Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 20.10.2009 passed by District Consumer Forum-I, U.T. Chandigarh whereby her complaint bearing No.698 of 2009 seeking insurance claim on account of theft of her car was dismissed. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. Briefly stated the facts of the complaint are that the Honda City car of the complainant bearing Registration No.MH-15-BN-5164 was insured with OP Company for Rs.5,53,214/- and the policy was effective from 13.8.2007 to 12.8.2008. Complainant was using the said car for going to her office which was at Writer’s Building, Kolkata. Unfortunately the said car was stolen on 26.12.2007 during the currency period of insurance policy , when it was parked in the parking lot of her office and its keys, as per the usual practice, were handed over to the Incharge of said parking lot, namely, Sh.Rajesh Kumar Patel, who also failed to give any plausible reply in respect of said theft. The matter was then reported to Police whereupon FIR No.515, dated 26.12.2007, U/s 379/120-B of IPC was registered against Sh.Rajesh Kumar Patel, Parking Incharge and other unknown person. The theft was also reported to the OP Insurance Company and thereafter a claim was lodged with them, which was repudiated vide letter dated 9.6.2008 on the ground that the complainant had violated Condition No.4 of the Policy as the keys of the vehicle were given to the parking attendant/incharge, who used to keep the keys on the table in the open space without any security or safety due to which the car was stolen and no claim was liable to be given to her. It was averred that the complainant was required to take reasonable steps and not extraordinary steps, which a person of ordinary prudence could take, which she had duly taken but still her car was stolen from the said parking lot where all persons who parked their vehicles there used to handover the keys to the parking attendant/incharge to facilitate the proper parking in the parking area and as such OP was liable to pay the insured amount and repudiation of claim was illegal and arbitrary. Hence, complainant filed complaint before the District Forum seeking indemnification of loss to the tune of Rs.5,53,214/- alongwith interest @ 12% from the date of theft fill actual payment besides compensation and costs etc. 4 The stand of OP before the District Forum was that on receipt of information of loss of vehicle in question, OP deputed M/s Commercial Investigation Bureau, Investigator to do the investigation & collect all the relevant documents for verification and assessment of loss and also to assess the claims under the terms & conditions of the policy of insurance. During the investigation, it was found that Sri Tapan Gupta operated Parking facility privately to car owners working in Lyons Range Area, Kolkatta and the owners of all the vehicles used to hand over the keys of their vehicles to the parking attendant and he used to keep them on the table near the Pan Shop of Sri Sukesh Sah and the car owners used to pick up their respective keys from the table and take away their cars. On 26.12.2007 the complainant handed over the keys of her car to the parking attendant and asked her to park the car and went to her office but when in the evening she came from office, she did not find her car keys on the table. It was pleaded that from the investigation report Annexure R-7, it was clear that the complainant was negligent and careless in handing over the keys of the car to the Parking Attendant to be left on the open table, which amounted to violation/breach of Condition No.4 of the Terms & Conditions of the Insurance Policy . The complainant did not exercise responsibility and prudence in seeing that the car was not in safe hands and she handed over the keys of the same, without bothering to ensure its proper custody and control,so, it was pleaded that since there was breach of terms & conditions of the policy, therefore, the claim of the complainant was rightly repudiated and there was no deficiency in service on its part. A prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that the complainant had failed to take due care of her vehicle and had violated the terms of the policy and as such there was no deficiency in service on the part of OP and dismissed the complaint. Still dissatisfied, complainant has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the appellant/complainant is that the complainant was required to take reasonable care and had to act like person of ordinary prudence which she had taken and this fact is clearly proved from the report of surveyor who made thorough investigation. According to the finding of the surveyor, it was a practice of handing over the keys to the parking attendant for all the owners of the cars and the complainant had also followed the same practice as there was no enough parking space. Further as per the finding of the police investigation, it was the parking attendant who was found to be negligent who did not keep vision on the parked vehicles and not the complainant. The surveyor also supported the police version to that effect. It was further argued that once the owner of the vehicle handed over the keys to the parking attendant then it was impossible to keep a vigil or an eye on the said parking attendants to what he was doing or taking care of the vehicles or their keys. Such a situation is similar to the situation where a person handed over the custody of the car to some other person and the said person dishonestly ran away with the car that also amounts to theft and in the instant case also the complainant had handed over the custody of the car to a known person for a certain period till her return from the office and for the said purpose she also used to pay Rs.1000/- per month as parking charges as admitted by the contractor and the surveyor, so as such insurance company was liable to indemnify the loss sustained by the complainant due to theft of the insured vehicle. To buttress his arguments learned counsel for complainant placed reliance upon on authority of Hon’ble National Commission in The Oriental Insurance Co. Ltd. & Anr Vs Rohit Kumar Gupta & Ors.,I(1994)CPJ 196(NC). 7. On the other hand, learned counsel for respondent/OP tried his level best to repel the above points of arguments. It appears from his arguments that he was expecting that the complainant should have been extra vigilant in taking care of her car instead of taking a reasonable care, being a man of reasonable prudence. Admittedly the vehicle in question was duly insured with OP insurance Company for the coverage of theft also and as per report of their own surveyor ‘Commercial investigation Bureau, Surveyors, loss assessors, Loss adjusters’ it was a case where complainant made a claim for theft which was ultimately found to be genuine one. 8. Admittedly the vehicle in question was insured for Rs.5,53,214/- and insurance policy was effective from 13.8.2007 to 12.8.2008. The theft occurred 26.12.2007 during the currency of the insurance policy which is not disputed . The only ground taken for repudiation of claim that the complainant had violated the condition NO.4 of the terms and conditions of the insurance policy, annexure R-2 which is reproduced as under ; “The insured shall take all reasonable steps to safeguard the vehicle 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 or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle 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.” 9. However, during the course of investigation of theft case, it transpired that Rajesh Kumar Patel to whom the keys of the car were entrusted at the parking place was found to be innocent . It is also established from the material brought on record and report of the surveyor that as it was a long time established practice that the keys of the cars were used to be handed over to the Rajesh Kumar Patel, an employee of the car parking official or place on the table kept for the purpose. All the car owners while leaving their office used to pick up their respective keys and take their vehicles from the parking lot. Admittedly on the day of occurrence of theft of the vehicle of the complainant there was no parking place when complainant had brought the vehicle to park in the parking lot. Naturally she parked the car nearby the parking place and handed over the keys to Rajesh Kumar Patel as usual ,so that on getting space he could park the same at an appropriate place. In these given facts and circumstance it cannot be said that the complainant had violated any terms and conditions of the policy by not taking reasonable care. 10. In view of the foregoing discussion , we are of the considered opinion that the Learned District Forum has failed to appreciate all the facts/aspects of the case in its right perspective. Thus, the impugned order dated 20.10.2009 being not sustainable is set aside and complaint is allowed. 11. In the result, appeal is accepted with costs of Rs. 5000/- and OP is directed to pay to the complainant the insured amount of the vehicle under the policy in question alongwith interest @ 9% p.a. from 19.3.2008 (after one month of the report of surveyor) till actual realization. OP shall comply with the order within thirty days of the receipt of copy thereof. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
