(Passed this on 16^th November,  2016)

Shri. S.P. Muley, President –

This complaint is against Reliance Insurance Company for not settling the insurance claim of stolen vehicle.

       The complaint in short is that the complainant is owner of a truck of Ashok Leyland make bearing No. MH-31-CB-5852. It was insured with the Opposite Party through its agent. A single page insurance policy was issued to him which was valid from 15.4.2011 to 14.4.2012 for IDV Rs.7,22,500/-. No terms and conditions were attached with the policy. On 26.10.2011 on the day of Deewali the driver of the truck after performing Puja of the said truck parked it near one office in Bharat Nage, Kalmana after properly locking its cabin and removing the ignition key. In the intervening night of 26/27th October 2011 the said truck was stolen. Next day intimation was given to police and to the complainant. The incident was also intimated to the OP1. A claim was submitted with papers. But the claim was repudiated on the ground of breach of condition No.4 regarding failure to keep the vehicle in safe and secure place. Alleging the repudiation to be deficiency in service the complainant has claimed IDV of the truck with 20% interest along with compensation and cost.

       Both the OPs contested the matter by filing written version. Admitting the policy of the truck and its IDV, it is denied that the policy was taken through agent of the OP and no terms and conditions were supplied with the policy. It is denied that the truck was properly locked and proper care was taken. The claim was submitted belatedly and without all papers. On investigation it was found that the truck was parked unattended by keeping the key in the truck. As there was breach of condition the claim was rightly repudiated. Hence it is prayed to dismiss the complaint.

       We have heard rival arguments and perused documents. Upon considering the facts, argument and documents we record our findings with reasons as under.

FINDUNGS  AND  REASONS

       Repudiation of the claim was only one ground of failure to take proper safety of the truck from loss or damage. The complainant has averred that his driver had parked the truck after locking and removing its key where other trucks were also parked. There was a watchman also for keeping watch on the vehicles parked there. As such every reasonable care was taken. Per contra, the counsel for the OP contended that as per the FIR the watchman had seen a person taking away the truck and he misunderstood the person as a driver of the complainant and therefore did not object. The driver in his police statement has stated that the key was in the truck and truck with the key was stolen. Referring to these facts, he contended that leaving the truck with ignition key clearly indicates carelessness in taking care of the truck from loss. No proper safety of the truck was taken before its driver left it in the night, which was clear breach of condition No.4. It appears that the ignition key was left in the truck when it was parked in the night.

       The counsel for the complainant placed reliance on some judgments wherein retention of a key in the vehicle is not taken as constituting so serious breach as to dis entitle the insured to make the claim under the policy. In New India Assurance Co. Ltd. v/s Girish Gupta Revision Petition No.590/2014 (NC) decided on 31.7.2014 the issue was whether the fact that the respondent alighted from the car to answer the call of nature left the key in the ignition tantamounts to violation of condition no.4 of the policy. It was held that leaving the key in the car was not be a serious lapse and it could not be treated as wilful breach of condition. In present case it was Deewali night and a Puja was performed. Thereafter the truck was parked in front of a transport office. There was a watchman. The key of the truck was left in the truck and the driver went to sleep. We do not think that the driver did not take care because when there was a watchman and the truck was parked in front of an office, the driver must have been assured of its safety. Generally trucks are parked near transport offices in the night and if truck is to be taken early in the morning it is natural for a driver to keep the key in the truck. As discussed in the above referred judgment, the act of leaving a key in the truck was not a deliberate act to facilitate theft. It was not a willful breach of condition. Similar view can be found in following judgments.

1. New India Assurance Co. Ltd. v/s Jagtar Singh Rev. Pet No. 3610/12 (NC) decided on 1.2.2013
2. Sukhwinder Singh v/s Cholamandalam Rev. Pet. No. 375/13 (NC) decided on 30.8.2013
3. Bajaj Allianze Gen. Ins. Co. v/s M/s Sagar Tour & Travels W.P. No. 8380/11 P & H decided on 11.8.2011

       The counsel for the OP further contended that the the truck was not parked at a secure and safe place. It was parked on the road which itself indicates failure to take reasonable safeguard from loss. In reply, the counsel for the complainant relied on two more judgments. In National Ins. Co. Ltd. v/s Mayur Raj Singh Revision Pet No. 3558/12 9NC) decided on 1.10.2012 the vehicle was parked ata secluded place, at a distance of 200 kms, away from the main road and it was left unattended. Holding that in case of theft, breach of condition is not germane, the insurance company was held liable to indemnify the complainant. We think that this ruling is sufficient to counter the contention of the counsel for the OP.

       One more ruling of the Supreme Court is place before us by the counsel for the complainant. It is on the grant of interest on the principal amount. It is held that interest is not a penalty, but is a normal accretion on capital. There is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of each case. Re- Alok Shankar Pandey v/s Union of India Civil Appeal No. 1598/2005 (SC) decided on 15.2.2007. Since we find the repudiation of the claim on the ground of breach of condition no.4 improper for the reasons discussed above, we hold the complainant entitled to claim the IDV of the stolen truck. However, we allow the 75% IDV on Non Standard basis. We therefore pass the following order.

ORDER

1. The complaint is partly allowed.
2. The OP Insurance Company shall pay 75% of the IDV of the stolen truck to the complainant with 9% p.a. interest from the date of incident.
3. The OP shall also pay compensation of Rs. 30,000/- and litigation cost Rs.5000/- to the complainant.
4. The order shall be complied within 30 days form receipt of the order.
5. Copy of the order shall be given to both the parties free of cost.