JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          No one is present for the complainant/respondent no.1 even on the second call.  No one was present for him on the last date of hearing as well.  Therefore, I have heard the learned counsel for the petitioner and have considered the record.  

2.      The complainant/respondent owned a truck which he had got insured with the petitioner company for the period from 04.08.2013 to 03.08.2014, for a sum assured of Rs.11,50,000/-.  On 28.12.2013, Pratap Singh, driver of the insured truck accompanied by the conductor Mr. Mahendra, unloaded the goods in Alwar and thereafter, he brought the truck to the parking of Chetan Golden, and parked the vehicle there.  After parking the vehicle, they went to sleep, leaving the keys of the vehicle in the ignition point.  This happened at about 6 pm.  When they driver returned to the vehicle at about 10 pm, the vehicle had already been stolen.  The matter was reported to the police and the insurer was intimated. 

3.      The claim was repudiated by the petitioner vide its letter dated 10.03.2014 which, to the extent, it is relevant, reads as under:

We invite reference to your claim for the above vehicle, against theft as reported to us on 31.12.2013.  On perusal of your notarized statement and handwritten statement of your driver, it has been categorically confirmed that on that fateful your driver, Mr. Pratap Singh had parked the said vehicle in front of M/s. Chetan Golden Transport Company and had gone inside the company along with cleaner Mr. Mahendra Suthar to sleep, leaving behind the vehicle unattended with its ignition key its point.  Here we would like to draw your attention to the policy condition No.5 which states that:

          “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 time 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 break down, the vehicle shall not left unattended without proper precaution being taken to prevent the further damages or loss and if the vehicle driven before the necessary repairs are affected any extension of the damages or any further damage to the vehicle shall be entirely at the insured’s own risk.”

          In the light of the above, it is very clear that the vehicle got stolen due to gross negligence on your driver’s part.  We regret, therefore, that we are unable to entertain this claim.

          The foregoing declination of insurer’s liability is issued based on the facts as presently known.  We reserve the right to extend or modify this declination, should additional facts or circumstances become known to us.

          Should you believe that we have overlooked any material fact or circumstance, or should you wish to present an alternative interpretation of any relevant policy provision, please draw the same to our attention for our further consideration within fifteen days of receipt of this letter.  If you need any further clarification and or assistance, please do not hesitate to contract us.

4.      Being aggrieved from the repudiation of the claim, the complainant/respondent approached the concerned District Forum by way of a Consumer Complaint.

5.      The complaint was resisted by the petitioner company primarily on the ground on which the complaint had been repudiated.

6.      The District Forum, vide its order dated 22.11.2016, directed the petitioner company to pay the claim at a non-standard basis by making payment of Rs.8,62,500/- to the complainant alongwith the cost of litigation quantified at Rs.6,000/-.

7.      Being aggrieved from the order passed by the District Forum, both the parties approached the concerned State Commission by way of separate appeals.  Vide impugned order dated 20.02.2018, the State Commission dismissed the appeal filed by the appellant while allowing the appeal filed by the respondents and directed the appellant/petitioner to pay a sum of Rs.11,50,000/- to the complainant. Being aggrieved, the petitioner is before this Commission.

8.      A perusal of the statement of truck driver Sh. Pratap Singh, which is available on page no. 89-90 of the paper-book, would show that after parking the vehicle, he alongwith the conductor, went to sleep at another place.  While leaving the truck in the parking, the driver did not lock the same and left the key of the truck in its ignition.  As a result, it became an invitation to a person passing through the vehicle to take advantage of the aforesaid negligence on the part of the truck driver, and commit theft of the truck using the key which the driver had left in its ignition.  Since both the driver and conductor had left the vehicle unattended for about four hours and there is nothing in the statement of the driver to even indicate that the truck was visible to them at the place where they had gone to sleep, neither the truck nor the conductor could have kept a check on the truck after they had left it unattended.  In any case, after having gone to sleep for about four hours, it would not have been possible for them to keep an eye on the truck.  Therefore, it can hardly be disputed that they had failed to take reasonable steps to safeguard the insured vehicle from loss or damage.  They had thereby contravened condition No.5 of the insurance policy.

9.      A similar issue recently came up for consideration of this Commission in RP No.1893 of 2016 & RP No.3198 of 2016 Cholamandalam MS General Insurance Company Ltd. Vs. Ashish Kumar Walecha and Ashish Kumar Walecha Vs. Manager, Cholamandalam MS General Insurance Company Ltd. & Anr. decided on 20.04.2017.  In Cholamandalam MS General Insurance Company Ltd. (supra), the complainant had left the key of the vehicle in the ignition while going to meet a friend residing nearby.  When he returned after 30 minutes, the vehicle was found missing.  The theft was later reported to the police and intimation of the theft was also given to the insurer. The claim was rejected by the insurer vide a repudiation letter dated 09.07.2012 which read as under:

"With reference to the claim documents submitted it has been observed that on 20.10.2011 as usual you have gone to your friend's residence and parked the vehicle opposite to his residence at Garba ground, Samata Colony.  Leaving the key in the ignition itself you have gone to meet your friends.  Upon returning after half an hour it was noticed that the vehicle was missing from the parked place.  This has lead to your vehicle being stolen.

          This constitutes breach of policy condition No.5 which is reproduced below for reference:

Condition No.5 -

The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time 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 precautions being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".

          Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint.  The complaint having been dismissed by the District Forum, but having been partly allowed by the State Commission, the insurer approached this Commission by way of a revision petition.  This Commission inter-alia observed and held as under:

"6.     By leaving the key of the car in the ignition and not locking the vehicle, the complainant failed to take reasonable steps for safeguarding the vehicle from loss, since leaving the key in the ignition of the vehicle would tempt any thief to commit theft of the vehicle, when the vehicle is left unlocked.  The complainant therefore, contravened condition no.5 of the insurance policy in the aforesaid manner.  In view of the breach of the above referred condition, the insurer is not liable to reimburse the complainant for the loss suffered by him on account of his own negligence.

7.  A similar issue came for consideration of this Commission in Reliance General Insurance Company Limited Vs. Vinod Kumar, RP No.157 of 2016 decided on 20.07.2016 where the ignition key was left inside the ignition switch of the vehicle and the door of the vehicle was also open.  Dismissing the complaint, this Commission inter-alia held and observed as under:

"5.     ........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.

6.      In Arjun Lal Jat Vs. HDFC Irgo General Insurance Co. Ltd. & Anr., Revision petition No.3182 of 2014, decided on 28.8.2014, 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 interalia 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."

10.    For the reasons stated hereinabove, the impugned order cannot be sustained and the same is accordingly set aside.  The Consumer Complaint is consequently, dismissed with no order as to costs.