2. It is stated that Complainant purchased a silver color Innova car on 28.07.2011 for his personal use. The said vehicle was insured by IFFCO TOKIO General Insurance hereinafter referred to as OP. The currency period of the insurance policy of said vehicle was 27.07.2017 till 26.07.2018. It is submitted that the vehicle at the time of insurance with OP was valued at Rs.6,50,950/-.
3. It is next stated that on 02.08.2017 for the purpose of cleaning, the key of the vehicle was handed over to a cleaner at around 8.00 AM and missing of the vehicle was noticed by the Complainant at 10.15 AM. After noticing the missing of vehicle, complainant filed a police complaint for theft of the vehicle and an FIR was registered on 05.08.2017. Complaint was filed in the police station on 02.08.2017 itself and the FIR was registered on 05.08.2017.
4. Complainant after intimating the police filed their claim with insurance company on 05.08.2017 and received a letter from OP stating that Bhola and Associates have been appointed as investigator to assess/verify the loss. Bhola and Associates approached the complainant on 05.08.2017 and took all relevant details from the complainant to process the claim. It is further stated that Bhola and Associates had taken both the keys from the complainant. To utter shock and surprise of the complainant OP vide letter dated 14.12.2017 rejected the claim of the complainant on the ground that “ key of the vehicle was left in ignition by the cleaner”.
5. Alleging deficiency in service and unfair trade practice complainant approached this commission for redressal of his grievance.
6. OP resisted the complaint and filed their written statement stating interalia that the complainant was grossly negligent in leaving the vehicle key unattended and had failed to take reasonable care to prevent and protect the vehicle from the loss or damage. Thereby violating the Condition No.4 of the policy.
7. It is next stated that claim of the complainant was promptly processed and investigator by the name of Bhola and Associates was appointed for verifying the facts pertaining to theft. As per the report, it was found that in the morning of the 02.08.2017 at about 08.00 AM, the car cleaner was handed over one remote key of the insured vehicle to open the car for cleaning. The cleaner left the key of the car in ignition and after cleaning the car, he forgot to remove the key and went back. At about 10.15 AM the complainant noticed that the car was missing which was taken away by unknown thief as the key of the car was left in the ignition switch. The complainant gave a hand written statement to this effect. It is next stated that complainant had handed over one remaining remote key and one Valet key to the investigator. The other remote key was left unattended by the cleaner in the insured vehicle itself.
8. Thus the claim of the complainant was repudiated for breach of the policy terms & conditions. As the claim has been rightly treated as non claim, it is prayed that the complaint be dismissed with costs.
9. Rejoinder on behalf of the complainant has been filed. Evidence by way of way of affidavit and written arguments on behalf of parties are placed on record. Submissions made on behalf of the parties are heard. Material placed on record is perused.
10. On perusal of the material placed before us, it is seen that the FIR of theft of the vehicle was lodged immediately upon having knowledge of the same. The claim was filed within 03 days of the vehicle having been stolen. The only question before us is whether the Complainant had failed to safeguard the vehicle against any potential loss or damage or not. Admittedly, the car keys of Complainant’s vehicle were handed over to a cleaner for cleaning the car who left the key of the vehicle in the ignition. As per OP, it was leaving of the key in the ignition, which facilitated the theft therefore, the said negligence falls under Conditions No.4 of the terms & condition of policy under which the complainant was under obligation to take all reasonable steps to safeguard his vehicle.
11. In this regard, we have gone through various judgements placed before us by parties. OP has placed its reliance on Adhesh Kumar Vs National Insurance Company in Revision Petition No. 2317 of 2017 decided by Hon’ble National Consumer Dispute Redressal Commission. The said judgement is distinguishable on facts. In the case supra the driver of the Complainant had given lift to two boys at midnight. The driver of the vehicle parked his car on the side and went to bathroom when he came back he found that those two boys had run away with his car. It is evident in this case that driver had failed to safeguard the vehicle by leaving keys of the car in the ignition with two unknown persons present in the car at midnight. Whereas in the instant case the cleaner of the car had left the car keys in the ignition and the car was parked near the house of the Complainant.
12. Complainant in support of his case has relied on National Insurance Company limited Vs Nitin Khandelwal in Civil Appeal no.3409 of 2008 by Hon’ble Supreme Court of India wherein it is held that-
“13. 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.
13. The case of Manjeet Singh Vs National Insurance Company Limited & ors in Civil Appeal No.21552/2017 relied on by the complainant is applicable to the facts and circumstances of the instant case wherein Hon’ble Supreme Court holds-
5. As far as the first ground is concerned, we are of the considered opinion, that the district Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamental breach and, in this behalf, we may make reference to the jdugements of this Court in the case of National Insurance Co. Ltd v. Swaran Singh MANU/SC /0021/2004 : (2004) 3 SCC 297, National Insurance Co. Ltd. v. Nitin Khandelwal MANU/SC/7639/2008 : (2008) 11 SC 259, Lakhmi Chand v. Reliance General Insurance, MANU/SC /0016/2016 : (2016) 3 SCC 100 and B.V. Nagaraju v. Oriental Insurance Co. Ltd, MANU/SC /0509/1996 : (1996) 4 SCC 467.
6. In Lakhmi Chand case (supra), this Court held that to avoid its liability, the insurance company must not only establish the defence that the policy has been breached, but must also show that the breach of the policy is so fundamental in nature that it brings the contract to an end
14. OP has also placed its reliance on M/s Keer Hotel Pvt Ltd Vs Tata AIG General Insurance Company Ltd. Revision petition no.2870/2015 by Hon’ble National Consumer Dispute Redressal Commission dated 03.04.2018, which is also distinguishable on facts. Moreover, the judgement of Manjeet Singh Vs National Insurance Company Ltd & anr. decided by Hon’ble Supreme Court has not found mention in the said judgment.
15. Placing our reliance on ratios mentioned above we conclude that Complainant who is the owner of the vehicle was directly not at fault, it is the cleaner who had left the car keys in the ignition. There is no denying the fact that the car keys which were left in the ignition could have facilitated the theft of the vehicle but the same cannot be such a fundamental breach that it nullifies the policy in toto. Handing over the key to a known car cleaner, at or around one’s house is very natural and routine. Moreover, it was within a short time that theft of vehicle was noticed and reported. No negligence can be read in this act of the owner.
16. Having considered the instant case on the touch stone of aforementioned ratios and the evidence adduced, we allow the complaint. Therefore, OP is directed to pay the claim on Non-Standard basis. Accordingly OP is directed to pay 75% of the insured amount of Rs.6,50,950/- i.e Rs.4,88,212/- alongwith interest @4% per annum from the date of filing of the complaint within 03 months, failing which OP shall pay Rs.4,88,212/- @8% per annum from the date of filing of complaint till realization.
File be consigned to the record room and order be uploaded on the website.
