State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Ms.Paramjit Kaur on 29 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 1835 OF 2009
Date of Institution: 23.12.2009
Date of Decision: 29.05.2013
The Oriental Insurance Company Limited, Regional Office, SCO
No.109-111, Sector 17-D, Chandigarh, through Shri S.P.Sharma,
Deputy Manager.
.....Appellant/Opposite Party
VERSUS
Ms.Paramjit Kaur W/o Shri Manjit Singh, resident of House No.8,
Gali No.4, Anand Nagar-B, Patiala.
.....Respondent/Complainant
First Appeal against the order
dated 6.11.2009 passed by the
District Consumer Disputes
Redressal Forum, Patiala.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Present:
For the appellant : Sh.D.P.Gupta, Advocate
For respondent : None
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/opposite party, against the order dated 6.11.2009, passed by the District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint of the respondent/complainant was allowed with cost of Rs.5,000/- and the opposite party was directed to pay to the complainant 75% of the amount of Rs.5,00,000/- alongwith interest @ 8% per annum from the date of filing the complaint till. First Appeal No. 1835 of 2009 Page 2 of 6
2. Briefly stated, the facts are that the complainant was registered owner of the vehicle No.PB-11-AB-1518, Make Scorpio, which was insured with the opposite party for the period 8.6.2007 to 7.6.2008, vide policy No.907032. As per the averments made in the complaint, on 16.1.2008, the driver of the complainant; namely, Tarsem Singh S/o Rachan Singh, was coming from Delhi to Patiala and on the way he parked the said vehicle near Sukhdev Dhaba, Murthal for taking meals. During this period, the vehicle was stolen by some unknown person when the driver went to answer the call of nature. The report was immediately lodged with the Police Station, Murthal, vide FIR No.9 dated 16.1.2008, under Section 379 of IPC. The Police failed to locate the said car. The insurance company was informed about the theft of the car in question. The complainant lodged an insurance claim of Rs.5,00,000/- as per the terms and conditions of the policy. However, the insurance company refused to pay the claim, vide letter dated 24.11.2008 on flimsy grounds. The complainant filed the complaint before the District Forum seeking directions to pay Rs.5,00,000/- i.e. the sum assured of the car in question, and Rs.1,00,000/- on account of mental tension and damages caused to the complainant alongwith interest @ 18% per annum from the date of theft till realization.
3. Upon notice, opposite party filed written reply and contested the claim of the complainant. It was admitted that the car bearing No. PB-11-AB-1518 was insured with it for the period 8.6.2007 to 7.6.2008 in the name of complainant for a sum of Rs.5,00,000/-. However, liability was denied. It was pleaded that on receipt of First Appeal No. 1835 of 2009 Page 3 of 6 intimation of loss of vehicle on 22.1.2008, M/s Royal Associates, Investigators were deputed to investigate the case. In their report dated 18.4.2008, they found that the loss had taken place due to the negligence of the driver of the car, who allowed unknown person to travel in the car and failed to take reasonable care and safeguard the vehicle from loss, which amounted to violation of terms and conditions of the policy. The FIR lodged with the Police Station, Murthal showed that the driver himself handed over the keys of the car to the unknown person and has violated the terms and conditions of the policy. The claim of complainant was rejected and she was informed accordingly, vide letter dated 24.11.2008. It was denied that Police had failed to locate the car because the complainant had failed to furnish the untraced report of the car from the Ilaka Magistrate.
4. Both the parties led their evidence by way of affidavits and documents.
5. The learned District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint in the aforesaid terms.
6. Aggrieved by this order, the opposite party has come up in the appeal on the ground that the learned District Forum has failed to appreciate that there was breach of policy's terms and conditions with regard to taking reasonable care to protect the vehicle against loss. The driver left the vehicle with a person, who was unknown to him with the keys of the vehicle. The District Forum has further gravely erred to award 75% of the amount of loss by treating the claim on non-standard basis. When there is a breach in fundamental condition First Appeal No. 1835 of 2009 Page 4 of 6 of the policy, the claim cannot be treated on non-standard basis because the violation has a nexus and direct bearing on the loss.
7. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.
8. The complainant has contended that the car was stolen by some unknown person while it was parked at Sukhdev Dhaba, Murthal on 16.1.2008 when the driver of the vehicle went to answer the call of the nature. FIR No.9 dated 16.1.2008 (Ex.C-8) was lodged in this regard by the driver Tarsem Singh S/o Rachan Singh. In this FIR, the driver of the vehicle himself has stated that he gave lift to an unknown person near Karnal bye-pass Delhi and when, after taking meals at Sukhdev Dhabha, Murthal, the driver handed over the keys to that unknown person and went to answer the call of the nature. But on return, he found the car missing. Apparently the driver had failed to take reasonable steps to safeguard the vehicle against loss which amounted to violation of the condition No.5 of the terms and conditions of the policy, which provides as under:-
"5. 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 he 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."
9. Clearly the driver, by handing over the keys to an unknown person, was negligent and did not take reasonable steps to safeguard the vehicle from loss. But the learned District Forum wrongly First Appeal No. 1835 of 2009 Page 5 of 6 allowed the payment of the insurance claim on non-standard basis by relying upon the judgment of Hon'ble National Commission in "National Insurance Company Limited V/s Prem Chand" 2001 (II) CLT 555. However, the facts in the present case are distinguishable. In the referred case, the vehicle was stolen while the same was parked in the parking lot, whereas in the instant case, driver was found negligent and a breach of fundamental condition of policy has taken place.
10. Hon'ble National Commission in a similar case reported as "New India Assurance Company Limited V/s T.V.Sarathi", II (2009) CPJ 169 (NC) has observed as under:-
"The State Commission failed to appreciate that the owner of the goods/respondent had failed to exercise reasonable care to protect the goods as a man of ordinary prudence. Admission made by the respondent that he left the camera unattended to go to a sweet shop clearly shows that the respondent did not take reasonable care/steps to safeguard his property. He was clearly negligent in leaving the camera unattended at a busy place like the bus stand. The case of the petitioner would be clearly covered by the all risk policy condition No.3, which provided that the insured was required to safeguard the property insured and the insurance company would not be liable for the loss/damage of the unattended property."
11. In view of the above discussion and findings, the appeal of the appellant/opposite party is allowed and the impugned order of the learned District Forum is set aside. Consequentially, the complaint of the respondent/complainant is dismissed. No order as to costs.
12. The appellant/opposite party deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the registry to the appellant/opposite party, by way of a First Appeal No. 1835 of 2009 Page 6 of 6 crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
13. The arguments in the case were heard on 16.5.2013 and the order was reserved. Now, the order be communicated to the parties.
14. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER May 29, 2013 VINAY