National Consumer Disputes Redressal
National Insurance Company Ltd. vs Ajay Kumar Amichand Kheera on 27 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3434 OF 2012 (From the order dated 11.04.2012 in First Appeal No. A/11/978 of the State Commission, Maharashtra) National Insurance Company Ltd. Delhi Regional Office, 4th Floor, Jeevan Bharti Building, Tower II, Connaught Circus, New Delhi- 110001 ...... Petitioner Versus Ajay Kumar Amichand Kheera, R/O Jaybhavani Road, Nashik Road, Nashik ........Respondent BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mr. K.K.Bhat, Advocate For the Respondent : Ms. Madhumita Bhattarcharjee, Advocate PRONOUNCED ON: 27th January, 2014 ORDER
PER MR. VINAY KUMAR, MEMBER The National Insurance Company has filed this revision petition challenging concurrent orders of the District Consumer Disputes Redressal Forum, Nasik and the Maharashtra State Consumer Disputes Redressal Commission. Both fora have allowed the complaint No.CC/09/220 filed by Shri Ajay Kumar Amichand Kherra.
2. The matter arose out of theft of a bus belonging to the Complainant on 22.6.2003 from Udaipur. The case of the Complainant is that the driver and cleaner of the truck had stopped at night for their meals at a dabha. The vehicle was parked near the national highway where several other vehicles were also parked. When they returned after their meals from the dabha, the bus was found to be missing. The driver lodged a complaint with the local police at Surajpol police station Suljapur, Udaipur district and OP/Insurance Company was informed by the Complainant.
3. Eventually, on 22.10.2008 the claim of the Complainant under the policy was repudiated by the Insurance Company on the ground that the driver had kept the keys in the parked vehicle and left it unattended.
This was treated as negligence on his part and violation of condition No.5 of the policy. As per this condition, the insured was required to take all reasonable steps to safeguard the vehicle from loss or damage. Before the fora below, case of the OP/National Insurance Company was that the terms and conditions of the policy of insurance are binding on both parties. It was contended that repudiation of the claim for violation of the terms and conditions of the policy did not constitute any deficiency of service.
4. We have carefully considered the records filed on behalf of two sides. Mr. K.K. Bhat, Advocate has been heard on behalf of the revision petitioner/OP and Ms. Madhumita Bhatacharya, Advocate on behalf of the respondent/Complainant. Both sides were also given an opportunity to produce the case law in support of their respective claims.
5. As seen from the record, the OP appointed one M.A. Qureshi as Investigator in this case. As per his report dated 30th January 2004, the driver and the cleaner of the vehicle had parked the bus at a place on the Station Road, where most of the local tourist buses are usually parked. When they returned after their dinner and visit to some travel agencies, the bus was found to be missing. According to this report, the driver and the cleaner informed the local police at about 10:00 PM on the night of the theft itself. The vehicle remained untraced for seven months. Thereafter, the police filed an untraced report, which was accepted by the Chief Judicial Magistrate, Udaipur. The report of Shri Quresi also shows that, investigating from all angles, he did not find, other than the statements of vehicle staff and the owner themselves, even an iota or clue of evidence available. Evidently N.H.8 is a busy thoroughfare on which thousands of buses pass by round the clock, moreover such Luxury tourist buses are a common feature and until and unless there happens to occur any specific incidence, the people residing near the roadside/route do not pay much heed to the passing vehicles.
6. The OP/Insurance Company later appointed another investigator Shri V.V.Joshi. His report of 20th March, 2006 is substantially on the same line as that of Shri Qureshi. He has concluded that the claim of theft is true and correct and has recommended that it should be admitted in accordance with the policy of the company.
7. Learned counsel for the revision petitioner argued that the petitioner was not liable to pay the claim as the key of the vehicle was left within the vehicle which amounted to violation of condition No.5 of the policy. This was mentioned by the driver and the cleaner in the statement before the police on the same day. The FIR shows that the key, along with original papers of the vehicle and some cash, were left in the cabin tool box of the bus. In our view this needs to be seen together with the reports of the investigator appointed by the OP, mentioned above. It is clearly reported therein that the vehicle was parked in a place where such transport buses and tourist vehicles are normally parked on the station road. Thus, the case for violation of condition no.5 is negated by the evidence led on behalf of the OP/Insurance Company itself.
8. Learned counsel for the revision petitioner also sought to rely upon the decision of this Commission in Devender Kumar Vs. National Insurance Company, (RP No.3840/2011) pronounced on 2.4.2012. The facts of this case stood on a very different footing. The complaint before the District Forum was found to contain very significant omission of a fact mentioned in the FIR. The driver of the dumper-truck had himself informed in the FIR that he had left the key in the vehicle and that the cabin lock of the dumper was not in a working condition. Equally strangely, the vehicle was stolen in the night when the driver had claimed to be sleeping next to it. Therefore, the case of the petitioner cannot derive any support from the decision relied upon by its counsel.
9. In the result, we do not find any merit in this revision petition. The impugned order does not suffer from any illegality or material irregularity, which could justify intervention of this Commission in exercise of power under Section 21 (b) of the Consumer Protection Act, 1986. The revision petition is therefore, dismissed with no order as to costs.
.. Sd/-..J. (V.B. GUPTA) PRESIDING MEMBER ..Sd/-..
(VINAY KUMAR) MEMBER S./-