Delhi

StateCommission

A/312/2019

RAJEEV KUMAR BANSAL - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. - Opp.Party(s)

SANJAY GUPTA

19 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 19.08.2019

 

First Appeal- 312/2019

(Arising out of the order dated 15.04.2019 passed in Complainant Case No. 204/2015 by the District Consumer Disputes Redressal Forum (III), Janakpuri, New Delhi)

 

Sh. Rajeev  Kumar Bansal,

S/o Late Shri Yogeshwar Nath Bansal,

R/o 51-B, Dayanand Vihar, Delhi - 110092

…..Appellant

 

Versus

 

Bajaj Allianz General Insurance Co. Ltd.,

1, DLF Industrial Plot, 2^nd Floor,

Moti Nagar, New Delhi -110015.

.….Respondent

 

 

CORAM

 

Ms. Salma Noor, Presiding Member

 

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Ms. Salma Noor, Presiding Member

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 15.04.2019 passed by the Consumer Disputes Redressal Forum (III), Janakpuri, New Delhi (in short, the “District Forum”) in Complaint Case No.204/2015 whereby the aforesaid complaint has been dismissed.
2. Briefly the facts are that appellant herein i.e. complainant before the District Forum had filed a complaint under Section 12 of the Act stating therein that he purchased a car Make- Nissan Sunny Model –XV bearing registration No.DL-14-C-5100 and insured the same with respondent/OP for the period from 28.03.2012 to 27.03.2013.  On 10.02.2013 at about 9.00 PM appellant/complainant had gone to attend wedding ceremony at Country Inn Hotel, Ghaziabad. The driver of the complainant parked the car outside the hotel as there was no space in the parking area of the hotel. It was stated that after attending the marriage the appellant/complainant called the driver on his mobile who was searching the vehicle because the vehicle was not found parked at the place where the driver had parked. It was stated that upon inquiry by appellant/complainant, the driver informed that he had gone for toilet and when he came back he did not find the car. Accordingly, FIR No.31/2013 was recorded at PS, Link Road, Ghaziabad under Section 379 IPC.  It was stated that on the basis of the said FIR, appellant/complainant filed his claim before respondent/OP on 15.02.2012.
3. However, the claim was repudiated on 23.04.2013 on the ground that the driver had left the ignition key in the vehicle and vehicle was also unlocked at the material time of left, thus leaving the vehicle in drivable condition which has directly contributed to the theft of the vehicle, is a violation of the policy terms and conditions, namely, policy condition No.4.  It was alleged that the user of the vehicle had failed to take reasonable steps to safeguard the vehicle from loss as such there was violation of condition No.4 of the policy. Alleging deficiency on the part of the respondent/OP, aforesaid complaint was filed before the District Forum claiming Rs.8,34,100/- as insured value of the car along with compensation of Rs.5,00,000/- and Rs.55,000/- towards litigation cost.
4. The respondent/OP had filed written statement opposing the claim of the appellant/complainant.  It was alleged that there was no deficiency in service on their part.  The complaint was filed without any cause of action.  It was alleged that the driver of the vehicle had left the ignition key in the ignition switch as such there was negligence on the part of appellant/complainant. It was alleged that the appellant/complainant had failed to take reasonable steps to safeguard the vehicle which was pre-condition in ascertaining the loss to the vehicle.  It was alleged that there was violation of condition No.4 of the policy by appellant/complainant.
5. Rejoinder was filed by the appellant/complainant reaffirming his claim and denied the defence version.
6. Both the parties had filed evidence by way of affidavits. 
7. After hearing both the parties, the Ld. District Forum after relying upon various judgment of the Hon’ble Supreme Court as well as National Commission, wherein it was held that the insured will be not entitled to compensation in case of theft of vehicle where the key has been left inside the car and owner/driver had gone for urination without taking proper care of the vehicle, dismissed the aforesaid complaint.
8. Aggrieved with the aforesaid order, present appeal is filed by appellant/complainant.
9. Ld. Counsel for the appellant/complainant has contended that it is own case of appellant/complainant that there is no lapse on the part of the insured as it is not the insured who had left the vehicle in question unattended by it was his driver who went in hurry to answer the call of nature. It is contended that there was no breach of  terms and condition of the policy by the insured.
10. I have heard Counsel for the appellant/complainant and perused the material on record.       
11. It is admitted position that the appellant/complainant had taken the policy in respect of vehicle in question from respondent/OP.  The policy was valid from 28.03.2012 to 27.03.2013.  The theft of vehicle had taken place on 10.02.2013. It is also not disputed that the appellant/complainant had gone to attend wedding ceremony at Country Inn Hotel, Ghaziabad and driver of the complainant parked the car outside the hotel as there was no space in the parking area of the hotel. As per the appellant/complainant after attending the marriage the appellant/complainant called the driver on his mobile who was searching the vehicle because the vehicle was not found parked at the place where the driver had parked. Further, it was stated that upon inquiry by appellant/complainant, the driver informed that he had gone for toilet and when he came back he did not find the car and FIR No.31/2013 was recorded at PS, Link Road, Ghaziabad under Section 379 IPC. 
12. As per respondent/OP leaving the key in the ignition switch in such circumstances amounts to gross negligence on the part of user of vehicle as such there was breach of condition No.4 of the policy.  The policy condition No.4 reads as under:

“C-4. 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 or any part there of or any driver or employee of the insured.”

 

13. The respondent/OP in the written statement has stated that driver of the appellant/complainant himself in his own hand writing written a letter and submitted that he left the remote key of vehicle, hi mobile, blackberry mobile of complainant without sim card and document of the vehicle due to urgent nature call. Thus, it is admitted position that driver of   the car left the key in the vehicle meaning thereby the vehicle was left in drivable condition. 
14.  The issue in question is no more res-integra in view of the recent orders passed by this Commission in "RP No. 2795/2008, "Oriental Insurance Co. Ltd. vs Tara Singh (deceased) through LRs decided on 28.09.2016" and another case in "RP No. 2398/2016, "Ajay Kamboj vs. Divisional Manager, ICICI Lombard Zenith House & Anr. decided on 21.11.2016".  It is a well-settled legal proposition that if the keys of the vehicles are left inside the ignition socket, it amounts to grave negligence on the part of the complainant.
15. In the present case as well, the appellant/complainant has nowhere stated that the keys were taken away by the driver, when he went to attend the call of nature, after parking the vehicle on the roadside.  A perusal of the copy of the letter written by the appellant/complainant to Claim Manager of the respondent/OP, it is stated that the driver came out from the car  and went for call of nature and after coming back he found that car was not there.  In case, the keys were in possession of the driver or he had locked the car properly before going to attend the call of nature, the culprits could not have just entered the vehicle and driven it away.
16. The repudiation letter issued by the Insurance Company says it clearly that the insured vehicle was left unattended with the keys inside the vehicle, by the driver, when the alleged theft occurred and hence, there was negligence on the part of the driver.  It is very clear from the facts of the case, therefore, that the complainant is not entitled to the claim under the Insurance Policy as there has been negligence on their part, in leaving the keys inside, while going away from the vehicle.
17. Reliance is also placed on the judgement of National Commission in II (2013) CPJ 578(NC) - Jagdish Prashad v. ICICI Lombard General Insurance Co. Ltd. in which repudiation of claim was upheld as complainant had left keys in the vehicle.  He also placed reliance on IV (2013) CPJ 137(NC) - New India Assurance Co. Ltd. v. Ajit Kumar wherein repudiation of claim was held proper by National Commission as complainant had not taken ignition keys of the car when he went for urination.  Similar view was taken by the National Commission in R.P. No.4477 of 2010 - Ranjit Singh v. United India Insurance Co. Ltd.
18. In view of the above discussion, I find no infirmity in the impugned order and dismiss the appeal in limine.
19. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum.  Thereafter the file be consigned to record room.        

 

 

 

(Salma Noor)

Presiding Member