REKHA GUPTA, PRESIDING MEMBER

        The present first appeal has been filed against the order dated 08.12.2016 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (‘the State Commission’) in CC no. 23 of 2015.

2.     The facts of the case as per the appellant/ complainant are that the appellant’s vehicle no. HR 74 A 0319 was insured with the respondent/ opposite party/ insurance company.  According to the appellant, the said vehicle was stolen on 12.07.2014. The information of theft was given to the insurance company and the insurance company repudiated the claim on the ground that the appellant did not completely secure his vehicle. After the theft of the vehicle according to the appellant, the police did not register the report, the report was got registered with the concerned Magistrate. Therefore, no adverse notice should be taken for the delay in filing of the police report. The appellant prayed for the IDV of the vehicle be given to him.

3.     The respondent/ insurance company in the reply stated that the incident of theft was of 12^th July 2013 while the police report was registered on 12^th August 2013. Delay has been committed in getting the report registered and the information was also given to the insurance company only on 16^th July 2013. Besides the appellant had left the vehicle without security on the road, which was a breach of the policy conditions.

4.     The State Commission vide its order 08.12.2016, while dismissing the complaint observed as under:

“We have considered the arguments of both the parties. After considering all the facts it has been felt doubtful to us. We doubt about the occurrence of this incident also. The judicial pronouncements of which the complainant forcefully taken the grounds they also cannot be applied to this case. It is correct that if the driver of the complainant goes for toilet after standing the vehicle then it cannot be taken of that he had not taken care of security of vehicle but the judgment which has been produced by the Advocate of the complainant is not applicable. In one case the key of the vehicle was not taken out because the vehicle was standing before them, that was at such a distance that he could have seen that. In the other case it has been taken that it was not expected the driver to take the key of the vehicle because he was in great hurry. In the present case also in case it is taken that the driver of the vehicle was in great hurry as he had to be free from toilet, he stopped the vehicle on the bank of the canal because water was available there. But it is a matter of surprise that even though there was such a hurry he went three or four fields away for toilet this fact has been stated by the complainant in his complaint which he had produced before the Magistrate. Therefore, this fact is belied that the driver was in extreme hurry, in haste he forgot to take the key and even thereafter he had gone three – four fields away for toilet. This fact is admitted by the complainant himself that the locks of the gates of the cabin were not working and the vehicle could also be started without even the key then in such a situation leaving the vehicle will be said to be breach of the conditions. Besides, this it is also the fact that mostly there is one cleaner in the vehicle and what was such a condition that at that time only the driver was available in the vehicle and cleaner was not there and why he did not go with him, no reason of this has also come to be proved.  The policy may not have registered the report with regard to this incident, of this also there is no basis, the report has been registered after one month under the order of the Magistrate. The information has also been given to the insurance company after four days the insurance company also could not get the truth of the incident verified.

On all these facts it appears that this incident is suspicious. Therefore, the complaint is liable to be dismissed which is hereby dismissed looking to the facts and circumstances of the case the parties will bear their own cost”.

5.     Hence, the present appeal.

6.     I have heard the learned counsel for the appellant. She admitted the facts of the case and drawn my attention to the two citations of this Commission in the matter of – Sanjay Bansal vs Vipul Ltd., and Anr., decided on 05.08.2013 and New India Assurance Company Ltd., and Anr. Vs Girish Gupta decided on 31.07.2014 and contended that in view of the above, the appeal should be allowed.

7.     I have carefully gone through the record, I find that there is a clear admission that the lock of the cabin was broken in the grounds taken in the appeal which reads as under:

“The forum below ought to have considered the urgency related to the trip taken by the said vehicle and like any other committed businessman the delivery of the assignment was given priority over the broken lock of the cabin gate of the vehicle as stated by driver which he had already talked about to his local mechanic and scheduled the repair once he was back from his trip. Further, it is imperative to state here that yet again at the cost of prolixity that the driver did take adequate measures for safety of the vehicle by taking the keys away with him for attending the nature’s call and the theft of the vehicle so could not have been for seen in the stated scenario further it was unfortunate that the cleaner was unable to accompany the driver on the date of incidence cause of ill health and so cannot be pinned with negligence on the part of the driver as has been done by the insurance company and was wrongly affirmed by the State Commission”.

8.     I have also gone through the FIR lodged by Issa Khan, the driver of the vehicle. The relevant portion of the FIR reads as under:

“That complainant on 12.07.2013 along with his truck registration no. HR 74 A 0319, Engine no. 11H84015609 and Chassis no. NBYP24000BHA20145 was going to this village Maroda by truck when the complainant reached in between Beru and Palka on his truck then in the night at 8-9 the complainant parked his truck on its side and went for toilet taking the water bottle and filling from his vehicle the complainant went about 3-4 fields from his vehicle complainant returned within 25-30 minutes then his truck was not found there the complainant searched to much hither and thither but some unknown person had stolen the truck.”

9.     Thereafter I have gone through survey report dated 16.12.2013, which reads as under:

“Brief description of loss:  On 12.07.2013, his driver Mr Issa Khan had loaded stone from crusher zone in Nagal, Teshil Pahari District, Bharatpur, Rajasthan by AMW truck no. HR 74 A 0319 and off loaded the stone at Nagar in District Bharatpur and after off-loading the stone at Nagar, driver Mr Issa was returning to Nagal in the said empty AMW truck. On his way back to Nagar, Issa had stopped the said AMW truck near canal in village Palka, Tehsil Pahadi, District Bharatpur, Rajasthan at around 08.30 p m to go to toilet. He had not locked the cabin doors of the said AMW truck as the cabin door lock sets were not functioning. The ignition lock set which was fitted in the cabin of the said truck by manufacturer was also not functioning, therefore, he had got fitted one separate switch to start the said vehicle. The switch which directly start without applying key. At 9.00 p m when the driver Issa returned back he found the vehicle was missing. Issa went to police post Gulpada and informed the police and lodged FIR on 12.08.2013.

Breach of condition/ Warranty, if any :    As per the insured’s written statement he and his driver knew that cabin doors lock sets were not functioning and did not get it replaced and switch which was fitted by the manufacturer had stopped functioning and a separate switch was fitted for starting without key. The driver Issa did not take reasonable precautions to safeguard the said truck and left the cabin unlocked and the said vehicle unattended due to which the thief succeeded to gain entry in the cabin of the said truck and took away the said truck.

As per the insured’s written statement he and his driver knew that cabin doors lock sets were not functioning and did not get it replaced and switch which was fitted by the manufacturer had stopped functioning and a separate switch was fitted for starting without key. The driver Issa did not take reasonable precautions to safeguard the said truck and left the cabin unlocked and the said vehicle unattended due to which the thief succeeded to gain entry in the cabin of the said truck and took away the said truck. Hence, there is violation of policy condition no. 5 which states “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 insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured 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”.

10.    I have gone through the investigation report of Bhola and Associates. The relevant portion of the report reads as under:

“On 12.07.2013 insured’s driver Mr Issa had loaded stone from crusher zone in Nagal, tehsil Pahari district Bharatpur, Rajasthan by insured’s AMV truck no. HR 74 A 0319 and off loaded the stone at Nagar in district Bharatpur and after off-loading the stone at Nagar, insured’s driver Mr Issa was returning to Nagal in the said empty AMW truck and on his way back to Nagal, he had stopped the said AMW truck near to a canal in village Palka, tehsil Pahardi District Bharatpur, Rajasthan at around 08.30 p m to go to toilet and had not locked the cabin doors of the said AMW truck as the cabin doors lock sets were not functioning and the ignition lockset which was fitted in the cabin of the said vehicle by manufacturer was stopped functioning therefore he had got fitted one separate switch to start the said vehicle and that switch gets start directly without applying key and the driver Issa had left the said truck unlocked and unattended and went for toilet and at 09.00 p m when Issa had returned back he found the said vehicle was missing”.

11.    Admittedly, the lock set was not working and that the driver was having the full knowledge and had still intentionally left the vehicle unattended to answer the call of nature by going about “3-4 fields away from the vehicle and to return 25-30 minutes” later, during which time the vehicle was stolen. The citations quoted above by the learned counsel for the appellant are not applicable to the case on hand. The respondent/ insurance company has not committed any deficiency of service in repudiating the claim on the following grounds:

“Please refer to your above mentioned claim lodged with us for reported theft of your vehicle. On perusal of the documents on record and investigation report, we have noted that the vehicle was left unattended without lock thereby allowing easy access to vehicle which appears to have resulted in reported theft.

The act of leaving the vehicle unattended without lock tantamount to gross negligence hence, there is a violation of condition no. 5 of the policy which reads as under:

The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and the company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured.

        Attention is hereby drawn towards condition no. 8 of the policy:

The due observance and fulfilment of the terms, conditions and endorsement of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.

In view of the above, we regret to inform you that the captioned claim is not tenable under the policy and we are filing the papers as no-claim”.

12.    In view of the foregoing discussion, I do not find any cogent ground to interfere with the impugned order of the State Commission. The appeal is accordingly dismissed, leaving the parties to bear their own costs.