ORDER

(Passed this on 21^st  November,  2016)

Shri Shekhar P. Muley, President.

01.    This is a complaint against National Insurance Company for repudiating insurance claim of stolen vehicle of the complainant.

02.    Facts in short are that the complainant is the owner of TATA make truck bearing No. MH-31-AP-6685. It was insured with the Opposite Party 1. A single page policy was issued valid from 7.7.2010 to 6.7.2011 for I.D.V.      Rs. 4,50,000/-. The terms and conditions were not supplied.

The O.P.-2 is the Head Office of the O.P.-1, a local branch and is responsible for functioning of the O.P.-1. During subsistence of the policy the said truck was stolen on the intervening night of 24/25th May 2011. The driver had parked the truck on Umred- Nagpur road near his residence. Since he could not trace the truck, he reported the theft to the complainant. A report was lodged with police and FIR for the offence of theft was registered on the same day. The incident was also intimated to the O.P.-1. Thereafter the complainant lodged claim with all necessary papers. But the O.P.-1 did not settle the claim. On 15.10.2012 the OP1 repudiated her claim after a gap of 17 months on the ground of breach of condition No.5 relating to safe and secure custody of the truck. Hence, she has claimed IDV of the truck along with compensation of Rs.1 lakh and Rs.2,50,000/- loss due to non settlement of claim in time and cost of litigation.

03.    The O.P’s contested the matter by filing joint written version. It is stated that the complainant after understanding the terms, conditions and limitations purchased the policy. It is thus denied that terms and conditions were not supplied  to her, and no  such  grievance  was made before filing of the complaint. Theft of the truck and its intimation to the O.P. are also denied. It is also denied that claim was made with all papers but it was not settled for some reasons. Further it is stated that no immediate intimation was given to the O.P. and the truck was parked negligently without due care. Since it amounts to breach of conditions the claim was rightly repudiated. Hence, it is prayed to dismiss the complaint.

04.    We have heard the submissions of both the sides. Perused the documents. Upon consideration of the same we record our findings and reasons as under.

FINDINGS  AND  REASONS

05.    At the outset we must mention that though the counsel for the O.P. contended that there was no immediate intimation of the theft by the complainant, repudiation of the claim is not based on this ground. The claim has been repudiated on only one ground of failure to keep the truck in safe and secure place in violation of condition No.5. Therefore we do not intend to go into the aspect of intimation of theft. The condition No.5 of the policy imposes a duty on the owner of the insured vehicle to take all reasonable steps to safeguard the vehicle from loss or damage.

06.    The complaint reveals that the truck was parked by its driver in front of a house on Umred- Nagpur road where truck are usually parked. The truck was properly locked. The incident occurred in the night. It is contended on behalf of the OP that the truck was not parked safely and proper care of its safeguard was taken. It is undisputed that the truck was parked by the road side. What is proper care and safeguard of a vehicle depends upon various factors. Trucks are generally parked by road side when hired for transport. It is not the case that the driver had left the key of the truck in it or did not properly locked it. Whatever care or safety was to be taken, it was taken by the driver. The incident of theft was genuine and not fake. There is no denial of theft of the truck. As held in National Insurance Co. Ltd. v/s Shri Mayur Raj Singh, Revision Pet. No. 3558/2012 decided by the National Commission on 1.10.2012, in a case of theft the Insurance company should consider the claim sympathetically. In the case of theft of vehicle, breach of condition is not germane. Even if there is a breach of condition of policy, the insurance company should settle the claim on ´non-standard´ basis.

07.    The counsel for the complainant further contended that since the terms and conditions of policy were not supplied to the complainant, the OP cannot take shelter of breach of condition. He relied on a decision of National Commission in Revision Petition No. 4271/2007, Oriental Insurance Co. v/s Brahmdeo Panjiyara decided on 14th March 2012 (NC). In fact, there is only word against word on this aspect. The complainant has filed copy of cover note of the policy and the OP filed its terms and conditions. It appears that the Exception Clause is not the part of the cover note. The O.P. could not prove that the terms and conditions were supplied to the complainant, though it is a fact the she also did not take this grievance till filing of the complaint. But all the same, it is the duty of  the O.P. to provide terms and conditions of the policy. Whne she was not apprised about the terms and conditions, she could not be bound by any condition.

08.    Thus considering the facts we allow the complaint.  The counsel for the OP submitted that some depreciation will have to be made from the IDV. We are unable to   agree because the truck was stolen during subsistence of the policy and IDV was calculated after depreciation. Hence, the complainant is entitled to IDV of the truck. We therefore pass the following order.

ORDER

1. Complaint is partly allowed.
2. The O.P.-1 is directed to pay a sum of Rs.4,50,000/- (In words Rs.Four Lakh & Fifty Thousand only)  to the complainant within 45 days from date of receipt of order copy, failing which the said amount will carry interest @ 9% p.a.
3. The O.P.- 1, in addition shall also pay     Rs.-10,000/- (In words Rs.Ten Thousand only)  for mental and physical harassment and cost  Rs.-2000/-(In words Rs.Two Thousand only)

4. Order be complied within 45 days from receipt of the order copy.
5. Copy of order be supplied to both the parties free of cost.