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Judgment
V.K. Jain, J
The complainant / appellant obtained a transit Insurance Policy from the respondent, which covered risk to the jewellery which the appellant could carry to various places. The insurance coverage was available to the extent of Rs.1,56,20,000/-. On 02.7.2013, Mr. Ashok Arya and Mr. Varun Arya of the complainant / appellant went to collect payment from a jeweller in New York and parked the car in the parking lot in the rear of the store. At about 7.45 pm, Mr. Ashok Arya along with his son and Mr. George Vergheese came to the parking lot and opened the trunk of the car in order to keep the bag containing jewellery in the trunk of the car, they noticed that the right tyre of the vehicle had deflated. The car was driven upto a gas station where they tried to inflate the tyre but were unable to do so. They then decided to change the tyre. Mr. Ashok Arya along with his son Varun Arya changed the tyre. Mr. Varun Arya took the wheel and Mr. Ashok Arya stood in the front of the car, with the tools required for the replacement of the tyre.
Mr. Vergheese also stood there. Thereafter, Mr. Ashok Arya came back upto the trunk of the car and closed the same. He noticed at that time that the bag containing jewellery articles as well as his passport and other documents was missing from the trunk of the car. The loss was reported to the police.
On an intimation being given to the insurer M/s. Cunnigham and Lindsay were appointed as the surveyors for assessment of the loss. The surveyors assessed the loss at Rs. 80,33,947/- . However, instead of paying the aforesaid amount, the insurer offered a sum of Rs. 40,16,973/- that being 50% of the loss to the complainant in full and final settlement of the claim. The letter of the insurer, to the extent it is relevant reads as under:
"We find on careful examination of the circumstances of the loss that the same was entirely caused by gross negligence and being left unattended.
It is found that jewels were kept in a bag and left in the trunk of the vehicle unattended.
Whilst stopping for change of tyre, the trunk was left wide open in an inviting manner with both the occupants of the vehicle, besides a third person all remaining in the front side of the vehicle without being aware of even having a view of the trunk with the boot open wide. There was no one to attend to the jewels or watch over the same even when the boot was thus wide open.
The jewels were easily exposed to removal without being noticed and had been in fact removed in such fashion. The CCTV footage provided by you reveals that subsequently when the boot was closed, it was not even looked into and the removal of the bag was not even noticed.
These circumstances lead to an inescapable conclusion that there was utter lack of care and the jewels were completely unattended which directly permitted their removal.
It would be relevant to mention the following stipulation in the policy:
"Goods left unattended will not be covered".
In view of the above the claim would justify repudiation.
However, taking a holistic view of the circumstances, we consider it reasonable to offer a sum of Rs.40,16,973/- being 50% of the loss, on compromised basis in full and final settlement.
In case you concur with the offer, kindly return the enclosed discharge voucher duly signed signifying your acceptance of the offered amount of Rs.40,16,973/- in full and final settlement."
The above referred letter having been received by the complainant after it had already approached the concerned State Commission by way of a consumer complaint was not responded. The complainant had approached the State Commission on 16.9.2015 whereas the letter was issued later on 05.10.2015.
The complaint was resisted by the respondent primarily on the ground on which it had offered a sum of Rs. 40,16,973/- to the appellant/ complainant. The State Commission vide impugned order dated 08.5.2018 directed the insurer to pay 75% of the assessment made by the surveyor after deducting the amount ,which had already been paid to the complainant / appellant during the pendency of the consumer complaint. Being aggrieved from the order passed by the State Commission, the appellant / complainant is before this Commission.
Admittedly, the complainant / appellant never executed discharge voucher and therefore did not accept the offer of Rs. 40,16,973/- made by the insurer. Therefore, there is no question of any estoppel on account of the payment made to the complainant / appellant. The only question involved in this appeal is as to whether there was any breach of terms of the insurance policy, which required the complainant / appellant to ensure that the goods were not left unattended. As noticed earlier, the vehicle was at a gas station when Mr. Ashok Arya and his companions sought to change he tyre of the vehicle. Three persons being present at that time, out of which two were present outside the vehicle though on its front side, it cannot be said that the goods were left unattended. No person would suspect that a bag kept inside the trunk of the vehicle would be stolen even when two persons are present near the vehicle parked at a gas station, and the third person is busy in replacement of the tyre. Though the thief happened to be a daredevil, he having committed the theft despite presence of two persons, near the vehicle it cannot be said that the goods had been left unattended at that time. Therefore, it would be difficult to say that the goods were left unattended at the time they were stolen from the boot of the car. That seems to be the reason that the insurer instead of altogether repudiating the claim chose to take a middle patch by offering a sum of Rs. 40,16,973/- to the complainant.
In my opinion, this is not a case of the breach of a technical term of the insurance policy taken by a person. Here there was no breach at all since the goods were not left unattended. Had the goods been left unattended, the complainant / appellant would not have been entitled to any amount at all. Therefore, the State Commission, in my opinion, was not justified in directing the payment on a non-standard basis.
For the reasons stated hereinabove, the impugned order is set aside and the respondent is direct to pay the entire amount of Rs.80,33,947/- assessed by the surveyor alongwith interest on that amount @ 9% per annum with effect from six months from the lodgment of the claim till the date of payment. Interest on the amount of Rs.40,16,973/- will be payable till the date on which the said amount was paid to the complainant / appellant, whereas the interest on the balance amount will be paid till the said balance amount is paid.