court reported in (2000) 2 Supreme Court Cases 628, in Civil Appeal No.631 of 1994, in the case of Corporation Bank and Another Versus- Navin J. Shah, decided on 25 January,th 2000, in Appeal (Civil) 2526 of 2007, in the case of Oriental Insurance Company Limited Versus- Premlata Shukla & Ors., decided on 15 May, 2007, in Civil Appeal No.5876 of 2008,th in the case of United India Insurance Company Limited -Versus- Rakesh Kumar Arora & Ors, decided on 24 September, 2008 and judgment of Honble High Court of Delhi in MACAth No.1052/2006, in the case of New India Assurance Company Limited Versus- Manjit Singh & . But, the facts before us are totally different. Therefore, theOrs., decided on 18 May, 2011 th abovecited judgments are not applicable in this complaint.
8) In spite of requests, the opponent failed to pay the claim thereby the complainant suffered from mental agony. Therefore, the complainant is entitled for the compensation for mental agony. We think compensation of Rs.10,000/- will suffice the purpose. Besides this, the complainant is entitled for the cost of this proceeding Rs.5,000/-. Hence, we proceed to pass the following order. ORDER Complaint is allowed. The Opponent/Insurance Company is directed to pay Rs.2,70,000/- (Rs.Two Lakhs Seventy Thousand Only) to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 28 January, 2013 till realization.th The Opponent/Insurance Company is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as compensation towards mental agony. The Opponent/Insurance Company is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant as cost of this proceeding. The above order shall be complied with within a period of one month from today. Copies of this order be sent to the parties free of cost. Pronounced on 9 th February, 2015 [HON'BLE MR. B.S.WASEKAR] PRESIDENT [HON'BLE MR. H.K.BHAISE] MEMBER
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