BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

FA NO.670 OF 2014 AGAINST CC NO.19 OF 2014

ON THE FILE OF DISTRICT FORUM, NALGONDA

Between:

The Oriental Insurance Company Ltd.,

Claims Service Center, 6-1-349,

Padmarao Nagar, adjacent to Nivedhyam Hotel,

Secunderabad – 500 025, Rep. by its Claims Manager,

Presently by its Regional Manager, Sri K.S. John,

Regional office, Snehalatha Buildings,

Begumpet, Hyderabad.

…Appellant/Opposite party

And

B.Devidath S/o Prabhakar,

Aged 38 years, Owner of Tanker Lorry

bearing No.AP-24Y-7474,

R/o H.No.1-4-289/1, Market Road,

Suryapet Town, Nalgonda District-508 213.

…Respondent/Complainant

Counsel for the Appellant        :         Sri S.Agasthya Sharma

Counsel for the Respondent    :         Sri Vemuru Srinivas

Coram                  :

Hon’ble Sri Justice B.N.Rao Nalla   …      President

and

Sri Patil Vithal Rao … Member

Friday, the Tenth day of March

Two thousand Seventeen

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

          This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum, Nalgonda dated 11.08.2014 made in CC No.19 of 2014 in allowing the complaint and directing the Opposite party to pay Rs.12,50,000/- and a sum of Rs.10,000/- towards deficiency of services with interest @ 9% p.a. from the date of the complaint till realization and costs of Rs.5,000/- granting time of one month.

2)       For the sake of convenience, the parties are referred to as arrayed in the complaint.

3)       The case of the complainant, in brief, is that the Complainant is owner of Tanker lorry bearing No.AP24Y-7474, being insured with the Opposite party vide policy No.433703/31/2012/117, covering the period from 05.05.2011 to 04.05.2012.  Complainant gave the vehicle on hire to HPCL, Imampet village of Suryapet, Nalgonda district.  On 21.07.2011 at about 1800 hours, the driver and clearner of the complainant parked the lorry at HPCL godown and kept in queue behind two tankers for annual inspection of Weights and Measures and went away to their house.  On 22.07.2011 at about 0800 hours they found the lorry missing from the said place.  On coming to know of the same, the complainant lodged complaint with the Police, Suryapet and a case in crime No.81/2011 was registered for the offence U/s 379 of IPC and took-up the investigation.

4)       Complainant also approached the Opposite party and gave intimation as to the theft of lorry from HPCL godown requesting to settle the claim.  The OP deputed an investigator to investigate into the matter and he submitted his report.  The police, Suryapet filed final report on 05.09.2012 as “undetectable”.  Thereafter, with a gap of two and half years, the opposite party repudiated the claim on the premise “leaving the vehicle unattended and keeping the keys in the dash board amounts to gross negligence”.  Thereafter, complainant sent a clarification on 11.02.2014 through his counsel.  The act of the Opposite party in not settling the claim amounts to deficiency in service and negligence.  Hence the complaint with a prayer to direct the Opposite party to pay the claim amount of Rs.20,00,000/- with interest from 21.07.2011 till realization together with costs.

5)       The Opposite party resisted the claim by way of written version contending that the complaint is barred by limitation and admitting the ownership of the complainant and insurance and also admitted about repudiating the claim.  In the letter dated 27.01.2014, the complainant stated that it is the general practice of the lorry drivers in Suryapet that they keep the vehicle keys in the dash board after locking the cabin door and the reason was that the next day the same driver may not attend his duty.  The complaint has to be filed within a period of two years from the date of cause of action i.e., 21.07.2011. 

6)       As per condition No.5 of the policy, the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle.  The Opposite party rightly repudiated the claim and there is no deficiency in service on its part.  Hence, prayed to dismiss the complaint with exemplary costs.

7)       During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed his evidence affidavit and Exs.A1 to A4 and on their behalf, the Opposite party got filed the evidence affidavit of one R.Nagabhushanam, its Senior Divisional Manager and the documents Ex.B1 to B7.

8)       The District Forum after considering the material available on record, allowed the complaint bearing CC No.19/2014 by orders dated 11.08.2014, as stated, supra, at paragraph no.1.  

9)       Aggrieved by the above orders, the Appellant/Opposite party preferred this appeal contending that the forum below (a) ought to have accepted the pleadings and documents in right perspective and ought to have held no deficiency in service on its part; (b) ought to have seen and appreciated that the theft of insured vehicle projected by the insured is the ingenious creation of the insured with make believe stories without even filing the affidavit to whom it was entrusted; (c) ought to have appreciated that the theft is unbelievable despite engaging two drivers and a clear thus exhibiting callous approach in safeguarding the insured vehicle; (d) ought to have seen that Ex.B4 reveals that the theft was committed by breaking the lock fixed on the driver’s side of the cabin; (e) ought to have seen that the repudiation is based on the terms and conditions of the policy; (f) ought to have seen that there is no justification either for the driver or the Cleaner of the vehicle to leave the vehicle on the road, for the entire night and failure to submit the keys of the lock said to have been broken, thus resulting in suspicion about the alleged version of theft.  Hence, prayed to allow the appeal by setting aside the order of the forum below.

10)     The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner?  To what relief ?

11)     It is not in dispute that the Respondent is the owner of the subject vehicle i.e., Tanker lorry and being insured with the Appellant insurance company under Ex.B1 and that the policy was in force as on the date of the alleged theft i.e., on 21/22.07.2011.  It is also not in dispute that the driver by name G.Janaiah and the cleaner by name N.Ramana Rao parked the insured vehicle on the day before the alleged theft. 

12)     It is also not in dispute that immediately after not tracing the vehicle at the place where it was parked, the Respondent lodged a complaint with the Police, Suryapet Rural, who in turn registered a case in Cr.No.81/2011.  The only dispute is that the vehicle was kept unattended by either driver or cleaner and the Respondent failed to safeguard the vehicle as provided under the terms and conditions of the insurance.  Further, keeping of the lock in the dash board closing the cabin door is gross negligence on the part of the attendants of the insured vehicle and thereby repudiated the claim by letter dated 21.01.2014.   

13)     Immediately after repudiation of the claim, the Respondent made a representation dated 11.02.2014 clarifying the circumstances for keeping the vehicle unlocked.  It is the case of the Respondent that the vehicle in question was parked in queue for annual inspection by the Weights and Measures department personnel by keeping the keys in the dash board keeping the cabin door locked.  The insured vehicle where it was parked is the premises belonging to the HPCL company where there is a tight security and it has its own reputation in maintaining the premises.  The Police report also fortifies the said averment. 

14)     It is the averment of the Respondent that in order to facilitate the other driver on the next day who attends duty, the keys were kept in the dash board as usual and also in the event of any emergency, to secure keys immediately.  This is made clear by way of representation dated 11.02.2014.  We may state that when the keys are not kept to the visibility of the public, it cannot be said to be negligence on the part of the driver or the cleaner, as the case may be, of the vehicle in taking its care. 

15)     As can be seen from the discussions made by the learned district forum, it had answered all the queries in a sound footing, as such, we do not need it to reiterate again to address the grievance of the appellant.  Nothing prevented the appellant from repudiating the claim immediately after receipt of the investigation report, but instead, after a gap of nearly two and half years, it was repudiated on 21.01.2014 and the complaint was filed before the forum below on 07.03.2014, which cannot be termed as barred by limitation.  We do not agree with the contention of the appellant that the cause of action for filing the complaint had arisen on 21.07.2011 i.e., the alleged date of theft. 

16)     It is pertinent to state here that the subject vehicle was kept in the HPCL premises in queue for annual inspection but not in an open area or road side to attract any negligence on the part of the driver or its cleaner.  Admittedly, the driver of the insured vehicle kept the keys beyond the visibility of anyone by keeping it in the dash board by locking the driver’s door, which cannot be said to be negligence on his part.  Though the respondent claimed the amount of Rs.20,00,000/- together with interest, he could not prove the same by placing any record.  Admittedly, the declared value is shown as Rs.12,50,000/- at the time of taking insurance, as such, the same is granted by the forum below which cannot be found fault with.   

17)     Having regard to the fact that the forum below had answered all the queries in a detailed manner, we do not see any infirmities or irregularities in the order and we hold the same to be justified.  Accordingly, we answer the point framed for consideration at paragraph No.10, supra, against the Appellant and in favour of the respondent.

18)     In the result, the appeal fails and is accordingly dismissed but in the circumstances, the parties to bear their own costs.  Time for compliance : four weeks.

PRESIDENT                       MEMBER

Dated 10.03.2017