JUSTICE DEEPA SHARMA (ORAL) THROUGH VIDEO CONFERENCING
The present Appeal, under Section 51(1) of the Consumer Protection Act, 2019 (for short "the Act") has been filed by the Appellant against the order dated 13.02.2020 of the State Consumer Disputes Redressal Commission, Chhattisgarh (for short "the State Commission") in Complaint No.27 of 2019 whereby the Complaint of the Respondent/Complainant was allowed and the following directions were given:
"23. Therefore, the complaint of the complainant is initially accepted and passed the direction in order, that:
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The Opposite Party Insurance Company is directed to pay the amount of ₹23,92,500/- (twenty three lakh ninety two thousand five hundred only) to the complainant within 45 (forty five) days;
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The Opposite Party Insurance Company is also directed to pay the interest yearly 6 per cent calculated on ₹23,92,500/- (twenty three lakh ninety two thousand five hundred only) from the date of institution of case dated 30.05.2019.
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The Opposite Party Insurance Company is directed to paythe compensation on mental agony, ₹10,000/- (rupees ten thousand) and the cost of the litigation ₹3,000/- (rupees three thousand) to the complainant."
2. The brief facts of the case are that the Complainant had purchased a vehicle no.CG
07 BA/8577 and the same was insured with the Appellant against theft. During the validity of the insurance policy, on the intervening night of 7thand 8thOctober 2017, the vehicle got stolen from the roadside. An FIR of theft was registered on 09.10.2017 and the Appellant was also immediately informed of the theft and the claim was also filed. The claim of the Respondent was, however, repudiated by the Appellant on the ground that the Complainant was guilty of violation of Clause 5 of the terms and conditions of the policy. Aggrieved, the Respondent/Complainant filed the Complaint before the State Commission.
3. The case of the Complainant before the State Commission was that his vehicle when being driven on road developed some
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fault, probably in the clutch plate and therefore, the vehicle could not be driven further. The vehicle was then parked on the roadside and a search for mechanic was made. However, it was found that the vehicle had been stolen.
4. Thereafter, the Complainant approached the Opposite Party for claim of insured vehicle. The claim was repudiated only on the ground of violation of the Clause 5 of the insurance policy.
5. Parties led their evidences before the State Commission. The State Commission after appreciating the evidences on record and hearing the arguments of learned counsel for the parties and going through the case laws relied upon by the parties has held as under:
"19. The claim submitted by the complainant has been rejected by the Opposite Party Insurance Company due to breach of condition point no.5 of the insurance contract, according to which the complainant himself will be responsible for the loss incurred because the complainant has not been taken adequate security measures, for which it is said that the complainant is responsible for that loss. The First Information Report (annexed hereto Annexure C-6) and O.P.-2) lodged by driver Nathuram Juganlal Dewang stated in brief that: "on 06.10.2017, as on instructions of the owner, I was directed, came to Nagpur, so after reaching in Nagpur I met his
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friend on 07.10.2017, when that time after meeting he said, got to Bhandara to load the sand dust on truck. At the behest of him, I have been decided to depart from Nagpur in the evening at 05/06, then, I carried out the vehicle from that place of his house, but while going to Bhandara, I stopped the truck just after crossing the bridge pulia at around 6/00 hrs due to mechanical problem occurred in truck, -4-
may be the clutch plate defunct, I parked the truck on road side. After gap of some time I made a phone call to a friend of the owner of the vehicle, requested him to come down because the vehicle at now is technically given some problem and stopped at road side. That after sometime the friend of the owner of the vehicle came at that side, there from informed to the owner of the vehicle on phone. At around 6:30 pm, I along with that person left to search the mechanic, after locking the vehicle, but due to the night, no mechanic was there available or found due to darkness in the night at that time then we both went back to nearby dhaba for taking of dinner and he suggested me to stay here, don't be bother, we will be sure to find the mechanic in tomorrow morning. He again suggested me to stay here in the night. That on 08.10.2017 at around 7:00 am in the morning, when I went by auto to the place where the truck was parked on road side, have seen, no truck was there parked that mean theft, I made effort by hard to search the vehicle but did not find it anywhere, so I made a phone call to Mangesh Channe and narrated about missing of the vehicle from there and requested him to come here. When that time we started search drive in surrounding areas there where nearby road but the trick was not found then informed the owner of this vehicle on phone. "Thus, it is clearly mentioned in lodging of the first information report - the driver went to find a mechanic by locking the vehicle. So the driver locked the vehicle and kept the key in safe. It has been raised a question by the defendant that the vehicle was left wihout locking the truck vehicle and keys was leave on dash board so the vehicle was stolen but it is not true because after locking of truck vehicle the key was deposited, further the Opposite Party said the complainant deposited only one key to the insurance company. That in other hand the report of the Sai consultant extracted on page number 6 of the report there two key received by the Opposite Party insurance company. It is mentioned, even if the insurance company did not receive two keys, from the complainant plaintiff, so the question is raised the said insurance company why did not asked for demand of keys in his written letter dated 12.01.2018, 06.03.2018 and 07.06.2018. The Opposite Party insurance company was not clarifying about this raising point. It is clear from the First Information Report that the vehicle was left safely by the complainant and the keys of the vehicle were also
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given to the insurance company by the complainant. Thus the complainant has not violated the condition no.5 of the insurance terms and condition.
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20. The justice illustration presented by the non-applicant insurance company is a different from the facts of this case, so it does not get the benefit to the non- applicant insurance company.
21. In view of the above averments, we have now come to the conclusion that the complainant has been successful in certifying that after locks the vehicle left from there after parking of the vehicle on safe stand, after that both the keys of the vehicle was submitted to the insurance company. Thus insurance policy condition number 5 has not been violated by the complainant. In such a situation, the service has not been discharge in proper that mean lack of service incurred by the Opposite Party insurance company by cancelling the claim of the complainant, so the complainant is entitled to receive the claim amount.
22. The complainant submitted a copy of the insurance policy terms and condition Exhibit C-2, there is mentioned I.D. value of vehicle in total of 25,20,000/- (twenty five lakh and twenty thousand) and there in written statement of the insurance company at para no.3 mentioned about the vehicle utilized in total of 5 months, so for this use of vehicle the cost of the vehicle shall be reduce in ratio of 5% plus ₹1500/- (rupees one thousand five hundred) that mean the cost of the vehicle after reduce shall be valued ₹23,92,000/- (twenty three lakh ninety two thousand five hundred only), the complainant is entitled to receive the claim amount.
23. Therefore, the complaint of the complainant is initially accepted and passed the direction in order, that:-
The Opposite Party insurance company is directed to pay the amount ₹23,92,000/- (twenty three lakh ninety two thousand five hundred only) to the complainant within 45 (forty five) days;
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The Opposite Party insurance company is also directed to pay the interest yearly 6 per cent
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calculated on ₹23,92,000/- (twenty three lakh ninety two thousand five hundred only) from the date of institution of case dated 30.05.2019;
(3) The Opposite Party insurance company is directed to pay the compensation on mental agony, ₹10,000/- (rupees ten thousand) and the cost of the litigation ₹3,000/- (rupees three thousand), to the complainant."
6. Learned Counsel for the Appellant has challenged these findings of the State Commission on the ground that the proper precautions were not taken when the vehicle was parked on the road. It is submitted that the vehicle had mechanical defects and therefore, could not have been moved from the road and that the claim submitted by the Complainant is false.
7. I have heard the arguments of learned Counsel for the Appellant and perused the record.
8. It is observed that the Appellant had taken only one ground in its repudiation letter that is breach of clause 5 of the terms and conditions of the insurance policy and no other. Clause 5 is reproduced as under:
"5. The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all time free and full access to examine the vehicle insured or any part thereof or any driver of employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of -7-
the damage or any further damage to the vehicle shall be entirely at the insured's own risk.
9. In the case of Galada Power and Telecommunication Ltd. Vs. United India Insurance Company Limited & Another, 2016 14 SCC 161, the Hon'ble Supreme Court has observed that the Insurance Company cannot proceed beyond the reasons specified in the repudiation letter. The Apex court has held as under:
"12. It is evincible, the insurer had taken cognizance of the communication made by the appellant and nominated a surveyor to verify the loss. Once
the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned senior counsel appearing for the appellant has commended us to a decision of High Court of Delhi in Krishna Wanti v. Life Insurance Corporation Of India..[1], wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view."
10. A similar view was taken by the Hon'ble Supreme Court in the case of
"Saurashtra Chemicals Limited vs. National Insurance Company Limited, 1 (2020) CPJ 93 SC" which is as under:
"22. Hence we are of the considered opinion that the law as laid down in 'Galada' on issue (2) still hodls the field. It is a settled position that an insurance company
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cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC."
11. Thus, the Hon'ble Supreme Court has clearly held that the only plea, as a defence, which can be taken by the Insurance Company is the one mentioned in the repudiation letter. Admittedly, in this case, the repudiation letter only mentions the breach of condition no.5 of the insurance policy wherein it is mentioned that the insured is not entitled for the benefit under this contract if he had not taken adequate security measures. The evidences on record which is the statement of the Complainant in the form of affidavit and another documents on record clearly show that the Complainant had taken adequate measures while leaving the vehicle on roadside. The Complainant had clearly stated that he locked the vehicle while leaving it on the roadside. There is no evidence on record to show the contra. The surveyor's report clearly shows that the Complainant had handed over the two keys of the vehicle to the surveyor. This corroborates the testimony of the Complainant that he had properly locked the vehicle and then took the keys with him at the time of leaving the vehicle on the roadside. The findings of the State Commission, therefore, are
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based on the cogent evidences on record. I found no illegality or perversity in the impugned order. The present Appeal has no merit and the same is dismissed in limine.
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DEEPA SHARMA
PRESIDING MEMBER
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