PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint filed on the grounds that the Opposite Party had adopted unfair trade practice and there is deficiency in service, as laid down under Sec.2(r)(g) of the Consumer Protection Act, 1986, claiming the relief of recovery the Insurance Declared Value of Rs.8,30,000/- with interest @ 18% p.a., Rs.50,000/- towards the mental torture and Rs.50,000/- towards the cost of complaint. 

2)        Following facts are not in dispute –

            The Complainant was the owner of the vehicle Ashok Leyland Tusker Turbo Tractor bearing RTO Registration No.MH-04-CU 1770.  He had obtained Insurance Policy of the said vehicle from the Opposite Party which was valid from 26/07/2008 to 25/07/2009 and it’s Insured Declared Value was Rs.8,30,000/-.  On 10/11/08 at 6.00 p.m. the said vehicle was parked at J.N.P.T., Chandani Chowk, Near Sonari Village.  The said vehicle was stolen between 10/11/08 (at 6.30 p.m.) to 11/11/08 (9.00 p.m.).  The Complainant came to know the fact of theft on 11/11/08 in the morning. The Complainant lodged report with the police of said incident on 15/11/2008.  The police has registered the crime on the basis of said report.    

3)        The contention of the Complainant is that he had appointed Mr. Kuldeep Kumar Shukla, Supervisor for looking after insured vehicle parked at Chandani Chowk.  The driver’s cabin known as ‘Horse’ of the vehicle had a bolt from the outside and after securing the bolt from outside a proper lock was put. It had taken all the reasonable steps to safeguard the insured vehicle from loss and damage. 

4)        The Opposite Party has resisted the claim of the Complainant on the ground that the Complainant had not appointed driver/cleaner for looking after the insured vehicle and it was lying as stationery unattended for more than 3 weeks.  The Complainant had kept the key of the insured vehicle in the ignition box and the door of the cabin was closed by putting one ordinary lock.  There was gross negligence and recklessness on the part of the Complainant which invited the stranger to steal the insured vehicle. The Complainant has breached the condition No.5 of the insurance policy therefore, he is not entitled for the reliefs as claimed, hence, Opposite Party has prayed for dismissal of the complaint.

5)        Considering the evidence produced on record and oral arguments of Smt. Anita Marathe, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party, following points arises for determination and findings thereon are noted against each of them for the reasons given below –

                                    Points                                                                         Findings         

1.  Whether the complainant has proved that                                        

      the Opposite Party has adopted unfair trade                            Yes.

      practice and there is deficiency in service ?                          

2.  Whether the Complainant has breached the                              No

      terms & condition of insurance policy ?                                   

3.      Whether the Complainant is entitled to the                   Yes, as regards to the                          

Insurance Declared Value, compensation towards       IDV & cost.

mental torture & cost as claimed ?                                  In the negative as regards to

                                                                                              the compensation for mental torture.                   

            4.   What order ?                                                                       As per final order

Reasons :-

6) Point Nos.1 & 2:  The Complainant has submitted his affidavit and affidavit of Mr. Kuldeep Kumar Shukla in support of his claim.  The evidence of above witness shows that the Complainant had engaged Mr. Kuldeep Kumar Shukla for looking after his vehicles parked at Chandani Chowk.  Mr. Kuldeep Kumar Shukla, Supervisor used to reach at Chandani Chowk area in the morning at 8.00 a.m. and to look after the external parts of the vehicle, such as tyres and other accessories are intact and used to left the said premises in the evening by counting all the vehicles and verifying it’s tyres & accessories. On 10/11/08 in the evening the insured vehicle in question was parked at Chandani Chowk.

7)        The contention of the Opposite Party is that one Satish D. Thanekar was appointed for investigation.  As per the report of investigation of the Investigator and statement of the Supervisor & Complainant, the ignition key of the insured vehicle in question was kept in the ignition box and the door of the cabin of the vehicle was closed by putting one ordinary lock. The Opposite Party neither submitted affidavit of S.D. Thanekar alleged Investigator nor produced investigation report on record to prove it’s case.  

8)        Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party has argued that the Opposite Party need not to lead any evidence and the case of Opposite Party has been proved only on the documents submitted by the Complainant.  The Ld.Advocate for the Opposite Party has mainly relied on the statements of Mr. Kuldeep Kumar Shukla, Supervisor & Complainant recorded by the police, copy of letter issued by Satish Thanekar to the Complainant dtd.25/06/09, repudiation letter dtd.24/12/09, which are filed at Exh.D, F, G & J respectively (page nos.38, 46, 50 & 95 of complaint).

9)        Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party has further argued that Mr.Kuldeep Kumar Shukla and Complainant have stated before the police that since last 15 days the insured vehicle was parked at the Chandani Chowk as there was no driver on the said vehicle.  But the evidence of Complainant clearly goes to show that the insured vehicle was purchased for commercial purpose.  After couples of years his business slowed down due to recessionary trend therefore, almost all his vehicle had taken off the road for want of orders.  He reduced the drivers and cleaners by way of retrenchment.  In the business of said line, it is very easy to find drivers and cleaners at a short notice. He was getting help of other friends who were carrying business of transport to move and park the vehicle.  He used to take service of some other driver for parking the vehicle and used to take back immediately the key of vehicle with him. It appears the Complainant had retrenched the driver of the insured vehicle for want of orders of transport. The Complainant has specifically appointed Mr. Kuldeep Kumar Shukla for looking after all the vehicles parked in the Chandani Chowk for day. 

10)      The Opposite Party did not come with specific case that the driver’s cabin of insured vehicle was kept open without any lock. On the contrary the Opposite Party has admitted by the written statement that the ignition key of the vehicle was kept in ignition box and the cabin door of the vehicle was closed with the ordinary lock.  From the evidence available on the record, it cannot be said that the Complainant had parked insured vehicle unattended.

11)      Mr. Satish D. Thanekar, Investigator had called upon the Complainant and asked to send Mr. Kuldeep Kumar Shukla at his office for interrogation by letter dtd.25/06/09 which is at Exh.‘G’. The Complainant had demanded from the Opposite Party the insured amount (IDV) of vehicle by filing application. The Opposite Party has repudiated the claim of the Complainant by letter dtd.24/12/2009 on the basis of report of investigation and on the ground that the Complainant has not taken good care of the insured vehicle.  However, the report of the said Investigator has not been produced by the Opposite Party on record.  The case of the Opposite Party is that the Complainant has breached condition No.5 of the insurance policy therefore, he is not entitle to the amount claimed. The Complainant has produced the copy of the insurance policy at Exh.‘C’.  The condition No.5 of the policy is as follows –

“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 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 damage or any further damage to the vehicle shall be entirely at the Insured’s own risk.”                  

12)      Smt. Anita Marathe, Ld.Advocate for the Complainant has argued that the policy does not define what are reasonable steps have to be taken by the Insured to safeguard the insured vehicle and Opposite Party cannot take undue advantage of said clause.  The Ld.Advocate for the Complainant has further argued that the Complainant had taken all reasonable steps to safeguard the insured vehicle from loss and damage.  Smt. Anita Marathe, Ld.Advocate for the Complainant in support of her argument relied on the judgement delivered by the Hon’ble State Commission, Maharashtra in First Appeal No.A/11/896, on 08/10/2013. In the said case Insurance Company opposed the claim of the Complainant on the ground that the owner of the truck had not taken proper care in ensuring that the insured vehicle was properly guarded and that the keys of the insured vehicle were also kept inside the truck and it was not proper to park the insured vehicle on the service road.  In the above cited case the Hon’ble State Commission held that - 

“Condition No.5 of the policy does not stipulate that the Insured was expected to engage a watchman or a guard to look after the insured vehicle. May be ideally, the Complainant’s driver should not have kept the keys of the truck inside the truck but, it is not that he had not locked the doors of the truck and after locking the doors of the truck, he had handed over the keys of the doors of the truck to the owner’s son and this should have been a sufficient safeguard for preventing theft upon of the Insured vehicle, for getting reimbursement from the Insurance Company upon theft of insured vehicle.” 

13)      In the present case while considering the claim made by the Complainant it is to be noted that there is sufficient evidence on record to show that the Complainant has taken all reasonable steps to safeguard the insured vehicle in question from loss or damage.  The statements & record placed in this complaint show that the Opposite Party has adopted unfair trade practice and proceeded to repudiate the claim through the letter dtd.24/12/2009.  In view of the facts of this case the Opposite Party was bound to provide service to the Complainant by making payment of Insurance Declared Value but failed to do so.  In view of the aforesaid observations laid down by the Hon’ble State Commission in the above cited case and considering the evidence available on record we hold that Opposite Party has adopted unfair trade practice and there is deficiency in service.  We further hold that the Complainant has not breached terms & conditions of the insurance policy, hence point no.1 is answered in affirmative and point no.2 in the negative. 

14) Point Nos.3 & 4:  In view of findings to point No.2 we hold that there is no breach of any terms and conditions and particularly condition No.5. In the circumstances of the case we hold that the Complainant is entitled from the Opposite Party Declared Insured Value Rs.8,30,000/- with interest thereon @ 6% p.a. from the date of repudiation i.e. 24/12/2009 till it’s realization. 

            The statement of Complainant recorded by the police and other evidence available on record shows that the Complainant’s father is running the business of transportation in the name and styled as “Hareshwar Transport Company”.  The Company is having ten to twelve trucks for the said business.  The insured vehicle was also purchased in the name of Complainant for the business of Hareshwar Transport Company. The Complainant is assisting his father in the business of transportation Company.  It is true insurance policy and vehicles are in the name of the Complainant, but it was under the use of Hareshwar Transport Company.  The mental torture can be caused to the individual person and not to the Company. Therefore, question of granting amount to the Complainant for mental torture does not arise.           

The Complainant had made demand from the Opposite Party of Insured Declared Value by filing application on 02/12/2008.  He had also submitted documents as asked by the Opposite Party.  The Opposite Party repudiated the claim of the Complainant without just reason, hence, Complainant is entitled to cost of complaint.  Considering nature of litigation cost Rs.5,000/- is awarded.  Thus, the Complainant is entitled to only Insured Declared Value amount Rs.8,30,000/- and cost Rs.5,000/-.  He is not entitle to the compensation towards mental torture.  Hence, points no.3 & 4 are answered accordingly. 

            In the result this Forum proceeds to pass following order –

 O R D E R

 i.                    Complaint No.295/2010 is partly allowed with cost.

ii.                    The Opposite Party is directed to pay to the Complainant Insured Declared Value Rs.8,30,000/- (Rs. Eight Lacs Thirty Thousand Only) with interest @ 6% p.a. from the date of repudiation of claim of the Complainant i.e. 24/12/2009 till the date of realization of the said amount.

iii.               The Opposite Party is directed to pay to the Complainant cost of litigation Rs.5,000/- (Rs. Five Thousand Only).

iv.      The Opposite Party do pay to the Complainant amount mentioned in above para Nos.2 & 3 within two month from the receipt of this order.

v.        The claim of the Complainant as regards the mental torture is rejected.

vi.        Certified copies of this order be furnished to the parties.