Sri Shyamal Gupta, Member

Present Appeal is directed against the order dated 29-09-2015 passed by the Ld. District Forum, North 24 Parganas in CC/41/2015, whereof the complaint has been dismissed.

In a nutshell, case of the Complainant is that, on 15-01-2012, her vehicle/truck got stolen for which necessary complaint was lodged with the local Police Station on the very same day.  The Insurance Company was also intimated of such peril without any delay.  However, the Insurance Company repudiated her claim vide letter dated 16-01-2013.  Therefore, the complaint was filed.

On the other hand, case of the OP is that from the documents submitted by the Complainant it has been observed that the driver, Ranjit Singh, after unloading the cattle, parked the empty truck in front of the Office of the Insured without locking and securing it, which was a clear breach of Policy Condition No. 5. Therefore, the instant claim was repudiated.

Decision with reasons

We have heard the Ld. Advocates of the parties and gone through the documents on record.

It is not in dispute that the insured vehicle got stolen and frantic efforts by the Police to recover it drew a blank.  Yet, the Respondent repudiated the instant claim alleging that the driver failed to take reasonable care in the matter as he left the ignition key in the vehicle and to prove such allegation, the Respondent furnished on record a statement purportedly written by Sri Arun Mondal, husband of the Appellant.

It is, however, significant to note that in this regard the Respondent has not furnished any such statement from the driver concerned though the instant claim was repudiated over his alleged lapses.  More so, the so called statement of Sri Arun Mondal has not been exhibited.

Be that as it may, let us assume for the sake of argument that the driver indeed left the ignition key inside the insured vehicle.  Now, the question remains, whether that alone is suffice to repudiate a claim. 

On a thoughtful consideration of the facts and circumstances of the case, it appears to us that this cannot be a justified ground to repudiate an otherwise bona fide claim.  Let us elaborate this.

The policy conditions put due emphasis on taking ‘reasonable care’ to safeguard the insured vehicle from loss/damage.  In this case, it appears that the driver locked the doors of the vehicle after parking the same in front of the office of Sri Arun Mondal.  Since it was about 9 o’clock in the evening and the driver had no other assignment in hand left to be done, there is no reason to mistrust such contention. 

Given that the doors of the vehicle were properly locked and the vehicle was not abandoned in a deserted place or public road, but near the office of Appellant’s husband, to our mind, this is sufficient proof of the fact that reasonable care was taken to safeguard the vehicle as envisaged/stressed upon in the policy conditions. It seems, buoyed with the zeal to deny settlement of the instant claim, the Respondent purposely blurred the fine distinction between ‘reasonable care’ and ‘extreme vigilance’. 

There can be no manner of doubt in most of the theft related cases; there would be some element of lapses on the part of the Insured/his driver.  However, what is important to keep in mind in such cases is whether such lapse is tantamount to ‘fundamental breach of contract’ or not.     

In our considered opinion, it was certainly not.  It is true that, ideally the ignition key should have been kept with the driver concerned.  In any case, since he locked the doors of the vehicle and parked it in front of the office of Appellant’s husband, it seems, he did take reasonable care.

Ld. Advocate appearing on behalf of the Respondent referred to two decisions of Hon’ble National Commission reported in III (2017) CPJ 293 (NC) [Bachhu Singh vs. National Insurance Co. Ltd.] and R.P. No. 1893/2016 [Cholamandalam MS General Insurance Co. Ltd. v. Ashish Kumar Walecha]. However, on going through the same, we observe that in both the cases, apart from leaving the ignition key inside the vehicle, the doors were not locked.  Facts and circumstances of the case being widely different, we feel, the same has got no bearing in the present case.

On the other hand, the Hon’ble National Commission in Mahabir Singh v. Reliance General Insurance Co. Ltd. & Anr., 2018 (1) CPR 659 (NC) observed that leaving of the key in the ignition of the car on all occasions cannot be termed as to serious breach so as to disentitle the insured from seeking claim under the insurance policy. 

In our considered opinion, the alleged lapses on the part of the driver of the concerned vehicle should not be viewed as a fundamental breach of policy condition and since he took reasonable care by locking the doors of the insured vehicle, we cannot support outright repudiation of the instant claim of the Appellant.

The Ld. Advocate also pointed out that by ferrying cattle the Appellant contravened the provisions of the Motor Vehicles Act.  We are, however, unable to appreciate such view of the Ld. Advocate given that at the material time, undisputedly, the vehicle in question was not carrying any cattle, but it was totally empty and stranded in a stationary condition. 

In the light of above findings, we do find some merit in the present Appeal and accordingly, we deem it fit and proper to direct the Respondent to settle the claim on non-standard basis.

The Appeal, thus, succeeds in part.

Hence,

O R D E R E D

The Appeal stands allowed on contest in part.  Respondent is directed to settle the instant claim on non-standard basis by paying 75% of the IDV of the insured vehicle or Rs. 6,00,000/- within 40 days hence together with simple interest @ 9% p.a. over the sum of Rs. 6,00,000/-  w.e.f. 22-01-2015 till full and final payment is made. The impugned order is hereby set aside.

Let the LCR be returned to the Ld. District Forum along with a copy of this order forthwith.