ORDER
Per Sh. Rakesh Kapoor, President
The complainant is the registered owner of a car bearing registration no. DL -1YB-9496. He had purchased a policy of insurance in respect of the aforesaid car from the OP. During the subsistence of the said policy , the car was stolen on 19-7-2011 and an FIR was lodged in this regard at PS Sahibabad , Ghaziabad, UP. The police could not trace out the vehicle and the complainant had lodged a claim with the OP for the loss suffered by him. The OP has, however, repudiated the claim on the plea that the insured was guilty of violation of the terms and conditions of the policy of insurance in as much as it had failed to take reasonable care of the insured vehicle. Para 3 of the preliminary objection of the written statement is relevant and is being reproduced below:-
3. That as admitted by the complainant himself and his driver in their various statements , the driver of the complainant committed an act of gross negligence in leaving the insured vehicle in start condition with ignition key in the vehicle itself and going across the road to enquire direction. It is submitted that leaving the insured car unattended at 11 PM in night with ignition key being left in the vehicle itself has created the circumstances for the vehicle being stolen away. It is further submitted that the leaving the car in such position in midnight at a bus stand is the highest degree of negligence as it is usual for scrupulous people being present there and an unattended vehicle being driven away by them. It is submitted that the grossly negligent act of the driver of the complainant is the prime and only cause behind the theft of the insured car and it almost amounts to gifting away ones car to a thief. It is submitted tht complainant and his agent (driver) failed to take ought to do in keeping safe ones car from theft. It is further submitted that negligent act of driver of the complainant is clear cut violation of the terms and conditions of insurance policy. Hence, claim of the complainant has rightly been rejected and same was intimated to him. Hence, this complaint is liable to be dismissed on this ground alone.
The OP has contested the complaint on merits and has prayed that the complaint be dismissed.
We have heard arguments advanced at the bar and have perused the record.
The only question for our determination is as to whether the insured was guilty of violation of the terms and conditions of the policy of insurance and had failed to take reasonable care of the insured vehicle. The learned counsel for the OP has drawn our attention to the statement of the driver who had categorically stated that he had left the ignition key in the ignition socket and had left the vehicle in running condition while getting down to ask for the right way. The vehicle was, therefore, in the sight of the driver who had gone to make enquiries from the nearby trucks parked there. We are, of the considered opinion that there was no willful default on the part of the insured or his agent in taking reasonable care of the vehicle in question. We draw our strength from a Judgment of the National Commission reported as New India Assurance Company Ltd V/s Girish Gupta , Proprietor Gupta Medi Care Company, Ludhiana wherein in Paras 21 to 23 the National Commission has observed as under:-
21. This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5. In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV (2011-4)
22. Similar question came up before the coordinate Bench of this Commission in the matter of National Insurance Co. Ltd. Vs. Kamal Singhal IV (2010) CPJ 297 (NC) wherein National Commission while dealing with the issue of breach of condition for not taking reasonable car of not safeguarding the insured vehicle observed thus:
True it is that, had there been such evidence, the discrepant statement made by passengers of the insured as quantum of hire and reward was not a significant issue. Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer natures call, particularly, when the vehicle was within his sight.
23. In the case of Bajaj Alianz General insurance Company Ltd., vs M/s Sagar Tour and Travels and Another, the High Court of Punjab and Haryana decided on 11.08.2011 has held that this clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. The permanent Lok Adalat had taken care to case some portion of liability on the insured and has denied to him the 25% of the sum insured under the policy. Thankfully for the insurance company, claimant himself has not come by means of any writ petition seeking for the entire amount.
In view of the above we hold that the OP was not justified in repudiating the claim lodged by the complainant. We hold that OP was deficient in rendering services and had we direct it as under:-
- Pay to the complainant a sum of Rs. 276110/- along with interest @ 10% p.a. from the date of institution of this complaint i.e. 23.12.2011 till payment.
- Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.
The above amount shall be paid by the OP to the complainant within 30 days from the date of this order failing which OP shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of this order till the date of payment. If OP fails to comply with the order within 30 days, the complainant may approach this Forum u/s 27 of the Consumer Protection Act, 1986.
Copy of the order be made available to parties free of cost as per law.
File be consigned to R/R.
Announced in open sitting of the Forum on_____________
