NCDRC

NCDRC

RP/3548-3549/2013

RAMESH CHANDRA - Complainant(s)

Versus

ICICI LOMBARD GEN. INS. CO. - Opp.Party(s)

MR. KAMAL CHAMARIA & MR. PUSHPINDER SINGH

13 Jan 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 3548-3549 OF 2013
 
(Against the Order dated 12/07/2013 in Appeal No. 861/2011 & 891/2011 of the State Commission Rajasthan)
1. RAMESH CHANDRA
S/O SHRI MUNSHI RAM, VILLAGE LAL VADI , TEHSIL RAMGARH,
DISTRICT : ALWAR
RAJASTHAN
...........Petitioner(s)
Versus 
1. ICICI LOMBARD GEN. INS. CO.
BHAGAT SINGH CIRCLE,
ALWAR
RAJASTHAN
2. TATA MOTORS FINANCE CO LTD.,
TEJ MANDI,
ALWAR
RAJASTHAN
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner :
Mr. Himanshu Singh Dhillon, Advocate
For the Respondent :

Dated : 13 Jan 2014
ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission Rajasthan Jaipur dated 12.07.2013 whereby the State Commission dismissed the appeal of the petitioner complainant seeking enhancement of the compensation. 2. Briefly put facts relevant for the disposal of this revision petition are that the petitioner complainant insured his truck no. RJ 14-2G-6061 with the respondent opposite party vide a policy valid for the period 12.02.2008 to 11.02.2009. The truck was stolen on the night intervening 4-5 April, 2008 at about 1.00 -1.30 a.m. when the driver of the truck went to the fields Singhara Thana, Punahan to attend the call of nature. The matter was reported to the police vide vide FIR No. 107 on 15.04.2008. The insurance company was also informed about the theft. Petitioner filed insurance claim which was repudiated by the opposite party on two counts i.e. the delay in reporting the theft and also the failure on the part of the assured driver to take reasonable care to protect the interest of the insured opposite party. This resulted in filing of the consumer complaint. 3. The District Consumer Forum Ajmer Jaipur on consideration of the pleadings of the parties and evidence allowed the complaint on non-standard basis with following observations: t the time of the arguments complainant advocate cited a judgment (2010) CPJ 297 (NC) National Insurance Co. Ltd. Vs. Kamal Singh in which it is held by the Court that river was not expected to carry key while getting down to answer nature call-Claim be settled on on-standard basis.According to complainant Driver went to nearby agriculture field to attend nature call during the time truck was stolen and he has never intimated the policy authority about 10 days and it is breach of policy. Therefore, according to Honle Apex Court citation Amalendu Sahoo versus Oriental Insurance Co. Ltd. 2010 CPJ 485 we allow the claim of the complainant at non-standard basis. ORDER hat the insurance company has directed to pay to deduct 25% from the insured amount of truck sum of Rs.7,00,000/- and pay 75% amounting to Rs.5,25,000/- to non-complainant no.2 financer and to pay the balance amount, if any, to the complainant as well as to pay the complainant a sum of Rs.3000/- towards mental agony, tension and depression and litigation expenses within a period of one month 4. Being aggrieved of the order of the District Forum, the respondent opposite party preferred an appeal before the State Commission. Petitioner complainant also filed an appeal against the order of the District Forum seeking enhancement of compensation claiming that the District Forum has no right to reduce the claim to 75% only. 5. The State Commission on consideration of record allowed the appeal and dismissed the complaint on the premise that the respondent complainant has failed to take reasonable care and precaution to protect the interest of the insurance company inasmuch as that while leaving the truck, the driver and khalasi left the keys in the ignition and also that the vehicle of the truck was not reported promptly and the FIR was lodged after a delay of 11 days. 6. Shri Pushpinder Singh, Advocate, learned counsel for the petitioner has contended that order of the State Commission is based upon incorrect appreciation of law and facts. The State Commission has failed to appreciate that the driver and khalasi of the truck did not left the truck unattended. They had gone to attend the call of the nature for few minutes in the nearby field which cannot be taken as a circumstance to conclude that the driver and khalasi of the truck failed to take precaution to protect the interest of the insurer. It is further contended that State Commission while dismissing the complaint on the ground of late reporting of theft failed to appreciate that as per the repudiation letter dated 28.05.2008, the insurance company repudiated the claim only on the ground to take reasonable care and precaution, which a prudent man ought to have taken to protect the insured truck and the plea of the late reporting of the theft is after-thought. It is also argued that trial Court also failed to appreciate that during investigation, one Akbar was arrested who confessed that he had stolen the truck which clearly indicate that the truck was actually stolen and claim preferred by the petitioner was not false. 7. Undisputedly, the truck in question was allegedly stolen on the night of 4th 5th April, 2008 at around 1-1.30 a.m. As per the allegations in the complaint, the theft was reported to the police 11 days later vide FIR No. 107 lodged at P.S. Punahan District Gurgaon on 15.04.2008. There is nothing in the complaint to indicate on which date the theft was reported to the respondent insurance company. Thus, it can be safely inferred that theft was reported by the petitioner to the authorities after a delay of 11 days. The aforesaid delay obviously has prevented the insurance company as also the police to start timely investigation with a view to locate and recover the truck. Thus, we do not find any fault with the order of the State Commission that by failing to promptly inform the theft of the truck to the police as well as the insurance company, the petitioner has failed to take proper care to protect the interest of the respondent insurance company. As such, the respondent insurance company was justified in repudiating the claim. 8. It is contended by learned counsel for the petitioner that the State Commission has committed a grave error in failing to appreciate that during the police investigation, one Akbar was arrested who confessed that he had stolen the truck. As such, there can be no doubt about the correctness of the story of the theft of the truck. This factor, in our view, is of no avail to the petitioner particularly when he has violated the terms and conditions of the insurance policy by failing to report the theft to the police as well as the insurance company within a reasonable time. Even the judgment of the Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd II (2010) CPJ 9 (SC) is of no avail to the petitioner for the reason that aforesaid judgment is based on its own peculiar facts. In that case, the vehicle insured was a personal vehicle but it was used for hire which according to the insurance company was violative of the terms and conditions of the insurance policy. The aforesaid misuser which was subject matter of the Amalendu Sahoo case had no causal link to the theft. However, in the instant case, the violation committed by the petitioner is grave because by failing to intimate the theft to the police and the insurance company, the petitioner has prevented those authorities from taking prompt action to locate and recover the truck. 9. In view of the discussion above, we are of the opinion that the impugned order does not suffer from any jurisdictional error or legal infirmity which may call for any interference by this Commission in exercise of its revisional jurisdiction. Revision petition is, therefore, dismissed with no order as to costs.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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