This complaint is coming on for final hearing before us in the presence of Sri P.Dhanunjaya Rao, Advocate for the complainant and Sri D.Sivaram, Advocate for opposite party and having stood over for consideration, the Forum made the following:-

O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.P. to pay a sum of Rs.44,575/- with interest @ 24% p.a., from the date of the theft of the vehicle till the payment is made and to direct the O.P. to pay a sum of Rs.25,000/- towards damages for causing inconvenience to the complainant and to pay costs on the following averments.

          The complainant purchased one Hero Honda Splender Motor Cycle on 24-6-2011 for a sum of Rs.44,575/- and the said Motor Vehicle was insured with O.P. under Policy No.OG-12-1804-1802-00007404.  Since the above said policy is the comprehensive policy it covers all risks and it was in force upto 23-6-2012.  On 10-9-2011 at about 4 p.m., the complainant while coming on his Motor Cycle from Arbindo Company and reached near Kandivalasa Gedda Shandy he parked his vehicle on the left side of the road and went to nearby shop to purchase some articles and when he returned back he found that his Motor Vehicle was missing.  The complainant searched for his Motor Cycle and lodged a complaint with police at Poosapatirega who registered a case in Crime No.143/2011 U/s 379IPC.  Since the Motor Vehicle was not traced by the police the complainant filed a petition before the O.P. along with all relevant documents to get his claim settled but of no avail.  The O.P. sent letter dt.14-11-11 repudiating the claim of the complainant.  Hence, the complaint.

          The O.P. filed counter traversing the material allegations made in the complaint and has averred that they have issued the policy in the name of complainant in respect of the Motor Cycle and it was valid from 1-5-2011 to 30-4-2012.  It is averred that as per material placed by the complainant before them the vehicle was committed theft off on 10-9-2011 and as per FIR the complainant gave complaint to police on 13-9-2011.  Since there is delay of 3 days in lodging complaint the police was deprived of an opportunity to trace the vehicle.  As per terms and conditions 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 vehicle shall not be left unattended without proper precautions being taken to prevent further damages or loss if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

          It is averred that the complainant did not take reasonable steps to safeguard the vehicle and without putting a lock he parked his vehicle on the road side and as he was negligent, in maintaining the vehicle in an efficient condition the same was committed theft of and as the complainant committed breach of the conditions of the policy his claim was repudiated and as there are no bonafides in the complaint the same merits no consideration and is liable to be dismissed.

          It is averred that as there is inordinate delay in lodging a report about the theft of vehicle, the O.P. was deprived to make necessary investigation to trace the vehicle and as the complainant himself is the cause for theft of vehicle, he is not entitled to get the reliefs prayed for.

To prove complainant’s case the evidence affidavit of P.W.1 is filed and Ex.A.1 to A.9 are marked.  On behalf of O.P. the evidence affidavit of R.W.1 and 2 are filed and Ex.B.1 to B.4 are marked.  Heard the counsel for respective parties and perused the material placed on record.

          Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for.

          It is the specific contention of the complainant that his Motor cycle was insured with the O.P. and when the said Policy was in force the motor cycle was committed theft of and the said facts were intimated to the O.P. and a request was made by the complainant to settle his claim but the O.P. instead of settling the claim has repudiated the claim and as such he was forced to file the complaint for the above said reliefs.

          To substantiate the above said contention the complainant filed his evidence affidavit and got marked vehicle insurance cover note, vehicle tax invoice bill, vehicle registration certificate, FIR report, letter by O.P., letter by complainant, letter by O.P. Regd., lawyer’s notice and refer note by Pusapatirega P.S. as Ex.A.1 to Ex.A.9.  To prove respondents case they too filed the affidavit evidence of R.W.1 and 2 and got marked the documents, Insurance Policy, Letter to complainant dt.19-9-2011, letter dt14-11-11 and investigation report  as Ex.B.1 to Ex.B.4.

          As seen from oral and documentary evidence let in by the respective parties and the specific admissions made by the O.Ps. in their counter it is apparent that the motor vehicle bearing No. A.P. 35 M 8450 belonging to the complainant was insured with the O.Ps. and the said policy was in force from 1-5-2011 to 30-4-2012 and while the said policy was in force the said vehicle was committed theft of on 10-9-2011 and the complainant lodged a report with police on 13-9-2011.  Similarly he has intimated the above said fact to the O.Ps. who appointed an investigator to investigate into the matter and to submit a report.  As per the contents of the counter the complainant left the vehicle on National Highway in unlocked condition and went to bring wine for some unknown person leaving the vehicle negligently to the mercy of the strangers.

As seen from Ex.B.4 investigation report the investigating officer went to the place of incident which is on NH 5 road and as per the investigation made by the investigator the case is genuine.  Though there is delay of 3 days in submitting a report to the police as well as to the Insurance company the fact remains that the vehicle was committed theft of when it was parked by the side of NH 5 road.  Though the O.P. has taken a plea that the complainant negligently parked the vehicle in unlocked condition by the side of the road no cogent evidence is adduced to prove the said fact.

In a decision in IV(2013) CPJ 218 (NC) BETWEEN SUKHWINDER SINGH Vs. CHOLAMANDALAM – Ms GENERAL INSURANCE CO.LTD., AND ANOTHER

Leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy.  If in the hurry to answer call of nature driver forgot to remove keys from ignition switch he cannot be said to have committed willful breach of terms and conditions – Repudiation not justified.

In another decision in National Insurance Co.Ltd., Vs. Nitin Khandelwal IV (2008) CPJ 1 (SC)=2008 CTJ 680 (SC)

“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”.

As seen from the principles laid down in the decisions cited supra leaving of key in the ignition of the motor vehicle on all occasions cannot be termed as so serious breach so as to disentitled the insurer from seeking claim under the insurance policy.  Coming to case on hand in Ex.B.4 investigation report the investigator who was appointed by the O.P. to investigate into the matter has clearly stated that as per his investigation police documents, vehicle documents, policy papers of the insured the case is genuine in all aspects.

Though there is delay of 3 days in submitting a report by the complainant to the police as well as to the O.Ps. about theft of vehicle the said delay is not so fatal so as to enable the O.P. to repudiate the claim of the complainant.  Since the investigator of the O.Ps found the case is to be genuine in all aspects and as the vehicle was not traced, the O.P. is liable to pay the insured amount to the complainant.

In the result, the claim of complainant is partly allowed directing the O.P. to pay a sum of Rs.44,575/- (Rupees forty four thousand five hundred and seventy five only) with interest @ 7% from the date of theft of vehicle till the amount is realized and also to pay a sum of Rs.2,000/- (Rupees two thousand only) towards costs which includes the advocate fee of Rs.500/-.  The O.P. is directed to comply this order within 2 months from the date of the order.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 28^th day of April, 2014.

Member                                                           President   

CC. 41 of 2013

                                         APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Original copy of Vehicle Insurance cover note dt.24-6-2011
2. Ex.A.2 xerox copy Vehicle Tax invoice Bill dt.24-6-2011
3. Ex.A.3 Xerox copy of Vehicle Registration Certificate dt.2-8-2011
4. Ex.A.4 Copy of FIR in Cr.No.143/2011 dt.10-9-2011
5. Ex.A.5 original copy of letter by O.P. to the complainant dt.19-9-2011
6. Ex.A.6 Office copy of letter by complainant to the O.P.
7. Ex.A.7 Repudiation letter sent by the O.P. dt.14-11-2011
8. Ex.A.8 Regd. Lawyers notice sent to the O.P. dt.21-12-2011
9. Ex.A.9 Refer note issued by the P.S. dt.31-3-2012

For O.P:

1. Ex.B.1 Attested copy of Insurance Policy issued with terms and
2.  
3. Ex.B.2 letter addressed by O.P. to complainant along with Postal receipt
4. Ex.B.3 Letter to complainant to repudiate the claim
5. Ex.B.4 Investigation report dt.27-9-2011

                                                                                                President.