Delhi

StateCommission

FA/378/2014

BAJAJ ALLIANZ GIC. LTD. - Complainant(s)

Versus

SATISH KUMAR & ANR. - Opp.Party(s)

16 Jan 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

                                                Date of Decision: 16.01.2017   

 

First Appeal No. 378/2014

 

(Arising out of the order dated 3.2.14 passed in Complaint Case No.43/2011 passed by the District Consumer Dispute Redressal Forum(III), Janak Puri, New Delhi.)

 

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

Block No.4, 7^th Floor, DLF Tower,

15, Shivaji Marg,

New Delhi-110 015.

……Appellant

 

Versus

1. Mr. Satish Kumar,

S/o Shri Ihwar Singh,

R/o H.No.580,

Village Dhansa,

New Delhi-110 073.

 

2. M/s. Relegare Finvest Limited,

D-3, P3B, District Centre,

Saket, New Delhi-110 017.

   …...Respondents

 

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. Aggrieved by the order dated 3.2.14 passed by the Consumer Dispute Redressal Forum(III), Janak Puri, New Delhi (in short, the District Forum’) in CC No.43/2011 whereby the aforesaid complaint case has been allowed, the present appeal  is filed by appellant/OP.
2. Briefly the facts relevant for disposal of the present appeal are as under:

            A complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before the District Forum stating therein that he was the owner of the truck No.HR-63A-8073.  The said truck was insured with the appellant/OP vide Commercial Vehicle - Package Policy No.OG-11-1115-1803-00000022 from 30.4.10 to 28.4.11.  On 6.7.10, the driver of the aforesaid truck unloaded the goods at Capital Plywood, Rajouri Garden, New Delhi at around 3.00 a.m. and thereafter was going towards Faridabad.  On reaching near Dhaula Kuan Flyover, driver Rajesh had stopped the truck.  The conductor of the truck, namely, Shaikin was also with him.  Both of them got down from it and went for urinating across the footpath at the corner of the road.  After urinating when they were returning towards the truck, they saw unknown persons sitting in the truck.  It was alleged that when they tried to take back their truck from them, those unknown persons forcibly took away the truck whereas the driver and conductor kept on shouting but of no result.  The driver lodged FIR No.142 dated 6.7.10 at P.S. Dhaula Kuan.  The truck could not be traced.  A Final Untraced Report under Section 173 of Cr.P.C. was filed by the Investigating Officer.  The respondent/complainant lodged a claim with the appellant/OP for insured sum of Rs.12 lacs.  All the relevant documents were given by the respondent/complainant as and when demanded by the appellant/OP.  However, the claim was repudiated vide letter dated 30.10.10 on the ground that the driver had left the key in the ignition switch, thus leaving the vehicle in a drivable condition which directly contributed to the theft of truck and thus violated the terms and conditions of the policy i.e. Condition No.5. Thereupon the respondent/complainant served a legal notice dated 16.11.10 upon appellant/OP but of no result.  Aggrieved with the inaction on the part of appellant/OP, a complaint before the District Forum was filed seeking direction to the OP to pay a sum of Rs.12 lacs i.e. the assured amount with interest @ 24% p.a. and compensation of Rs.2 lacs.

3. The claim was contested by the appellant/OP by filing written statement wherein a preliminary objection was raised that the truck was hypothecated to Religare Finvest Limited whose financial interest was involved and the complaint was bad for non-joinder of necessary party.  On merits, it was alleged that the driver and the conductor both left the truck with its ignition key in the ignition switch and thus left the truck in a drivable condition and had gone away from the truck leaving it unattended. The door of the truck was also not locked which assisted the miscreants to easily get away with the truck.  It was alleged that there was violation of the Condition No.5 of the policy.  M/s. Singh & Associates were appointed as surveyor by the appellant/OP to investigate the matter.  They reported that the driver had stated to the police that the keys were left by him in the truck and as such there was negligence on the part of the driver.  It was denied that the terms and conditions of the policy were not supplied by the appellant/OP.  It was alleged that by leaving ignition key in the ignition switch, there was violation of condition No.5 of the policy. Appellant/OP had prayed for the dismissal of the complaint.
4. After the written statement was filed by the appellant/OP, the respondent/complainant added Religare Finvest Limited as a party to the complaint case.  On notice being issued, the said party also filed reply and stated that it was only a proforma party and no relief has been claimed against it.
5. Appellant/OP as well as respondent/complainant had filed evidence by way of affidavits and also relevant documents before the Ld. District Forum.
6. After hearing the parties, Ld. District Forum observed that the driver and the conductor had got down from the truck for the purpose of urinating.  They were close to the truck and even after urinating when they were approaching towards truck, they saw a Tata 407 Tempo parked near the truck and few persons had entered their truck.  It was further observed that when they tried to take back the truck from them, those unknown persons drove away the truck.  Ld. District Forum further observed that it was night and nobody was there and in these circumstances, it cannot be said that there was violation of Condition No.5 of the policy.  It was held that repudiation was nothing but unfair trade practice on the part of the appellant/OP.  The repudiation of claim was held unjust and complaint was allowed and the Ld. District Forum directed appellant/OP to pay the claim amount of Rs.12 lacs with 6% interest from the date of filing of the complaint till realization of the amount.  A compensation of Rs.30,000/- was also awarded to the respondent/complainant. 
7. Aggrieved with the aforesaid, present appeal is filed.
8. Ld. Counsel for appellant has contended that the liability of the appellant/OP under the Insurance Policy was subject to terms and conditions stated therein.  In the present case, both driver and cleaner had gone away and had left the key in the ignition switch leaving the truck in a drivable condition.  The truck was left unattended.  It is contended that even the elementary precaution to remove the key from the ignition switch and locking the door was omitted by them which assisted the miscreants to easily get away with the vehicle.  It is contended that there is gross negligence on the part of the driver in leaving the ignition key in the ignition switch and even the door was not locked and it was dead of night   at 3.00 a.m.  In these circumstances, there was a clear violation of terms and conditions of the policy i.e. Condition No.5, as such the Ld. District Forum committed infirmity in allowing the complaint.
9. On the other hand, Ld. Counsel for the respondent/complainant has contended that leaving of key on all occasions in the vehicle cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the Insurance Policy.  It is submitted that it depends upon facts and circumstances of each case as to whether there is breach of condition or not.  It is contended that in the present case, considering the entire facts and circumstances of the case, it cannot be said that there was willful breach of Condition No.5 of the policy by respondent/complainant.  In support of the contention, Ld. Counsel for respondent/complainant has relied upon judgement of Bajaj Allianz General Insurance Co. Ltd. vs Sagar Tour and Travels & Anr., 2011 (164) Pun L.R. 290.    It is submitted that Ld. District Forum has considered all the material on record and thereafter has given the finding that there was no violation of Condition No.5 of the Policy.  Ld. Counsel for respondent/complainant has prayed for the dismissal of the appeal.
10. We have heard the Counsel for the parties and perused the material on record.
11. It is the case of respondent/complainant that truck in question was stolen while the driver and conductor of the truck had stopped the truck and had gone to urinate across the footpath at the corner of the road. It is also the case of the respondent/complainant that the ignition key was left in the ignition switch when they both got down from the truck.  It is further case of respondent/complainant that when after urinating, they both turned back towards the truck, they noticed that a Tempo Tata 407 was parked in front of their truck and some people were sitting in the truck.  Thereafter those persons ran away with the truck and tempo also followed the said truck.  The stand of the appellant/OP is that the driver of the truck did not take the steps to safeguard the truck as the key was left in the ignition switch when he was away from the truck, as such there is violation of the Condition No.5 of the Policy. 
12. The question for consideration is whether in the facts and circumstances of the case, there is violation of Condition No.5 of the Policy.  Condition No.5 of the policy 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.”

 

13. The aforesaid condition requires insured to take reasonable steps for the protection of the insured vehicle from any loss/damage.  We agree with the contention of respondent/complainant that it depends upon the facts of each case as is held in Bajaj Allianz General Insurance Co. Ltd. (supra).  However, in the present case, as per case set up by respondent/complainant, the truck was stolen when the driver had stopped the vehicle at 3.00 a.m. and had gone to urinate.   Both driver and conductor had gone together for said purpose.  It is own case of respondent/complainant that they had left the key in the ignition switch.  The door of the cabin was also not locked.  It was lonely place and dead hour of the night.  In the above facts and circumstances, it is clear case that driver had not taken adequate step to safeguard the vehicle, thus there is violation of the aforesaid Condition No.5 of the policy.  The driver is agent of the insured.   No precaution was taken by him to safeguard the vehicle. 
14. Ld. Counsel for appellant/OP has submitted that there is a variation of material nature in the complaint case as compared to FIR as regards the narration of incident of taking away of the vehicle.  It is contended that improvement of major nature has been made in the complaint case as such the Ld. District Forum ought not have considered the same while passing the impugned order.
15. On the other hand, Ld. Counsel for respondent/complainant has argued to the contrary.
16. We have considered the aforesaid submissions also and perused the complaint as well as FIR on record.  It is alleged in the complaint case that the vehicle was under constant watch and observation of the driver and conductor while they were passing urine near the vehicle at the time of commencement of theft.  It is further alleged that the driver and conductor also shouted and tried to stop the theft.  However, the miscreants were 5 in number and the possibility of their carrying arms was also there.  It is nowhere stated in the FIR that vehicle was under their watch or that they shouted or possibility of carrying arms was there as has been alleged in complaint case.  There is an improvement in the case set up by the complainant. No explanation has come for the same.  The same is an afterthought.   It appears by taking such a stand, respondent/complainant is trying to cover up negligence on the part of driver and conductor.  In the facts and circumstances of the case, the Ld. District Forum was not right in considering aforesaid factual position while passing the impugned order.
17.  The evidence on record clearly establishes violation of Condition No.5 by the respondent/complainant.  Ld. District Forum committed error in allowing the complaint.   
18. In Universal Sompo General Insurance Co. vs Chander Singh & Anr., R.P. No.3222 of 2015 decided on 4.4.16, where driver had left ignition key in the dashboard of vehicle, the National Commission has held the repudiation of claim by the Insurance Company justified.

In the aforesaid case, National Commission has also relied upon following judgements:

“This Commission in Revision Petition No.3251 of 2013 titled as “Oriental Insurance Co. Ltd. Versus Shyam Sunder”, decided on 05.05.2014, held that “the complainant and his son were negligent in leaving the key in the vehicle”.  Hon’ble Supreme Court, in Special Leave to Appeal (Civil) No. 29576 of 2014, dismissed the same, in limine, on 19.01.2015.  Both the Fora erred in granting the compensation to the complainants.  We, therefore, accept the Revision Petition, set aside the orders passed by both the Fora below and dismiss the complaint.”

 

19. Learned Counsel for the petitioner has placed reliance on judgement of National Commission in II (2013) CPJ 578(NC) - Jagdish Prashad Vs. ICICI Lombard General Insurance Co. Ltd. in which repudiation of claim was upheld as complainant had left keys in the vehicle.  He also placed reliance on IV (2013) CPJ 137 (NC) - New India Assurance Co. Ltd. Vs. Ajit Kumar wherein repudiation of claim was held proper by National Commission as complainant had not taken ignition keys of the car when he went for urination.  Similar view was taken by the National Commission in R.P. No.4477 of 2010 - Ranjit Singh Vs. United India Insurance Co. Ltd.

 

20. In view of the above discussion, we accept the appeal and set aside the impugned order dated 3.2.14 and consequently dismiss the CC No.43/2011 with no order as to cost.

 

 

 

 

  

21. 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.  The record of the District Forum be sent back forthwith.  Thereafter the file be consigned to Record Room.

 

 (Justice Veena Birbal)

President

 

 

(Salma Noor)

Member