ORDER

Per Sh. RakeshKapoor, President  

The complainant is the registered owner of Motorcycle No. DL 6S AF 2474 and had purchased a policy of insurance in respect of the same which was valid for the period 24.2.2011 to 23.2.2012. On 4.6.2011, while the complainant was in Chandigarh an unknown person had while

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 practicing deception taken away the aforesaid motorcycle of the complainant. The complainant had lodged a Police complaint. The police was unable to trace out the vehicle and had filed an untraced report. The claim lodged by the complainant for the loss with the OP was repudiated on the ground that the insured had failed to take reasonable car of the insured vehicle. The complainant has alleged that the repudiation of the claim was unjustified and unwaranteed. He has , therefore, approached this forum for redressal of his grievance. The OP has contested the complaint and has filed a written statement. It has claimed that the complaint is false and frivolous and is liable to be dismissed.   It has denied any deficiency in service on its part and has claimed that it had in accordance with the terms and conditions of the policy purchased by the complainant. Para 4 of the preliminary objections of the written statement reads as under:-

4. That the complainant himself has a nexus behind the theft of the vehicle in question.  The complainant himself admitted that the said vehicle in question was given to one stranger to drive and the said stranger took away his vehicle the complainant has not taken the prudent care of his vehicle resulting theft of vehicle.  The complainant has breached the policy condition no. 4 which states as “4.  The insured shall take all reasonable step to safeguard the  vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all-time free and full access to examine the vehicle 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 damages  or loss if

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the vehicle be driven before the necessary repairs are effected, any extension of the damages or any further damages to thevehicle shall be entirely at the insured’s own risk”.  The complaint filed by the complainant devoid any merits and is liable to be dismissed on this very ground.

 The OP has contested the complaint on merits; it has admitted that the complainant had  purchased a policy of insurance  in respect of the motorcycle purchased by him and that it had received information about the loss. It has, however, reiterated that the claim was not payable as the  insured had failed  to take reasonable steps for safeguarding the insured vehicle and has thus breached the policy conditions. It has prayed that the complaint be dismissed.

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

        The sole question for our consideration is as to whether OP was justified in repudiating the claim or  not  on the plea that there was a violation of the conditions of the policy and that the complainant had failed to take reasonable care of the insured goods.  Before we come to the merits of the case before us let us consider the following judgments:

In the case of M/s Annam Traders  V/s M/s New India Insurance Company FA no. 1441/2007 (AP State Consumer Disputes Redressal Commission) it was held as under:-

10. Coming to the facts, the sale executive who had collected the amount after the goods were delivered went to hotel kept the bag on the dining table went to a distance of four feet to hand wash, however , on his return he found that the bag was lost. When the bag was kept within a short range, where he could keep a watch for any eventuality or for untoward

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incident to happen, and in the meantime if theft was committed he could not be found fault. Obviously thefts are committed without the persons being unaware of. Had it not been no theft could be committed. The very fact that the police later received the bag wherein the cash was kept would itself prove that thieves had stealthily took away the bag within no time. It cannot be said that he had to keep the bag hugging all  the way. Equally it cannot be said that he did not comply General conditions no. 3 & 9. It cannot be said that he had not taken all reasonable care to safeguard the property. There was no latches on his part in order to repudiate the claim. The police after thorough investigation found that the bag was snatched, and the same was retrieved even, proving that the version of the sales executive was true. The very coverage of insurance is for such untoward incidents, more so, when there was no foul play on the part of the complainant.

In the case of Oriental Insurance Company V/s Shiv Dayal Agencies Pvt. Ltd 2004 STPL (CL) 194 NC, the National Commission observed as under:

As regards submission at (i) above on appreciation of evidence, the State Commission found that though ignition key was left inside the truck by the driver but both the side doors of cabin of the truck were locked from outside, conductor  of the truck was present at the shop of the barber which was by the side of the truck parked and he raised

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alarm and chase the truck when it was being taken away by unknown persons from the main market of Srinagar. In the back drop of finding this fact which we endorse, no fault could be found with the conclusion reached by the State Commission that reasonable precaution for safety and property had been taken by employees of the respondent.

In another case titled as New India Insurance Co. Ltd V/s Nitin Kalkar Ahire  Firsth appeal no. A/11/422 (State Consumer Dispute Redressal Commission , Maharashtra , Mumbai) it was observed :

“Admittedly , the cash was taken for being deposited in the bank by the complainant himself in his own car.  When he momentarily left the car keeping the bag containing cash in the rear side of the car , he does not loose his possession of the said bag containing cash. The cash was not at all entrusted to the driver.  It does not mean that the complainant had left the possession of the money kept in the car.At the second instance, if the complainant did not inform  about the cash to the driver , it cannot be said that he was negligent in not informing the drivers.  It also cannot be said that the cash was kept in an unsecured condition when it was kept in the car. The culprits fooled the driver making him to alight from the car and stole the cash.  The police investigation

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 found the incident true but culprits not traceable and filed “A” Summary.  Considering all these  facts and terms and conditions of the policy cover, it can be seen that it is well covered under the above referred clause to make the claim and insurance company was duty bound to indemnify the insurance claim. 

Coming to the facts of the case in hand, it is the case of the complainant that he was  tricked  into losing  the vehicle in question. The complainant has placed on record a copy of the FIR which has been lodged by him in respect of the theft at  PS Sector 39 Chandigarh. He has described in detail  how an unknown boy had  met in the market of Sector 37 Chandigarh and had told him that he needed some petrol for his motorcycle which had run out of the same. He had further described the manner in which the said boy fraudulently took away the vehicle in question from the complainant’s possession.  In view of the judgments quoted by us above it cannot be said that there was a want of reasonable care on the part of the complainant in safeguarding the insured vehicle.  We hold that the OP was not justified in repudiating the claim lodged by the complainant. We, therefore, hold OP deficient in rendering services to the complainant and direct it as under:

1. Pay to the complainant a sum of Rs. 57,600/- along with interest @ 10 % p.a. from the date of institution of this complaint i.e. 28.8.2012 till payment.
2. Pay to the complainant a sum of Rs. 5,000/ as cost of litigation.

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    The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum.  IF the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.

    Copy of the order be made available to the parties as per rule. 

    File be consigned to record room.

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