Smt.Bindhu M.Thomas, Member.

Petitioner's case is as follows:

Petition is an advocate practising before the couts at kottayam. He had a Maruti model 800 car bearing Registration Number KL.5K.513. It was insured with the opposite party vide policy number 570600/01/6106378 for a sum of Rs.2,17,000 for a period of one year with effect from 01/12/2001 to 30/11/2002. The complainant had parked his vehicle in the collectorate compound on 4.12.01 and at about 6.15 pm he boarded the car to go home, but the vehicle refused to start despite several attempts. The petitioner locked the car and informed AVG Motors about the breakdown of the car. The AVG motors informed him that they would tour the car using their recovery van as soon as it was available. On the next day it was found that the vehicle was stolen. Immediately the matter was intimated to the Kottayam East police

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station and a criminal case with crime No.410/01 was registered in this regard. The complainant intimated the above said matter to the opposite party by a letter dated dated 5/12/01 and motor claim form was lodged with the insurance company on 10.12.2001. After a lapse of more than two years the police closed the file as nondetectable. The complainant submitted the certified copies of the police report, all vehicular documents and the duplicate key of the vehicle to the opposite party. But the claim was repudiated vide letter dated 28.2.05 on the ground that there was violation of policy condition. Hence the petitioner prays for a direction to the opposite party to pay the sum insured along with 12% interest and Rs.5000/- as cost of the proceedings.

The opposite party entered appearance and filed version with the following main contentions.

1. The collectorate compound is owned and managed by the govt. of kerala and public is permitted to enter in the compound only in office time.

2. The police for the security of treasury or bank is not a

   security meant for the civil station.

3. The vehicle kept in the civil station compound under the impression that it will be taken over by AVG motors means the vehicle kept there for taking anybody by easy means.

4. The petitioner has not submitted the claim form on 10.12.01

   and has not surrendered all keys of the vehicle.

5. The vehicle parked in the civil station compound after 5pm

   can be considered as the vehicle left unattended without proper precaution. The said act is a violation of the policy

   condition and the opposite party is not liable to pay compensation.

    

Hence opposite party prayed to dismiss the petition with cost

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of proceedings.

Points for consideration are

1. Whether there is any unfair trade practice or deficiency in

   service.

2. Reliefs and costs.

    

   Evidence consists of the affidavits filed by the petitioner and opposite party and exhibits A1 to A, B1 to B and C1 to C.

    

    

Point No.1.

The complainant averred that during office hours he used to park his vehicle in the collectorate compound and on 4.12.01 also it was parked in the same compound. The complainant further averred that on 4.12.2001evening, when he come to take his car, it refund to start despite of repeated attempts and therefore he locked the car and informed AVG motors, the authorised service people. It was next averred by the complainant that as it was night, there was no possibility of getting the vehicle repaired and therefore the vehicle was duly locked and kept in front of the

Treasury and SBT where there has been 24 hours police security. The complainant caused submitted again averred that the AVG motors offered to tow the car upon availability of a recovery van.

The opposite party resisted the complaint and stated that collectorate compound is owned and managed by the government of Kerala and the public is permitted to enter the compound only in office time. The opposite party further stated that the act of leaving a breakdown vehicle unattended without proper precaution in the civil station compound after 5pm is a violation of the policy

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condition. The opposite party's counsel argued that the police security in front of SBT and treasury was not for the vehicle parked there and therefore the parking of the car in the collectorate compound after office house amounted to abandonment. The opposite party's counsel submitted that if the vehicle was locked, the petitioner would have given both keys before the opposite party. The opposite party's counsel further submitted that the absence of reasonable steps to safeguard the property against the accidental loss or damage is a policy violation and is liable to be repudiated. He placed reliance on the decisions reported in IV 2007 CPJ 431, IV (2005) CPJ 602, III (2006) CPJ 180.

The learned connect for the petitioner argued that the vehicle was parked in the collectorate compound in office hours and it could not be removed from there on account of breakdown. The further argued that a broken down vehicle could not be equated with a vehicle parked and therefore the fact that the vehicle was left in the collectorate compound even after office hours cannot be considered as unauthorised parking.

The opposite party submitted that the IEV of the vehicle is Rs.2,00,000/- and the said vehicle is 2000 November model. He further submitted that as the theft was on 3.12.2001 the vehicle is liable to a depreciation of 10% as per the learned counsel for the complainant submitted that the poling was dated -1/12/2001 and the declared value was Rs.2,17,000/- and this amount was arrived at after considering the depreciation. The complainant's counsel further submitted that since the theft was only three days after the policy date 01/12/2001, no further depreciation is permissible. According to the complainant's counsel, when once the insurer accepted the declared value of the vehicle and accepted the premium for fixed on that value, no deduction is permissible during

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the subsistence of the policy. The counsel for the complainant relied on the decision needed by the Honourable National Commission reported in 2008(ii) CPJ page 1869NC0 in which the insurer was ordered to pay the insured sum in full along with interest @ 18% from three months after the date of the theft.

We have gone through the entire material on record. The letter sent by the petitioner to the insurance company dated 4/12/01 intimating the opposite party about the theft of the vehicle is marked as exhibit A2 and the claim from submitted by the petitioner dated 10/12/2001 is marked as exhibit A3. On persuing exhibit A2 and A3 it is clear that the petitioner duly informed the opposite party, company about the theft of the vehicle.

The repudiation letter issued by the insurer dated 28.1.2005 is produced and marked as exhibit A4. As per exhibit A4, the reason for repudiation of the insurance claim is violation of condition of the policy is also produced and it is marked as exhibit B. As per the 4^th condition of the policy 'In the event of any accident or breakdown the Motor car shall not be left un attended without proper precautions being taken to present further damages as loss and if Motor car be driven before the necessary repairs are affected any extension of the damage or any further damage to the Motor car shall be entirely at the insured's own risk'. Keeping reliance on the first part of the above said condition the insurance company repudiated the claim. In this instant case the broken down case was not left on a public road or such place. It was in the district civil station compound. If the collectorate compound is not secure, which place is secure. It is a matter of shame that a district civil station compound is under the control of miscreants and

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thieves. In order to avoid the parking of the car in the collectorate compound after office hours, if the petitioner had tried to remove the vehicle from those and caused any further damage to the vehicle according to opposite party it would also have resulted in the violation of the policy condition. In such a condition what a prudent man can do is to lock the vehicle and inform the service people and get their assistance. In this instant case also, the petitioner had done the same.

The opposite party has produced a letter dated 5.2.05 issued by the District Collector and is marked as exhibit B1. We do not find any force in the above said letter because as per exhibit B1, private vehicles are not allowed to park in civil station premises after office hours. In this case the said vehicle was not intentionally parked in the civil station compound but it was left there only due to breakdown.

There is no dispute regarding the 'theft of the car' nd the report of the police as the vehicle now detectable'. Since this is a case of total loss, due to theft of the vehicle, repudiation of the claim on account of breach of condition is not justifiable. In this behalf we would like to refer to the decision of The Supreme Court of India in National Insurance Co. Ltd. Vs. Nitinkhandelwal reported in 2008 CTJ 680 (Supreme Court) (CP). In this case The Supreme Court has observed that in the case of theft of a vehicle, The breach of condition is not germane.

As per the direction of the forum the opposite party produced three valuation reports prepared by three surveyors of the insurance company. These survey reports are marked as exhibit C1, C2 and C3. The Surveyors Mr.V.N.Sivan Pillai, Mr.B.Jayachandran and Mr.T.V.Babu assessed the loss at

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Rs.2,10.000, Rs. 2,10,000 and Rs.2,08,000/- respectively. After having examined the insurance policy, it is seen that the vehicle in question was insured on IEV of Rs.2,17,000/- The policy was dated 01/12/2001 and the theft was only three days after the policy date. Keeping reliance on the decision rendered by the National Consumer Disputes Redressal Commission in Oriental Insurance Co. Vs. Rajendra Prasad Bansal & Others reported in II (2008) CPJ 186 (NC) and the decision by the supreme court in Nantional Insurance Co. Ltd. Vs. Nitinkhandelwal reported in 2008 CTJ 680, we are of the opinion that the opposite party as per the policy document is legally bound to allow the insured amount. Since this is a case of total loss as a result of theft, the breach of condition is not germon. So in our opinion the opposite party insurer has unjustifiably repudiated the claim and is thus guilty of deficiency in service. We are therefore of the considered view that the petitioner is entitled to receive entire insured amount of Rs.2,17,000/- with 9% interest p.a. From opposite party. Point No.1 is found accordingly.

Point No.2.

In view of the findings in point No.1, petition is allowed and the petitioner is entitled for the reliefs sought for.

In the result the opposite party is ordered to pay to the petitioner the entire amount of IEV Rs.2,17,000/- along with interest @ 9% p.a. From the date of repudiation of the claim till payment is made. As interest is allowed no cost and compensation ordered.

This order shall be complied with within one month of the receipt of this order.