ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Ms. Nipur Chandna, Member

          Complainant is the registered owner of Tata TRUCK 2515 BEARING No. HR-63B-0354.  It is alleged by the complainant that his truck was stolen on the intervening night of 30-31/10/2012 from Baba Haridas Enclave, Jharoda Kalan, New Delhi.

       It is further alleged by the complainant that, when he visited the OP company for getting his claim amount, he was asked to deposit the untraced report.  It is alleged by the complainant that even after depositing of the untraced report, OP vide letter dated 26.9.2013 repudiated his claim on false and flimsy ground.

             The complainant therefore approached this Forum of the redressal for his grievance.

       Complaint has been contested by the OP Para Nos. 4.1, 4.2 6 and 6.1 are relevant for the disposal of this case and the same are reproduced as under:-

4.1 In leaving the vehicle unattended overnight with the ignition key of the vehicle in the vehicle itself the complainant has committed breach of condition no. 5 of the insurance policy which reads as under:-

     “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 of 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 damage or loss and if the vehicle 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.”

4.2    Condition no 8 of the policy states clearly that the compliance with the conditions of the policy is a condition precedent to any liability of insurer under the policy.  In case therefore there is breach of condition, the insurer is free from liability in respect of the claim.  Condition no. 8 is as under:-

“8.     The due observance and fulfilment of the terms, conditions and endorsements of this policy in so far as they relat4e 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.”

6.       That the contents of Para 6 are denied for want of knowledge. The copy of the FIR indicates that the vehicle had been stolen on 18.11.2012 itself and thus the Police have been wrongly informed of the facts in the FIR for malafide reasons.

6.2    That, therefore there are several versions of the complainant with regard to the date on which the loss of vehicle was noticed by him.  At some place he has stated the date at 30.10.2012, at another place the date is 31.10.2012 and at another, it is 18.11.2012.  In fact, the vehicle seems to have been lost much earlier and that is the reason the complainant had failed to provide to the opposite party the evidence of the use of the vehicle prior to the alleged date of its loss.  The complaint therefore merits to be dismissed for this reason.

      Both the parties have filed their evidence by way of affidavits.

     We have heard the argument advanced at bar and have perused the record.

          The counsel for the OP has contended that there are several versions of the complaint with regard to the date on which the loss of the vehicle had taken place.  It is further contended by the counsel for the OP that there is a considerable delay in lodging the FIR and thus there is a breach of policy condition no. 1 and hence the claim of the complainant is not admissible. The counsel for the OP has further contended that as there is a breach of policy condition and the misguiding statement of the complainant with regard to the date of loss, the case of the complainant has been rightly repudiated by the OP Company.  He has also contended that the insured had failed to take reasonable care to safeguard the insured vehicle and had actually contributed to the loss by leaving the key in the ignition socket of the truck which had led to it being stolen.  He has, therefore, contended that the claim has been rightly repudiated.

          We have considered the contention of the Ld. Counsel for the OP

The basis of an insurance contract is ubberimafide.    In the case of United India Insurance Company v/s M K Corporation III(1996)CP 8(SC), the Hon’ble  Supreme Court has held as under:-

“It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties.  Good faith forbids either party from concealing (non disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary.  Just as the insured has a duty to disclose, ”Similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge since obligation of good faith applies to them equally with the assured.

The duty of good faith is a continuing nature.  After the completion of the contract, no material alteration can be made in its terms except by mutual consent.

      A perusal of the record shows that the complainant has given differ versions about the theft of the truck. It is the case of the complainant that he had lodged a DD No. 15 A on 31.10.2012 at P S, Baba Haridas Nagar immediately after the theft.  A perusal of the aforesaid D D shows that this DD was lodged at 9.05 a. m.  On 31.10.2012 about the theft of the truck bearing registration no. HR 63 B 6354. The complainant has also lodged a FIR at P.S. Baba Haridas Nagar being FIR no. 239/12 dated 18.11.2012.  A perusal of the FIR shows that it was recorded on the statement of the complainant who had mentioned the No. of the stolen truck as HR 63 B 0354.  A reading of the FIR shows that the truck had been stolen in the night intervening 10.11.2012 and 11.11.2012.  It makes no mention of DD No. 15 A purported to have been lodged at the P.S. in respect of the theft.  Our attention has also been invited to a copy of the Zipnet which mention the time and date of theft as 31.10.2012 at 10:47:44 p.m.  The complainant has not explained the inconsistency in his stand about the date/time of loss.  The Insurance Company was, therefore, justified in repudiating the claim and taking a stand that the information about the loss was given at a belated stage.

        Secondly, the claim has been repudiated on the basis of the plea that the insurer has failed to take reasonable care in                    order to safeguard the insured property.

        As already stated the FIR with regard to the theft as lodged on 18.11.2012.  The FIR was lodged after a number of days of the actual theft.  The  FIR specifically mentioned that the key of the truck was left in the ignition socket, inadvertently. The insurance company was therefore justified in taking a plea that the insured had failed to take all reasonable steps to safeguard the insured vehicle.

        In the facts and circumstances of the case, the repudiation of the claim by the OP was not unjustified.

          We therefore, see no merits in the complaint, the same is hereby dismissed.

File be consigned to Record Room.

      Announced in open sitting of the Forum on.....................