Delhi

StateCommission

A/10/829

CHOLAMANDALAM MS. GENERAL INSU. CO. LTD. - Complainant(s)

Versus

RAJU NAIDU - Opp.Party(s)

11 Aug 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                          Date of Arguments:11.8.2016

           Date of Decision:26.8.2016

 

FIRST APPEAL No.829/10

In the matter of:

                            

Shri Raju Naidu

RZ-79 Dabri Extension,

Main Palam Road,

New Delhi-110045.                                                       ………….Complainant

Versus

 

M/s. Cholamandlam Generla Insurance

907-914, 9^th floor,

Kanchanjunga Building,

Barakhamba Road,

New Delhi.110001.                                                          ….Opposite Party

 

CORAM

 

O.P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes      

 

JUDGEMENT

 

Challenge in the present appeal is to order dated 20.1.10 passed by district forum-VI in complaint case no.991 of 2009.

          The short controversy involved in the matter is as to what is the effect of leaving the keys of car in the vehicle which led to theft. Facts are not in dispute., The Innova car no.DL485348 was stolen by some unknown person on 25.9.08 when complainant was at queen service station. After taking fuel, when  sales man asked to  sign the bill of fuel, complainant went to the counter where he had to sign the bill. The counter was at a distance of 2 feet only and there was only one sales man at the petrol pump. Complainant switched off vehicle and came down from the vehicle to sign the bill. Suddenly someone jumped on the staring and spread away the insured vehicle. Complainant tried his level best to restrain the theft and immediately raised alarm. He caught the left side window but offender sped away with insured vehicle. Complainant immediately reported the incident which took place and informed the OP as well as financier i.e. ICICI Bank Ltd. He sought claim of Rs.7,63,740/- alongwith compensation on account of  mental agony and harassment.

OP filed reply stating that complaint did not lock the vehicle while leaving un attended. He did not remove the ignition key. Vehicle had a gear lock provided by the manufacturer. Vehicle was not secured by this lock. Complainant was grossly negligent in not securing vehicle by gear lock and leaving the key in ignition, totally ignoring the consequences of his act. Gross negligence of complainant and his failure to act a man of ordinary prudence enabled and facilitated the miscreant to easily get away with the vehicle. Thus complainant contributed to the alleged loss and by his gross negligence, he added to doubt the genuineness of the incident/ claim.

The district forum found that it is generally seen that if a customer goes to the petrol pump, he has to switch off the engine at the time of filing of petrol to avoid any mishap, customer come out of the driving seat and hand over the key to the attendant of petrol tank to facilitate filing. It is not rare that ignition keys are left there only. It cannot be said that complainant had not taken due care and caution. Hence OP was directed to pay Rs.7,63,740/- subject to the condition that complainant will give indemnity bond and would get the vehicle transferred in the name of OP with the transport department and would have no claim if the vehicle is traced out later on. The OP was also directed to pay Rs.1,00,000/- as compensation and Rs.10,000/- as cost of litigation,.

Respondent was served by publication in Statesmen dated 30.7.15 and Sahara dated 29.7.15 for 13.10.15 but did not put in appearance.

I have gone through the material on record and heard the arguments. The counsel for the appellant relied upon decision of National Commission in revision petition no.4887 o 2013 titled at National Insurance Company V/s. Ram Singh Gujar decided on 8.9.15 and revision petition np.3222 of 2015 titled as Universal Sompo General Insurance Company Ltd. V/s. Chander Singh decided on 4.416.

In both the case it was held that leaving ignition key amount to negligence on the part of driver, condition no-4 of the policy stand violated and the repudiation of claim was upheld. Similar view was taken in Jagdish Prasad V/s. ICICI Lombard General Insurance Company Ltd. II (2013) CPJ 578 NC and New India Assurance Company Ltd. V/s. Ajit Kumar IV (2013) CPJ 137 NC, revision petition no.4477 of 2010 titled as Ranjit Singh V/s. United India Assurance Company.

          Not only this in revision petition no.3251/13 titled as Oriental Insurance Company Ltd. VB/s. Shyam Sunder decided on 5.5.14 by National Commission, similar view was taken. SLP (Civil) no.29576/14 against the said order was dismissed by Hon’ble Supreme Court on 19.1.15.

          To sum up the appeal succeeds and is allowed. Impugned order is set aside and the complaint is dismissed. Copies of the order be sent to both the parties free of cost. Copy of order be sent to district forum for information.

 

 

 (O.P.GUPTA)

MEMBER (JUDICIAL)