Iffco Tokio General vs Jaipal Singh And 2 Ors.

Prem Narain, Presiding Member

This first appeal has been filed by the appellant Iffco Tokyo General Insurance Company Limited challenging the order dated 27th September 2018 passed by the UP State Consumer Disputes Redressal Commission Lucknow (in short "the State Commission") in consumer complaint No. 121 of 2017.

Brief facts leading to this appeal are that the respondent complainant took a motor insurance policy bearing No. 92589128 from the appellant/opposite party and the insurance was valid from 28th May 2015 till 27th May 2016. On 1st January 2016, the vehicle was stolen at 7:30 p.m. which was parked outside a gym where the granddaughter of the complainant had gone to exercise. The complainant gave information to the police and lodged the FIR and Insurance Company was also informed. The Insurance Company appointed an investigator who submitted it's report on 20th May 2016. It was revealed that the key of the vehicle was kept in a drawer which was unattended. The Insurance Company repudiated the claim of the complainant on 25th July 2016 on the ground that proper care and precaution was not taken for safeguarding the vehicle and this was a violation of condition No. 4 of the policy. Aggrieved by the repudiation, the complainant filed the consumer complaint on 21st March 2017 before the State Commission being complaint No. 121 of 2017. The State Commission has allowed the complaint and has directed the Insurance Company to pay Rs.13,37,757/- along with 9% per annum interest from the date of filing of the complaint till actual payment.

Aggrieved by the order of the State Commission, the Insurance Company has preferred the present appeal.

Heard the learned counsel for both the parties and perused the record. The learned counsel for the appellant stated that there was a clear negligence on the part of the driver of the vehicle who left the key unattended in a drawer from where the key was stolen and consequently the vehicle was taken away. The gym from where the vehicle was stolen, was also made a party in the complaint case, however, later on the complainant removed the gym as a party from the complaint case. It was stated that the State Commission has relied on the case of Mahabir Singh vs Reliance General Insurance Company Ltd., - in RP no. 735 of 2013 decided on 16.01.2018 and the State Commission has accordingly allowed the claim on non-standard basis, but the fact is that in Mahabir Singh vs Reliance General Insurance Company Ltd., (supra), there was a doubt whether the key was left in the cabin of the truck, whereas, in the present case, it is an admitted fact that the key was kept in a drawer which was unattended and it was not in a secured place. Moreover, in Mahabir Singh's case, the National Commission has agreed to give only 60% of the insured amount whereas the State Commission has allowed 75% of the insured amount. Clearly, the case of Mahavir Singh is not applicable in the present matter. It was argued by the learned counsel for the appellant that it was a clear case of negligence on the part of the driver of the vehicle as no proper care and precaution was taken to safeguard the key and consequently the vehicle in question. Thus, an important condition of the policy has been violated and there should be no question of approving the claim even on non-standard basis.

On the other hand, the learned counsel for the respondent complainant stated that the investigator has given report that the key, though, was kept in an unguarded place, however, all other members of the gym were also keeping their keys at that place and therefore this was an accepted place for keeping the keys of the vehicles of the members who attended the gym. Thus, there was no negligence on the part of the driver of the vehicle. The driver of the vehicle has taken full care to see that the key is not kept at any other place, rather, she kept the key only at a place where other customers of the gym were regularly keeping their keys. Even then, the State Commission has allowed only the claim on non-standard basis however, the complainant is satisfied with the order of the State Commission and that is why, no appeal has been preferred by the complainant though the complainant deserves the payment of full IDV of the vehicle.

I have carefully considered the arguments advanced by the learned counsel for the parties and examined the material on record. Prima facie the role of the gym looks dubious as only authorized persons may have been getting entry into the gym. The complainant has deleted the name of the gym from the array of the opposite parties on account of reasons best known to him. As gym is not a party in the current case, no order can be passed against the gym. Now the matter rests between the complainant and the Insurance Company. The vehicle has been lost by theft and the police has filed the final report which has been accepted by the Magistrate. In such circumstances, clearly the insurance is attracted. Keeping the negligence of the complainant in mind, the State Commission has awarded the claim on non-standard basis i.e., at 75% of the insured value. As the driver of the vehicle kept the key at a place where other customers of the gym were also keeping the keys of their vehicles, the negligence on the part of the driver is not of that significance that it should totally disentitle the complainant to get the insurance claim though there is serious lapse on the part of the driver of the complainant in safeguarding the vehicle and therefore the condition No.4 is grossly violated. The Hon'ble Supreme Court in the case of Amalendu Sahoo vs Oriental Insurance Company Ltd., - II (2010) CPJ 9 (SC), has allowed insurance claim on the non-standard basis up to 75% of the insured value if certain conditions of insurance policy are violated in case of a motor policy. Even in the case of Mahabir Singh vs Reliance General Insurance Company Ltd., (supra) decided by this Commission, the claim has been ordered to be settled at 60% of the insured value though there was still a doubt whether the keys were left in the cabin of the truck. In the present case, there is no doubt that the key was left in a place which was not guarded. Thus, in the light of the decision of the Hon'ble Supreme Court in the case of Amalendu Sahoo vs Oriental Insurance Company Ltd., (supra), I deem it appropriate to allow the insurance claim only at 60% of the insured value instead of 75% as allowed by the State Commission because the negligence on the part of the complainant is quite serious.

In the present case, as observed earlier the role of the gym may have a bearing on the present case. From this aspect, it is necessary that the Insurance Company gets a letter of subrogation from the complainant.

Based on the above discussion, the first appeal No. 1988 of 2018 is partly allowed and the order of the State Commission is modified to the extent that the claim will be settled at 60% of the insured value rather than at 75% as ordered by the State Commission. Keeping the current interest scenario, the interest of 9% as awarded by the State Commission is also reduced to 6% per annum. With these modifications, the order of the State Commission is upheld. The Insurance Company shall make payment of the ordered amount to the complainant after the complainant submits a letter of subrogation to the Insurance Company as per their format and procedure. The Insurance Company shall make payment within 30 days from the date of receipt of subrogation letter from the complainant.