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Judgment
M. Shreesha, J.
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Actâ€), is to the order dated
09.06.2015, in First Appeal No.15/2, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short “the State
Commissionâ€). By the impugned order, the State Commission has concurred with the finding of the District Forum that the repudiation of the claim of
the Petitioner by the Insurance Company was justified as the Insured had violated the terms and conditions of the policy by not taking reasonable care
of the vehicle in question. For the sake of convenience, the Petitioner hereinafter is referred to as the ‘Complainant’ and the Respondent as the
‘Insurance Company’.
The facts material to the case are that the Complainant M/s Keer Hotels Private Limited had taken an Auto Secure Policy for the period 02.03.2013
to 01.03.2014, for its Innova vehicle for an insured amount of 3,58,789/-. On 01.05.2013, around 5:45 a.m., the driver of the Complainant Mr. Sunder
Mutuswamy, went to drop a client of the Hotel at the airport and on the way back he had left the vehicle at Vile Parle, with the engine in an idling
condition, to attend to nature’s call. It was averred that suddenly a Tata Indica car halted near the subject vehicle and one man got down from the
car and drove away with the insured vehicle. An FIR was also immediately lodged at the Vile Parle Police Station.
It was averred that the Complainant made several efforts to search for the vehicle but could not trace the same. Thereafter, on 22.05.2013, a claim
was filed with the Insurance Company for reimbursement of the stolen vehicle. The claim was repudiated on the ground that the Complainant had
violated condition No.4 of the policy by not taking reasonable steps to safeguard the vehicle from any loss or damage. Hence, the Complainant
approached the District Forum seeking a direction to the Insurance Company to pay the insured amount of 3,58,789/- as compensation with 5,000 as
costs.
The Insurance Company filed their Written Version admitting to the issuance of the Auto Secure Policy for the period from 03.02.2013 to 01.03.2014
for an IDV of 3,58,789/-. It was averred that the repudiation was justified as the Complainant had violated condition no.4 of the policy which states
that the insured shall take all reasonable steps to safeguard the vehicle from loss and damage. It was submitted that due diligence was not observed as
the vehicle was left unlocked, while it was parked. The driver of the insured vehicle left the keys in the ignition with the engine in an idling condition,
on account of which the vehicle was stolen. It was further pleaded that the Complainant has also violated condition No.8 of the policy which reads as
hereunder:
Condition No.8: - “The due observance and fulfillment of the terms, conditions and Endorsements of this Policy in so far as they relate to anything
to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any
liability of the company to make any payment under this policy.â€
The Complainant was conveyed the violation of the afore-noted condition vide repudiation letter dated 22.05.2013 and again vide letter dated
18.06.2013. It was pleaded that the events suggest that the action was not only reckless but also a breach of provisions of Motors Vehicle Act, 1988,
Section 126 of which reads as under:
Stationary Vehicles: No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place,
unless there is in the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes
applied or such other measures taken as to ensure that the vehicle cannot accidently be put in motion in the absence of the driver.â€
Based on the evidence adduced and relying on the judgment of this Commission in “ Sukhwinder Singh vs. Cholamandalam MS General Insurance
Company Limited and Oriental Insurance Company Limited vs. Shyam Sunder, the District Forum has dismissed the Complaint on the ground that the
Complainant has not taken proper care to safeguard the vehicle. On an Appeal preferred by the Complainant, the State Commission has concurred
with the finding of the District Forum and observed as follows:
“Hon’ble National Commission in the matter of M/s New India Assurance Co. Ltd. vs. Sh. Ajit Kumar in Revision Petition No.1896 of 2008
had also referred to earlier judgment of Jagdish Parshad vs. ICICI Lombard General Insurance Co. Ltd. (II(2013) CPJ 578 (NC) wherein National
Commission had taken a view that leaving the vehicle unattended and unlocked was itself sufficient to hold that there was violation of terms and
conditions of the policy. Here not only was the vehicle left unlocked but with engine running. Therefore, may be for different reasons, but we agree
with the District Forum and do not admit the appeal.â€
Learned Counsel appearing for the Complainant relied on the decision of the Hon’ble Supreme Court in “Skandia Insurance Co. Ltd. vs.
Kokilaben Chandravadan, (1987) 2 SCC†in which it was laid down that “ unless the insured is at fault and is guilty of a breach the insurer cannot
escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the
insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his
power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to
drive himself it cannot be said that the insured is guilty of any breach.â€
Learned Counsel for the Insurance Company argued that in the afore-noted judgment relied upon by the Counsel for the Complainant, the question
was with respect to owner’s liability in third party claims and cannot be applied to the facts in the instant case. He further relied on paras 12, 13,
14 and 15 of the said judgment which are reproduced hereunder:
The defence built on the exclusion clause cannot succeed for three reasons, viz.
(i) on a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a
person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and
fulfil the promise and he himself is not guilty of a deliberate breach.
(ii) Even it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed
driver not to allow the vehicle to be left unattended so that it happens to be driver by an unlicensed driver.
(iii) The exclusion clause has to be ‘read down’ in order that it is not at war with the ‘main purpose’ of the provisions enacted for the
protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.
… the provision (of compulsory insurance of motor vehicles) has been inserted in order to protect the members of the Community travelling in
vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. … It is so provided in order to ensure that the injured
victims to fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature …
has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation.
Sec. 84 quoted: Not to leave vehicle stationary in any public, unless there is in the driver’s seat a person duly licensed to drive the vehicle or
unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally
be put in the motion in the absence of the driver.
When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one
hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of
business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach,
the very same conclusion would emerge in obeisance to, the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the
provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. â€
Learned Counsel for the Insurance Company further relied on the judgment of the Hon’ble Apex Court in “Vikram Greentech (I0 Ltd. & Anr.
vs. New India Assurance Co. Ltd., II (2009) CPJ 34 SC, in which the Hon’ble Apex Court has laid down as follows:
“The Court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or
substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. [
General Assurance Society Ltd. Vs. Chandumull Jain and Another, AIR 1966 SC 1644; Oriental Insurance Co. Ltd. Vs. Sony Cheriyan, VI (1999)
SLT 565=II(1999) ACC 196 (SC)=II (1999) CPJ 13 (SC)=(1999) 6 SCC 451; and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal,
IV (*2004) CPJ 65 (SC)=V (2004) SLT 876=(2004) 8 SCC 644.â€
The contention of learned Counsel for the Complainant that the insurer had entrusted the vehicle to the driver and for negligence, if any, on behalf of
the driver, the insured cannot be held to be guilty of any kind of breach, cannot be sustained as there is an implied mandate in the terms and conditions
of the policy, given to the driver not to allow the vehicle to be left unattended and to take ‘reasonable care’.
The point for consideration in Skandia Insurance Co. Ltd. case (supra) pertains to validity of driving licence and it has nothing to do with the concept
of reasonable care. In fact, the Hon’ble Supreme Court in that judgment has discussed the question whether the insurer is entitled to claim
immunity from a decree obtained by the dependents of the victim of a fatal accident on the ground that the Insurance policy provided “a condition
excluding driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or
obtaining a driving licence during the period of disqualification†and that such exclusion was permissible in the context of Sec.96(2)(b)(ii).
At the cost of repetition, the Insurance Company has repudiated the claim on the ground that there was breach of condition 4 of the terms and
conditions which reads as under:
“The insured shall take all reasonable steps to safeguard the 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 vehicle or any part thereof or any driver or employee of the insured. In the event of any
accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the
vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the
insured’s own risk.â€
It is an admitted fact that the Complainant had left the engine in an idling condition and parked the car at Ville Parle leaving the keys in the engine.
The Maxim “sicutere tuo ut alienum loedasâ€- A person is held liable at law for the consequence of his negligence is squarely applicable to the
facts and circumstances of the case. Leaving of the keys in the ignition of the car and further leaving the engine in an idling condition, can be safely
construed to be a negligent act and therefore, is a breach of condition No.4 of the policy.
This lapse on the part of the driver can be inferred to be a willful default of the subject condition of the policy. Having considered the instant case on
the touchstone of the afore-noted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of
the Petitioner must fail on the short ground that there was a breach of the afore-extracted condition incorporated in the policy. Keeping in view all the
afore-noted reasons, this Revision Petition fails and is dismissed accordingly. No order as to costs.