PER SHRI. S.S.PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service on the part of Opposite Party as it repudiated the insurance claim of the Complainant without any concrete reason as alleged by the Complainant.
The facts of the case as stated by the Complainant are that, he had purchased a Motor Lorry/Vehicle having Registered No. as MH04-CA 3787 and it was insured with the Opposite Party under a policy bearing No.250700/31/08/6300002487.
2) The said vehicle was given for plying to one Mr. Gaffar Abdul Sattar Shaikh on the terms of paying Rs.16,000/- p.m. to the Complainant. The said vehicle was registered in the name of the Complainant. During the validity of the said insurance policy the vehicle was stolen on 17/03/09 between 7.30 p.m. to 00.30 hrs. on 18/03/09 from the possession of the cleaner Mr. Tanveer Shaikh. The vehicle was stolen when it was parked opposite a weigh bridge, Best Road, Op. S.V. Rd., Goregaon (W), Mumbai. The driver on the said vehicle was one Mr. Jaiprakash Yadav. The driver lodged the complaint at concerned police station vide FIR No.132/09. The Complainant also informed the Opposite Party. The Opposite Party appointed a Surveyor. Thereafter, the Opposite Party rejected the Complainant’s claim of Rs.5 Lacs, vide its letter dtd.11/05/2010 on the following ground -
1) The Vehicle was leased and the same was in possession of lessee. Policy
terms exclude any liability arising out of contractual obligation.
2) Cleaner of the vehicle had left behind the ignition keys in the vehicle itself which has eased the theft of vehicle. Thus, the Complainant has failed to ensure safety and security of the insured vehicle. Thus, the claim is not admissible as per terms and conditions of the policy.
3) The Complainant also filed ‘A’ final report of the police investigation as the FIR is true but undetected. However, the Opposite Party rejected the claim on the above mentioned grounds. The Complainant has suffered mental agony due to the deficiency in the services on the part of Opposite Party as it rejected the claim on frivolous grounds. Finally the Complainant has prayed for reimbursement of the I.D. Value i.e. Rs.5 Lacs with interest from the Opposite Party and compensation of Rs.2 Lacs for mental agony and business loss and cost of this complaint.
4) The Complainant has attached the xerox copies of the following documents in support of his complaint –
i) Registration Certificate.
ii) Insurance Policy.
iii) FIR 132/09.
iv) Surveyor’s Letter dtd.16/05/09.
v) Repudiation Letter dtd.11/05/2010.
vi) Final Report dtd.11/07/09.
5) The complaint was admitted and notice was served on the Opposite Party. Opposite Party filed its written statement wherein it denied the allegation of any deficiency on its part and specifically brought to the notice that the vehicle number was not proper which was stolen on 17/03/09. The Opposite Party has admitted that they were informed about the theft or stolen vehicle and they rejected the insurance claim of the Complainant. It is also alleged by the Opposite Party that the alleged stolen vehicle was in possession of Jeev Sons Farwel Leasing Pvt. Ltd. when theft took place on 17/03/09.
6) It is also submitted by the Opposite Party that the stolen alleged vehicle was in possession of a third party. Therefore, the Opposite Party is excluded from the liability of paying the compensation as it is the breach of terms and conditions of the policy.
7) The Opposite Party has further submitted that from the police documents it is seen that the ignition key of the vehicle was left by the driver in the vehicle which facilitated the culprit to steal the same. Therefore, the Complainant is not entitled for the reliefs claimed by the Complainant in his complaint.
8) The Complainant filed his reply to the written statement of the Opposite Party and clarified that the vehicle number was wrongly typed as MH04- K 8067. It was a typographical mistake and the correct registered number is MH04 CA 3787. The engine number ad chassis number is correctly stated in the complaint. Necessary amendment done in the complaint in this respect by the Complainant. The Complainant in his reply denied all the averments made by the Opposite Party in its written statement. The Complainant also filed his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint. The Opposite Party also filed its written argument wherein it reiterated the facts mentioned in its written statement. The Opposite Party has cited the judgement of the Hon’ble National Commission in FA No.1230/2008 in Devinder Kumar V/s. National Insurance Co. Ltd.
9) We heard the Ld.Advocates of both the parties and our findings are as follows -
The vehicle having registered number MH04-CA-3187, Engine No.697 TC 45 EVZ 895088 and Chassis No.373341EVZ 7223807 was insured with the Opposite Party under Policy No.250700/31/08/6300002487. The validity is from 10/10/08 to 09/10/09. During the validity the vehicle was stolen on 17/03/09. The IDV of the vehicle during the validity was Rs.5 Lacs. The FIR has been lodged with the concerned police station. After investigation the police have found that the FIR was true but undetected. The concerned Hon’ble Magistrate has passed ‘A’ Summary meaning that the FIR is true but case is undetected.
10) The main contentions of the Opposite Party for repudiating the insurance claim are that the insured vehicle was leased to a third person and it was in his possession. Therefore, the policy terms exclude the liability of the insurer/Opposite Party. In this respect we perused the policy paper produced by the Complainant at Exh.‘B’. In this policy document there is no term or condition in respect of such provision of a lease. The Opposite Party has not produced any other terms and conditions in this respect.
11) The 2nd contention of the Opposite Party which repudiates the claim of the Complainant is that the cleaner of the vehicle failed to ensure the safety of the vehicle. In this respect we carefully gone through the FIR lodged by the driver of the vehicle Mr. Jayprakash Yadav. According to the FIR, the vehicle was parked on Best Road, Goregaon on 16/03/09 at 10.00 p.m. at that time, the cleaner was in the vehicle. On 17/03/09 the driver again came to vehicle at 9.00 a.m. The cleaner was in the vehicle. On 17/03/09 during the whole duty time the vehicle was on the spot as there was no work order for plying. The key of the vehicle was kept inside the vehicle. It is the contention of the Opposite Party that the cleaner of the vehicle has kept the key inside the vehicle. From the FIR it appears that the key of the vehicle was inside the vehicle when it was stolen which facilitated the theft of the same and therefore, it is concluded that there is a failure on the part of the insured to safeguard the vehicle. Because of the negligence and failure to take precaution, the vehicle was stolen. In support of the above contention, the Opposite Party has relied the judgement/order of the Hon’ble National Commission in R.P. No.3840/11 in Devinder Kumar V/s. National Insurance Co. Ltd., pronounced on 02/04/2012.
12) We perused the entire order of the Hon’ble National Commission. The facts in this case are identical to the facts of the case in hand. In the said case, the Hon’ble National Commission has upheld the observations of the State Commission which are as under –
“Having perused the case file and the documents produced on record, we are of the firm view that the Complainant is not entitled for any claim because he has violated the terms and conditions of the Insurance Policy. Annexure A-2 is the copy of the F.I.R. No.115 dated 09/07/2007 under Section 379 I.P.C. Police Station, Khol (Rewari) wherein it has been clearly stated that the driver had left the ignition key in the vehicle while he was sleeping on a cot.”
It is further held that there is a discrepancy in the FIR/the facts narrated by the driver in the FIR and the complaint before the District Forum. The Hon’ble National Commission thus dismissed the Revision Petition of the Complainant which was allowed by the District Consumer Forum, for want of merits in the complaint.
13) From the papers submitted by the Complainant himself, it is seen that the insured vehicle was left unattended during a night time on the road. The cleaner and the driver both left the key of the vehicle inside the vehicle which must have certainly facilitated the theft of it. The insured i.e. the Complainant was expected to keep control over the vehicle. Besides this when it was stolen as it was given to one Mr. Gaffar on monthly basis for plying (Rs.16,000/- per month) and that without obtaining any document from him. Thus, it is the established principle of insurance that the insured should take utmost care and caution to prevent the loss and protect the insured property appears to have been flouted by the Complainant In the case in hand there is absolute failure on the part of the Complainant to take precaution to prevent the theft of the insured vehicle and as such, taking into consideration the above facts and circumstances of the case and the judgement of the Hon’ble National Commission cited above, we are of the candid view that there are no merits in this case and the Opposite Party has rightly repudiated the claim of the Complainant for the reasons mentioned above. Hence, we pass the order as follows –
O R D E R
1. Complaint No.275/2010 is hereby dismissed for want of merits.
2. There is no order as to cost.
3. Certified copies of this order be furnished to the parties.
