Delhi

StateCommission

FA/13/180

BAJAJ ALLIANZ GEN. INSU. CO.LTD. - Complainant(s)

Versus

SANTOSH - Opp.Party(s)

20 Jan 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

                                                    

                                                Date of Decision:20.01.2017     

 

First Appeal No. 180/2013

 

(Arising out of the order dated 21.12.12 passed in Complaint Case No.737/2010 passed by the District Consumer Dispute Redressal Forum(West), Janak Puri, New Delhi.)

 

 

M/s. Bajaj Allianz General Insurance Co. Ltd.,

2^nd Floor, 1, DLF Industrial Estate,

Moti Nagar, Delhi-110 015.

 

……Appellant

 

Versus

Smt. Santosh,

Wife of Shri Ramesh,

H.No.94, Village Kheri Battar-127306,

District Bhiwani, Haryana.

 

   …...Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

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

2.         To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

1. This is an appeal under section 15 of the Consumer Protection Act (in short, ‘the Act’) wherein challenge is made to order dated 21.12.12  passed by the Consumer Dispute Redressal Forum(West), Janak Puri, New Delhi (in short, the District Forum’) in CC No.737/10 whereby the aforesaid complaint is allowed and appellant/OP has been directed to pay the claim on Non Standard Basis to respondent/complainant.
2. Briefly the facts relevant for disposal of the present appeal are as under:

            The respondent herein i.e. complainant before the District Forum had filed a complaint under section 12 of the Act stating therein that he had got his Tata Truck bearing registration No.HR-46 C 7399 insured with the appellant/OP for the period from 2.7.09 to 1.7.10.  It was a comprehensive insurance policy.  It was alleged that on 3.10.09 at about 1.00 a.m. after unloading the goods at Dadri(U.P.), the truck was heading towards Rajasthan by outer ring road.  It was driven by Shri Balwant Singh, S/o Shri Karan Singh.  The cleaner of the truck, Shri Hari Ram, was also in the truck along with Shri Balwant Singh on the aforesaid date.  It was alleged that on 3.10.09 at about 2.00 a.m. when the truck had crossed Prashant Vihar traffic lights, the aforesaid driver and cleaner had parked the truck on the service lane and went to relieve themselves for urination.  It was alleged that while they were relieving themselves, they heard the noise of the truck and to their horror, they saw that the truck was being driven away by someone.  The ignition key was also left in the truck.  The driver and cleaner chased the truck.  Since it was dead of night, they did not get any help from anyone.  It was alleged that the truck was stolen in the aforesaid circumstances and the same was conveyed to appellant/OP on that very date.  A complaint was also lodged with the Police Station, Maurya Enclave on 3.10.09.  The police investigated the matter and a FIR No.517/09 under section 379 of IPC was registered.  The appellant/OP deputed their surveyor and necessary documents were provided by the respondent/complainant.  The truck could not be traced.  The police gave untraced report on 15.12.09.  The claim was lodged with the appellant/OP but nothing was paid to him.  Ultimately, a legal notice was sent on 4.5.10 but no response was given. Thereupon husband of respondent/complainant had personally visited the office of appellant/OP and procured a copy of letter dated 22.1.10 wherein the claim was repudiated on the ground that the ignition key was left in the truck.    Ultimately, the aforesaid complaint was filed with the District Forum seeking directions to pay the assured amount of Rs.9 lacs with interest @ 18% per annum w.e.f. 3.10.2009 under the policy to the respondent/complainant till realization of the amount along with compensation of Rs.50,000/- and Rs.30,000/- per month towards loss of income w.e.f. 3.10.09 till realization of the amount.

3. The claim was opposed by the appellant/OP by filing written statement wherein it was admitted that insurance policy for the aforesaid truck was taken from appellant/OP.  It was alleged that the respondent/complainant had failed to take reasonable care in safeguarding the vehicle and the same amounted to violation of policy condition No.5 as such the respondent/complainant was not entitled for the claim.  It was alleged that the truck was parked on the road along the service lane and its key was left in position in ignition with the engine of the truck running which helped the miscreant to get away with the vehicle easily.  It was alleged that the driver and the cleaner both had left the truck simultaneously being in that condition.  It was alleged that the vehicle was being driven without fitness certificate which was again a breach of not only the provision of Motor Vehicles Act, 1988 but also of the terms and conditions of the policy.
4. Both the parties filed evidence in the form of affidavits.  The appellant/OP relied upon two judgements of National Commission before the Ld. District Forum i.e. the case of Amit Kumar & Anr. vs New India Assurance Company & Anr. I (2012) CPJ 256 (NC) & the case of Devender Kumar vs National Insurance Company II (2012) CPJ 357 (NC).  Ld. District Forum held that the aforesaid judgements were not applicable in the facts and circumstances of the case.  The Ld. District Forum held that in the facts and circumstances of the case, there was no negligence on the part of the driver and cleaner and it cannot be said that there was violation of terms and conditions of the policy.  However, Ld. District Forum observed that the vehicle was being plied without the permit.  It was held that in case of violation of any other terms and conditions of the policy, the claim can be settled on Non Standard Basis and directed the appellant/OP to settle the claim at 75% of IDV of the vehicle within 30 days.  However, the Ld. District Forum did not grant any compensation.
5. Aggrieved with the aforesaid, present appeal is filed.
6. Ld. Counsel for the appellant/OP has contended that the Ld. District Forum fell in error in not appreciating that at 2.00 a.m., no prudent person would go more than 2-3 steps away from the stopped vehicle to urinate.  It is contended that in the present case, the keys were left in the ignition.  The driver door was also not locked and both driver and cleaner went simultaneously to urinate leaving the vehicle unattended.  In these circumstances, there was clear violation of the terms and conditions of the policy.  It is contended that finding given by the District Forum is contrary to the facts and circumstances of the case.  It is contended that it is a clear case wherein reasonable steps to safeguard the truck from loss had not been taken.  It is contended that the Ld. District Forum ought to have dismissed the complaint case.  
7. On the other hand, Ld. Counsel for the respondent/complainant has contended that the Ld. District Forum has rightly allowed the complaint case.  It is contended that the appeal has been filed with a malafide intention to delay the lawful claims of respondent/complainant.  It is contended that impugned order has been passed after considering the material on record and the appeal is liable to be dismissed.
8. We have heard the Counsel for the parties and perused the material on record.
9. It is admitted position that respondent/complainant had got the truck in question insured with appellant/OP.  It is also admitted position that the truck was stolen on 3.10.09 at 2.00 a.m. while the driver and cleaner had gone to urinate after parking the truck on the road side leaving the key in the truck.  The appellant/OP has repudiated the claim relying on Condition No.5 of the policy which is reproduced as under:

“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.”

 

10. The aforesaid condition requires that the insured has to take reasonable steps for the protection of the insured vehicle from any loss/damage.  The evidence on record establishes that at about 2.00 a.m. when driver and cleaner had reached at outer ring road, they had parked the truck on the road side and had gone to urinate and its key was left in position in ignition.  The surveyor had recorded that the statement of driver in this regard.  The driver had also stated that door of the cabin was also not locked by him. Evidence on record establishes that the vehicle was unattended as both driver and cleaner had gone to urinate leaving the key in the ignition.  Both had gone simultaneously.  The driver was agent of insured.  He has failed to take adequate steps to safeguard the vehicle from the loss.  The theft had taken place due to his negligence.  In the facts and circumstances of the case, the Ld. District Forum has wrongly held that the conduct of the driver and cleaner did not amount to negligence amounting to violation of terms and conditions of the policy and that the appellant/OP was deficient in service in not settling the claim.
11. The above view find support from the judgement of National Commission in the case of New India Assurance Co. Ltd. v. T.V. Sarathi, II (2009) CPJ 169 (NC) = RP No.2555 of 2005 dated 19.3.2009 wherein it has been held that the Insurance Company would not be liable for loss/damage of the unattended property, if the insured was found negligent in safeguarding the said property.  Further, in Jagdish Parshad v. ICICI Lombard General Insurance Co. Ltd., II (2013) CPJ 578 (NC), wherein the driver and cleaner had left the vehicle unattended on road leaving key in the vehicle and had gone for urination and in the meanwhile, some unknown persons had taken away the said vehicle, it was held that there was violation of terms and conditions of policy.
12. In view of the above discussion, the District Forum committed error in holding that there was no negligence on the part of the driver and the cleaner.  Accordingly we allow this appeal and set aside the impugned order passed by the Ld. District Forum and dismiss the CC No.737/2010.  There is no order as to costs.  
13. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum-III, Janak Puri, New Delhi.  Thereafter the file be consigned to Record Room.

 

 (Justice Veena Birbal)

President

 

 

(Salma Noor)

Member