The fact of the case in nutshell is that the complainant is owner of a Scorpio vide Regd. No.JH06N6552 and the Engine No. of the vehicle is XML4F13987 and chassis No. MATA2XM2LG25613 duly financed by Op2 and the cost of vehicle was Rs.12,41,306/-. The said vehicle was insured with Kotak Mahindra General Insurance Company Ltd. On dtd.16.09.2021 the husband of the complainant took the vehicle towards Baknoura Rothas to attend the function of the relative. On the way he stopped the vehicle to attend the call of nature near Hatibaba Temple. So he put up the dress in the said vehicle and kept the key of the vehicle in the pant pocket with purse and hurriedly went to nearby bushy area to attend call of nature and after attending call of nature he found the said vehicle bearing Regd. No. JH06N6552 was stolen by some miscreants with all the accessories. After this incident he could not found the said vehicle so lodged FIR near Chauparan Police Station, Jharkhand and the police entered the station diary Vide No.342/21. Regarding theft of the vehicle was intimated to insurance company Op No1 on dtd. 30.09.2021. The insurance claim was filed before the company and the claim No is 10670013045 against policy No.1657957700. One investigation agency investigated the matter and collected the documents from the complainant. At last the Chauparan police filed F.R.T before the concern court. On the other hand the Opp Insurance company repudiated the claim for violation of policy Condition No.4 and on the ground that the key was kept with insured vehicle during occurrence. The repudiation of claim is a vague plea nothing but deficiency in service. So the insurance company is liable to pay the claim amount. So the complainant prays for Rs.10,81,421/- the IDV value of the stolen vehicle with mental agony and cost of litigation.
The complainant relies on the following documents:-
- Photocopy of vehicular document R.C Book and purchase/invoice Sale Letter.
2. Photocopy of FIR and final Report.
3. Photocopy of Insurance Paper.
4. Deed of Subrogation-cum-Indemnity Bond.
5. Repudiation Letter of Op-Insurance Co. Ltd. Dt.29.11.2021.
On the above allegation the case is admitted and notice issued to Ops. The Ops appeared and filed their written version. Op1 and 2 filed written version jointly but Op 3 the finance company SDB Financial Service Barbil branch was set Ex-parte due to non appearance and non filing of Written version.
It is submitted by Op1 and 2 that the case is not maintainable and Ops do not admit and denied all the allegation. It is also submitted that there was delay of 14 days to give information to insurance company and also 12 days delay for lodging FIR before police station. As regards to the information given by the complainant it is clearly mentioned that the husband of the complainant left the vehicle unattended without taking key from ignition point of the vehicle. For which the vehicle was stolen by some miscreants which is clear violation of condition No.4. It is necessary to mention the condition No.4.
“Condition No.4-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 or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repair are effected any extension of the damage or the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.’’
The Op1 and 2 have cited the following reported decision regarding theft of the vehicle in Reliance General Insurance Company Limited Vs Vinod Kumar, RP No.157 of 2016 decided on 20.07.2016, If the driver of the vehicle leaves the key in the ignition and also does not lock the door of the vehicle while going to a place from where the vehicle would not be visible to him, such an act in my opinion, amounts to a failure to safeguard the vehicle from loss or damage. The driver knew that if he left the key in the ignition and the door unlocked, anybody could commit theft of the vehicle taking advantage of his being away from the vehicle. Therefore, it would be difficult to dispute the negligence on the part of the driver of the vehicle.
In Arjun Lal Jat Vs HDFC IRGO General Insurance Co. Ltd. Revision Petition No.3182 of 2014 decided on 28.08.2014, the driver of the truck left the truck in start condition near All India Institute of Medical Sciences and went out to ease himself. When he returned after 10-15 minutes, the vehicle was found missing. The claim having been rejected, the complainant approached the concerned District Forum by way of a complaint. The District Forum held in favour of the complainant but the State Commission ruled against him. The matter was then agitated by the complainant before this commission. Dismissing the revision petition it was interlay held that if the driver leaves the key in the ignition, he would be negligent and the theft taking place on account of his negligence, the insurer cannot be made liable to reimburse the insured.
The claim of policy is repudiated as per breach of Condition No.1 and 4. So the insurance company denies paying any compensation due to delay in lodging FIR and delay in intimation to Ops.
In the written argument filed by Ops advocate it is mentioned that there is clear cut breach of condition No. 1 and 4 of policy for which claim was rejected. But it is admitted that insurance policy was valid during the time of incident.
On the other hand the learned advocate for complainant relied on the following citations 2018 (1) CPR 659 NC Mahabir Singh Vs Reliance General Insurance Co. Ltd. revision petition no 735 of 2013 against the order dt.19.10.2012 in appeal No.1298/2010 of SDDRC Haryana. Consumer Protection Act-Insurance Complainant got truck insured with Ops and later same truck was stolen subsequent to the lodging of an FIR complainant informed the Ops and made his claim. Op rejected the claim based on investigation that revels that the ignition key of the vehicle was left inside the truck itself led to the theft. Revision petition partly allowed.
2017 (2) CPR 66 (NC) Shamsher vs HDFC ERGO Gen Insurance Ltd. Consumer protection act-insured theft of insure tractor with trolley tractor having been purchased only 4 days before its theft, it would believe any reasonable instructed persons’ conviction that it was being regularly used for transportation of sand/soil at the same time it can also not ignored that there was delay on part of complainant in lodging FIR as well as informing insurance company about theft within a reasonable time balancing equality interest of justice would be sub-served if insurance company is directed to settle claim of the petitioner on non standard basis (75% of IDV) directed accordingly.
On the above pleadings the following issues are framed to decide the case.
- Whether the case is maintainable?
- Whether any cause of action arises on this case?
- Whether Ops have made any deficiency of service?
- Whether the complainant is entitled to get any relief sought for?
FINDINGS
All the issues are interlinked with each other. So they are discussed jointly. It is a fact that the driver of the vehicle left the vehicle to attend the call of nature. He also left the ignition key. For which the insurance claim was repudiated as the stolen vehicle was not taken proper care as per the condition No.4. But if we see the matter very deeply a person in a hurry to answer the call of nature forgot to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terms of the condition. So far as the delay in lodging FIR as well as in forming insurance company about theft balancing equality interest of justice would be sub-served if insurance company is directed to settle claim of the petitioner on non standard basis (75% of IDV) Directed accordingly.
In the present situation this commission went through the decisions cited by insurance company but natural justice should be applied. So we accepted the decision cited by complainant. In the present case Ops Insurance Company had forgotten to settle the insurance claim on non standard basis for which the complainant filed this case to get justice. So this commission feels 75% of IDV value is admissible claim where there is any breach of warranty/condition of policy Amelendu Sahoo Vs Oriental Insurance Company Ltd 11 (2010) CPJ 9 (SC). Hence order.
ORDER
The complain case is allowed on contest. The Op1 and 2 are directed to pay 75% of IDV value of the vehicle on non standard basis. And Op1 and 2 are also directed to pay Rs.20,000/- as compensation and Rs.10,000/- as cost of litigation, all total amount shall carry 9 % interest per annum from the date of filing till realization.
