Written Arguments in favor of Complainant

BEFORE THE DISTRICT CONSUMER

DISPUTE REDRESSAL FORUM AT BHUJKUTCH
Complaint No. 15/2014

IN THE MATTER OF:

Ranvirsinh Rajendrasi
Complainant

Zala

..................................

- VresusIffco-Tokio General Insurance Co.Ltd. etc (3)

Opponents

..................

Written Arguments by the Complainant in the matter mentioned

above:

The Complainant, Ranvirsinh Rajendrasi Zala, most

respectfully submits written arguments before the Honorable
District Consumer Dispute Redressal Forum, Bhuj- Kutch, in
respect of his complaint in the matter mentioned above.
Cause of Action of this Complaint:
The Cause of this Complaint has arisen with the denial of
Opponent

No

1,

Iffco-Tokio

General

Insurance

Co.Ltd, to settle the claim of the Complainant of Rs:

50,875/- against the loss he suffered on account of the

theft of the insured vehicle, i.e. his Motor Cycle Bajaj
Pulsar-150, Registration No: GJ 12 BE 0552.

Main Reason cited by the Opponent Company

for rejection of the Complainants claim:
The Insured Vehicle was not locked at the time of the
theft, and this constitutes a breach of Condition No: 4 of
the Insurance Policy that The insured shall take all
reasonable steps to safe guard the vehicle from
any kind of loss or damage and to maintain it in
efficient condition. ..

Our Contentions:
1.

The Opponent No: 1 is trying to interpret the contents of

the said Condition No: 4 to their benefit and thus trying
to wriggle out from their legal liability of paying the
claim amount as per the terms and conditions of the

2.

insurance policy.
The Policy Condition No: 4 doesnt expressly state that
the Company has no liability in case of theft of unlocked

3.

vehicles.
The said condition which the Opponent is using as a tool
to shun their legal liability is actually in the form of
advisory, and it is general in nature.

Every person of

sound mind would take reasonable steps to safeguard

4.

his property however petty it may be.

The word reasonable in the said condition is not
conclusive. Its perception would vary from person to
person. No arbitrary decisions can be taken by any one
party to the contract against the other party where
interpretation of such word is involved.

5.

The Opponent Company has cleverly incorporated this

vaguely constructed condition in their policy document,
with a view to interpret it arbitrarily to serve their
dishonest intention of turning down their Customers

6.

rightful claims.
It has come on the record that the stolen vehicle was
properly parked in the tin roofed court yard of the
insurers house, specially made for the purpose of
safeguarding the vehicles from sun light, heat, dust,

7.

rain, moisture and other hostile weather conditions etc.

The Vehicle was of course not locked, but ignition keys
were not left in the vehicle. So far as matter of locking
the vehicle is concerned, it depends on the perception of
fear of theft. When one parks ones vehicle in the
parking of his own house specially made for the

8.

purpose, one certainly has no perception of fear of theft.

It must be noted that the theft has occurred at night.
The vehicle has been stolen from the house of the
insurer. It means that the thief must have come with full
preparation of stealing the bike and he must have had

9.

all the implements of breaking a lock as well.

In this case the matter of not having locked the insured
vehicle no way contributes anything to occurrence of
theft. Even if we accept that the matter of not locking
the vehicle is negligence on the part of the Complainant,
this negligence is not contributory to occurrence of theft
because the person who started the bike without key
would have been able to unlock the same without key

also.
10. Moreover, if take the contention of the Opponent
Company to be true then it would plainly mean that if
the Complainant had locked the bike then the theft

would not have occurred. But it is not so, because there

are infinite examples of theft of locked vehicles.
11. With an intention to wriggle out of their legal liabilities of
paying

the

Complainant

the

claim

amount,

the

Opponent Company is using the Condition No. 4 of the

Policy as a tool.

Judicial pronouncements on the same issues:

In the case of National Insurance Co. Ltd vs Nitin
Khandelwal on 8 May, 2008 the Honorable Supreme Court
of India has observed as follows:
13. In the case in hand, the vehicle has been snatched or
stolen. 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.
In the case of Amalendu Sahu vs Oriental Insurance Co.Ltd on 25
March, 2010 the Supreme Court of India observed as follows:
14. In this connection reference may be made to a decision of
National Commission in the case of New India Assurance
Company

Limited

v.

Narayan

Prasad

Appaprasad

Pathak

reported in (2006) CPJ 144 (NC). In that case also the question
was, whether the insurance company can repudiate the claims in
a case where the vehicle carrying passengers and the driver did
not have a proper driving license and met with an accident.
While granting claim on non-standard basis the National
Commission set out in its judgment the guidelines issued by the

insurance company about settling all such non-standard claims.

The said guidelines are set out below:-
Sr.
No.

Description

Percentage of
settlement

(i)

Under declaration
of licensed
carrying capacity

Deduct 3 years'
differene in
premium from the
amount of claim
or deduct 25% of
claim amount,
whichever is
higher.

(ii)

Overloading of
vehicles beyond
licensed carrying
capacity

Pay claims not

exceeding 75% of
admissible claim.

(iii)

Any other breach

of warranty/
condition of
policy including
limitation as to
use

Pay upto 75% of

admissible claim.

Thus,

in

the

light

of

the

above

mentioned

Judicial

Pronouncements it is clear that even if there is any breach of

any policy condition, yet the Insurance Company is liable to
pay at least 75 % of the admissible claim to the insured.

In the present case there is no breach of any

condition:
There are some Judgments in which the District Forum, State
Commissions and National Commissions have repudiated the
claims of the insured in the cases of thefts on the ground of
negligence found on the part of insured where the insured

vehicle was left unattended and unlocked with the

ignition keys left in the vehicle.
But in the present case, the insured vehicle had been parked
in the tin roofed parking of the house and the ignition key
was not left out on the vehicle.
The Complainant had parked the vehicle at the best possible
safest place where he can.
A vehicle parked at ones house cannot be called left
unattended.
The complainant did not lock the vehicle because he did not
perceive any fear of theft. But he has not left the ignition
key on the bike, so there is no negligence to be ascribed on
his part.
So, it is clear that this is not a case of negligence on the part
of the claimant and hence question of breach of policy
condition no.4 regarding not having properly safe guarded
the insured vehicle doesnt arise.
In the light of the above, the Complainant most humbly
pray the Honorable Forum to pass an appropriate order in
favor of the complainant and grant the relief as sought in the
Prayer Clause of the Complaint
Place: Bhuj-Kutch
Pathan)
Date: 19/ 11 /2014
Complainant

(Gulabkhan
Advocate

I.
for