NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION No. 3205 OF 2008
(From the order dated 24.03.2008 in First Appeal No. 68 of 2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi)
New India Insurance Company
87, M. G. Road
Mumbai- 400 001
2. Regional Office at Level V, Tower II
Jeevan Bharati Building Petitioners
Connaught Circus
New Delhi – 110 001
3. And Also at 10th Floor
Core I, SCOPE Minar
District Centre, Laxmi Nagar
New Delhi – 110 092
versus
Sachin Bhardwaj
Resident of B – 108, PMO Society
Sector – 62, NOIDA Respondent
District Gautam Buddha Nagar
Uttar Pradesh
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI PRESIDING MEMBER
HON’BLE MR. ANUPAM DASGUPTA MEMBER
For the Petitioner Mr. Niraj Singh, Advocate
For the Respondent In person
Pronounced on 30th May, 2012
ORDER
ANUPAM DASGUPTA
This revision petition is directed against the order dated 24.03.2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in First Appeal no. 68 of 2008. By this order, the State Commission dismissed the appeal filed by the petitioner against the order dated 29.11.2007 of the District Consumer Disputes Redressal Forum (Central), Delhi (in short, ‘the District Forum’) in complaint case no. 543 of 2006 by which, the District Forum, in turn, had allowed the complaint of the complainant/respondent and directed the petitioner (which was the opposite party–OP before the District Forum) to pay Rs.2,48,500/- towards the insurance claim of the respondent/complainant along with interest @ 9% per annum from29.03.2006 (date of filing of the complaint), compensation of Rs.5,000/- and cost of Rs.2,000/- within sixty days from the date of the order. Thus, the petitioner is before us against the concurrent orders of the two Fora below.
2(i) The undisputed facts are that in September 2004, the respondent/complainant obtained a Householders insurance policy and a Vyavasayi/AdhikariSuraksha Kavach policy, based on pre-insurance inspection of the household articles like clothing, kitchenware/crockery/cutlery, furniture and fixtures, miscellaneous house-hold items, electrical/mechanical appliances, articles of personal use, jewellery and electronic goods. The sums insured for different categories of goods were different, including Rs.2,68,000/- covering all risks for jewellery and other valuables under the Householders policy and Rs.6,000/- for a mobile hand phone set under the Vyavasayi/Adhikari Suraksha Kavach policy.
(ii) The respondent, with his wife and child, went from NOIDA to Aligarh to attend a family wedding. On their return journey on 13th November 2004, the complainant’s car got overheated and had to be stopped midway. As they were carrying valuables including jewellery, video camera, digital camera, etc., the complainant packed these in a suitcase in the car and leaving the car locked where it had stopped, he took his wife and child by bus (which was passing by) to a regular bus stop from where his wife and child were in a position to take a bus and reach home.
(iii) After dropping them at the bus stop the complainant returned to the spot where he had left his car and found that he could now start the car as the engine had cooled down. After driving for a kilometer or so, his car was suddenly hit from behind by an Ambassador car. The complainant stopped the car and came out to inspect the damage and talk to the driver of the Ambassador car. In a matter of seconds, however, some people alighted from the Ambassador car, got into the complainant’s car and drove it away. The ambassador car also was driven off.
(iv) The complainant went to the Police Station by taking a ride in someone else’s car and registered his complaint. He also lodged an insurance claim with the petitioner company.
(v) The petitioner appointed a surveyor who conducted a detailed survey and assessed the loss at Rs.1,49,342/- under the two insurance policies (Rs.1,36,342/- for loss of jewellery, camera and sunglasses under the Householders insurance policy and Rs.13,000/- for mobile handset, cash loss and baggage/clothing loss under the Suraksha Kavach policy), after applying depreciation at rates varying from 50% to 25%. However, observing that the complainant/insured did not take adequate care in safeguarding the insured property, the surveyor recommended that the claim was not payable. The insurance company wrote a detailed letter dated 03.08.2005 seeking clarification from the insured complainant. After further consideration, the petitioner repudiated the claim by its letter dated 09.03.2006 on the following grounds:
“The company on receipt of intimation has got the investigation carried out. The documents as available and report submitted by the surveyor confirmed that there was negligence on your part while leaving the suitcase containing jewellery and other items in the car. As per the condition no. 3 of the policy it is expressly agreed that the insured shall take all reasonable steps to safe guard the property against any loss or damage. The sequence of events confirms that you have not exercised reasonable care while leaving the valuables in the car at the time of boarding the bus. Moreover, you have failed to spell out the reasons for not carrying the bag while leaving the car”.
3. Aggrieved by the repudiation, the insured filed a consumer complaint before the District Forum, which allowed the complaint as summarised above and the petitioner’s appeal against the said order was also dismissed by the State Commission.
4. We have heard Mr. Niraj Singh, learned counsel for the petitioner and the respondent in person and considered the documents placed before us.
5(i) As regards the ground for repudiation of the insurance claim that the insured/complainant/respondent was negligent in leaving the suitcase containingjewellery, valuables and other items in the car where it had stopped while he went to drop his wife and child by bus to the nearest bus stop (from where they could go home), we are in agreement with the findings of the Fora below that, in the facts and circumstances of the case, the steps the insurer took were reasonable enough to protect the insured property. Further, as emphasised by the respondent/complainant during the hearing, the loss of the suitcase containing the insured articles like jewellery, etc., did not take place while he was away to drop his wife and child at the nearest bus stop and his car was unattended (but duly locked). The theft took place after his car was banged by an Ambassador car from behind and then driven off by the miscreants who later abandoned the car somewhere close by but decamped with the suitcase containing the insured valuables. In other words, the claim of the insured for indemnification of the loss ought not to have been repudiated by the insurance company on the ground of lack of adequate steps on the part of the insurer to safeguard the property.
(ii) As regards the second contention that the insured should not have alighted from his car (when it was hit by the Ambassador car from behind) with the ignition key in the socket, the stand of the insurance company is hardly acceptable. It is totally impractical to contend that the insured should have, after alighting from the car to see the extent of the damage and have a word with the driver of the offending vehicle, first securely locked the windows and doors of the car. The complainant/respondent has rightly pointed out that the theft of the suitcase, valuables, etc., took place only after the car was driven off by several miscreants over which he could possibly not have any control.
6. Learned counsel for the petitioner has also emphasised that even if the claim were to be admitted for payment, the amount could not exceed the loss assessed by the surveyor in his report. Ordinarily, this proposition cannot be faulted. However, on careful perusal of the assessment of the loss by the surveyor we find that he applied deduction by way of depreciation to the insured amount of Sony Handycam video camera and Kodak digital camera (total Rs.61,000/-) @ 331/3% and Rayban sunglasses @ 25% under the Householders policy and @ 50% on Rs.6,000/- for the mobile phone handset and the baggage containing clothing, etc., under the Suraksha Kavach Policy. In all, the surveyor reduced the value of the loss by Rs.30,058/- on account of depreciation at the rates mentioned above. It is noteworthy that the policies were taken in September 2004 and the loss occurred in November 2004. Moreover, a qualified surveyor had subjected each of the items covered under the two policies to detailed pre-insurance inspection. Therefore, the contention that the surveyor applied depreciation on account of failure of the insured to produce the original bills does not carry conviction. The surveyor who conducted the pre-insurance inspection would have looked all the original bills before agreeing to specific insured sums noted against each item. Therefore, to apply depreciation within a matter of just two months of the pre-insurance inspection and that too at such high rates was surely not warranted. However, in our considered opinion, the reasoning given by the surveyor in disallowing the claim for the alleged loss of Mangalsutra is sound.
7. In conclusion, in respect of the amount the order of the District Forum (as affirmed by the State Commission) cannot be sustained in its entirety. In our view, the amount payable by the insurance company towards indemnification of the loss would be Rs. 1,49,342/- as assessed by the surveyor plus Rs.30,058/- deducted by way of depreciation (vide the surveyor’s report for items no. 8 & 9 under the Householders’ policy and items no. 1 & 3 of the Suraksha Kavachpolicy) without any justification (including Rs. 1,000/- less allowed under item no. 3 (Gold Kada’s)). This total sum of Rs. 1,79,400/- should also carry interest @ 9% per annum, as awarded by the District Forum, from the date of filing of the complaint till its actual payment, because the insured/complainant has not challenged the order of the District Forum on the point of date of commencement of interest payment. However, the award of compensation of Rs.5,000/- in addition to the interest is not permissible.
8. The revision petition is, therefore, partly allowed and the orders of the Fora below are modified to the extent that the petitioner insurance company shall pay to the respondent/complainant Rs. 1,79,400/- with interest @ 9% per annum from the date of filing of the complaint till its payment. In addition, the insurance company shall pay cost of Rs.10,000/- to the respondent/complainant for all proceedings, including this. The payment may be made within six weeks. On the payment being so made by way of demand draft, the insurance company will be at liberty to get refund of the amount deposited with the District Forum with interest, if any, accrued thereon.
Sd/-
…………………………………
[K. S. Chaudhari]
Sd/-
…………………………………….
[Anupam Dasgupta]
satish
