For the Complainant - Mr. Barun Prasad, Advocate
For the OP - Mr. Anit Kumar Bandyopadhyay, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is a complaint case under section 12 of the C.P. Act, 1986.
The fact of the case in brief is that the Complainant Mr. Upendra Ray is the owner of one goods carrying vehicle bearing registration No. WB-11B-7321 and is having a goods carrying vehicle package policy bearing No. 154400311610000123 with the OPs for the policy period from 30.08.2016 to 29.08.2017 where the IDV of the vehicle was Rs.10,50,000/-. While plying the vehicle by his driver Mr. English Ray and after unloading the vehicle on 10.01.2017 the driver parked the vehicle at the side of Service Road of Durgapur Expressway near FCI gate under the Dankuni P.S.at 10-30 p.m. He left the vehicle near hotel to take meal after proper locking. But after taking meal when he came near his vehicle at about 23.00 hrs. he found that the vehicle is missing. The driver Mr. English Ray intimated the incident to the complainant and thereafter lodged FIR before the Dankuni P.S. regarding theft of the vehicle which has been registered as Dankuni P.S. Case No. 23/17 dated 11.01.2017 u/s 379 IPC. The said matter of theft is also intimated to the insurance company. The OP insurance company appointed one investigator named Mr. Ashis Bandopadhyay who immediately investigated the incident and asked for certain documents regarding the vehicle, driving license, key of the vehicle, policy paper and police report. The complainant immediately complied with the said requirements. The certified copy of the final police report dated 31.05.2017 was also submitted to the insurance company. The OP No.2 subsequently asked for documentary evidence regarding replacement of lock of the vehicle. The complainant vide letter dated 24.09.2018 explained and intimated that when the lock of the vehicle got obsolete then the complainant change/replace the lock by a new one but failed to maintain any document and hence is not in a position to provide any documentary proof about replacement of lock of the vehicle. Thereafter, the OPs vide their letter dated 20.12.2018 repudiated the claim on the ground that
- There is violation of condition 5 of commercial vehicle package policy which states that “the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition”. In the instant case vehicle was parked in theft prone area without anyone looking after it, which shows necessary care was not taken to prevent theft of said vehicle. It was further observed that the keys of vehicle were also not handled properly.
- Keys of vehicle seemed to be of local made. Only one vehicle ignition key, which appears unused, was submitted in the said case alleging that original keys were lost earlier and new lock was installed in the vehicle, one key of which was lost by the insured. It is inferred that the keys of vehicle were treated with carelessness.
The insurance company admitted the incident of theft and accepted documents and clarification of the complainant vide letter dated 24.09.2018 regarding the issue of keys of the vehicle. In spite of all such the OP repudiated the claim on the said ground alone which is their high handedness. The vehicle is a 10 wheel goods carrying one which is supposed to use for commercial activity, loading and unloading of goods and parking of vehicle on a roadside place is the usual event and eating food in roadside Dhaba are also regular activity of every truck driver and therefore, the ground of careless attitude of the complainant of his driver is absolutely baseless, arbitrary and whimsical conduct of the insurance company. Being aggrieved with the decision of the OP the complainant has come up before the Ld. Forum for getting necessary redressal and relief as prayed for. The cause of action of this complaint case arose on 10.01.2017 being the date of theft of the vehicle and 20.12.2018 being the date of repudiation of claim.
The OPs have the contested the case by filing Written Version contending inter-alia that the claim was repudiated for violation of policy Condition No.5 of said policy which explicitly state that “the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition.” The alleged theft of the vehicle took place on 10.01.2017 at about 23-00 hrs. and the driver of the vehicle Mr. English Ray lodged complaint/FIR before the Dankuni P.S. on 11.01.2017 at 19-25 hours.. The OP insurance company received information of theft on 13.01.2017 and accordingly appointed an investigator namely Ashis Bandyopadhyay who investigated the incident on 23.01.2017. The observation made by him is mentioned herein below point-wise:-
- The insured produced the key of the truck which seem to be local make, the same had been pointed out but the insured and the driver could not give any suitable answer.
- During the course of investigation at the place of occurrence, it was heard that several cases of theft were occurred at the place since October, 2016 which indicates that the place is theft prone area.
- It appears that insured did not take necessary care to prevent the theft of vehicle as in the instant case insured parked the vehicle in theft prone area.
- Further, insured could not provide the ignition key which was in use (since one local key has been submitted by the insured which appears new or unused). Insured had declared that both original keys were lost by him and lock was replaced by new lock and again he lost one ignition key.
- Key submitted by the insured appeared unused so question here arises about the key which was in use, about which the insured is unable to clarify.
From the above observation, it can be inferred that the keys of the vehicle were treated with carelessness and there was gross negligence on the part of the insured for not keeping the vehicular keys in safe custody because on a regular basis the insured had lost vehicular keys of the vehicle.
Moreover, there is no mention of lost keys in the charge-sheet / final report and that the complainant did not file any police report while the original keys were lost and also did not inform the insurance company of such prior to investigation. The make of the keys were local and the complainant did not make the keys from the authorized manufacturer of the vehicle and also could not submit any appropriate bill for the change of lock and keys. This is a clear violation of Policy Condition No. 5 of the said policy and the OP insurance company rightly repudiated the claim under such policy condition. The allegations of defect/default/negligence and/or deficiency in service are wholly mis-conceived, groundless, false and untenable in law besides being extraneous and irrelevant having regard to the facts and circumstances of the matter under reference.
On the pleading of both the parties the following points have necessarily come up for determination:-
- Whether the complainant is the owner of a valid insurance policy.
- Whether the OPs are deficient in rendering service to the complainant.
- Whether the OP has indulged in unfair trade practice.
- Whether the complainant is entitled for the relief/reliefs as prayed for.
Decision with Reasons
Point Nos. 1 to 4:
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered their evidence on affidavit. They have also given replies against the questionnaire set forth by their adversaries. Both parties have also filed their BNAs.
We have travelled over the documents placed on record. Facts remain that the complainant is the owner of the vehicle having registration No .WB 11B 7321. The registration was done on 12.08.2011 as evident from the certificate of the Registration Authority, Govt. of W.B., Howrah dated 13.01.2017. The said vehicle stands insured with the OP Insurance Company for the period from 30.08.2016 to 29.08.2017under Policy No.154400311610000123 where the IDV of the said vehicle is Rs.10,50,000/-
From the final report of the Investigator dated 12.03.2017 it is observed that the complainant is the owner of 5 vehicles including the present one and in the field of transport business since 1999. As such,, the complainant may be supposed to be an experienced person having sufficient knowledge in the field of transportation and is well aware of the terms and conditions of Motor Car Insurance Policy.
The incident of theft took place on 10.01.2017 which is within the valid Insurance Period. From the Final Police Report dated 31.05.2017 it is observed that “ the complainant was the driver of the said vehicle. On 10.01.2017 at 22-30 hrs. complainant kept said lorry at the side of service road near FCI gate, under P.S. Dankuni, and left for hotel for taking their meal. After some time later on 10.01.17 at 23-00 hrs. complainant arrived at spot and found his lorry has been stolen by unknown miscreants.” From the petition of the driver addressed to the O/C, Dankuni P.S. which was received on 11.01.2017 at 19-25 hours by the said P.S. it is not understood that the said lorry was left by proper locking of both the doors of the cabin and the ignition key was taken to the safe custody of the driver. The vital issue of the vehicular key and the ignition key was neither mentioned by the driver in his petition nor enquired of by police in the police report.
It is also understood from the said report dated 31.05.2017 that “ the entrusted ASI Mr. Samir Karmakar held raid and searched in different places to recover the stolen Lorry and to arrest the actual Miscreants but in vain no fruitful result could be received on yet,. The case is clueless so it is unnecessary for dragging the case for an indefinite period. He consulted the O/C, Dankuni P.S. and C.I. Uttarpara regarding merit of the case who were pleased to direct him to submit final report as true. Hence , the Final Report No. 214/17 dated 31.05.2017 u/s 379 of IPC is submitted as true. If any clue could be obtained in near future, case will be re-opened.”
Now let us examine the reply of the complainant against the questionnaire of the OPs.
Question No.8 : That the petitioner company vide letter dated 01.02.2018 and 17.04.2018 requested the complainant to submit some documents and also requested the complainant to clarify the usage of local made ignition key and to submit another ignition key of the said vehicle . Do you agree, Yes or No. ?
Answer : Yes.
Question No. 9 : That after several reminders the petitioner company vide letter dated 25.04.2018 sent a pre repudiation letter requesting the complainant to submit the required documents and clarification, failure to do which within 5 days of receipt of the letter, the claim file would be treated as closed. Do you agree, Yes or No ?
Answer : Yes.
Question No. 11 : That the complainant vide letter dated 18.06.2018 ( date mentioned wrongly as 18.06.2017 ) requested the petitioner company to reopen the claim and further stated the two ignition keys were lost while replacing original lock of the vehicle and the complainant further made a new lock and received two new ignition keys one of which the complainant lost in journey. Do you agree, Yes or No ?
Answer : Yes.
Question No. 16 : “That it was further observed that the keys of the vehicle were also misplaced. Keys of vehicle seemed to be of local make. Only one vehicle ignition key, which appears unused, was submitted in the said case alleging that original keys were lost earlier and new lock was installed in the vehicle, one of the key of which was also lost by the insured. Do you agree, Yes or No ?
Answer : Yes.
Question No. 21 : That there is not mention of lost keys in the charge sheet /Final Report and that the complainant did not file any police report while the original keys were lost and also did not inform the Insurance Company of such prior to investigation. Do you agree, Yes or No.
Answer : It is duty of the police authority to lodge FIR as per complaint.
Question No. 22. : That the make of the keys were local and the complainant did not make the keys from the authorized manufacturer of the vehicle and also could not submit any appropriate bill for the change of lock and keys. Do you agree, Yes or No ?
Answer : Key was perfect when it was working properly. But the insurance company did not deny the theft of vehicle.
Now let us review the replies of the complainant .
From the Question No. 8 it appears that the OP Insurance Company asked for clarification of using local made ignition keys and to submit the other ignition key vide their letter dated 01.02.2018 and 17.04.2018 which has been admitted by the complainant vide his answer as ‘Yes”.
From the Question No. 9 it appears that as on 25.04.2018 the said clarification and submission of other ignition key were not complied with by the complainant which has been admitted by the complainant vide his answer as ‘Yes’. For information, the incident of theft took place on 10.01.2017 and vital documents remained uncompleted even after a lapse of more than 15 months.
From the Question No. 11 and the Question No. 16 and its respective replies it appears that original two ignition keys were earlier lost and two new ignition keys were made locally and out of those two local made ignition keys one was deposited which was in unused form and the other one has been lost in journey. This has been admitted by the complainant in the respective reply. The vital issue of the key has not been mentioned or discussed in the police report. Nor the driver of the complainant has mentioned in his written complaint to the police authority.
From the reply against the Question No. 22 it appears that Insurance Company cannot deny the theft of the vehicle. The interpretation is Insurance Company have to accept the fact of theft and since theft has occurred they are bound to settle the claim ignoring the situation that the vehicle was left unattended at night at a non visible distance in an area which is a theft prone one and also the fact of leaving the local made ignition key inside the vehicle. The OP never denied the incident of theft . They have relied upon the place and time of the incidence, actions and inactions of the driver and the khalasi, report of the Investigator and the admission of the complainant against the above mentioned Questions set forth by them. The vehicle was left absolutely unattended at night in the known theft prone area and the ignition key was left in the vehicle during the absence of driver and khalasi for a considerable period of time. Keys of the vehicle and the ignition keys were recklessly handled. All these aspects definitely tantamount to sheer negligence on the part of the complainant and his driver. Accordingly the insured complainant has violated the condition No. 5 of Commercial Vehicle Package Policy which explicitly states that “ The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition.”
The learned Advocate of the complainant has cited the relevant case laws of the Hon’ble NCDRC, New Delhi in the matter of Revision Petition No.375 of 2013, Shri Sukhwinder Singh verses Cholamandalam – MS General Insurance Company Ltd and R.P. No. 590 of 2014 of Hon’ble NCDRC in the matter of New India Assurance Co. Ltd. vs Shri Girish Gupta The gist of the order is “ Leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy - Whether or not there is breach of condition will always depend upon fact of case .” . The Hon’ble Judges of the NCDRC has mentioned the wordings ‘on all occasions’ which means in some occasions it may be serious breach so as to disentitle insured from seeking claim under insurance policy. As per the judgement, it always depends upon fact of the case. Yes, definitely. The facts of leaving the vehicle unattended at night around 10- 30 hours in a theft prone area for a period of half an hour at a non visible distance, with the ignition key inside the vehicle allowing peaceful uninterrupted theft definitely falls under some rare occasions which attract the violation of Condition No. 5 of the said Policy.
The Revision Petition No. 1239 of 2018 in the matter of Tata AIG General Insurance Co. Ltd. versus Mahendra Singh and Anr. In the Hon’ble NCDRC,New Delhi decided on 21.05.2019 is found relevant in adjudicating the present case. The important point in the said case is that “if theft takes place on account of negligence of driver, the insurer cannot be made liable to reimburse the insured.”
In view of the above we are of the considered view that the complainant has failed to establish his case.
All the points under determination are thus disposed of.
In the result the complaint fails..
Hence,
ORDERED
That the Complaint Case be and the same is dismissed on contest against the OPs without any costs.
