Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This appeal has been filed by the org. complainant whose complaint No.585/2009 has been dismissed by the District Consumer Forum, Solapur by judgement dated 23/07/2010.

          The facts to the extent material may be stated as under :-

          Complainant has filed consumer complaint against the Insurance Company with the allegation that he had owning a Truck bearing No.MH-13R-3315 and it was insured with the O.P./Insurance Company.  Insured Declared Value of the truck was `13,08,742/-.  Complainant had paid necessary premium and during the period 30/06/2008 to 29/06/2009 insurance cover was available to the said truck.  It so happened that on 04/03/2009 while coming from Umerga to Solapur on National Highway near Bhairavnath Poultry Farm, vehicle was break down.  Despite efforts made vehicle could not be restarted.  Therefore, it was the case of the complainant in the Forum below that they had locked the vehicle and gone to Solapur to bring mechanic.  They left the vehicle at about 5 a.m. and came back from Solapur at the spot of break down at about 10.30 a.m. with mechanic.  However, they found that the vehicle was missing from said place.  They had searched the vehicle, but in vain.  Ultimately, they filed complaint of theft in the Police Station having jurisdiction.  Police registered the offence of theft in Naldurga Police Station.  However, Police could not find out stolen vehicle of the complainant.  Ultimately, Police procured ‘A summary’ of the concerned Magistrate.  Complainant lodged claim with the Insurance Company.  Some documents were sought and were supplied by the complainant.  O.P. repudiated the claim by sending letter dated 02/02/2010.  As such, complainant filed consumer complaint alleging deficiency in service on the part of Insurance Company.  Complaint was filed by the complainant for compensation as per insured declared value as mentioned in the policy, compensation of `10,000/- for mental agony and `5,000/- towards costs.

          O.P./Insurance Company filed written version and contested the claim.  According to the Insurance Company, the policy is issued subject to certain terms and conditions.  According to the Insurance Company after they received claim from the complainant, they had appointed Investigator and Investigator clearly mentioned in his report that the complainant had left the vehicle unattended and nobody was in the vehicle when the theft had taken place.  On this count alone, Insurance Company asserted that it had rightly repudiated the claim.  It therefore pleaded that it was not guilty of deficiency in service and prayed for dismissal of complaint with costs.

          Upon hearing both the Counsels and on perusal of documents and affidavits placed before it, Forum below came to the reasoned conclusion that there was no deficiency in service on the part of Insurance Company and that complainant himself had committed breach of important terms and conditions of the contract.  Therefore, Forum below was pleased to dismiss the complaint.  As such, org. complainant has filed this appeal.

          We heard Ms.Rashmi Manne, Advocate Proxy for Mr.U.B. Wavikar, Advocate for the appellant and Mr.Sanjeet Shenoy, Advocate for the respondent.

          We are finding that the dismissal order passed by the Forum below is appearing to be just and proper.  Insurance policy was issued by the respondent/Insurance Company upon certain terms and conditions.  The terms required the insured to take all the steps to safeguard the vehicle from loss and damage and to maintain in the event of any accident or break down, the vehicle insured shall not be left unattended without taking proper precaution.  It is this portion of the condition mentioned in the policy which prompted the Learned District Consumer Forum to dismiss the complaint on finding that after the break down of the vehicle at the National Highway near Bhairavanath Poultry Farm, the driver and cleaner, both of them had left the vehicle unattended and had gone to Solapur to bring mechanic with them.  In the process, they consumed 4-5 hours and since, break down vehicle was left unattended, somebody had stolen said vehicle.  Forum below rightly held that the complainant had not taken reasonable and proper precaution in respect of “break down vehicle”.  It has come on record that when the vehicle broke down at midnight, there were two persons in the insured vehicle, one was driver and another was cleaner.  It is their case that till 5 a.m. both of them sat in the vehicle itself and when at about 5 a.m. there was traffic on the National Highway, they locked the vehicle and went to Solapur to bring mechanic.  Mere locking of vehicle is not tantamount to attending the vehicle.  Vehicle can be said to be found attended when somebody is there to take care of the vehicle.  When the truck in question was having two persons, one driver and one cleaner, it was duty of either of them to stay back in the vehicle and other should have gone to Solapur to bring mechanic.  This was expected in the circumstances obtainable.  Thus, we are of the view that in respect of break down vehicle, the complainant’s driver and cleaner had deliberately left the vehicle unattended and they consumed 4-5 hours to come back with the mechanic.  By that time somebody has played mischief and stolen the vehicle despite the fact it was break down vehicle.  So, there was breach of important term and condition of the policy which disentitled the complainant to get insurance claim.  That apart, we agree with the Advocate for the respondent when he submitted that this claim should have been filed with Tata Motors Finance as ‘co-complainant’ since vehicle was under hypothecation of Tata Motors Finance.  Under the Hire Purchase scheme, vehicle was sold to the complainant and he had committed default and it is improper on the part of the complainant not to join Tata Motor Finance as co-complainant for making payment, if at all they are entitled to get the same.  In the circumstances, we find no merits in the appeal filed by the complainant.  Hence, we pass the following order :-

                             -: ORDER :-

1.       Appeal stands dismissed.

2.       Parties are left to bear their own costs.

3.       Copies of the order be furnished to the parties.