By Sri. Mohamed Ismayil.C.V, Member
Complaint filed under section 12 of Consumer Protection Act, 1986
1. The complainant is heavy goods vehicle driver and on 19-02-2015 he bought 2009 model Ashok Leyland 1612 Lorry bearing registration No.KL 09 W-9639 (engine No. JNH 5444784 chasis No. ZNE 665795) for his livelihood. The above said vehicle was purchased from one Abdulla S/o Alavi 5/301, Palliyalipeediyekkal House, Malappuram after making payment of Rs.10,00,000/-. The complainant hypothecated the above vehicle with IndusInd Bank Ltd and later hypothecation was terminated. The complainant and his son used the vehicle for making their earnings. The complainant was keeping the vehicle in a very good road working condition and was keeping the vehicle in a showroom condition effecting periodical services, maintenances and repairs. The above lorry was insured with the opposite party for unlimited liability under the package policy No.570305/31/16/6300008680 which was valid from 09-01-2017 to 08-01-2018 and complainant paid premium to the tune of Rs.31,364/- on 05-01-2017 and the opposite party issued the above package policy including coverage for the theft and loss due to other calamities. The insured declared value of the vehicle was Rs.7,00,000/-. On 15-01-2017 after the servicing of the lorry, the same was taken from service station and brought to the native place of complainant and parked on the side of Melattur – East Pandikkad which was very near to his house and in front of a residential building situated there nearby. Actually the complainant used to park his lorry in the very same place as the vehicle cannot to take to his house. The complainant’s house is situated very near to the parking spot and the spot can be viewed from his house. The complainant had taken all steps to ensure the security and safety of the vehicle from natural calamities and also hazards like theft and chances of causing damage to the vehicle by miscreants.
2 In spite of all security measures taken for ensuring safety, on 16-01-2017 between 1.30 am and 8am in the morning the lorry was stolen from the spot where it was parked. The complainant personally took up the matter and he went to several places in Palakkad and Malappuram districts in search of lorry. Moreover the complainant’s son shuhad informed the theft of lorry to Pandikkad police station on the very same day. On the basis of information given by the complainant’s son shuhad, Pandikkad police station registered a crime numbered as 11/2017 under section 379 of IPC and started investigation. According to the complainant the market value of the vehicle is Rs.8,50,000/-. The complainant informed the fact of theft to the opposite party without any delay. The complainant also took active role in assisting the investigation of the dog squad, finger print bureau and cyber cell to track the culprits and recover the lorry. Despite the earnest effort of the police, they could not detect the offence, and reach up to the culprits and effect the recovery of lorry. Ultimately on 01/12/2017, Pandikkad police submitted final report before the Judicial First Class Maginstrate’s Court II Perinthalmanna. The district police chief had accorded sanction to close the investigation of the case as undetected and accordingly the case was closed for the time being.
3. It is stated in the complaint that the opposite party had collected rupees 31,364/- as premium from the complainant and issued a policy No.570305/31/16/6300008680 for covering all the risk including 3rd party cover , loss/damage to the vehicle as a result of accident , loss due to fire, theft and risks against natural calamities . The package policy issued by the opposite party had assessed the insured declared value of the vehicle to the tune of Rs.7,00,000/- only and the insured policy was in force at the material point of Commission of crime in connection with the lorry. According to the complainant, as per the stipulations of the policy, he informed the opposite party about the incident of theft of insured vehicle without any delay. The opposite party also made independent enquiries and the complainant was made to believe that the opposite party will settle the claim immediately after filing of final report of the police. Moreover the opposite party directed the complainant to submit relevant related documents including letter of subrogation to the opposite party and the officers of the opposite party had given assurance to the complainant that the claim will be settled and the insured declared value maintained in the policy will be disbursed to him within a short span of time. The complainant had contacted the opposite party on several occasions and the opposite party repeatedly made assurance that the opposite party will pay the amount without delay where as to the surprise of the complainant , the insurance company had issued a letter to the complainant stating repudiation of the claim without giving any valid reasons.
4. According to the complainant, he had taken all possible steps to ensure the safety and security of the vehicle and the engine key of the vehicle was kept very safe as it was done before. During the time of investigation the police found that the lorry of the complainant can be started without employing key and the same was revealed when police contacted experts in diesel engine and lorry repair workshops. According to the complainant the culprits might have employed the same technique to start the vehicle without employing key and took away the lorry.
5. As per the complaint, the act of repudiation of the claim by the opposite party is breach of trust and deficiency in service and thus complainant suffered huge financial loss and mental agony. It is submitted that there was no latches on the part of the complainant and actions of the opposite party is ill motivated. According to the complainant, since the insured declared value of vehicle was fixed as Rs.7,00,000/- at the time of issuance of policy and so he is constrained to limit his claim to Rs.700000/- with interest from the date of theft over and the above theft claim from the opposite party. Hence, the complainant approached this commission for the redressal of his grievances.
6. The complainant prayed for a direction to pay Rs.7,00,000/- from the opposite party to the complainant as the insured declared value of the lost vehicle and to pay Rs.1,00,000/- as compensation for the deficiency in service and inordinate delay caused by the opposite party .
7. On admission of the complaint, notice was issued to the opposite party and the opposite party entered appearance and filed version in detail.
8. The opposite party contended that the petition was not legally maintainable devoid of merits and is liable to be dismissed with cost. The opposite party admitted that the motor vehicle bearing No. KL.09/W 9639 Ashok Leyland 1612 (Engine No.665795) alleged to have been involved in the incident had insured with the company of the opposite party at the material time of incident to cover legal liability as per policy of insurance, in the name of the complainant. It is also admitted by the opposite party that the said vehicle was stolen from the spot where it was parked on the road side near to the home of the complainant on 16/01/2017 in between 01.30 am and 8 am in the morning and subsequently the complainant informed the same to the opposite party on 18-01-2017.
9. According to the opposite party ,he is unable to pay compensation for theft to the complainant as first information report clearly stated that the key of the insured vehicle was kept below the driver’s seat of the vehicle which also got stolen along with the vehicle at the time of theft. This indicate that the insured had not taken all reasonable steps to safeguard the vehicle insured from the loss which can be construed as a violation of condition No.5 of the insurance policy . So according to the opposite party there is clean negligence from the side of the complainant to safeguard the vehicle. In this case vehicle was stolen when the key was kept in the vehicle hence there is a clean negligence from the part of the complainant and violation of the policy condition. So the opposite party repudiated the claim of the complainant. On 24-07-2019 the opposite party intimated the complainant about repudiation. It is stated in the version that the complainant is not entitled to get any compensation from the opposite party and the opposite party denied all allegation including the ground of demand to pay compensation to the complainant. The opposite party also pleaded to take the advantage of reservation clause in the policy and contest this claim on all grounds. Hence the opposite party prayed to dismiss the complaint with compensatory cost.
10. The complainant and the opposite party filed affidavits and documents. The documents on the side of the complainant marked as Ext. A1 to A12. Ext. A1 is the copy of First Information statement given by the son of the complainant before the Pandikkad police regarding the theft of the lorry. Ext. A2 is the copy of FIR No.11/2017 of Pandikkad Police in connection with theft of lorry. Ext. A3 is the copy of final report filed by Pandikkad police before the Hon’ble Judicial First Class Magistrate’s Court II, Perinthalmanna in connection with FIR No.11/2017. Ext. A4 is the copy of Registration Certificate of the vehicle No.KL 09 W 9639. Ext. A5 series is the copy of the registered letter along with postal receipt and acknowledgement card informing the theft of vehicle to the R.T.O , Malappuram by the complainant dated 27/03/2017. Ext. A6 is the copy of letter issued by the complainant to Sundaram Iyenkar and sons Ltd, who made the chassis of the lorry. Ext. A7 is the copy of permit certificate of the vehicle No.KL -09-W 9639 issued by motor vehicle department, government of Kerala. Ext.A8 is the copy of the certificate of insurance cum policy schedule of the vehicle bearing No.KL-9-W 9639 issued by the opposite party . Ext. A9 is the copy of the No Objection Certificate for Endorsement Removal issued by INDUS IND BANK. Ext.A10 is the copy of letter issued to Transport Commissioner in order to include the lost vehicle in the stolen vehicle computer list. Ext. A11 is the copy of the notice issued by the police to the son of the complainant U/s 157(2) and 173(1)(b) of Cr.Pc stating case is undetectable. Ext. A12 is the copy of the repudiation letter dated 24-07-2019 issued by opposite party to the complainant. The opposite party filed one document and same is marked as Ext. B1. Ext. B1 is the copy of policy agreement regarding commercial vehicles package policy.
11. The complainant and the opposite party heard in detail, perused affidavit and documents. The opposite party filed argument notes also. The following points arised for consideration:-
- Whether there is deficiency in service on the part of the opposite party? .
- Relief and cost ?
12. Point No.1 & 2
According to the complainant, he is working as a heavy goods vehicle driver for the livelihood of his family and he purchased a Ashok Leyland 1612 lorry, model 2009, in the year 2015. The Registration Certificate number of the lorry was KL – 09-W- 9639. The above said lorry was insured with the opposite party, named National Insurance Company for unlimited liability under the package policy No.570305/31/16/6300008680. The policy starts from 09-01-2017 to 08-01-2018 and the complainant had paid premium to the tune of Rs.31,364/- on 05/01/2017. As per the above package policy it got coverage for theft and loss due to other calamities and Rs.7,00,000/- was stipulated as insured declared value of the vehicle. But unfortunately on 16-01-2017 between 01.30 am and 08.00 am in the morning the above said vehicle was stolen from the parking place, where in it was used to park. A claim was made by the complainant under the privilege of policy but rejected on the ground of violaton of condition No.5 of the policy as per Ext. A12 repudiation letter by the opposite party . It is admitted by the opposite party that the vehicle involved in the incident has been insured at the material time of theft. But at the same time, according to the opposite party there is breach of express condition of policy, so the opposite party was not liable to indemnify the complainant against the loss by theft of vehicle. The opposite party produced Ext. B1 document to show that there are conditions to be complied by the complainant as per policy agreement. As per condition No.5 of the Ext. B1 document, “the insured shall take all reasonable steps to safeguard the vehicle insured 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 insured or any part thereof or any driver or employee of the insured . In the event of any accident or breakdown , the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured 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”. Here, key of the insured vehicle was kept below the driver’s seat of the vehicle at the time of theft. So according to the opposite party , the insured has not taken reasonable steps to safeguard the vehicle insured from the loss which can be considered as violation of above stated condition . So as per the version of the opposite party there was negligence from the part of the complainant and violation of policy condition and that is the only reason for repudiation of the claim.
13. On the contrary, it is contended by the complainant that he has taken all safety measures and precautions to protect and safeguard the lorry. It has come out in the evidence of the complainant that he was keeping the vehicle in good condition and also effecting periodical services, maintenance and repairs of the vehicle. He used to park the vehicle for a long time on the side of the Mellattur – East Pandikkad Road which was a very near spot of his house. These facts were not disputed by the opposite party. So it can be considered that the complainant was keeping the vehicle with sufficient safety and security. The reasons put forward by the opposite party to repudiate the claim of the complainant cannot be taken into account while considering the facts of this case. It is very well stated by the complainant that he was used to keep the key of the lorry below the driver’s seat of the lost vehicle for a long time. The fact of keeping the key below the driver’s seat was exclusively known to the complainant himself. Even if the key was kept in a open place nobody got right to take away the vehicle without the consent of the owner. Ordinary man like the complainant cannot prevent offences like theft single handed by and more burden is cast upon the entire society to prevent such type of illegal activities. It has come out in evidence of the complainant that the vehicle with diesel engine as same of the complainant’s model can be started without employing key by adopting simple technique. It is further stated by the complainant that the accused person might have used above said technique to commit theft. These facts are not denied by the opposite party in the version or in the affidavit . So the act of the complainant by keeping the key below the seat of driver cannot taken as negligent one. So the repudiation of the claim of the complainant is highly arbitrary and violation of policy agreement.
14. Moreover, when going through Ext. A2 document it can be seen that police had registered a crime under section 379 of Indian Penal code and final report was submitted before the Hon’ble Judicial First Class Magistrate’s , Court II, Perinthalmanna. As per the final report there was commission of offence under section 379 of Indian Penal code. The report revealed the speedy and systematic way of investigation to defect the crime by the police. Unfortunately culprits are not red handed. The result of the crime was the loss of lorry to the complainant. So he incurred financial loss.
The acts of the opposite party caused to suffer much agony and hardship to the complainant as even after a long time of incident the opposite party did not address the grievances of the complainant. In the affidavit of the opposite party was stated that information regarding loss of vehicle received on 18-01-2017. It means the opposite party got information within 2 days after the incident. So there are latches on the part of the opposite party.
15. After evaluating the entire evidence, this commission finds that there is deficiency in service on the part of the opposite party and there is no legal backing in issuing Ext. A12 claim repudiation letter dated 24/07/2019 by the opposite party . So the complainant has got right to recover the claim amount as per Ext. A8 certificate of insurance cum policy schedule from the opposite party.
16. So considering the above facts and circumstances of the case the Commission allow the complaint as follows:-
1) The opposite party is directed to pay Rs.7,00,000/- to the complainant for the loss of lorry by theft as per the conditions of insurance policy No.570305/31/16/6300008680 with interest of 6% from the date of loss of lorry.
2) The opposite party is directed to pay Rs.1,00,000/- as compensation to the complainant for the mental agony and hardship suffered by the complainant due to the deficiency of service of the opposite party .
3) The opposite party is directed to pay Rs.20,000/- as cost of the proceedings to the complainant .
The opposite party shall comply this order within one month from the date of this order, failing which the entire above amount shall bear 9% interest per annum from the date of this order till realization .
Dated this 8th day of June , 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A 12
Ext.A1: Copy of First Information statement given by the son of the complainant
before the Pandikkad police regarding the theft of the lorry.
Ext.A2: Copy of FIR No.11/2017 of Pandikkad Police in connection with theft of lorry
Ext A3: Copy of final report filed by Pandikkad police before the Judicial First Class
Magistrate’s Court II , Perinthalmanna in connection with FIR No.11/2017.
Ext A4: Copy of Registration Certificate of the vehicle No.KL 09 W 9639.
Ext A5: Series is the copy of the registered letter along with postal receipt and
acknowledgement card informing the theft of vehicle to the R.T.O ,
Malappuram by the complainant dated 27/03/2017.
Ext.A6: Copy of letter issued by the complainant to Sundaram Iyenkar and sons Ltd,
who made the chassis of the lorry.
Ext.A7: Copy of the permit certificate of the vehicle No.KL -09-W 9639 issued by motor vehicle department, government of Kerala.
Ext A8: Copy of the certificate of insurance cum policy schedule of the vehicle
bearing No.KL-9-W 9639.
Ext A9: Copy of the No Objection Certificate for Endorsement Removal issued by
INDUS IND BANK.
Ext A10: Copy of letter issued to Transport Commissioner in order to include the lost
vehicle in the stolen vehicle computer list.
Ext A11: Copy of the notice issued by the police to the son of the complainant U/s
157(2) and 173(1)(b) of Cr.P.c stating case is undetectable.
Ext A12: Copy of the repudiation letter dated 24/07/2019 issued by opposite party to
the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Copy of policy agreement regarding commercial vehicles package policy.
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V
By Sri. Mohamed Ismayil.C.V, Member
Complaint filed under section 12 of Consumer Protection Act, 1986
1. The complainant is heavy goods vehicle driver and on 19-02-2015 he bought 2009 model Ashok Leyland 1612 Lorry bearing registration No.KL 09 W-9639 (engine No. JNH 5444784 chasis No. ZNE 665795) for his livelihood. The above said vehicle was purchased from one Abdulla S/o Alavi 5/301, Palliyalipeediyekkal House, Malappuram after making payment of Rs.10,00,000/-. The complainant hypothecated the above vehicle with IndusInd Bank Ltd and later hypothecation was terminated. The complainant and his son used the vehicle for making their earnings. The complainant was keeping the vehicle in a very good road working condition and was keeping the vehicle in a showroom condition effecting periodical services, maintenances and repairs. The above lorry was insured with the opposite party for unlimited liability under the package policy No.570305/31/16/6300008680 which was valid from 09-01-2017 to 08-01-2018 and complainant paid premium to the tune of Rs.31,364/- on 05-01-2017 and the opposite party issued the above package policy including coverage for the theft and loss due to other calamities. The insured declared value of the vehicle was Rs.7,00,000/-. On 15-01-2017 after the servicing of the lorry, the same was taken from service station and brought to the native place of complainant and parked on the side of Melattur – East Pandikkad which was very near to his house and in front of a residential building situated there nearby. Actually the complainant used to park his lorry in the very same place as the vehicle cannot to take to his house. The complainant’s house is situated very near to the parking spot and the spot can be viewed from his house. The complainant had taken all steps to ensure the security and safety of the vehicle from natural calamities and also hazards like theft and chances of causing damage to the vehicle by miscreants.
2 In spite of all security measures taken for ensuring safety, on 16-01-2017 between 1.30 am and 8am in the morning the lorry was stolen from the spot where it was parked. The complainant personally took up the matter and he went to several places in Palakkad and Malappuram districts in search of lorry. Moreover the complainant’s son shuhad informed the theft of lorry to Pandikkad police station on the very same day. On the basis of information given by the complainant’s son shuhad, Pandikkad police station registered a crime numbered as 11/2017 under section 379 of IPC and started investigation. According to the complainant the market value of the vehicle is Rs.8,50,000/-. The complainant informed the fact of theft to the opposite party without any delay. The complainant also took active role in assisting the investigation of the dog squad, finger print bureau and cyber cell to track the culprits and recover the lorry. Despite the earnest effort of the police, they could not detect the offence, and reach up to the culprits and effect the recovery of lorry. Ultimately on 01/12/2017, Pandikkad police submitted final report before the Judicial First Class Maginstrate’s Court II Perinthalmanna. The district police chief had accorded sanction to close the investigation of the case as undetected and accordingly the case was closed for the time being.
3. It is stated in the complaint that the opposite party had collected rupees 31,364/- as premium from the complainant and issued a policy No.570305/31/16/6300008680 for covering all the risk including 3rd party cover , loss/damage to the vehicle as a result of accident , loss due to fire, theft and risks against natural calamities . The package policy issued by the opposite party had assessed the insured declared value of the vehicle to the tune of Rs.7,00,000/- only and the insured policy was in force at the material point of Commission of crime in connection with the lorry. According to the complainant, as per the stipulations of the policy, he informed the opposite party about the incident of theft of insured vehicle without any delay. The opposite party also made independent enquiries and the complainant was made to believe that the opposite party will settle the claim immediately after filing of final report of the police. Moreover the opposite party directed the complainant to submit relevant related documents including letter of subrogation to the opposite party and the officers of the opposite party had given assurance to the complainant that the claim will be settled and the insured declared value maintained in the policy will be disbursed to him within a short span of time. The complainant had contacted the opposite party on several occasions and the opposite party repeatedly made assurance that the opposite party will pay the amount without delay where as to the surprise of the complainant , the insurance company had issued a letter to the complainant stating repudiation of the claim without giving any valid reasons.
4. According to the complainant, he had taken all possible steps to ensure the safety and security of the vehicle and the engine key of the vehicle was kept very safe as it was done before. During the time of investigation the police found that the lorry of the complainant can be started without employing key and the same was revealed when police contacted experts in diesel engine and lorry repair workshops. According to the complainant the culprits might have employed the same technique to start the vehicle without employing key and took away the lorry.
5. As per the complaint, the act of repudiation of the claim by the opposite party is breach of trust and deficiency in service and thus complainant suffered huge financial loss and mental agony. It is submitted that there was no latches on the part of the complainant and actions of the opposite party is ill motivated. According to the complainant, since the insured declared value of vehicle was fixed as Rs.7,00,000/- at the time of issuance of policy and so he is constrained to limit his claim to Rs.700000/- with interest from the date of theft over and the above theft claim from the opposite party. Hence, the complainant approached this commission for the redressal of his grievances.
6. The complainant prayed for a direction to pay Rs.7,00,000/- from the opposite party to the complainant as the insured declared value of the lost vehicle and to pay Rs.1,00,000/- as compensation for the deficiency in service and inordinate delay caused by the opposite party .
7. On admission of the complaint, notice was issued to the opposite party and the opposite party entered appearance and filed version in detail.
8. The opposite party contended that the petition was not legally maintainable devoid of merits and is liable to be dismissed with cost. The opposite party admitted that the motor vehicle bearing No. KL.09/W 9639 Ashok Leyland 1612 (Engine No.665795) alleged to have been involved in the incident had insured with the company of the opposite party at the material time of incident to cover legal liability as per policy of insurance, in the name of the complainant. It is also admitted by the opposite party that the said vehicle was stolen from the spot where it was parked on the road side near to the home of the complainant on 16/01/2017 in between 01.30 am and 8 am in the morning and subsequently the complainant informed the same to the opposite party on 18-01-2017.
9. According to the opposite party ,he is unable to pay compensation for theft to the complainant as first information report clearly stated that the key of the insured vehicle was kept below the driver’s seat of the vehicle which also got stolen along with the vehicle at the time of theft. This indicate that the insured had not taken all reasonable steps to safeguard the vehicle insured from the loss which can be construed as a violation of condition No.5 of the insurance policy . So according to the opposite party there is clean negligence from the side of the complainant to safeguard the vehicle. In this case vehicle was stolen when the key was kept in the vehicle hence there is a clean negligence from the part of the complainant and violation of the policy condition. So the opposite party repudiated the claim of the complainant. On 24-07-2019 the opposite party intimated the complainant about repudiation. It is stated in the version that the complainant is not entitled to get any compensation from the opposite party and the opposite party denied all allegation including the ground of demand to pay compensation to the complainant. The opposite party also pleaded to take the advantage of reservation clause in the policy and contest this claim on all grounds. Hence the opposite party prayed to dismiss the complaint with compensatory cost.
10. The complainant and the opposite party filed affidavits and documents. The documents on the side of the complainant marked as Ext. A1 to A12. Ext. A1 is the copy of First Information statement given by the son of the complainant before the Pandikkad police regarding the theft of the lorry. Ext. A2 is the copy of FIR No.11/2017 of Pandikkad Police in connection with theft of lorry. Ext. A3 is the copy of final report filed by Pandikkad police before the Hon’ble Judicial First Class Magistrate’s Court II, Perinthalmanna in connection with FIR No.11/2017. Ext. A4 is the copy of Registration Certificate of the vehicle No.KL 09 W 9639. Ext. A5 series is the copy of the registered letter along with postal receipt and acknowledgement card informing the theft of vehicle to the R.T.O , Malappuram by the complainant dated 27/03/2017. Ext. A6 is the copy of letter issued by the complainant to Sundaram Iyenkar and sons Ltd, who made the chassis of the lorry. Ext. A7 is the copy of permit certificate of the vehicle No.KL -09-W 9639 issued by motor vehicle department, government of Kerala. Ext.A8 is the copy of the certificate of insurance cum policy schedule of the vehicle bearing No.KL-9-W 9639 issued by the opposite party . Ext. A9 is the copy of the No Objection Certificate for Endorsement Removal issued by INDUS IND BANK. Ext.A10 is the copy of letter issued to Transport Commissioner in order to include the lost vehicle in the stolen vehicle computer list. Ext. A11 is the copy of the notice issued by the police to the son of the complainant U/s 157(2) and 173(1)(b) of Cr.Pc stating case is undetectable. Ext. A12 is the copy of the repudiation letter dated 24-07-2019 issued by opposite party to the complainant. The opposite party filed one document and same is marked as Ext. B1. Ext. B1 is the copy of policy agreement regarding commercial vehicles package policy.
11. The complainant and the opposite party heard in detail, perused affidavit and documents. The opposite party filed argument notes also. The following points arised for consideration:-
- Whether there is deficiency in service on the part of the opposite party? .
- Relief and cost ?
12. Point No.1 & 2
According to the complainant, he is working as a heavy goods vehicle driver for the livelihood of his family and he purchased a Ashok Leyland 1612 lorry, model 2009, in the year 2015. The Registration Certificate number of the lorry was KL – 09-W- 9639. The above said lorry was insured with the opposite party, named National Insurance Company for unlimited liability under the package policy No.570305/31/16/6300008680. The policy starts from 09-01-2017 to 08-01-2018 and the complainant had paid premium to the tune of Rs.31,364/- on 05/01/2017. As per the above package policy it got coverage for theft and loss due to other calamities and Rs.7,00,000/- was stipulated as insured declared value of the vehicle. But unfortunately on 16-01-2017 between 01.30 am and 08.00 am in the morning the above said vehicle was stolen from the parking place, where in it was used to park. A claim was made by the complainant under the privilege of policy but rejected on the ground of violaton of condition No.5 of the policy as per Ext. A12 repudiation letter by the opposite party . It is admitted by the opposite party that the vehicle involved in the incident has been insured at the material time of theft. But at the same time, according to the opposite party there is breach of express condition of policy, so the opposite party was not liable to indemnify the complainant against the loss by theft of vehicle. The opposite party produced Ext. B1 document to show that there are conditions to be complied by the complainant as per policy agreement. As per condition No.5 of the Ext. B1 document, “the insured shall take all reasonable steps to safeguard the vehicle insured 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 insured or any part thereof or any driver or employee of the insured . In the event of any accident or breakdown , the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured 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”. Here, key of the insured vehicle was kept below the driver’s seat of the vehicle at the time of theft. So according to the opposite party , the insured has not taken reasonable steps to safeguard the vehicle insured from the loss which can be considered as violation of above stated condition . So as per the version of the opposite party there was negligence from the part of the complainant and violation of policy condition and that is the only reason for repudiation of the claim.
13. On the contrary, it is contended by the complainant that he has taken all safety measures and precautions to protect and safeguard the lorry. It has come out in the evidence of the complainant that he was keeping the vehicle in good condition and also effecting periodical services, maintenance and repairs of the vehicle. He used to park the vehicle for a long time on the side of the Mellattur – East Pandikkad Road which was a very near spot of his house. These facts were not disputed by the opposite party. So it can be considered that the complainant was keeping the vehicle with sufficient safety and security. The reasons put forward by the opposite party to repudiate the claim of the complainant cannot be taken into account while considering the facts of this case. It is very well stated by the complainant that he was used to keep the key of the lorry below the driver’s seat of the lost vehicle for a long time. The fact of keeping the key below the driver’s seat was exclusively known to the complainant himself. Even if the key was kept in a open place nobody got right to take away the vehicle without the consent of the owner. Ordinary man like the complainant cannot prevent offences like theft single handed by and more burden is cast upon the entire society to prevent such type of illegal activities. It has come out in evidence of the complainant that the vehicle with diesel engine as same of the complainant’s model can be started without employing key by adopting simple technique. It is further stated by the complainant that the accused person might have used above said technique to commit theft. These facts are not denied by the opposite party in the version or in the affidavit . So the act of the complainant by keeping the key below the seat of driver cannot taken as negligent one. So the repudiation of the claim of the complainant is highly arbitrary and violation of policy agreement.
14. Moreover, when going through Ext. A2 document it can be seen that police had registered a crime under section 379 of Indian Penal code and final report was submitted before the Hon’ble Judicial First Class Magistrate’s , Court II, Perinthalmanna. As per the final report there was commission of offence under section 379 of Indian Penal code. The report revealed the speedy and systematic way of investigation to defect the crime by the police. Unfortunately culprits are not red handed. The result of the crime was the loss of lorry to the complainant. So he incurred financial loss.
The acts of the opposite party caused to suffer much agony and hardship to the complainant as even after a long time of incident the opposite party did not address the grievances of the complainant. In the affidavit of the opposite party was stated that information regarding loss of vehicle received on 18-01-2017. It means the opposite party got information within 2 days after the incident. So there are latches on the part of the opposite party.
15. After evaluating the entire evidence, this commission finds that there is deficiency in service on the part of the opposite party and there is no legal backing in issuing Ext. A12 claim repudiation letter dated 24/07/2019 by the opposite party . So the complainant has got right to recover the claim amount as per Ext. A8 certificate of insurance cum policy schedule from the opposite party.
16. So considering the above facts and circumstances of the case the Commission allow the complaint as follows:-
1) The opposite party is directed to pay Rs.7,00,000/- to the complainant for the loss of lorry by theft as per the conditions of insurance policy No.570305/31/16/6300008680 with interest of 6% from the date of loss of lorry.
2) The opposite party is directed to pay Rs.1,00,000/- as compensation to the complainant for the mental agony and hardship suffered by the complainant due to the deficiency of service of the opposite party .
3) The opposite party is directed to pay Rs.20,000/- as cost of the proceedings to the complainant .
The opposite party shall comply this order within one month from the date of this order, failing which the entire above amount shall bear 9% interest per annum from the date of this order till realization .
Dated this 8th day of June , 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A 12
Ext.A1: Copy of First Information statement given by the son of the complainant
before the Pandikkad police regarding the theft of the lorry.
Ext.A2: Copy of FIR No.11/2017 of Pandikkad Police in connection with theft of lorry
Ext A3: Copy of final report filed by Pandikkad police before the Judicial First Class
Magistrate’s Court II , Perinthalmanna in connection with FIR No.11/2017.
Ext A4: Copy of Registration Certificate of the vehicle No.KL 09 W 9639.
Ext A5: Series is the copy of the registered letter along with postal receipt and
acknowledgement card informing the theft of vehicle to the R.T.O ,
Malappuram by the complainant dated 27/03/2017.
Ext.A6: Copy of letter issued by the complainant to Sundaram Iyenkar and sons Ltd,
who made the chassis of the lorry.
Ext.A7: Copy of the permit certificate of the vehicle No.KL -09-W 9639 issued by motor vehicle department, government of Kerala.
Ext A8: Copy of the certificate of insurance cum policy schedule of the vehicle
bearing No.KL-9-W 9639.
Ext A9: Copy of the No Objection Certificate for Endorsement Removal issued by
INDUS IND BANK.
Ext A10: Copy of letter issued to Transport Commissioner in order to include the lost
vehicle in the stolen vehicle computer list.
Ext A11: Copy of the notice issued by the police to the son of the complainant U/s
157(2) and 173(1)(b) of Cr.P.c stating case is undetectable.
Ext A12: Copy of the repudiation letter dated 24/07/2019 issued by opposite party to
the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Copy of policy agreement regarding commercial vehicles package policy.
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V
