Orissa

Cuttak

CC/76/2015

Janmejaya Jena - Complainant(s)

Versus

The Branch Manager,Bharati AXA General Insurance Co Ltd - Opp.Party(s)

R K Pattanaik

21 Apr 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.76/2015

 

 Janmejaya Jena,

Res. of Raisar,PO:Palasuda,

KKendrapara,Odisha.                                                           … Complainant.

 

                Vrs.

 

  1.        The Branch Manager,

Bharati AXA General Insurance Co. Ltd.,

2nd FloormM.J.Plaza,Plot No.760,

Cuttack Road,Bhubaneswar,

Dist:Khurda.

 

  1.        The Branch Claims/Authorised Signatory,

Bharati AXA General Insurance Co. Ltd.,

49,Sakharam Ganesh Dauskar Sarani,

Kolkata,W.B.

 

  1.        The Chief Executeive,

Bharati AXA General Insurance Co. Ltd.,

Ist Floor,The Ferns Icon,Survey No.28,

Doddanekundi, Bangalore-560037.                                  … Opp. Parties.

 

Present:              Sri Bichitra Nanda Tripathy, Presiding Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   31.07.2015

Date of Order: 21.04.2017.

 

For the complainant:     Sri R.K.Pattnaik,Advocate & Associates.

For O.Ps(O.P.1,2 & 3) :   Mr.Adam Ali Khan,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy,Presiding Member.

                The case is against deficiency in service on the part of O.Ps.

  1. The case in nutshell is that the complainant purchased a Tata Truck (Model –LPT 3118) with the financial assistance from L & T Finance Ltd.  The quantum of loan from the financier was Rs.19,00,000/- and the complainant paid a sum of Rs.1,50,000/- towards down payment. Thus the total cost of the vehicle was aRs.20,50,000/-. The Regd. No. of the truck was OR-04M-0731.  The vehicle was insured with the O.Ps vide Policy No.11238483 for the period from 30.3.13 to 29.3.14.  The sum assured under the policy was Rs.15,50,000/- and the amount of premium paid was Rs.42,000/-(Annexure-1).  On 07/08.02.2014 at about 2 A.M. the driver while proceeding from Cuttack to Umerkote stopped the vehicle on the way nearby Sonepur-Bolangir Road, near Rando Pond to attend the call of nature.  While he was away about a furlong from the vehicle the miscreant drove his truck and went away.  FIR was lodged on 09.02.14 at Bolangir Sadar Police Station (Annexure-2).  Insurance Company was also intimated and the claim was also lodged for the IDV worth Rs.15,50,000/-, since it was a case of complete loss .  The O.P after receiving the claim application, investigated the matter and the complainant submitted all the relevant documents, ignition keys and copy of H.R and Final report of police.  The Police submitted the Final report as the fact is true but no clue (Annexure-3).  On 12.6.15 the O.Ps intimated the complainant that the theft of vehicle occurred because the key was kept with the vehicle and such facts has been confirmed by the statement of the complainant.  It was also stated that since the complainant has violated the terms and conditions of the policy by not taking reasonable steps to safeguard the vehicle from loss and damage for which the complainant was required to submit required clarifications as to  why the claim of the complainant shall not be repudiated (Annexure-4).  The O.P. again issued a reminder to this effect on 25.6.15(Annexure-5).  The complainant vide his letter dt.10.07.2015 intimated that the key was with the driver and the same has handed over to the complainant by the driver.  Hence the terms and conditions of the policy are not violated.(Annexure-6). But it yielded no result.  Finding no other way the complainant has taken shelter of this Hon’ble Forum.  He has prayed to direct the O.Ps to pay the total loss amounting to Rs.15,50,000/- and interest on the aforeosaid aount @ 9%, compensation for mental agony and harassment Rs.50,000/- and  cost of litigation Rs.20,000/-.
  2. O.Ps( No.1 to 3) vide their written version dt.10.3.16 have intimated that the insured vehicle was hypothecated to L & T Finance Ltd., but it has not impleaded as a party to the proceeding.(copy of R.C. Book vide Annexure-A).  Again the complainant belongs to Raiser in Kendrapara District and the O.Ps are having their office either at Bhubaneswar,Kolkata or at Bangalore and the alleged theft of the truck took place at Bloangir. Hence no cause of action has arisen within the territorial jurisdiction of this Hon’ble Forum. Further the O.Ps have also intimated that the O.P No.1 had insured the truck(Model Tata LPT 3118)  bearing Regd. No.OR-04-M-0731 under a Goods carrying commercial vehicle policy bearing No.FCV/11238483/01/04/K 50114 which was valid from 10.04.2013 to 09.04.2014.  Claim if any was payable subject to terms and conditions of the insurance policy(copy of insurance policy and policy conditions are annexed.(Annexure-B-1).  The complainant lodged a claim regarding theft of the truck. The theft had occurred while proceeding from Cuttack to Umerkote in the District of Bolangir on 7/8.2.14 at about 2 A.M. FIR was also lodged by the driver of the complainant with Bolangir Sadar Police Station vide case No.29/2014(Annexure-C).  After receipt of the claim application from the complainant, the O.Ps deputed Intrepid Claims Investigating Agency for detail investigation of the case as well as to collect all the vehicular documents including 2 nos. of ignition keys of the truck.  During the investigation the complainant expressed his inability to hand over ignition keys on the ground that the driver had left one ignition key in the truck which was stolen by the unknown culprits along with the truck and the 2nd key was with the financier.(copy of statement of Sri Janmejaya Jena owner vide Annexure-D).  The said investigating agency submitted their report on 29.9.2014 and while processing the claim it was learnt that the complainant has not taken reasonable care in safeguarding the insured vehicle because the driver had left the ignition key inside the truck and  nobody was there to look after the truck for which the unknown culprit stolen the truck which conclusively proves that the complainant /insured has violated the specific conditions of the insurance policy for which the claim is not payable.  The O.Ps vide their letter dt.12.06.15  asked the complainant to submit his clarifications as to why the claim should not be repudiated as the driver of the complainant had failed to take reasonable care since he left the truck by keeping ignition keys in the insured  vehicle for which the insured vehicle was stolen by the culprits.(Annexure-E).  Since the complainant did not reply to above letter of the O.ps the O.ps again reminded the complainant to submit the required reply within a further period of 7 days vide letter dt.25.6.15.  The complainant replied to above vide his letter dt.10.7.15 but such reply was not found satisfactory by the O.Ps.  The O.Ps again asked the complainant to submit a satisfactory reply within 7 days vide their letter dt.28.7.15.  In the said letter it was also stated that in case no satisfactory reply would be received within 7 days the claim shall be closed as no claim (Annexure-F).  The complainant did not reply to letter dt.28.7.15 of the O.Ps.  The O.ps again reminded the complainant to submit a satisfactory reply vide their letter dt.13.8.15 and again allowed a further period of 7 days to submit the reply (Annexure-G).  The complainant failed to reply for which the claim was repudiated.  The O.ps denied the fact that the complainant had handed over the ignition key to the police because the complainant has already given a declaration to the investigating agency that the ignition key was left inside the truck by the driver which was stolen.  Since one of the keys was with the financier and the other key was with the stolen truck, the question of handing over the ignition key to the police does not arise at all. (Copy of statement given by driver Manoranjan Parida is vide Annexure-H and copy of statement given by Mr. Janmejay Jena is vide Annexure-D).
  3. We have gone through the case in details, perused the documents minutely as filed by the complainant as well as by the O.Ps, heard the learned advocates from both the side and observed that the vehicle of the complainant was insured with the O.Ps for the period from 10.04.2013 to 09.04.2014.  The Regd. No. of the tuck was OR-04-M-0731 and the model was Tata-LPT 3118.  The I.D.V for the said truck was Rs.15,50,000/- and the same was insured vide policy No.FCV/11238483/01/04/K 50114. It was a goods carrying commercial vehicle.  While proceeding from Cuttack to Umerkote on 7.2.14 at about night 2 A.M.(Actual date 8.2.14)  the driver while proceeding with the vehicle on the way nearby Sonepur-Bolangir road and near Rando Pond stopped the vehicle to attend  the call of nature.  The vehicle was stolen away by some unknown miscreants.  FIR to this effect was lodged with Bolangir Police station on 9.2.14 and claim was lodged with O.P, Insurance Company.  The O.P, insurance company deputed interpret claims investigating agency for detail investigation of the case and also to collect all the vehicular documents.  FIR was lodged vide G.R.No.29/2014 with Bolangir Sadar police station.  The driver Sri Manoranjan Parida vide his letter dt.22.3.14 has intimated that he had kept his shirt and pant inside the truck before going to attend the call of nature.  The driver has told nothing relating to the key i.e. whether he had kept the ignition key with him or inside the vehicle with his shirt and pant.  Even the driver is silent regarding the keys while lodging FIR with Bolangir Sadar Police Station.  But the statement given by the owner Sri Janmejaya Jena vide his statement dt.22.3.14 states that since the ignition key was kept with the vehicle by the driver and the other key was with financier, the key was not handed over to O.Ps while lodging necessary claim for the purpose.  This indicates that the  ignition key  left in the vehicle by the driver which enabled the miscreants to take away the vehicle.  The signature made by Sri Janmejaya Jena in the declaration dt.22.3.14 appears to be the same signature of Sri Janmejaya Jena as made vide his letter dt.10.7.15 and also as made by Sri Jena in the plaint and also as signed in other documents.  Since Sri Jena has not disputed his signature as given in the declaration, we conclude that one of the ignition keys was left inside the said truck when the drier went out to attend the call of nature.  Moreover, the ignition key was also not handed over to the O.P,Insurance Company which confirms that such key was not available with the complainant.  Vide affidavit dt.21.1.17 Sri K.C.Satpathy,Proprietor of Intrepid Claims Investigating Agency has intimated that the said agency has conducted investigation regarding claim lodged by complainant Mr. Janmejaya Jena vide policy No.FCV-11238483/01/04/K 50114.  Sri Satpathy has further stated that the statement given by Sri Janmejaya Jena vide Annexure-D clearly states that  one of the ignition keys was left by the driver in the truck which was stolen and the other key was with the financier for which the key was not handed over to the insurance company.  Such declaration was given in the presence of one Promod Kumar Rout.  Vide the counter affidavit.  Sri Janmejay Jena stated that  the investigation has disclosed that Promod Kumar Rout was present instead of Promod Kumar Nayak which ultimately confirms that Promod Kumar Nayak was present when the complainant signed such declaration.  We have perused minutely the signature made by Promod Kumar Nayak where the word Nayak written in oriya appears a little as Rout for which the investigating agency has given his name as Promod Kumar Rout but actually he is Promod Kumar Nayak.  Since the complainant has not handed over one of the ignition keys to the O.P,.Insurance Company, for the reason best known to him, we finally conclude that the ignition key was left inside the truck when the driver went away to attend the call of nature and the vehicle was left unattended for which the said vehicle was stolen away by miscreants since the ignition key was available with the truck.  The policy conditions clearly states that “The insured shall take all reasonable steps to safe guard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all the times free and full access to examine the vehicle on any part thereof or any driver or employee of the insured.”

“Vehicle shall not be left unattended without proper precautions being taken”

The current case, when the driver left to attend the call of nature, the vehicle was left unattended since there was no cleaner in the said vehicle and no proper precautions were also taken by the driver to safeguard the vehicle in his absence.

It is pertinent to record it here the decision taken by Hon’ble National Commission vide 2016(3) CPR 502(N.C) in the Revision Petition No.157 of 2016(against the order dt.5.8.15 in

appeal No.11/2015 of the State Commission, Haryana where it was decided on 20.7.16 that “Mere intimating police or lodging FIR does not amount to sufficient compliance with terms and conditions of Insurance Policy”.  In the said case it was also held that “As per terms and conditions of insurance policy, insured was required to take all reasonable steps to safeguard vehicle from loss or damage, if driver of the vehicle wanted to go to lavatory, he ought to have locked vehicle and take key with him instead of leaving it in ignition.  If driver of vehicle leaves key in ignition and also does not lock door of vehicle while going to a place from where vehicle would not be visible to him, such an act amounts to failure to safeguard the vehicle from loss or damage.”

                                                                                ORDER

Basing on the facts and circumstances as stated above, we have observed that the complainant has failed to prove deficiency in service on the part of the O.Ps.  Hence, the case is dismissed.

                Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 21st day of April,2017 under the seal and signature of this Forum.

 

                                                                                                                                       (Sri B.N.Tripathy )

                                                                                                                                      Presiding Member.

 

                                                                                                                                               

                                                                                                                                         (Smt. Sarmistha Nath) 

                                                                                                                                           Member(W).

 

 

 

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