Dt. 15.10.2015 

JAGANNATH BAG, MEMBER

          The present appeal is directed against the Order, dated 23.04.2014, passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur, in Consumer Complaint No. 57/2013 , whereby the complaint was allowed in part on contest against the OP No.2 and ex parte against the other OP with cost.

          The Complainant’s case, in brief, was as follows:

          The Complainant being the owner of a Mahindra Bolero vehicle with registration No. WB-60E/5472 purchased one insurance policy in respect of his vehicle. The sum assured was Rs.2,63,000/-. The insurance policy was valid from 19.05.2011 to 18.05.2012. On 27.04.2012 at about 20.00 hours, the Complainant received information that Sri Sanjit Sardar, the driver of the vehicle was lying in senseless condition after taking a glass of water and tea near the tea garden at Ramganj and some unknown miscreants had stolen the vehicle. A police case was started by the Islampur Police Station, being P.S. Case No. 271/2012, dated 29.04.2012 under Section 379 of IPC. The Complainant submitted the claim along with all necessary documents, but the OPs did not pay attention towards the claim. The OP by their letter 06.07.12 requested the Complainant to submit the documents in support of the claim. After receipt of the documents, the OP vide their letter dated 21.09.12 repudiated the claim which led to the filing of the petition of complaint with prayer for direction upon the OP No.1 and OP No. 2 to pay the cost of loss of the vehicle amounting to Rs.2,63,000/- along with interest and compensation of Rs. 25,000/- for unnecessary harassment and deficiency in service and also litigation cost of Rs.5,000/-.

          The complaint has been contested by the OP No. 2 who by filing W.V. denied all material allegations stating, inter alia, that the driver had deliberately left the ignition key in the vehicle leaving the vehicle in drivable condition which directly contributed to the theft of the vehicle. That was a violation of policy condition which required the insured to take minimum reasonable safeguard against any loss or damage of the vehicle.

          Ld. Forum below after having heard both parties and upon consideration of the materials on record ,  observed that the Complainant made complaint before the police who started necessary investigation . It was also observed that the Complainant intimated  about the theft of the vehicle with claim for compensation. It was again observed that though the OPs were intimated about the occurrence of theft, they did not carry out investigation through their agency which was a negligent act and deficiency in service on the part of the OPs. Ld. Forum below also observed that the OPs did not adduce any evidence challenging the documents showing that Ajit Sardar @Sanjib Sardar was the same person driving the vehicle at the material point of time. Ld. Forum below allowed the complaint in part and directed the OPs to pay Rs.2,63,000/- being the sum assured , Rs. 10,000/- as compensation and Rs. 2000/- as litigation cost. In case the OP failed to pay the total sum of Rs. 2,75,000/- within one month from the date of order, interest @8% p.a. would accrue on the said amount of Rs. 2,75,000/-.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OPs-turned-Appellants have come up before this Commission with prayer for direction, inter alia, to set aside the impugned order.

          The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint , the W.V filed by OP No.2 , FIR filed before Islampur Police Station bearing No. 271/2012 dated 29.04.2012 , the investigation report dated 29.06.2012 submitted by Sri Abhijit  Saha, a panel investigator of the OP Insurance Company, the driving licence of Ajit Sardar and other documents including correspondences between the Complainant and the OP Insurance Company. The repudiation letter dated 21.09.2012 has also been annexed to the memorandum of appeal.

         The appeal was heard ex-parte as the Respondent remained absent during hearing .

          Ld. Advocate appearing for the Appellant submitted that though the alleged incident of theft took place on 27.04.2012 , intimation was filed before Raiganj P.S. and thereafter before the Islampur Police Station on 29.04.2012. After receipt of the claim , the Respondent /Complainant was requested to submit all relevant documents with two keys of the insured vehicle. The Respondent /Complainant did not submit the keys and it was admitted in their letter dated 08.08.12 that at the time of theft the ignition key was left inside the vehicle. Such act on the part of the Complainant/his driver was a gross negligence and violation of policy condition as the Complainant or his authorized driver / agent failed to take reasonable safe guard against loss or damage of the vehicle. It was also a fact that the name of the driver as recorded in the FIR lodged with Raiganj P.S. was not matching. Ld. Advocate of the OP Insurance Company also submitted that the Respondent / Complainant did not make the financier of the vehicle a party to the case. The impugned order is arbitrary and devoid of reasoned consideration. The same order deserves to be set aside.

                                           Decision with Reasons :

          The point for consideration is whether the impugned order suffers from material irregularity or illegality.  .

          It appears that the vehicle in question stood  insured when the same was allegedly stolen on 27.04.2012.

          It has been submitted by the Respondent /Complainant in their petition of complaint that the driver of the vehicle, namely, Sri Sanjit Sardar became senseless after taking a glass of water and tea near the tea garden at Ramganj, when some unknown miscreants had stolen the vehicle. The OP Appellant challenged that the name of the driver being Sanjit Sardar, the driving liecne of one Ajit Sardar was produced before the Insurance Company which raised doubt about the actual name of the driver who was with the vehicle at the material point of time,  i.e., alleged theft of the vehicle. In this connection , Ld. Forum below has observed that Ajit Sardar is also known as  Sanjit Sardar as stated by affidavit and also certified by the Prodhan of No.10 Maraikura Gram Panchayat , Devinagar , Raigung , Utter Dinajpur. The Insurance Company could not prove that the declaration of the driver by oath was not correct with any evidence before the Ld. Forum below. The contention of the Insurance Company that the name of the driver as recorded in the FIR was not matching was, therefore, not accepted by the Ld. Forum below.

           It also appears that the Insurance Company did not produce any evidence against the alleged theft of the vehicle . That the vehicle was stolen has not been disputed . The main ground for repudiation of the claim of the Respondent/Complainant was that the insured  failed to take reasonable step to safeguard the vehicle insured from the loss as the driver of the vehicle had left the ignition key in the vehicle leaving it in drivable condition which directly contributed to the theft of the vehicle. In their letter of repudiation dated 21.09.12 the insurance company regretted their inability to entertain the claim.

          It is true that there was negligence on the part of the driver in not taking reasonable care to safe guard the vehicle insured from loss or damage, but at the same time it is also true that the vehicle was stolen when he  became senseless and when he was not in a position to keep watch over the vehicle . Such failure on the part of the driver was not so deliberate as the insurance company tried to establish.

          It is the settled principle of law that in the case of theft of vehicle , the breach of condition is not germane as held by the Hon’ble Supreme Court as reported in 2008 (7) SBR 63 .

          Orders of the Hon’ble National Consumer Disputes Reresssal Commission in revision petition No. 3840 of 2011 and revision petition No. 1896 of 2008 as cited by the Ld.Advocate of the Appellant contained such facts as are not identical with the facts of the present case.

          The fact  goes that the vehicle insured  was not recovered . The vehicle being stolen and the breach of condition as alleged by the Insurance Company not being germane , Ld. Forum’s order regarding award of the Insurance claim stands  justified except for the fact that the award should have been made on non-standard basis instead of the total sum assured. Again, the cost and compensation as awarded by the Ld. Forum below appeared to be otherwise unreasonable . In that view of the matter , the impugned order needs to be modified, thereby allowing the appeal in part. Hence,

                                                     Ordered

That the appeal be and the same is allowed in part with modification of the impugned order to be effect that the insurance company shall pay 75% of the sum assured of Rs.2,63,000/- to the Respondent/Complainant within a period of 40 days from the date of this order, failing which, interest @ 9% p.a. shall accrue upon such amount and shall be realizable till full realization. Other parts of the impugned order stand expunged. There shall be no separate order as to costs.