Delhi

StateCommission

FA/12/939

D.P. JAIN - Complainant(s)

Versus

UNION BANK OF INDIA - Opp.Party(s)

20 Mar 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision : 20.03.2015

First Appeal No.939/2012

(Arising out of the order dated 08.07.2012 in Complaint Case No. 1765/2008 passed by District Consumer Disputes Redressal Forum-VI, M-Block, Ist Floor, Vikas Bhawan, I.P.Estate, New Delhi-110001)

Bajaj Allianz General Insurance Co. Ltd.

1, DLF Industrial Plot, Moti Nagar

New Delhi-110015                      …Appellant

                                

VERSUS

M/s Pioneer Urban Land & Infrastructure Ltd.

through its Company Secretary:

Sh. Dhirender Kumar Giri

A-22, Green Park, 3^rd Floor

Aurbindo Marg, New Delhi-16

 

also at:

Paras Downtown Centre

Floor 5 & 7, Sector Road

•  

Gurgaon-122002                ......Respondent

 

CORAM

Salma Noor, Member

N P Kaushik, Member (Judicial)

1.  Whether reporters of local newspaper be allowed to see the judgment? Yes

2.                                      To be referred to the reporter or not? Yes

N P Kaushik, Member (Judicial)

Judgment

1.      Appellant has impugned the orders dt. 08.07.2012 passed by the Ld. District Forum VI, Vikas Bhawan, New Delhi.  Vide impugned orders Ld. District directed the appellant to pay to the complainant the IDV of the car (Rs. 11,02,950/-) alongwith interest @ 9% p.a. from the date of filing of the claim till the date of payment.  Compensation to the tune of Rs. 40,000/- was also awarded.  Appellant was directed to comply with the aforesaid orders within a period of thirty days.
2.      Facts in brief are that the car of the model ‘Honda Civic’ was insured for the period from 24.09.2007 to 23.09.2008 for a sum of Rs. 11,02,950/- as insured value in the name of the complainant i.e. M/s Pioneer Urban Land and Infrastructure Ltd. The car was registered in the name of the complainant company. Sh. Ashok Jerath President of the complainant company was using the said car.  The case of the complainant before the District Forum was that on 28.04.2008 while the driver of Sh. Ashok Jerath was shifting the car from one place to another at S-366, Greater Kailash Part-II, New Delhi his car was stolen.  The complainant lodged an FIR with the Police Station Chitranjan Park, New Delhi immediately thereafter and on the same day.  He also lodged the claim with the OP/appellant i.e. M/s Bajaj Allianz General Insurance Company Ltd. OP appointed Indian Claim Recovery as an investigator who demanded certain documents which were supplied by the complainant. On 07.05.2008 appellant/OP called upon the complainant as to why his claim be not repudiated.  The relevant contents of the letter dt. 07.05.2008 read under:

“Your had deliberately left the ignition key in the ignition switch, thus leaving your vehicle in the drivable condition, which has directly contributed to the theft of vehicle therefore why it should not be concluded that you have failed to take minimum reasonable safeguard of your vehicle from loss as per the terms of policy.

Therefore please clarify within seven days from the date of this letter as to why the claim should not be repudiated.”

 

3.      Complainant replied to the letter vide his reply dt. 16.05.2008.  The relevant portion of the reply is reproduced below:

“In reply to your aforesaid query we would like to inform you that you might have not read FIR and the claim lodged by us properly.  We may like to submit that Mr. Ashok Jerath is having three cars at his disposal and the aforesaid car No. DL-7CF-4908 was provided by the Company to him for his official duty.  All the Cars of Mr. Jerath were parked in the front of Mr. Jerath house on the ramp.  On April 2008 at 8.25 A.M. the Car No. DL-7CF4908 was ready to take Mr. Jerath to his Office and hence the driver parked the car on the road beside the ramp on which other cars were parked.  In the meantime, the wife of Mr. Jerath had to go out the other car parked in the ramp.  Mr. Jerath’s Driver was told to shift the Car bearing registration No. DL-7CF-4908 a little bit so that Mrs. Jerath’s car could be reversed to bring it on the road.  After shifting the Car bearing No. DL-7CF-4908, the Driver came out from the same to reverse Mrs. Jerath’s Car so that she can drive off her car.  The Driver then proceed to reverse Mrs. Jerath’s Car and while he was doing so, thief drives off the Car bearing No. DL-7CF-4908.  It took just less than a minute for the thief to drive-away the said car, thought it was under the surveillance of the driver as he had to take Mr. Jerath to office.  Therefore, it cannot be said that the Company has failed to take minimum safe guard of the Vehicle or there was any negligence on the part of the Company and the driver of Mr. Jerath.”

 

4.      The OP vide its letter dt. 08.08.2008 repudiated the claim on the grounds stated in its letter dt. 07.05.2008. Complainant prayed for directions to pay the amount of Rs. 11,02,950/- alongwith interest @ 18% p.a. from the date of lodging of the complaint.  Compensation to the tune of Rs. 1 Lac and litigation charges of Rs. 25,000/- were also prayed for.
5.      Defence raised by the appellant/OP in its written version before the District Forum was that the insured failed to take reasonable steps to safeguard the motor car from loss and damage as per condition no. 4 of the insurance policy.  Keys of the car were left in the ignition and the vehicle remained unattended in a drivable condition.  Complainant directly contributed to the theft.  There was, therefore, no liability of the OP to allow the claim.  The Ld. District Forum while allowing the complaint observed as under:

 “No complainant desires that his vehicle may be stolen with his negligence rather the owner of vehicle always looks after his vehicle just like a child has human nature.” Further it was mentioned that “We have considered the case of the parties.  The sole contention of OP (herein appellant) is that complainant was careless. In our view, OP was clearly misdirected itself and has not at all appreciated the case of complainant.  His case from the beginning while lodging FIR is that his driver was shifting the car from one place to another, in front of his house, when some person just came and drove off the car.  This is the plain truth stated by him.  This shows that someone deliberately did a mischief or by deception and as a trick mover away with car in the present of driver.  These facts present no carelessness on part of complainant or driver. Infact, he has been cheated.”

 

6.      In the present appeal the OP/appellant submitted that the driver of the complainant left ignition key in the ignition switch, leaving the vehicle in a drivable condition.  Insured failed to take minimum reasonable safeguard of the vehicle and thus violated condition no. 4 of the insurance policy.  Ld. District Forum ignored the fact that in case the driver was cheated, it was only due to his negligence.  He failed to take reasonable care of the insured vehicle.
7.      Arguments were addressed at length by the counsels for the parties.  We are now confronted with the question as to whether there was negligence on the part of the complainant leading the theft of the car.  The case of the complainant is that Sh. Ashok Jerath was having three cars at his residence S-366, Greater Kailash Part-II, New Delhi. At 08:25 am on 28.04.2008, all these cars were parked on the ramp in front of his house. Sh. Ashok Jerath was ready to leave in the car in question for his office.  His driver, therefore, parked the said car on the road besides ramp.  In the meantime wife of Sh. Ashok Jerath wanted to go in another car parked in the ramp.  Driver was told to shit the car in question, so that another car could be taken out.  After shifting the car in question the driver started reversing the car of Smt. Jerath.  While the driver was reversing the car of Smt. Jerath, the thief drove off the car in question.  It goes to show that Sh. Ashok Jerath and his wife both were ready to leave in separate vehicles.  Assuming the story to be true, for the sake of arguments, a question arises as to whether the complainant had taken reasonable care to safeguard the vehicle.  No same person would leave the key in the ignition switch, even if the vehicle was to be left for a limited time.  Had Sh. Ashok Jerath been present at the scene, he would have raised alarm.   It was the driver alone who was to drive the vehicle in question for taking Sh. Ashok Jerath to his office.  In any case it was a clear case of negligence on the part of the driver of Sh. Ashok Jerath in leaving the keys in the ignition switch.  The standard of reasonable care has to be that of a reasonable person.  No reasonable person would act in the manner in which the driver of Sh. Ashok Jerath has.  Driver undoubtedly is the agent of the owner of the vehicle.  His acts and omissions have to be attributed to the owner. The complainant has, therefore, violated the condition of the policy which itself disentitles him to make any insurance claim.  In view of the discussion above, we are, of the considered opinion that the Tiral Forum fell in grave error in allowing the complaint.  Observation of the Ld. Trial Forum that every owner looks after his vehicle like a child shows that the Ld. Trial Forum has proceeded on its whims and fancies.  Similarly, Ld. District Forum observed that no complainant wants his vehicle to be stolen with his negligence.  Such observations show that the Ld. District Forum has assumed a situation with its own biases. Impugned orders dt. 08.07.2012, passed by the Ld. District Forum are hence set aside. Appeal is accordingly allowed. Complaint filed by the complainant is dismissed.
8.      No order as to costs.
9.      Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Record Room.
10.  FDR, if any, deposited by the appellant be released as per rules.