Dt. 28.05.2015
J. Bag, Member.
The present appeal is directed against the order dated 10. 04. 2013 passed by the Ld. District Consumer Disputes Redressal Forum, Bankura, in Consumer Complaint No.35 of 2010, whereby the complaint was allowed on contest but without any cost .
The complaint case, in brief , was as follows:
The Complainant purchased a vehicle, being a Jeep of Mahindra & Mahindra Bolero SLX ZWD (BS-11), which was financed by Mahindra & Mahindra Financial Ltd. The vehicle was insured with the OP/Bajaj Allianz General Insurance Company. The policy was valid from 22.06.2009 to 21. 06. 2010. On 25. 09. 2009, while the Complainant was returning home from Andal, he parked the vehicle by a roadside tea stall near Jogibaba’s Ashram keeping the vehicle under lock and key by remote sensor. After having tea, he came back to the place where the vehicle was kept , but did not find the vehicle. He could not trace the vehicle after thorough search. A written complaint was filed before the O.C., Andal P.S. on 26. 09. 2009 . The complaint was filed under Andal P.S. Case No. 205 of 2009 dt. 26. 09. 2009 under Section 379 IPC . FRT under No. 38 of 2009 dt. 18. 11. 2009 was filed which shows that the vehicle could not be recovered. In the meantime , ARTO, Asansole and Resident Manager , Mahindra &Mahindra Financial Ltd. , Bankura Branch, were informed of the incident on 12.10. 2009 and 14. 10. 2009 respectively . The matter was also duly informed to the Insurance Company, Bankura Branch, with a claim . On 16. 11. 2009 the OP Insurance Company sent a letter along with claim form with request for furnishing necessary documents. After due investigation and consideration of the information as furnished by the Complainant , the OP insurance Company, vide their letter dt. 29. 12. 2009, repudiated the claim on the ground of violation of policy terms and conditions. i.e., the Complainant failed to take minimum reasonable safeguard in regard to theft of his vehicle .The Complainant sent a legal notice dt. 30. 01 2010 which was of no avail. In the said circumstances, a consumer complaint was filed with prayer for direction upon OP/ Insurance Company to pay the total IDV of Rs.6,18,738.00 as insured, compensation of Rs. 50,000/- for suffering economic loss and also for suffering from severe mental pain and agony, apart from payment of interest and cost of Rs. 5000/- .
The complaint has been contested by the OP/Insurance Company, who, in their Written Version, disagreed with the averments made by the Complainant and disputed the allegation about deprivation of natural right of the Complainant and justice. It has been contended, inter alia, that as per condition No. 4 of the policy wordings, it was the duty of the insured to use his ordinary prudence to keep his vehicle safe. It has also been made a point that the very FIR lodged by the insured himself shows that he had left the ignition key inside the vehicle in drivable condition, which amounts to violation of policy condition . Miscreants might have taken the opportunity caused by gross negligence on the part of the insured. The claim has been rightly repudiated by the OP /Insurance Company who cannot be charged with any deficiency in service. The complaint, therefore, was liable to be dismissed.
Ld. Forum below having heard the Ld. Lawyers appearing for both the Complainant and the OP and having perused the written arguments filed by the parties as well documents produced by them observed that the insurance policy was valid when the incident of theft took place . Ld. Forum below also noted that FRT has been submitted by Andal P. S. with condition to reopen the case in future if any clue becomes available. Ld. Forum below, not overlooking the fact that the ‘ the complainant ought to have taken more reasonable care to protect and safeguard the vehicle in question’ allowed the complaint with direction upon the OP to pay Rs. 5,70,000/- being the sum insured within a period of 60 days from the date of the order, failing which the complainant would be entitled to get interest @ 9% p.a. on the said amount from the date of order till realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the OP-turned - Appellant has come up before this Commission for setting aside the impugned order.
Ld. Advocate appearing for the Appellant submitted that the Respondent/Complainant being the owner of the vehicle in question was very much conversant with the policy conditions , but in spite of such knowledge , violated the condition No. 4 which stipulates that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition . In the present case, the Respondent / Complainant admittedly left the ignition key in side the vehicle and the vehicle itself was left unlocked . Utter carelessness of the insured led to the incident of theft of the vehicle which was left lying on the open road for about 40/50 minutes. In his claim form the insured has clearly stated against SL. No.14 that the vehicle was left in unlocked condition. The report of the Investigator , namely , Shri Debajit Chakraborty corroborates the fact.
Ld. Advocate appearing for the Appellant cited the following case laws:
AIR 1999 Supreme Court 3252
Important Point: The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement has to be strictly construed to determine the extent of liability of the insurer. … the insured has to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein .
Revision Petition No. 1896 of 2008 decided by the Hon’ble National Consumer Disputes Redressal Commission.
Important Point: … When the Complainant had left the vehicle unattended and unlocked, it amounted to violation of terms and conditions of the policy and the claimant was not liable to be paid for compensation.
Revision Petition No. 3840 of 2011 decided by the Hon’ble National Consumer Disputes Redressal Commission.
Revision Petition No. 3045 of 2013 decided by the Hon’ble National Consumer Disputes Redressal Commission.
Judgment of the Hon’ble Supreme Court in Civil Appeal No. 7515 of 2001 .
Ld. Advocate for the Appellant asserted that the impugned order was liable to be set aside in view of the fact that there was no deficiency in service on the part of the insurance company and the impugned order suffered from material irregularity and legal infirmity.
The Respondent being absent repeatedly, the appeal was heard ex parte .
Decision with Reasons
We have gone through the memorandum of appeal together with copies of the impugned judgment, the petition of complaint , the W.V. filed by the OP Insurance Company , FIR and Final Police Report among other documents including the report of the investigator appointed by the insurance company , the declaration form submitted by the Complainant and the letter of repudiation issued by the OP Insurance Company.
It is a fact that the Respondent / Complainant insured his vehicle (No. WB-42/ 9322) with the Appellant and the alleged incident of theft took place while the insurance policy was valid. It is also a fact that an FIR was lodged with the concerned Police Station and FRT was submitted by the Police showing that the vehicle could not be recovered in spite of all efforts .
The point of dispute as raised by the Appellant / Insurance Company is whether there was clear violation of policy condition as a result of which the insurance claim was repudiated.
Ld. Forum below appears to have taken into consideration the fact of validity of the insurance policy in total disregard of the terms and conditions of the Policy . Every insurance being a contract between two parties , rights and obligations agreed to by and between the parties are to be properly construed without any lenience . There being clear admission on the part of the insured that he left the vehicle on open road instead of any parking area and that too with the ignition key inside the vehicle which itself was left in unlocked condition , it is not at all improper to draw an adverse inference that the insured failed to take reasonable steps to safeguard the vehicle from loss or damage . It has been clearly stated by the Respondent / Complainant in his declaration form duly signed by him on 09.10.2009 that the vehicle was left in unlocked condition at a place which was not a parking area. Such admission on the part of the insured does not help him get his insurance claim awarded as the violation of policy terms stands established beyond doubt.
Ld. Forum’s order appears to have suffered from material irregularity , legal infirmity and jurisdictional error.
We are inclined to hold that the impugned order is liable to be set aside for the reasons as stated above. The appeal succeeds . Hence,
Ordered
That the appeal be and the same is allowed on contest , but without any costs. The impugned order is set aside. Consequently, the complaint stands dismissed.
