BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.

                                                          KAMRUP

                                                     C.C.No. 66/2014

Present:              I)   Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President

                          II)  Smti Archana Deka Lahkar,B.Sc.,L.L.B.   -Member

                         III) Shri Tutumoni Deva Goswami, B.A.L.L.B.- Member     

                         1)   Smti Papori Barman                                                     - Complainant

                         W/O- Sri Nitul Barman

                          R/O –  Sishu Apartment, 1^st Floor,

                          Block No. 1 Ghoramara Chariali ,

                          Guwahati-781028

                          District: Kamrup (Metro),Assam

                                                        -vs-

                     1)Royal Sundaram Alliance Insurance Company Ltd               -Opp. parties

                     Rider House Ground and First Floor

                     Plot No.136, Sector 14, Gurgaon 122002, Haryana

                    2)Royal Sundaram Alliance Insurance Company Ltd.

                     Registered Office at 21

                     Patullos Road, Chennai 600002

                    3)The Regional Manager,                                        

                    Royal Sundaram Alliance Insurance Company Ltd.

                    Millennium City Information Technology Park.

                    Unit No. T-2-2A Tower, Plot No. DN-62, Sector -V, Salt Lake, Kolkata-700091.

                   4)The Branch Manager,                                  

                   Royal Sundaram Alliance Insurance Company Ltd.

                   Devine Plaza, 1^st floor,

                   Near Franchs Motor Dispur Super Market

                  Guwahati-781006, Kamrup (M), Assam.

            Appearance :                       

            For the complainant Sri Rakesh Baishya,Sri Dhiraj Kr.Das, Sri Hitesh Kalita     Learned advocate       .

For the Opp.party Sri Anjan Jyoti Saikia , Sri Raju Goswami, Sri I.Barooah Learned advocate       .

                        Date of filing written argument   :- 7.2.2022                        

                        Date of oral  argument   :- 22.2.2022                          

                        Date of   judgment: - 21.3.2022                                     

                                    JUDGMENT

Fact of the case

1.                This is a complaint filed u/s 12 of the Consumer Protection Act, 1986 by one Smti Papori Barman of Ghoramara Chariali , Guwahati, District: Kamrup (Metro),Assam against Royal Sundaram Alliance Insurance Company Ltd., Gurgaon, Haryana having registered office at Patullos Road, Chennai, Regional Manager Royal Sundaram Alliance Insurance Company Ltd. and the Branch office  Royal Sundaram Alliance Insurance Company Ltd.
2.               The fact of the case   briefly  in narrated is that  the opp.party insurance company having its branch office at Devine Plaza near French Motor Dispur Super Market, Guwahati-781006, Kamrup (M), Assam, carrying business and complainant  is the registered owner of  Chevrolet Beat Car from the makers of General motors India Ltd. which  was purchased by the complainant  on 9.4.2012 from M/S Radiant  Motors Ltd. having registration No.  AS-01- AZ—6636. The vehicle was duly insured with the opp.party under policy No. VPCO536256000100 w.e.f. 13.3.13 to midnight  of 12.3.14. The total vehicle IDV was Rs.5,32,737/-
3.               It is alleged in the complaint petition  that on the evening at around 4-30 p.m. on 25.6.2013  some unknown culprits had stolen  away the said vehicle in front of complainant’s rented house . On that day the complainant was residing on her rented house at Sri Krishna Path, Janakpur, Kahilipara. It  has been mentioned in the petition that the said rented house was to be made through a private road, which was only used  by complainant and her family members because this road was a private road. A gate on the outer side closed this road . On the very day of incident  the complainant was preparing for going to hospital to meet her doctor  for treatment for her ailing husband  who has been paralyzed since long time and was under doctors observation. On that particular day the complainant called upon her brother  Simanta Saloi for driving the car. The car was parked the complainant’s private road and when they came out  to bring her ailing husband  to  hospital suddenly she noticed that car was stolen away by some culprit and all the documents were on the vehicle.
4.         The complainant immediately alleged an F.I.R. at Bhagadattapur  outpost on 25.6.2013. Police registered a case vide No. Dispur police station Case No. 1286/2013  U/S 379 of Indian panel Code and investigate the matter . But  police immediately could not be recover the vehicle and submitted final report vide F.R.No. 1088 dtd. 29.9.2013 . The said F.R. was accepted by Chief Judicial Magistrate , Kamrup,Metro on 23.10.2013. The complainant also informed the matter to the opp.party on 26.6.2013 . The claim for the complainant  was registered  vide claim No. VP00383735 and one investigator was appointed the surveyor did not take any positive step for settlement of the claim despite of furnishing all necessary documents. The  opp.parties were trying to avoid  settling the claim despite of several request by the complainant .
5.               Ultimately the opp.party by letter dtd. 22.1.2014 intimated the complainant  that her claim could not be entertained because she had not taken proper step to safeguard the vehicle from loss , violating the condition No. 4 of the policy . It is alleged that the policy does not contain any  such condition precedent for settlement of claim and  if such condition is there the case of the complainant does not  come under the purview of the condition.
6.      Under the above circumstances , the complainant alleged that the rejection of the claim is illegal , unjust and the incident happen on 25.6.13 of the complainant  was beyond her control and it was not happened because of inadequate care on the part of the complainant . Complainant again alleged that there is a deficiency in service because  the opp.party received premium and insured the complainant’s vehicle and complainant being a house-wife  which husband was bed-ridden due to paralyzed. The vehicle was purchased for better transportation of husband for treatment to hospital. As such, the complainant made her claim and submitted the present complaint petition along with documents.

1. Copy of Insurance policy
2. F.I.R. dtd. 25.6.2013
3. Order of Hon’ble Chief Judicial Magistrate dtd. 23.10.13
4. Final Report of Dispur P.S. Case No. 1286/13
5.    Letter dtd. 26.6.2013 of the op.parties.
6. Letter dtd. 22.1.2014 of the op.parties.
7. Medical papers of husband of the complainant.

          Accordingly the complainant claims for IDV amount of Rs.5,32,737/- along with interest @ 21% from 25.6.13 till the realization and also made a claim for an amount of Rs.3,00,000/- for mental agony and sufferings for illegally  rejecting claim and Rs.30,000/- for legal expenses.

7.          The opp.party no.2 appeared and contested the proceeding by filing written statement on 9.6.15. The opp.party No. 1, Opp.party N. 3 and Opp.party No.4 have not contested the case and case against them proceeded exparte. The complainant submitted their evidence on affidavit. Thereafter the matter was pending for a long time for cross examination of C.W. Ultimately on 2.8.2018 C.W. ws cross examined and matter was fixed for filing evidence of the opp.party . Thereafter again matter was pending for evidence to be filed by the opp.party on 6.9.2018, but as per order on record dtd. 13.8.20. The matter was further posted for argument .
8.     The opp.party altogether contested the proceeding only filing their written statement in which the point raised is that the policy to the vehicle of the complainant was a package policy in respect of  the vehicle No. AS1 AZ 6636 valid from 13.3.13 to 12.3.14 and it was issued subject  to terms and condition of the policy .  The policy  terms and condition as  annexure A was affixed to the written statement. The fact of the case reveals that vehicle was stolen on 25.6.13 while it was parked in front of the complainant rented house in open road and the complainant had kept all the original  documents along with duplicate  ignition key in the glove box  of the vehicle. The fact is admitted by the complainant in the application form and according to the opp.party     the vehicle was left unattended on the side of the road with ignition key   kept in the vehicle which has been corroborated by the police report and the theft has been caused due to sheer negligence for keeping  the ignition key on the desk board. According to the op.party the condition No.4 of the policy requires that reasonable step must be taken to safeguard  the vehicle from  loss and damage.
9.      In the present case it is established after investigation and on the basis of the admission made by the complainant herself that the driver left the ignition key of the vehicle in the desk board cabin which have facilitates for the vehicle to be stolen and the vehicle was made vulnerable to the risk of theft. According to the opp.party the complainant was negligent in handling the ignition key of the vehicle which tantamount to a blatant  violation of terms of policy conditions.
10.    The op.party raised the issue  while repudiating  the claim submits that the policy was issued  subject to some policy conditions due to which and policy condition No. 4 is that the insured  shall take all reasonable step to safeguard the vehicle from loss etc.
11. We have seen the repudiation letter dtd. 22.1.2014 marked as Annexure 8 & 9 which is a document meaning the fact that the claim was rejected for violation of policy condition No.4  of the policy of the complainant .
12. After due consideration of the pleading of the party we proposed to determine the dispute on the following issues,

1. Whether there is a negligence on the part of the complainant being the owner of the vehicle to take reasonable step to safeguard from loss/theft ?
2.  Whether complainant is entitled for compensation to the  full extent of    I.D.V. amount  if not to what extent ?

Reasons for decision

13.             After due consideration of the pleading it appears to us that the complainant herself admitted that the vehicle was left in front of their rented house keeping one of the key in the desk board of the vehicle. The opp.party claims that there is a violation of policy condition No. 4 for which the claim has been repudiated. Now after going through record and documents produced by the parties we propose  to decide  the issue in the following manner.

    Issue No. I

14. The fact is undisputed that the vehicle was left outside  the house and the F.I.R. lodged by the complainant proves that the key of the vehicle was inside the car and this tantamount to negligence. And  here the claimant took shelter of the Reported case law as referred below,              
15. Case law of Delhi State Consumer Disputes Redressal Commission  HDFC ERGO GENERAL INSURANCE CO.LTD. VS. CALLISTED BUILDING SOLUTIONS PVT.LTD. On 22.11.2021 it is quoted that at the outset , we deem it appropriate to refer to the dicta of the Apex Court in the case titled National Insurance Co.Ltd. Vs. Nitin Khandelwal, reported at (2008/ II SCC 259, wherein it has been held as under:-

1)In the case in hand the vehicle has been snatched or stolen. In the case of theft of vehicle , breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The responded submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

2) The Hon’ble National Commission ,while following the dicta in Nitin Khandelwal (Supra) in Royal Sundaram General Insurance CompanyLimited vs. Ashok Kumar Somani and ors. Reported at II (2019) C.P.J. 451 (NC) has held as under :-

“In my view , this does not make any difference whether the cabin was locked or not because if the person knows that the ignition key is inside the vehicle, he can definitely break the cabin door to reach to the ignition key. Therefore, the main issue is of ignition key, which was definitely left inside the vehicle, which facilitated the theft of the vehicle. In a similar case this commission in Mahabir Singh vs. Reliance General Insurance Company Ltc. & Ors RP No.735 of 2013 decided on 16.1.2018 (NC) has observed and decided the following”-

In a similar case of key being left inside the vehicle, in New IndiaAssurance Company Ltd. Vs. Girish Gupta, RP No. 590 of 2014, decided on 31.7.2014 (NC), this commission has agreed with the order of the State Commission allowing the claim on non-standard, by observingthe following :-

HDFC ERGO GENERAL INSURANCE CO.LTD.VS.CALLISTO BUILDING SOLUTIONS PVT.LTD.

This conditionin our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on alloccasions cannot be termed as so serious breach so as to disentitlethe insuredfrom seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon thefacts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to case himself, forgetting to remove the keys from ignition. The lapse on the part of the driver cannot be treated as willful breach of condition No. 5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be saidto have committed willful breach violation of the terms of the above condition No. 5. In our aforesaidview we are supportedbyjudgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. vs. M/S Sagar Tour& Travels & Anr.P.L.R.Vol.CLX IV-.

16. Now in our present case in hand we have found that the complainant made a claim stating that the vehicle was stolen on 25.6.2013 while  the same was parked in front of the complainant’s rented house on the open road, as the vehicle was to be driven by one Mr.Simanta Saloi, although the same got stolen while the complainant had kept all the original documents. Pertaining to the vehicle with duplicate ignition key   inside  the car tool box at the time  of the theft. This  fact proved that the vehicle was left unattended while the same was parked on the road with ignition key being kept in the vehicle  and same  has been confirmed by the police report as filed by the Dispur Police Station that the theft occurred due to the  negligence of leaving  behind the keys in dashboard.  
17.   In the present case the complainant  has been suffering a difficult situation as stated in her evidence that during these days she was busy with providing treatment to her husband  who has been suffering from paralysis and was taken to the hospital by the complainant with the support of a driver from the rented house. The vehicle was keeping in front of the rented house and cannot be considered  as keeping the vehicle in unsafe condition. But however taking the ratio of the case law cited and discussed  here-in-above we are of the opinion that there is no negligence for which  the claim should be repudiated as per policy clause No. 4 of the Insurance Policy . In such a way the Issue No.  I is partially decided in favour of the complainant .
18.    So far Issue No. II is concerned  it is necessary to look into the matter of alleged negligence for not  keeping the vehicle in a safe condition. We found that keeping  the duplicate key inside the desk board is not considered to be a total negligence on the part of the complainant while her husband was suffering from paralysis and  she was taking help of a driver for treatment of her husband. After going through all the evidence and documents  on record the claim of the petitioner is partly allowed.  Taking the ratio of case law discussed here-in-above we are of the opinion that  op.parties  have to pay  70% of the IDV amount of the vehicle insured under the policy i.e. 70% of Rs.5,32,737/- along with interest @4% per annum from the date of repudiation of claim till the date of realization to the claimant. Accordingly  Issue No. II is decided in favour of the complainant . The decretal amount have to be paid within 45 days from the date of judgment till realization  failing which an interest @ 12% per annum to be paid by the op.party to the complainant on the entire decretal amount till realization. 

Given under our hand and seal of the District Commission, Kamrup,    this the 21^st  day of March /2022.

                ( Shri A.F.A.Bora  )

                 President

                 DCDRC,Kamrup

               ( Smti Archana Deka Lahkar  )

                Member

                DCDRC,Kamrup

              ( Shri Tutumoni Deva Goswami  )

               Member

               DCDRC,Kamrup     

                Dictated and corrected by me

               (  Shri A.F.A.Bora  )

                President

                DCDRC,Kamrup

            Typed by me

            (Smt Juna Borah )

            Stenographer,

            District Consumer Commission, Kamrup.