State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Neeraj Jain And Another on 18 September, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 235 / 2009
The Oriental Insurance Company Limited
through its Senior Divisional Manager
Divisional Office, 47, Rajpur Road
Dehradun
......Appellant / Opposite Parties
Versus
1. Sh. Neeraj Jain S/o late Sh. Devendra Kumar Jain
R/o 1394, Govindpuri
Haridwar
2. Sh. Bhan Singh Tomar S/o late Sh. Ratibhan Singh Tomar
R/o H-56, Harilok Colony
Jwalapur, Haridwar
......Respondents / Complainants
Sh. Suresh Gautam, Learned Counsel for the Appellant
None for Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 18/09/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 09.07.2009 passed by the District Forum, Haridwar in consumer complaint No. 345 of 2008. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant to pay the insured amount of the truck amounting to Rs. 7,00,000/- to the respondents together with interest @7% p.a. from 24.11.2008 till payment and Rs. 1,500/- towards litigation expenses.2
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainants had got their truck bearing registration No. UA08-C-9539 insured with the appellant - The Oriental Insurance Company Limited at an IDV of Rs. 7,00,000/- for the period from 13.03.2007 to 12.03.2008. On 19.01.2008, the insured truck was parked by the driver of the complainants after getting the same locked opposite to the office of the complainants and near Om Petrol Pump. However, the insured truck was stolen from the said spot in the night intervening 19/20.01.2008. The complainants searched the insured truck, but the same could not be found / traced. The FIR of the incident of theft of the insured vehicle was lodged on 20.01.2008 at 5:45 p.m. with the P.S. Jwalapur. The police investigated the matter and submitted the Final Report in the case, which was accepted by the learned Chief Judicial Magistrate, Haridwar on 25.06.2008. However, the claim lodged by the complainants with the insurance company for indemnification of loss suffered by them on account of theft of the insured vehicle, was repudiated by the insurance company vide their letter dated 24.11.2008 on the ground that the complainants have violated the terms and conditions of the policy as the vehicle was left unattended for a substantial period of time. Thereafter, alleging deficiency in service on the part of the insurance company, the complainants filed a consumer complaint before the District Forum, Haridwar.
3. The insurance company filed written statement before the District Forum and pleaded that on claim being lodged, the investigator was appointed, but the complainants did not co-operate with the investigator; that on investigation, it was found that the insured truck was parked by the driver on the road outside Om Petrol Pump on 19.01.2008 during day time; that from 17.01.2008 till the night of 19/20.01.2008, the insured truck remained parked unattended 3 on the highway; that as per the terms and conditions of the policy, it was the duty of the complainants to take proper care of the insured truck; that the claim was rightly repudiated per letter dated 24.11.2008 on account of breach of policy condition by the complainants and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 09.07.2009 in the above manner. Aggrieved by the said order, the insurance company has filed the present appeal.
5. None appeared on behalf of respondents - complainants. We have heard the learned counsel for the appellant - insurance company and have also perused the record.
6. There is no dispute with regard to the fact that the vehicle of the complainants was insured with the appellant - The Oriental Insurance Company Limited for the period from 13.03.2007 to 12.03.2008 and during the currency of the insurance policy, the same was stolen in the night intervening 19/20.01.2008. There is also no dispute with regard to the fact that on FIR being lodged with regard to the incident of theft of the insured vehicle, the police investigated the matter and submitted the Final Report in the case, which was accepted by the learned Chief Judicial Magistrate, Haridwar per order dated 25.06.2008 and neither the thieves could be caught, nor the stolen property could be recovered.
7. The insurance company has not doubted the genuineness of the incident of theft of the insured vehicle during the subsistence of the insurance policy, but has contended that the theft took place on account of carelessness on the part of the complainants in taking 4 proper care of the insured vehicle and they had committed breach of the terms and conditions of the insurance policy and, as such, the claim was not payable by the insurance company and was rightly repudiated through letter dated 24.11.2008.
8. In the claim repudiation letter dated 24.11.2008 (Paper No. 48), it has been stated that as per the evidence collected by the investigator and the statement of the truck driver Sh. Faizan Rao, it was found that the vehicle was parked on a highway unattended with the consent and knowledge of the complainants and that the driver had lastly parked the vehicle at 6:00 p.m. on 17.01.2008, whereas the vehicle was stolen on 19/20.01.2008, which shows that the vehicle was left unattended for a substantial period of time.
9. We do not subscribe to the above stand taken by the insurance company. The reason being that the investigator "The Shield"
appointed by the insurance company to investigate the matter in their investigation report dated 22.07.2008 (Paper Nos. 38 to 44), have concluded that the insured truck was stolen from the spot as claimed by the insured persons. However, they have also stated that the claim is liable to be repudiated as the insured persons have violated the policy condition as the vehicle was left unattended at highway for a long period of time. We are not in agreement with the said conclusion of the investigator, on account of the reason that the driver Sh. Faizan Rao had submitted his affidavit dated 07.04.2009 before the District Forum (Paper Nos. 51 to 52), wherein he has categorically averred that in the morning of 17.01.2008, he had loaded the A.C.C. cement in the truck in question from Jwalapur Railway Station and went to Rishikesh for unloading the same and in the evening, after returning from Rishikesh, he parked the vehicle in front of the office of the insured outside the petrol pump. It has further been averred that on 5 18.01.2008, he took the truck to M/s Star Motors Workshop, Sitapur Bypass Road, Haridwar for repairs and change of engine oil and then the vehicle was taken to Naseem Body Maker, Railway Road, Jwalapur, Haridwar, where the body of the insured truck was got repaired and thereafter he parked the vehicle on 19.01.2008 opposite the office of the insured near petrol pump after getting the vehicle locked. The fact that the vehicle was taken to Naseem Body Maker, Railway Road, Jwalapur, Haridwar for repairing of the body of the truck, has also been admitted by Sh. Naseem Ahmed, the proprietor of Naseem Body Maker in his affidavit dated 07.04.2009 (Paper No. 49) and wherein he has also averred that the vehicle remained with him till the evening of 19.01.2008.
10. Thus, from above, it is quite clear that the vehicle was not left unattended by the complainants or their driver for a long period and the same was parked by the driver of the complainants after getting the same locked opposite to the office of the complainants and near Om Petrol Pump, from where it was stolen in the night. Therefore, the insurance company was not justified in repudiating the claim on the ground that the vehicle was left unattended for a substantial long period of time. So far as taking proper and required care of the vehicle is concerned, the vehicle was parked by the driver of the complainants opposite to the office of the complainants after getting the same duly locked and, as such, it can not be said that the complainants have not taken proper and required care of the insured vehicle and failed to take proper care of the vehicle, which resulted in its theft. As is stated above, neither the police, nor the insurance company or their investigator have doubted the genuineness of the incident of theft of the insured vehicle. Therefore, we are of the considered view that the insurance company has made deficiency in 6 service by repudiating the claim of the complainants and the view so taken by the District Forum does not suffer from any infirmity.
11. Learned counsel for the appellant - insurance company pressed into service a decision of the Hon'ble National Commission in the case of Keshav Natu Mhatre Vs. New India Assurance Company Limited and another; IV (2011) CPJ 135 (NC), wherein it was held that the mere fact that the vehicle was locked will not make any difference since it was the duty of the complainant to have taken proper care before leaving vehicle on road. In the instant case, as is stated above, the vehicle was not left / parked on road, but the same was parked by the driver of the complainants after getting the same locked opposite to the office of the complainants and near Om Petrol Pump, which is also the property of the complainants. Thus, it can not be said that the vehicle was left on the road. The driver had also duly locked the vehicle before leaving the same.
12. The District Forum has considered all the facts and circumstances of the case and has rightly allowed the consumer complaint. So far as the quantum is concerned, the vehicle was insured at an IDV of Rs. 7,00,000/- for the period from 13.03.2007 to 12.03.2008 and it was stolen in the night of 19/20.01.2008. Thus, the vehicle was used by the complainants for a period of more than 10 months' from the date of its insurance and hence there ought to be some depreciation from the insured amount of the vehicle on account of the use of the vehicle for such period of time. In our view, depreciation @10% would be just and proper. This way, the complainants are to be held entitled to compensation of Rs. 6,30,000/-. This apart, the District Forum has awarded interest from 24.11.2008, i.e., the date of repudiation of the claim by the insurance company. We are of the view that the complainants are 7 entitled to interest from 17.12.2008, the date of filing of the consumer complaint and not prior to that. The rate of interest and litigation expenses of Rs. 1,500/- awarded by the District Forum are perfectly justified and need not be interfered with. Thus, the appeal succeeds partly and is to be allowed accordingly and the order impugned is to be modified as such.
13. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 09.07.2009 passed by the District Forum is modified and the appellant is directed to pay compensation of Rs. 6,30,000/- to the respondents together with interest @7% p.a. from 17.12.2008 till payment and Rs. 1,500/- towards litigation expenses, as awarded by the District Forum. However, the cost of the appeal is made easy.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K