Delhi

East Delhi

CC/149/2014

ANIL - Complainant(s)

Versus

ORIANTAL INS. - Opp.Party(s)

20 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC. NO-149/14

In the matter of:

Sh. Anil Kumar

S/o Sh. Kashmiri Lal,

R/o c-321, Yojna Vihar, I.P.Estn.,

•  

Proprietor M/s O.K. Transport Company,

Running at Room No.315/1,

Administrative Complex,ICD,

Tuglakabad, New Delhi-110020.        

          Complainant

Vs

The Deputy General Manager,

The Oriental Insurance Company Limited

Service Centre-1,

DRO-1, Hansalaya Building, 10^th Floor,

15, Barakhamba Road, New Delhi-11000.                                                                                                                                                                                                            Opposite Party

                                                                                        DATE OF ADMISSION-20/02/2014

                                                                                      DATE OF ORDER         -29/10/2015

ORDER

SH. N.A.ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the complainant is doing transport business in the name & style O.K. TRANSPORT CO. at Room No.315/1, Administrative Complex, ICD, Tuglakabad, New Delhi. The complainant purchased open body truck bearing No.HR-38J-4633 and it was got insured from the respondent company vide insurance policy No. 215400/31/2012/6171 valid from 07/11/2011 to the mid night of 06/11/2012. On 12/10/2012 at 1.00 am driver of the complainant namely Sh. Yogender Sharma after parking the said truck at ICD out gate, MB Road, New Delhi, had gone to take meals when he returned at 1:30 am he found the truck missing from the parking place. He tried his best to locate the truck and informed the complainant about the incident. He was instructed to lodge the report to the police regarding the theft of the truck. The PCR at 100 number was also alerted at DD No.32B and F.I.R u/s 379 IPC was registered at police station Prahalad Pur, Delhi, under the mental stress due to theft of this truck Driver at the time of the lodging the complaint of theft could not locate the keys of the stolen vehicle and stated in F.I.R that the keys were in the truck, when the driver came back to his home and change his pants, he found the keys of the stolen truck in his pants. He narrated this fact in his statement to the police. The untraced report was filed before the Metropolitan Magistrate which was accepted vide order dated 06/12/2012. The key of the vehicle was given to Sh. Ashok Jha, assistant of M/s G.B. Mathur & Co., the surveyor appointed by the respondent. The keys and the documents were given in December 2012. The respondent slept over the claim over 8 months and 05/08/2013 intimated the complainant regarding the report of M/s G.B. Mathur & company rejecting the claim of the complainant. The complainant was treated very harshly by the officers of the respondent. The complainant prayed for the settlement of the claim of his stolen truck and litigation charges of Rs.50,000/- and Rs.50,000/- towards the harassment, mental pain, agony and 18% interest.

            The respondent filed their reply where in they have admitted the policy of insurance condition No.5 of the policy specifically lays down that “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.” The respondent appointed G.B. Mathur Company who submitted his report on 15/01/2015 and on the basis of Report of Surveyor the claim of the complainant was repudiated for violation of condition No.5. The FIR clearly shows that the driver of the truck has left the key in the ignition switch of the truck and has gone to take food, this is a clear violation of the condition No.5. Rest of the allegations of the complainant has been denied.

            Both the parties have placed on record their respective affidavits in evidence.

            We have heard the Ld. Counsel for the parties and have perused the record.

            The factum of the theft of the truck is not disputed by the respondent nor this fact that on the date of the alleged incident this vehicle was covered by the policy of the insurance. The only limited issue which arises for our consideration is as to whether condition No.5 of the policy of insurance is attracted on the facts and circumstances of this case. It is argued on behalf of the complainant counsel that driver of this truck under the trauma of losing the vehicle not knowing that the key is lying in his pocket mentioned in the report that he leaves the key of the vehicle in the vehicle when he left for taking food after parking his vehicle at 1.00 am at ICD gate M.B. Road, New Delhi. As per the contention of the complainant these keys were with the complainant and he has handed over these keys to the assistant of the M/s G.B Mathur & Co. Sh. Ashok Jha. In the report of the M/s G.B. Mathur & Co. there is no mention of this fact that these keys were not handed over to Sh. Ashok jha, on the contrary in Para-8 of this report, this fact is admitted that two ignition keys of the stolen truck were provided which were in appearance new and unused. The complainant in his affidavit specifically mentioned this fact that the truck driver could not locate the keys of this stolen vehicle when he lodged the report. The key which found later on, there is no denial from the side of the respondent that the keys handed over to the respondent were not related to the stolen vehicle, had these keys been in the vehicle how they could be in the possession of the complainant driver. There is no affidavit of surveyor placed on record, in this regard that the keys handed over to him does not belong to lost vehicle. In these circumstances the plea of violation of condition No.5 is not available to the respondent. It is argued on behalf of the complainant that the terms and condition of the policy can only be enforced against the complainant if the respondent proves that the complainant was a signatory to the terms and condition, and accepted these conditions while purchasing the policy in question. General terms and conditions cannot be enforced, when there is no binding contract between the insurers and insured. In these circumstances also the plea of violation of the condition is not attracted. In the present case complainant driver informed the police promptly. The intimation to the respondent was sent to the same date i.e. 12/10/2012, and it has not been denied by the respondent. The facts as appearing on record, clearly shows that fact of key being left in the vehicle was mistakenly mentioned in the FIR when the same keys were handed over to the surveyor. In these circumstances the repudiation of the claim by the respondent taking aid of condition No.5 is unjustified.

We allow this complaint. The respondent is directed to pay to the complainant a sum of Rs.3,50,000/- the I.D.R value of the vehicle together with 9% interest thereon from the date of filing of complaint till paid. Let this amount be paid within 45 days from the date of order.

The copy of the order be sent to the parties as per rules.

 

 

POONAM MALHOTRA                                                                                                N.A.ZAIDI

           MEMBER                                                                                                          PRESIDENT