O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is the registered owner of the Motorcycle bearing No.DL-5SAK-3417 which was insured by the O.P company bearing policy No.35100731126202474083 valid for the period from 07.12.2012 to 06.12.2013 for sum assured of Rs.45,993/-. On 30.08.2013 son of the complainant namely Sh. Manoj after meeting his friend and was returning his home, on the way just before Loni Goal Chakkar at Ashok Nagar Bus Stand, 6 to 7 persons who came in white car gave him beatings and snatched his motorcycle and ran away with motorcycle. It is alleged that son of the complainant immediately got registered FIR No.311 dated 31.08.2013 under section 379 IPC at P.S. Joyti Nagar, Delhi. It is further alleged that the complainant applied for insurance claim to O.P and produced all the relevant documents which were asked by the O.P along with the copy of FIR. It is alleged that to the utter shock and surprise of the complainant that claim was rejected by the O.P vide letter dated 03.04.2014. Complainant has also sent a legal notice dated 19.012015 but to no avail. On these facts complainants prays that O.P be directed to pay a sum of Rs.45,993/- on account of insured amount, apart from cost and compensation as claimed.
2. O.P appeared and filed written statement. In its written statement, O.P has not disputed that complainant had taken policy referred to above. It is alleged that on 02.09.2013 an intimation of theft of the said vehicle was received by the O.P. It is further alleged that the O.P appointed Sh. L.D. Arora & Associates, Investigator to investigate the matter and investigator submitted his report on 02.04.2014. As per report of investigator and FIR the vehicle was left unattended along with the keys by the son of the insured on the side of the road which has resulted into the theft. It is alleged that the insured has not taken reasonable care to safe guard the vehicle and therefore, has violated the condition No.4 of the policy terms and conditions. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint and has also proved the documents exhibited as Ex.CW-1/1 to Ex.CW-1/7. On the other hand Sh. Ravinder Kumar, Assistant Manager has filed affidavit in evidence on behalf of O.P testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submission of Ld. Counsel for the complainant.
5. The main controversy existing between the parties to the complaint is as to whether the repudiation by the O.P on the basis of violation of terms and conditions of the policy was justified or not. Admittedly the vehicle i.e. motorcycle bearing No.DL-5SAK-3417 was snatched from the son of the complainant by 6 to 7 persons while standing at Ashok Nagar Bus Stand. It is also admitted that at the time of theft the son of the complainant had gone to ease himself by leaving ignition key in the vehicle itself. The O.P has made an abortive attempt to evade its liability while having recourse to clause 4 of the policy which provided that insured would take reasonable care to safeguard the vehicle from damage and loss. It has been contended by the O.P that since the vehicle was left unattended that to with ignition key with the motorcycle itself, the complainant clearly violated condition No.4 of the policy by not taking proper care to prevent loss/ damage to the property and as such the insured cannot be permitted take the benefit of his own wrong. The counsel for the complainant, on the other hand, vehemently stressed firstly that the terms and conditions of the policy cannot be pressed into service in case of theft of a vehicle. In support of his submission the counsel for complainant referred to case reported as The New India Assurance Co. Ltd. Vs M/s. B. Mangatram & Co. decided by Hon’ble National Commission in revision petition No.471 of 2013 on 30.08.2013, whereby the commission while relying on Hon’ble Supreme Court authority held as under:- “In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The O.P submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto case of loss of vehicle due to theft.” The Ld. Counsel for the complainant further argued that as per condition No.4 of terms and conditions of the policy, the insured is supposed to take care to safeguard the vehicle from damage/ loss which means there should not be deliberate act which contributed to the loss/ disappearance of the vehicle. However, in the present case the complainant happened to answer the natural call by leaving the ignition key with the motorcycle itself which, by no stretch of imagination can be termed as negligence or carelessness on the part of insured. Again counsel for the complainant in order to buttress his contention referred to case titled New India Assurance Co. Ltd. Vs Girish Gupta decided by Hon’ble National Commission in revision petition No.590 of 2014 on 31.07.2014. Para 20 and 21 of the aforesaid judgement are relevant for considerations which are reproduced as under:-
20. The issue is whether the fact that the O.P alighted from the car to answer the call of nature left the key in the ignition tantamounts to violation of conditions No.4 of the insurance policy. This has been dealt with in length by this commission in RP No.375 of 2013- Shri Sukhwinder Singh Vs Cholamandalam MS- decided on 30th August 2013, wherein it was held that “ It is undisputed that the vehicle in question was stolen while the driver of the vehicle had gone to ease himself after parking the car on the road side and leaving the keys in the ignition. The question for determination is whether or not aforesaid act of the driver of the car amounts to violation of condition No.5 of the insurance policy? In order to find answer to this question, it is necessary to have a look on the aforesaid condition which is reproduced thus:
“The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times 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 shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”
21. This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as willful breach of condition No.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed willful breach violation of the terms of the above condition No.5. In our aforesaid view we are supported by judgement of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Co. Ltd. Vs M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV- (2011-4)
6. Keeping in view of the aforesaid discussion and circumstances of the case, we are of the considered view that O.P cannot take shelter under the umbrella of clause 4 of the insurance policy. The O.P clearly committed deficiency in service. We, therefore, direct OP to pay the sum assured i.e. Rs.45,993/- with interest @ 6% from the date institution of the complaint till payment, with further award of Rs.3,000/- towards harassment, mental agony, loss of time and litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 23rd day of March, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
