Haryana

StateCommission

A/97/2015

ICICI LOMB.GEN.INSURANCE CO. - Complainant(s)

Versus

AJAY KAMBOJ - Opp.Party(s)

SANDEEP SURI

10 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.97 of 2015

Date of Institution: 27.01.2015

                                                               Date of Decision: 10.05.2016

 

1.      The Divisional Manager, ICICI Lombard Zenith House Keshvarao Khade Marg, Maha Laxmi Mumbai 4000034.

2.      The Manager, ICICI Lombard, General Insurance Co. IInd Floor, SCO No.252, Sector 12, Opposite Mini Secretariat, Karnal.

…..Appellants

Versus

 

Ajay Kamboj S/o Shri Net Ram Resident of 1414/9, Urban Estate, Karnal.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri Sandeep Suri, Advocate counsel for the appellant.

Shri Sanjay Jain, Advocate counsel for the respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

          It was alleged by complainant that he got his tractor bearing registration No.HR 46 A 2096 insured with appellants and policy was valid from 07.03.2009 to 06.03.2010.  On 04.10.2009 at about 1.00 P.M. when it was parked at ‘Sohana’ driver went away to pay obeisance at Gurudwara when he came back the truck was found missing and FIR was lodged at P.S.Mohali on that very day. The truck could not be traced.  He submitted claim, but, was repudiated on the ground that the key was left in the ignition point and cabin was not locked.  There was gross negligence on his part.  The Opposite Parties (O.ps.) be directed to pay compensation as detailed below:-

“8.  That at the time of theft of vehicle, the policy was in currency and as such the complainant ought to have been paid the claim of Rs.16.60 lacs as under:

                   A)       Rs.14.60 Lacs (Being price of vehicle)

B)      Rs.02.00 Lacs on a/c of harassment and rendering the complainant jobless, besides interest and cost of complainant.”

2.      O.ps. alleged that the driver  left key in the ignition and cabin door lock was not working.  He did not take proper care of the vehicle which a prudent man should have done, so his claim was rightly rejected on this point.  Objections about locus standi, maintainability of complaint, estopple, concealing true facts, etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Karnal (In Short “District Forum”) granted following relief vide impugned order dated 26.11.2014, which is as under:-

“Therefore, in view of our above discussion, we accept the present complaint and direct the Ops to make the payment of 75% of the admissible claim to the complainant alongwith interest @ 9% per annum, from the date of filing of the present complaint i.e. 08.11.2011

 

till its actual realization. The complainant shall also be entitled for a sum of Rs.25000/- as compensation for the harassment caused to him and a sum of Rs.2200/- towards legal fee and the litigation expenses. The Ops shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order.”

4.      Feeling aggrieved therefrom the opposite parties-appellants have preferred this appeal on the ground that there was utter negligence on the part of the driver and proper care of the vehicle was not taken.  In this way the terms and conditions of insurance policy were violated and complainant was not entitled for compensation equal to 75% of the value of the vehicle, as per case laws mentioned in the grounds of appeal.  Information was also not given in time.

5.      Arguments heard.  File perused.

6.      Learned counsel for the complainant vehemently argued that   even if there was little bit lapse on the part of the complainant, learned District Forum rightly granted compensation, as mentioned above, keeping in view the opinion of Hon’ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co.Ltd. Vol. CLIX (2010-3) The Pubjab Law Reporter 291.  As per opinion of Hon’ble Supreme Court even if insured has violated terms and conditions of insurance policy, he is entitled for 75% of the insured value. Appeal has no merits and the same be dismissed.

7.      This argument is of no avail.  In this case there is no question of violation of terms of insurance policy but the care of the vehicle to be taken by the insured or his employee.  If we go through the evidence available on the file then it will be clear that the act of the driver facilitated the theft.  It is mentioned in the FIR that the lock of the window was not working properly and key was in the ignition, which was also taken away with the truck.  This FIR was lodged  by complainant with all promptness just after of the theft. Though lateron it was alleged that the key was not in the ignition.It is an improvement in the initial version and shows that the complainant is concealing the true facts.  When it was alleged at the initial stage that key was in the  ignition, now it cannot be believed that the same was taken out by the driver and the window was closed. It shows that complainant wants to get compensation by hook and crook. About conduct of the complainant, it may be mentioned that in the insurance policy, the insured value of the vehicle was Rs.26,0404/-, but, it was alleged in the complaint that the policy was in currency and compensation to the tune of Rs.16.60 lacs  be paid to him, wherein price of vehicle  was alleged to be 14.60 lacs, as mentioned above.  It appears that he might be under-valuing the price of the vehicle so that insurance company may not raise objection. A normal person will lay claim equal to insured value and will not decrease the same. When complainant did not take proper care of the complainant, he was not entitled for compensation even on non-standard basis as opined by Hon’ble National Commission in revision petition No.3182 of 2014 titled as Arjun Lal Jat Vs. M/s HDFC Irgo General Ins. Co. Ltd. decided on 28.08.2014. The relevant para Nos.4 and 5 of the said judgement are reproduced as under:-

“4.The learned counsel for the petitioner/complainant states that the aforesaid statement was given by the driver to the surveyor appointed by the Insurance Company and not to the police.  However, for our purpose, it is immaterial whether the aforesaid statement was made to the police or to the surveyor.  What matters is that the authenticity of the aforesaid documents was not disputed by the complainant either before the District Forum or before the State Commission.  This was not the case of the complainant before the fora below that the surveyor had pressurized the driver of the truck to make the aforesaid statement.  It is quite obvious from the above referred statement of the truck driver that he was the only person in the vehicle, at the time he stopped it near All India Institute of Medical Science in New Delhi, in the night intervening 19/20.01.2010.  It is also evident from the statement that the driver left the truck in start condition, meaning thereby that the key of the truck was in the ignition at the time, the driver went out to ease himself.  Though, the learned counsel for the petitioner/complainant submits that the aforesaid statement can not necessarily be interpreted to mean that the key was in the ignition, we cannot accept that contention. A vehicle cannot remain in start condition, once the key is taken out of the ignition.  The vehicle, in case the key is taken out of the ignition, will immediately stop running.  Therefore, it can hardly be disputed that the driver left the truck unattended with the key of the truck in the ignition.  Had the driver not left the key in the ignition, it might not have been possible for the thief to commit theft of the vehicle.  The driver of the vehicle was clearly negligent in leaving the truck unattended with the key inside the ignition.  In our opinion, once it is shown that the theft took place solely on account of the driver, employed by the insured, the Insurance Company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured.  For this reason alone, the order passed by the State Commission is eminently justified.  This is without our going into the question as to whether leaving keys in the ignition, and leaving the vehicle unattended amounts to breach of the terms and conditions of the policy.

5.      The State Commission entertained serious doubt on the veracity of the certificate purported to  be issued by the SHO, Police Station Hauz Khas, stating therein that the complainant/petitioner had initially come to the Police Station on 20.01.2010, but since he was not in a position to explain all the facts in detail, his FIR was not registered on that day.  We fail to appreciate how the SHO could have refused to register the FIR on 20.01.2010, when the only detail he required for registration of the FIR was the number of the vehicle, name of the driver and date, time and place of the theft and all these information obviously would be available with the complainant as well as his driver, at the time either of them approached the Police Station.  Another discrepancy we note in the certificate purported to be issued by the Police Station Hauz Khas is that as per the certificate, it was the complainant Sh. Arjun Lal, who stated before the SHO that in the night intervening 19/20.01.2010, he had parked truck no. RJ 142G 4283 on Ring Road opposite AIIMS for attending the natural call while going to Bhawri from Haridwar and on return, he had found the truck missing.  On the other hand, the case of the complainant as also reflected in the statement of the driver is that it was Mr. Hemraj, driver of the truck, who had parked the truck near AIIMS in the night intervening 19/20.01.2010 and had gone out to ease himself.  Be that as it may, since in our opinion, the alleged theft took place solely on account of the negligence on the part of the person who was driving the truck, we need not go further into the issue of authenticity of the aforesaid certificate purporting to be issued by the SHO, Police Station- Huaz Khas.”

8.      The complainant cannot derive any benefit from the cited case law because that was pertaining to mode of use of vehicle and not of theft.  This point was also discussed by Hon’ble National Commission in  Arjun Lal Jat case law (supra) and  in revision petition No.3049 of 2014 titled as M/s HDFC Ergo General Ins. Co. Ltd. Vs.Shri Bhagchand Saini decided on 04.12.2014. (case law cited by counsel for the appellant).  Learned District Forum failed to take into consideration this aspect, so impugned order cannot be sustained and is hereby set aside. Resultantly appeal is allowed and complaint is dismissed.

9.      The statutory amount of Rs.25000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and verification.

May 10th, 2016           Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

S.K.