How to establish ‘reasonable care’ against an insurer refusing to pay your claims
The word has been cropping up in this discourse with increasing regularity. Reasonable care, reasonable man, reasonable woman, etc. The last one attracted a lot of reader attention and feedback.
The duty of care has its component of reasonableness. As with the definition of reasonable man, what is the dividing line for the definition of reasonable care? It could be anything, widely varying between two individuals’ perceptions. How that can lead to litigation is our story for the issue.
One Mr Kapoor owned a motorcycle. From the data available, it looks like it was a normal bike, costing about Rs60,000/-. In June 2010, the bike was stolen. Fortunately, Mr Kapoor had full insurance, not a third-party cover. Mr Kapoor asked the insurer to make good the loss.
At this point, it is necessary to discuss how the system works. In case of loss of a vehicle, the insured party has to immediately lodge a complaint within a maximum of 24 hours. Jurisdiction lies with the police station where the theft occurred, not the residential thana. If incapable of reporting personally, make sure a friend or a relative does it. Some police stations are chary about taking complaints. If you encounter refusal, just go to the nearest post-office and send the complaint by registered post, or speed post, acknowledgement due. It is at that moment that your clock starts. You have done your job.
Next, write to the insurance company. Give the whole history. The insurance policy number, a photocopy of the policy, the place of theft, date and time, when you complained the theft to the police station, a copy of the small chit stating the NC (non-cognisable complaint) number. It is best to remember that documentation is everything. Send a copy of your driving licence, hopefully valid. If the rider was someone else, send his, or her, details. Make sure that you have made all possible efforts to trace the vehicle, asking people in the area; pan-wallahs are good bets. So are urchins and street-dwellers.
Next, follow up for a few days with the police station. No insurance company does anything for a month; hoping it was all a mistake; maybe it was taken for a ride and abandoned. Then, get going after the insurer. They will try their level best to stall and prevaricate. No one likes to shell out money.
Mr Kapoor must have done all the spadework. So, the insurer found something to shift the blame. It transferred the guilt to the victim! This is where the affair gets murky. Not having any concrete proof against Mr Kapoor, it fell back on subjectives. Accusations that are vague are always difficult to refute. The insurer said that Mr Kapoor “…had not taken reasonable care.”
Reasonable care includes locking the vehicle properly. Beyond that, there is no way that the owner can be held responsible. It’s not that he has parked his vehicle in Taliban territory or outside the territorial limits of the country. The insurer was trying to wriggle out.
Mr Kapoor went to a consumer court.
Now, you be the judge.
This is how the Central Delhi District Consumer Disputes Redressal Forum decided. It showed its annoyance at the lack of caring on the part of the insurer. Mr Kapoor was four years into the loss. Insurers have a battery of lawyers who represent them. People like Mr Kapoor may have never seen the insides of a court. The insurer was not only made to pay the cost of the bike less the 10% deduction (for usage), but also made to pay Rs20,000/- as penalty and damages.
The system works, slowly but surely. Hallelujah!
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])