DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:518 of 2011] Date of Institution : 11.11.2011 Date of Decision :02.05.2012 --------------------------------------- Sh. Barinder Kumar son of Sh. Surjeet Singh resident of House No.90, Village Dadu Majra, U.T., Chandigarh. ---Complainant. V E R S U S The Oriental Insurance Company Limited having its Divisional Office at SCO No.99-100, Sector 17B, Chandigarh. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Munish Kumar, Advocate for the complainant. Sh. Sukaam Gupta, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT 1. Sh. Barinder Kumar has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying for the following reliefs:- i) To pay Rs.61,816/- being the Insured Declared Value of the motorcycle in question along with interest @18% per annum; ii) To pay a sum of Rs.50,000/- as compensation for mental agony and harassment; iii) To indemnify the loss occurred on account of the said motorcycle being financed from the Financial Institution; iv) To pay a sum of Rs.25,000/- as costs of litigation. 2. In brief, the case of the complainant is that on 19.02.2010, he purchased a new motor cycle (make Bajaj Pulsar) from Bajaj Auto Finance Company. The said motorcycle bearing Regd. No.CH01-AB-4880 was got comprehensively insured with the OP vide Cover Note (Annexure C-2). The complainant paid a premium of Rs.1,375/-. The said vehicle was insured for the period from 19.02.2010 to 18.02.2011. According to the complainant, on 10.11.2010, he went to Shastri Market, Sector 22, Chandigarh for doing some shopping. He parked his vehicle in the Parking Place of the said market. But, unfortunately, he forgot to take the keys of the motorcycle with him, which remained with the motorcycle in the parking place. It is averred that when he came back, he found the motorcycle missing from the parking place, where it was parked. When the complainant failed to locate the motorcycle of his own, he lodged F.I.R. No.420 dated 12.11.2010 (Annexure C-4) with the Police Station, Sector 17, Chandigarh. He also intimated about the theft to the OP vide letter dated 12.11.2010 (Annexure C-5) and requested it to settle the claim. When nothing was heard from the side of OP, the complainant further wrote letter dated 13.04.2011 (Annexure C-7) to the OP for settling his claim. However, the OP vide its letter dated 29.06.2011 (Annexure C-10) repudiated the claim on the ground that the complainant had failed to take all reasonable steps to safeguard the vehicle from loss or damage. According to the complainant, the repudiation of the claim by the OP in such an arbitrary manner amounts to deficiency in service. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the reply filed by OP, it has been admitted that the motorcycle bearing Regd. No.CH01-AB-4880 was got comprehensively insured with it vide Cover Note (Annexure C-2) for the period from 19.02.2010 to 18.02.2011. According to the OP, it is the admitted case of the complainant that he left the keys with his motorcycle, while he parked the same in the parking place of Shastri Market, Sector 22, Chandigarh. It has been pleaded that the act of the complainant in leaving the motorcycle with the keys on ignition mode was in gross violation of Condition No.4 of the Insurance Policy. Thus, according to the OP, the claim of the complainant was rightly repudiated vide repudiation letter dated 29.06.2011. According to the OP, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have gone through the documents on record. 5. Admittedly, the claim of the complainant was repudiated by the OP on 29.06.2011 on the ground that the complainant had failed to take all reasonable steps to safeguard the vehicle against loss or damage. 6. The case of the OP is that it has rightly repudiated the claim under Condition No.4 of the Insurance Policy. Annexure R-4 is the Private Car Package Policy and Condition No.4 of the said policy reads as under: - “4. The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the company shall have at all time 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 insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured 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.” 7. The OP has also placed reliance on the recent judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi rendered in the case titled Devinder Kumar Vs. National Insurance Company Limited, Revision Petition No.3840 of 2011 decided on 02.04.2012. The relevant Paras No.7 and 8 of the said judgment reads as under: - “7. It is strange that the driver of the dumper-truck chose to leave the key in the vehicle, knowing that the lock of the cabin of the vehicle was not functioning. It is equally strange that the driver who claimed to be sleeping practically at no distance from the vehicle had to be told by someone else that the vehicle had been stolen. 8. In our view, the District Forum was wrong in holding that there was no negligence on the part of the driver. For the same reason, we find ourselves in full agreement with the view taken by the State Commission. The revision petition has no merit and fails to carry any conviction. The same is, therefore, dismissed and the order of the State Consumer Disputes Redressal Commission, Haryana in FA No.1230 of 2008 confirmed. No order as to costs.” 8. On the other hand, the complainant has cited the case titled National Insurance Company Ltd. Vs. Nitin Khandelwal, reported as IV (2008) CPJ 1 (SC) wherein it has been held in Para No.13, interalia, as under: - “13…….On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.” Thus, according to the complainant, his claim should not have been repudiated by the OP in view of the law settled by the Hon’ble Apex Court. 9. In our considered view, the ratio of the case titled National Insurance Company Limited Vs. Nitin Khandelwal (Supra) is not applicable to the case in hand. In that case, the vehicle was being used as a taxi in violation of the terms and conditions of the policy, whereas it was insured for personal use. The said vehicle was snatched and taken away by some unknown people. Therefore, the Hon’ble Apex Court has held that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis. But in the instant case, the complainant has himself left the keys with his motorcycle and allowed it to be stolen from the parking place. This fact has been admitted by the complainant in Para No.5 of the complaint that he forgot to take the keys from the motorcycle and the keys of the motorcycle were lying therein when he parked his vehicle in the parking. This has definitely been in violation of Condition No.4 of the Insurance Policy, reproduced above. In these circumstances, we are of the considered opinion that the claim of the complainant has rightly been repudiated by the OP vide letter dated 29.06.2011. Since, the complainant has failed to take due care and all reasonable steps to safeguard the vehicle from loss or damage as envisaged in Condition No.4 of the Insurance Policy, his case is squarely covered by the ratio of the case titled Devinder Kumar Vs. National Insurance Company Limited (Supra). In these circumstances, there is no deficiency in service on the part of OP. 10. In view of the forgoing discussion, we do not find any merit in the present complaint and the same is dismissed. However, the parties are left to bear their own costs of litigation. 11. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 2nd May 2012. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
DISTRICT CONSUMER FORUM-II C.C.No.518 of 2011 Argued By: Sh. Munish Kumar, Advocate for the complainant. Sh. Sukaam Gupta, Advocate for the OP. Dated the 2nd day of May, 2012. ORDER As per the detailed order of even date recorded separately, this complaint has been dismissed. After compliance file be consigned. 02.05.2012 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
