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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
This Revision Petition No.669 of 2018 was filed under Section 21(b) of the Consumer Protection Act, 1986 challenging the impugned order of the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (‘State Commission’) dated 21.11.2017. Vide this order, the learned State Commission allowed Appeal No.43 of 2012. The said Appeal was filed against the order of the learned District Consumer Disputes Redressal Forum, Udham Singh Nagar (‘District Forum’) dated 25.02.2012. Vide this order, the District Forum, had allowed the complaint on non-standard basis and directed the Respondents/OPs to reimburse the Complainant with the insured amount for the loss of insured vehicle with 7% interest from the date of filing of the complaint till its realization. The OP Insurance Company is further directed to pay Rs.5,000/- as compensation for mental harassment and Rs.3,000/- as costs of the complaint.
The facts, in brief as per the Petitioners/Complainants, are that the Petitioners insured their tractor (Registration No. UK-06-K-2854) with Respondent, National Insurance Company Ltd from 02.06.2008 to 01.06.2009, paying a premium of Rs. 6300/-. The tractor was stolen on 10.11.2008. An FIR was lodged at P.S. Bazpur, and a claim intimation was promptly given to the insurance company.
On 07.04.2010, the insurer issued a letter to the petitioner stating that the claim might be repudiated because the driver had left the ignition key in the tractor. On 16.07.2010, the insurer formally repudiated the claim on the same ground. Being aggrieved, the Petitioners filed Consumer Complaint No. 82 of 2010 before the District Forum, Udham Singh Nagar, Uttarakhand, alleging deficiency in service on the part of the Respondent Insurance Company.
In reply before the District Forum, the Respondent contended that the claim was repudiated on the specific terms and conditions of the insurance policy. The theft of the insured vehicle was due to the negligence of the owner or driver is not covered. The driver’s negligence in leaving the vehicle unattended with ignition key in it had directly led to the theft, which is a clear breach of policy. The driver, Sh. Jantu Mandal, admitted to the investigator that he had left the vehicle with the ignition key inside and unattended while another person, who was in the vehicle, went to have tea. During this time, the tractor was stolen. Based on the same and Condition No. 5 of the general exceptions the Insurer repudiated the claim. This excludes coverage for theft resulting from negligence such as leaving the key in an unattended vehicle. Their actions were in full compliance with the policy terms. Thus, there is no deficiency in service. The decision to repudiate the claim was within the scope of the policy.
The learned District Forum, vide order dated 25.02.2012 allowed the Complaint, thereby quashing the Repudiation Letter issued by the Respondent- insurance company and directing the Respondent to settle the claim of the Complainants on non-standard basis and to pay the compensation on non-standard basis to the Complainants within a period of one month from the date of the order together with interest @7% p.a. from the date of filing the consumer complaint till payment and also to pay Rs.5,000/- towards mental and financial agony and Rs.3,000/- towards litigation expenses.
On appeal, the State Commission vide impugned order concluded that the Complainants had violated the terms and conditions of the insurance policy as he failed to take reasonable care to protect the insured vehicle. Thus, in view of violation of condition No.5 of the policy, the State Commission allowed the appeal and dismissed the complaint with following observations:
“7. There is no dispute with regard to the insurance of the vehicle and its theft during the currency of the insurance policy. The insurance company has repudiated the claim of the complainants letter dated 16.07.2010 (Paper No. 4/6 of the original record) on the ground that the driver had left the ignition key of the vehicle m the same and had left the vehicle, in violation of condition No. 5 of the policy.
Condition No. 5 of general exceptions of Commercial Vehicle Insurance 'B' Policy (Goods Carrying Vehicles) states that, "the insured shall take all reasonable steps to safeguard the Motor 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 Motor Vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown the Motor Vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the Motor Vehicle be driven before the necessary repairs are effected any extension of the damage or further damage to the Motor Vehicle shall be entirely at the insured's expenses".
Thus, as per the above condition of the insurance policy, it was incumbent upon the complainants and their driver to take proper and reasonable care of the insured vehicle so as to prevent any loss or damage to the insured property / vehicle. Sh. Jantu Mandal, the driver of the vehicle, in his statement dated 17.01.2009 given to the investigator Sh.A.S. Rathaur (Paper No. 15/3), has clearly stated that he was the driver on the insured vehicle of the complainants for the last several months. On 10.11.2008, he along with Sh. Amarjeet Singh, co-owner of the insured tractor, had gone to Bazpur by the insured tractor for purchase of goods. He parked the vehicle on the roadside near Haldwani Bus Stand, Bazpur and the owner of the tractor went to market for purchasing the goods. In a haste, he forgot the ignition of the vehicle therein, as one person of the Village was sitting on the tractor. In the meanwhile, the person sitting on the tractor also went to consume tea and on getting a chance, the unknown thieves had stolen the tractor.
The complainants have stated that no such statement was given their driver to the Investigator of the insurance company and Sh.Jantu Mandal, driver has also filed affidavit dated 07.04.2011 (Paper Nos. 13/1 to13/2), stating therein that he has not given any statement to the investigator of the insurance company. It is true that in Paper No. 15/3, the name of the driver has put his full name "Jantu Mandal” as his signatures, while in his affidavit, he has put his signatures by writing "Jantu", but we are not going to enter into the controversy as to which of the signature is genuine or which of the statement of the driver is correct, but, prima facie, the averment made by the driver in his affidavit appears to be an afterthought. If the driver had not left key of the vehicle therein while leaving the vehicle, the complainants should have submitted both the keys of the vehicle to the insurance company at the time of submission of the claim. In para 8 of his affidavit, the driver had stated that he has carefully locked the tractor and kept the ignition key of the tractor with him as there was rush in the market on the said day. It is not understood that if the driver had locked the vehicle and had kept the ignition key with him, how the tractor would have been stolen from the market full of persons during day time at 6:00 p.m. The perusal of the impugned order passed by the District Forum shows that Sh. Amarjeet Singh, co-owner of the vehicle, had filed his affidavit dated 28.12.2011 (Paper No.27) before the District Forum stating therein that the vehicle was financed by Indiabulls Financial Services Limited (Respondent No. 3 herein) and since there were dues of the financier and, as such, after theft of the vehicle, the financier had got both the key of the vehicle deposited / submitted in their office. The District forum has discarded the said averment made by the co-owner of the vehicle in his affidavit, for the simple reason that no such allegation was made by the complainants in the consumer complaint and the District Forum has specifically held that at the time of theft, the ignition key of the vehicle was inside the vehicle, meaning thereby that the vehicle was not locked by the driver at the time of leaving the same.
As the driver has left the vehicle with ignition key therein and has not locked the vehicle and the complainants and their driver have failed to take proper and reasonable care of the insured vehicle and, as such, the insurance company was fully justified in denying their liability and repudiating the claim of the complainant and in doing so, they have not committed any deficiency in service.
Learned counsel for the appellant — insurance company cited a decision dated 15.09.2017 of the Hon'ble National Commission given in Revision Petition No, 214 of 2017; Kanwarjit Singh Kang Vs. M/s ICICI Lombard General Insurance Company Limited and another. In the said case, the insurance company has repudiated the claim of the insured on two counts; firstly (a) that the driver of the vehicle has violated terms and conditions of the insurance policy as he left the truck unattended, leaving the keys inside and secondly (b) that there was delay of 8 days in intimation of theft to the insurance company. No deficiency in service was found on the part of the insurance company in repudiating the claim on the ground that the vehicle was left unattended with keys inside. Learned counsel also cited another decision of the Hon'ble National Commission in the case of Shamsur Alam Vs. Reliance General Insurance Company Limited and another; II (2016) CPJ 385 (NC). In the said case, the keys of stolen vehicle was left in the ignition. It was held by the Hon'ble National Commission that as per the contract of insurance, it was the obligation of the insured to take all reasonable steps to safeguard Vehicle from any loss or damage and the repudiation of the claim by tie insurance company was held to be justified. Learned counsel further cited decision dated 07.06.2016 of this Commission given in First Appeal No. 195 of 2013; The Oriental Insurance Company Limited Vs. Sh. Alok Kumar. In the said case, the truck was stolen by the cleaner and the insurance company has repudiated the claim on the ground that the incident is not that of theft and the same is covered under criminal breach of trust. It was held that the insured was obliged to take reasonable steps for protection of insured vehicle from any loss or damage. The cleaner of the truck has committed willful breach of trust and the claim was not found payable by the insurance company and the appeal filed by the insurance .company was allowed, thereby setting aside the order passed by the District Forum and the consumer complaint was dismissed.
While allowing the consumer complaint, the District Forum has relied upon the decision of the Hon'ble Apex Court given in the case of NatiJnal Insurance Company Limited Vs. Nltin Khandclwal; IV (2008) CPJ 1 (SC), also pressed into service by the learned counsel for the appellant - insurance company. In the said case, it was held that in case of theft of vehicle, breach of policy condition is not germane and that the nature of use of vehicle can not be looked into and the claim can not be repudiated on that basis and the claim was allowed on non-standard basis. The facts of the said case were entirely different from the facts of the instant case because in the reported case, the violation of the terms and conditions of the policy was related to the nature of use of the vehicle. The vehicle in that case was registered as a private vehicle, but it was being used for hiring purpose. Thus, the District Forum has wrongly placed reliance the said decision.
In view of above discussion, we are of the considered view that the complainants have committed breach of the terms and conditions of the insurance policy and the insurance company was completely justified in repudiating the claim on the ground that the ignition key of the vehicle was left therein by the driver at the time of leaving the vehicle. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per order impugned, which cannot legally be sustained and is liable to be set aside. Consequently, the appeal deserves to be allowed.
Appeal is allowed. Order impugned dated 25.02.2012 passed by the District Forum is set aside and consumer complaint No. 82 of 2010 is dismissed. The statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, be released in its favour. No order as to costs.”
Being dissatisfied from the impugned State Commission order, the Petitioners/Complainant filed the instant Revision Petition.
The Counsel for Petitioner argued that the Complainants are the owners of the tractor No. UK-06-K-2854 and it insured with the Respondent No.1 vide Policy No.461800/47/08/9700000127 valid from 02.06.2008 to 01.06.2009. It was stolen on 10.11.2008, when parked near Bajpur Bus Station. The loss was informed immediately to PS Bajpur vide FIR No.277/08 was registered. The Respondents were also informed and claim was filed by them. The Respondent appointed a surveyor to inspect the loss. He further contended that even in cases of willful breach of conditions, the Apex Court had opined that an amount up to 75% of the claim can be admissible and agreed to. He sought to set aside the State Commission order and uphold the District Forum order
The learned Counsel for the Respondent No.1-Insurer argued that no material irregularity in the learned State Commission order. There is negligence on the part of the Petitioner and the driver of the vehicle. The burden is on the Petitioner to prove his allegations in the complaint. He breached the conditions No.5 stipulated in the Insurance policy. He has relied upon the following judgments:
a. Samshur Alam Vs. Reliance General Insurance Co. Ltd., II (2016) CPJ 385 NC;
b. Kanwarjit Singh Kang Vs. M/s. ICICI Lombard General Insurance Co. Ltd. & Anr., Special Leave to Appeal (C) No.6518 of 2018, decided on 29.03.2022 by the Hon’ble Supreme Court;
c. National Insurance Co. Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC).
The learned Counsel for the Respondent No.2-Financer submitted that the Petitioners have paid the outstanding dues and no allegations made against it in the instant Revision Petition and the same is liable to be dismissed qua the Respondent No.2.
I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the parties.
The central issue is whether the Complainant adhered to Condition No. 5, which mandates taking all reasonable steps to safeguard the vehicle from any loss or damage and maintain it in an efficient condition. It also specifies that in the event of any accident or breakdown, the vehicle should not be left unattended without proper precautions to prevent further damage or loss. While the Complainant argued that even if Condition No. 5 was breached, the insurance company should have settled the claim on a non-standard basis. The failure to do so, according to the complainant, constitutes a deficiency in service. On the other hand, the Insurance Company argued that the vehicle was not secured because the ignition keys were left inside the tractor. They contended that the necessary care, as required by Condition No. 5, was not taken, justifying the repudiation of the claim.
The District Forum noted that the driver, Jentu Mandal, had signed and handwritten a statement indicating that the key was left in the tractor on the day of incident. However, on 28.12.2011, i.e. about 1 year & 8 months after the claim rejection, he submitted an affidavit that the keys were deposited in Respondent No.2 - Financer office at Tikoniya Haldwani. The forum observed that this statement did not seem credible because if the complainant had given the keys to the finance company, he would have taken a receipt and mentioned this fact in his initial complaint, providing the receipt as evidence.
The State Commission also observed that the Complainants breached the terms and conditions of the insurance policy. The commission found that the insurance company was justified in repudiating the claim on the grounds that the ignition key was left in the vehicle by the driver at the time of the theft.
After due consideration of the arguments and evidence presented by the Complainant, the forums concluded that the Complainant did not comply with the necessary precautions as outlined in Condition No. 5 of the insurance policy. Therefore, the insurance company’s decision to repudiate the claim was upheld. There is nothing that has been brought out by the Complainant to establish any illegality or irregularity with the State Commission order other than contesting that 75% is admissible. Failure to take care and precautions with respect to the vehicle insured is established.
In view of the discussions and findings, I am of the considered view that the order of the learned State Commission dated 21.11.2017 in F.A. No.43 of 2012 does not suffer from any illegality or irregularity and is upheld. Consequently, the Revision Petition No.669 of 2018 is dismissed.
There shall be no order as to costs.
All pending Applications, if any, stand disposed of.