PER MR.B.S.WASEKAR, HON’BLE PRESIDENT 

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986.  According to the complainant, the vehicle No.MH-02-WA-3186 was insured with the opponent.  On 1^st May, 2013, at about 05.45 AM, the driver of the complainant went to drop the client of Hotel at airport. While returning, he attended nature’s call. At that time, the vehicle was stolen. Claim was submitted but it was repudiated by the opponent. Therefore, the complainant has filed this complaint for insurance claim of Rs.3,58,789/- He has also claimed compensation of Rs.50,000/- for mental harassment and cost of litigation of Rs.10,000/-. 

2)                The opponent appeared and filed written statement.  Policy is admitted.  It is submitted that there was violation of Policy Condition No.4. Therefore, the claim was repudiated.  As there is breach of policy condition, the complainant is not entitled for the relief as prayed.

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- The policy is admitted.  The claim is repudiated on the ground that the complainant failed to take reasonable steps to safeguard the vehicle form the loss and damage.  There is breach of Policy Condition No.4. Therefore, the complainant is not entitled for the insurance claim. According to the complainant, the driver of the complainant went to attend the nature’s call by keeping the vehicle in starting position. According to the complainant, considering the urgency of nature’s call, it can not be said that proper steps were not taken to safeguard the vehicle.  For this purpose, the learned advocate for the complainant has placed reliance on the judgment of Hon’ble National Commission in Revision Petition No.375 of 2013, in the case of Sukhwinder Singh –Versus- Cholamandalam-MS General Insurance Company Limited, decided 30^th August, 2013. In this judgment, para 10, the Hon’ble National Commission has laid down as under :

This condition in 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 all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy.  Whether or not there is breach of condition will always depend upon the facts of the case.  The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This 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 said to have committed willful breach violation of the terms of the above Condition No.5.  In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Limited –Versus- M/s. Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV-(2011-4)

This judgment was also referred by the Hon’ble National Commission in subsequent judgment in Revision Petition No.3251 of 2013, in the case of Oriental Insurance Company Limited –Versus- Shyam Sunder, decided on 5^th May, 2014. In para 10 of the judgment, the Hon’ble National Commission has held as under

Perusal of aforesaid condition makes it clear that complainant’s son was under an obligation to take key of the vehicle with him while going to ease out.  While he himself had left the key in the vehicle, he violated Condition No. 5 of the policy and in such circumstances; OP has not committed any deficiency in repudiating claim of the complainant.

This judgment is subsequent to the earlier referred judgment.  In this judgment, the Hon’ble National Commission has held that the driver was negligent in leaving the key in the vehicle and dismissed the claim.  Identical facts are before us.  This judgment is subsequent to the earlier judgment in the case of Sukhwinder Singh –Versus- Cholamandalam-MS General Insurance Company Limited. As the facts before us are identical, we come to conclusion that the driver of the complainant was negligent.  The complainant has committed breach of Policy Condition No.4 to take proper care to safeguard the vehicle.  The opponent/insurance company has rightly repudiated the claim.  Therefore, the complainant is not entitled for the relief as claimed.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced on 4^th December, 2014