THIS IS A 9 YEAR OLD CASE PENDING BEFORE THIS FORUM.
CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/247/2010
No. DF/ Central/ Date
Smt. Asha Rani Gupta
W/o Sh. Rakesh Kumar Gupta
R/O H. No. 686/4, Gurudwara Gali,
Radaur Distt. Yamuna Nagar,
Haryana.
(Through S.P.A. Sh. Rakesh Kumar) …..COMPLAINANT
VERSUS
Claims Manager
Reliance General Insurance Co. Ltd.
Plot No. 60. Okhla Indl. Area,
Phase III, New Delhi. …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Mr. R.S. Nagar, Member
Ms. Manju Bala Sharma, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint has been filed by Smt. Asha Rani Gupta (in short the complainant) under Section 12 of the Consumer Protection Act, 1986 as amended against Reliance General Insurance Co. Ltd. (in short OP) pleading therein that she is the registered owner of vehicle/truck no. HR-38D-4456 which was insured with OP vide policy bearing no. 150199233400841 valid for the period 29.05.2009 to 28.05.2010. The vehicle was stolen on 15.09.2009 at about 11:30 PM at Hirankudna crossing, Rohtak Road, Delhi. FIR No. 405 dated 10.10.2009 was registered at Police Station Nangloi Distt., West Delhi. OP as well as Financer Magma Fincorp Limited were immediately informed about the theft. OP repudiated her claim and therefore the instant complaint has been filed with a prayer to direct to OP to settle the claim of the complainant to the tune of Rs. 2,30,000/- with interest @24% per annum from the date of filing of the claim, Rs. 1,00,000/- for causing mental and physical agony and Rs. 22,000/- towards litigation expenses.
2. OP contested the claim vide its reply. It is stated that the driver of the vehicle left the ignition key in the ignition switch and left the vehicle unattended thus leaving the vehicle in drivable condition which further led to the incident of theft and therefore OP was justified in repudiating the claim vide its letter dated 12.02.2010.
3. Parties adduced evidence by way of affidavit. Our predecessor bench vide its order dated 24.04.2012 allowed the complaint and directed OP to pay to the complainant the insured amount of Rs. 2,30,000/- with interest @ 9% per annum from the date of repudiation i.e. 12.02.2010, Rs. 25,000/- for causing harassment, pain and mental agony and Rs. 5,000/- as litigation expenses.
4. The order was challenged by the OP before the State Commission vide First Appeal-668/2012 and vide its order dated 02.12.2015 State Commission remanded the matter back for fresh decision after taking relevant documents of the OP on record.
5. Said documents have been taken on record. We have heard Sh. Vijay Sharma, counsel for complainant and Sh. Vikas Lakra, counsel for OP.
6. Repudiation letter is Ex OP 1/A dated 12.02.2010 vide which the claim of the complainant was rejected making following observations:
“• The user had deliberately left the ignition key in the ignition switch at the time of theft, thus leaving the vehicle in the drivable condition, which had directly contributed to the theft of vehicle.
This implies that you have failed to take maximum reasonable safeguard of your vehicle from loss resulting in breach of Condition no. 4 of the Motor Insurance Policy (reproduced here for your reference).
Condition no. 4 The insured shall take all reasonable steps to safeguard the vehicle 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 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 effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”
So repudiation is based on breach of condition no. 4 of the insurance policy on the ground that driver left the ignition key in the ignition switch at the time of theft, thus leaving the vehicle in the drivable condition, which had directly contributed to the theft of vehicle.
7. Learned counsel for OP has relied on judgment of National Commission in Shankutala Devi vs. Reliance General Insurance Co. Ltd. Revision Petition No. 2091 of 2012 dated 05.06.2015 in support of his submission that in case of leaving the keys in the ignition of the car and the vehicle unattended repudiation of the claim was justified for breach of terms and conditions of the insurance policy.
8. Per contra learned counsel for complainant has relied on judgment of Apex Court in National Insurance Co. Ltd. vs. Nitin Khandelwal (Civil Appeal 3409 of 2008 dated 08 May 2008) in support of his submission that in case of theft breach of insurance policy condition is not germane and therefore claim should be settled on non-standard basis. Counsel for complainant further relied on National Insurance Company vs. Lajwanti II (2007) CPJ 48 (NC) wherein it was noted that as seen from the FIR after the tyre of car got punctured at around 4 a.m., the car was parked on left side of the road and driver went to Lalru in search of a mechanic but he could not find any mechanic and on coming back to spot he found that the car was stolen. Repudiation of the claim was held to be unjustified.
9. In Oriental Insurance Company vs. Parvesh Chandra Civil Appeal No. 6739/2010 dated 17.08.2010, Hon'ble Supreme Court discussed its judgment in Nitin Khandelwal (Supra) and observed that insurer cannot be held liable to pay compensation in the event of breach of terms of the policy and further that insurer in such case is not bound to settle claim on non-standard basis. It observed:
"Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle the claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy."
10. In the instant case it is relevant to read the contents of the FIR which was lodged by the driver himself. It reads that on 15.09.2009, the driver parked the vehicle at Rajlaxmi Dharamkata near Hirankuddna, T-Point, Rohtak Road. At about 11:30P.M., a stranger requested the driver for help. When the driver came back to the parking spot, he found the vehicle missing.
11. Now we come to the investigation report which is an important document.
In Lakhvinder Singh Bhamra vs. Cholamandalam Ms General Insurance Co. Ltd. & Anr., II (2012) CPJ 109 (Chhat.) it was held that report of Surveyor is an important document, which cannot be brushed aside easily without any valid justification or any report to contrary.
“POSSESSION OF KEYS:
Mr. Jaswant Singh, Driver of the vehicle confirmed in his statement informed us that he was having two ignition keys and two door-lock keys of the vehicle which were left inside the vehicle and the doors were also not locked when he went to help the stranger, Mr. Rakesh Kumar, husband of the insured who had power of attorney in his name also better the driver’s statement by signing on the same. Hence they have no keys of the vehicle with them currently.”
“THE INCIDENT:
As narrated by the driver Mr. Jaswant Singh, on 15.09.2009 after unloading plywood at Godown, Hiran Kudna More at around 04.00 PM. they weighed the empty vehicle at Raj Lakshmi Dharam Kanta and thereafter he parked the vehicle near Raj Lakshmi Dharam Kanta. He further informed us that at around 07.30 PM they got payment of the load. Then he sent the helper to bring their food and he was waiting inside the vehicle. In the night at around 10.00 PM a stranger came to him whose car was parked near the Bus Stop, Hiran Kudna More and enquired him about spanner. When he informed him that he don’t have spanner with him the stranger requested him to check his car and help him to find out the problem. Subsequently he left the vehicle by simply shutting the door of the truck and went to check the car. When he reached near the car, the stranger pushed him into his car and the miscreants who were already present inside the car assaulted him and tied his hands and legs and started driving the car towards Bahadurgarh. He also added that meanwhile acquaintance of the miscreants drove away the truck somewhere. Later the miscreants threw him in a farmland at Bahadurgarh.
As per the FIR the driver had parked the vehicle near Rajlakshmi Dharm Kanta near Hiran Kudna Three-way crossing and an unknown car owner requested him for help and when he came back to the place where the truck was parked he could not locate the truck there. Accordingly the FIR was lodged u/s 379 IPC.”
“FEEDBACK FROM THE LOCATION OF THEFT:
Investigator visited the place where the vehicle was parked before theft incident at Rohtak Road, Hiran Kudna T-Point near Raj Laxmi Dharam Kanta, Nangloi, Delhi and the feedback is detailed hereunder:
• Mr. Jaswant Singh, driver of the vehicle residing at Hameeda Ghadi Road, Yamuna Nagar, Haryana informed us that Mr. Rakesh Kumar had an N.P. Truck bearing registration no. HR 38D 4458 which was driven by him and Mr. Jai Chand was the helper in the vehicle. He further informed us that on 15.09.2009 they unloaded plywood at Godown, Hiran Kudna More at around 04.00 PM. and weighed the empty vehicle at Raj Lakshmi Dharam Kanta and thereafter he parked the vehicle near Raj Lakshmi Dharam Kanta. He further informed us that at around 07.30 PM they got payment of the load. It is further mentioned by him that he sent the helper to bring their food and he was waiting inside the vehicle. In the night at around 10.00 PM a stranger came to him whose car was parked near the Bus Stop, Hiran Kudna More and enquired him about spanner. When he informed him that he don’t have spanner with him the stranger requested him to check his car and help him to find out the problem. Subsequently he left the vehicle by simply shutting the door of the truck and went to check the car. When he reached near the car, the stranger pushed him into his car and the miscreants who were already present inside the car assaulted him and tied his hands and legs and started driving the car towards Bahadurgarh. He also added that meanwhile acquaintance of the miscreants drove away the truck somewhere. Later the miscreants threw him in a farmland at Bahadurgarh. He informed his employer about the incident over phone from an STD Booth at around 01.30 A.M. and his employer in turn informed the incident to owner of Transport Company, Delhi, where the vehicle was attached with and also reported the theft of the vehicle to Police. Police came to the place and took him from there at around 03.00 AM and visited the spot with him. He further informed that all original documents of the vehicle, driving licence, mobile phone were also stolen with the vehicle. It is also mentioned by him that two ignition keys and two door lock keys of the vehicle were also left inside the vehicle. He also added that during the incident the doors of the vehicle were not locked but were simply shut and all the keys were stolen with it. Since Mr. Jaswant Singh doesn't know how to write properly, statement on his behalf is written by Mr. Rakesh Kumar, husband of insured but Mr. Jaswant Singh has signed the statement. We have taken signature of Mr. Rakesh Kumar on the same statement confirming the facts as there was no separate statement given by Mr. Rakesh Kumar. The statement confirming the above is attached herewith.
• We further asked Mr. Rakesh Kumar that where the helper was when the incident took place, then he informed us that as told by the helper that he left the truck telling the driver that he is going to have food and went to relieve himself, then took bath and had his dinner but could not find the vehicle at the spot when he came back. The helper searched the vehicle and the driver in the adjoining area but could not locate them. So the helper contacted Mr. Rakesh Kumar over phone and informed that the driver and vehicle is not found there Mr. Rakesh Kumar in turn informed him that the driver might have taken the vehicle for loading asked the helper to come back to Yamuna Nagar, Haryana as he is new to the place and cannot search the driver. Accordingly the helper came back and Mr. Rakesh Kumar kept on dialing the mobile phone number of the driver but could not contact him. In the night the driver called Mr. Rakesh Kumar and informed about the incident of theft.
• We could not meet the helper to take his statement as he is no more working with the insured. The driver also left the job of insured as the truck was stolen.
• Mr. Parveen Kumar, owner of M/s. Rajhans Roadways Regd., 2036, Naya Bazaar. Delhi informed us that Mr. Rakesh Kumar’s 1612 National Permit Truck bearing registration no. HR 38D 4458 was attached with his company. He further informed us that on 15.09.2009 driver of the vehicle unloaded plywood at Mundka and was about to come to his office with the vehicle in the night for loading. The driver parked the vehicle near Raj Lakshmi Dharam Kanta after getting the empty vehicle weighed there. But at around 02.00 A.M. he was informed by owner of the vehicle over phone that the vehicle was stolen. In furtherance of their discussion he reported the theft of the vehicle to Police Control Room. He added that in the next morning they went to Nangloi Police Station and lodged a complaint against the theft of the vehicle. His statement confirming the above is attached herewith.”
Conclusion of the investigator is as under:
“CONCLUSION:
….
- Mr. Jaswant Singh, driver of the truck didn’t lock the doors of the vehicle but simply shut the doors when he went way from the vehicles to check a stranger’s car. He also stated in his statement that the two ignition keys and two door lock keys were kept inside the vehicle and stolen with the vehicle.”
13. As per the FIR the driver had parked the vehicle at Rajlaxmi Dharamkata near Hirankuddna, T-Point, Rohtak Road. At about 11:30 P.M. a stranger requested the driver for help. When the driver came back to the parking spot, he found the vehicle missing.
14. It clearly indicates that the story of the driver that he was pushed by the stranger into his car and the miscreants who were already present in the car assaulted him, tied his hands and legs and threw him in a farmland at Bahadurgarh is an afterthought.
15. Going by the FIR, the driver stated that a stranger requested his help and when he came back to the site where the vehicle was parked, he found the vehicle stolen. It is therefore clear that it is only on going back to the site of parking of the vehicle that the driver came to know that the vehicle was not there which means that the vehicle was not within his sight when he allegedly went out of the vehicle to help a stranger. When he was leaving the vehicle with a view to help a stranger, it was required of him to lock the vehicle properly. He did not mention in the FIR that he had locked the vehicle properly before leaving the same unattended. There is no mention of any assault or abduction in the FIR which is simply lodged as a case of theft under Section 379 IPC.
16. Leaving the vehicle for a short while on account of some exigency particularly when the vehicle is within sight is altogether different from a situation as happened in the instant case when the driver had allegedly gone to help a stranger leaving the vehicle unattended and unlocked and when he came back to the spot of parking of the vehicle, he found the same missing.
17. Neither in the FIR nor in the complaint it is explained as to where the keys were. The fact that keys of the vehicle were not handed over to the police or the investigator during investigation supports the version of the OP. In M/S New India Assurance Co. Ltd. vs. Ajit Kumar before National Commission the complainant’s case was that on his way back home he felt a strong need for urination. He stopped his car on the left side of the road. He switched off his car, took out the ignition key and went for urination. When he returned back, he did not find his car there. National Commission vide its order dated 04.09.2013 held that:
“From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him.
There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station.”
18. In Kulwant Singh vs. The Managing Director, United India Insurance Co. Ltd., & Others, IV (2014) CPJ 350 (NC), complainant pleaded that he parked the vehicle in question in his field where a watchman (chowkidar) was on duty. Complainant had not mentioned the name of the chowkidar. National Commission observed:
“In the First Information Report, it is mentioned that ‘‘the vehicle was parked on 15.09.2014 outside the village at Chhuikhadan Khar (Field) and on 16.09.2014 at about 6.00 AM it was found that the vehicle was not there and unknown miscreant had stolen the vehicle.” In the First Information Report, it is not mentioned that the vehicle in question was duly locked. It appears that the appellant (complainant) left the vehicle unattended.
29. Therefore, learned District Forum has rightly observed that the vehicle in question was left unattended by the appellant (complainant) without taking proper precautions for its security.”
19. In Keshav Natu Mhatre vs. The Manager, New India Assurance, District Forum, Solapur by judgment dated 23/07/2010 dismissed compliant no. 583/2009 wherein it was pleaded that on 04.03.2009 vehicle broke down. The driver locked the vehicle and went to Solpur to bring a mechanic. When he came back to the spot of vehicle breakdown, he found the vehicle missing.
District Forum dismissed the complaint. Complainant filed appeal before State Commission. State Commission dismissed the appeal observing:
“Mere locking of vehicle is not tantamount to attending the vehicle. Vehicle can be said to be found attended when somebody is there to take care of the vehicle. When the truck in question was having two persons, one driver and one cleaner, it was duty of either of them to stay back in the vehicle and other should have gone to Solapur to bring mechanic.”
In the instant case as is obtained from the feedback of the investigator there were two persons in the vehicle, the driver and the helper. The Driver has sent the helper to bring food. In view of the aforesaid judgment when the vehicle in question was having two persons namely driver and the helper it was the duty of either of them to stay in the vehicle.
20. Repudiation of the claim is thus justified. Complaint is dismissed. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on Day of 2019.
