National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs K.K. Valsalan on 7 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4521 OF 2013 (From the order dated 17.08.2013 in Appeal No. 456 of 2012 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) Oriental Insurance Co. Ltd. KPK Rialton, Near Kotacherry Pump, Thana, Kannur 670 012 Through Manager Oriental Insurance Co. Ltd. Head Office 88, Janpath New Delhi Petitioner/Opposite Party (OP) Versus K.K. Valsalan, S/o Sekaran Karayil House,P.O. Chovva, Mundayad, Playavoor, Kannur Dt. Respondent /Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioner : Ms. Sakshi Gupta, Advocate For the Respondent : Mr. Vishnu P., Advocate PRONOUNCED ON 7th May, 2014 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 17.08.2013 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, the State Commission) in Appeal No. 456 of 2012 Oriental Insurance Co. Ltd. Vs. K.K. Valsalan by which, appeal filed by the petitioner was dismissed and order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/respondents Lorry No. KL-07/AP-4543 was insured by OP/petitioner. During currency of insurance policy, vehicle was stolen on 18.3.2007. Claim filed by the complainant was repudiated by OP. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that theft occurred due to negligence of the driver who left the key in the vehicle and left the vehicle unattended and thus violated Condition No. 5 of the policy and prayed for dismissal of complaint.
Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.5,38,500/- and further pay Rs.1000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties finally at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that inspite of proof of violation of Condition No. 5 of the policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, leaned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petit6on be dismissed.
5. Learned Counsel for the petitioner submitted that admittedly, complainants driver left both the ignition keys along with vehicles documents in the vehicle and left the vehicle unattended and violated Condition No. 5 of the policy. Condition No. 5 of the policy runs as under:
Condition No. 5:
The insured shall take all reasonable steps to safeguard the vehicle from loss of 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 insureds own risk.
6. Perusal of aforesaid condition makes it clear that driver was under an obligation to take ignition key of the vehicle with him while going to nearest hotel to take tea. Admittedly, he returned after half an hour and found that the vehicle was missing. Leaving both the ignition keys in the vehicle and going to hotel in the mid-night for taking tea and returning after half an hour can be said that complainants driver left the vehicle unattended without proper precautions and thus, has violated Condition No. 5 of the insurance policy and learned District forum committed error in allowing complaint.
7. Learned Counsel for the respondent submitted that Coordinate bench of this Commission has allowed complaint in such circumstances and has placed reliance on judgment of this Commission passed in R.P. No. 375 of 2013 - Sukhwinder Singh Vs. Cholamandalam & Anr. in which it was held that if driver was in the hurry to answer the call of nature and the driver forgot to remove keys from the ignition switch, he cannot be said to have committed willful breach of Condition No. 5 of the policy. In the case in hand, nowhere it has been pleaded that driver was in a hurry to take tea. Not only this, no one would leave both the ignition keys in the vehicle and will go inside the hotel in the mid-night and will return after half an hour and will leave the vehicle unattended.
In such circumstances, aforesaid judgment does not help to the respondent. He has also placed reliance on another judgment of this Commission in R.P. No. 3434 of 2012 National Insurance Co. Ltd., New Delhi Vs. Ajay Kumar Amichand Kheera in which driver and cleaner parked truck near National Highway where several other vehicles were parked in the night and went for their meals at a Dhaba and order allowing complaint was upheld. In the aforesaid case, ignition key and other papers along with cash was kept in the tool box in the cabin of the bus and bus was parked where other transport buses and tourist buses were parked. We do not find any pleadings in the case in hand that the vehicle was parked at a place where other vehicles were also parked. We do not find any averment in the complainant that ignition key was put in tool box. From the complaint it can be inferred that both ignition key were left in the vehicle which amounts to negligence on the part of driver and it can be inferred that driver left the vehicle unattended without proper precaution.
8. Normally, both ignition keys are never kept together in the unattended vehicle and theory of theft of the vehicle is suspicious. Petitioner has not committed any deficiency in repudiating claim and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and Revision Petition is to be allowed.
9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 17.08.2013 passed by the Learned State Commission in Appeal No. 456 of 2012 Oriental Insurance Co. Ltd. Vs. K.K. Valsalan and order of District Forum dated 17.2.2012 in CC No. 147 of 2010 K.K. Valsalan Vs. The Div. Manager, Oriental Ins. Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k