National Consumer Disputes Redressal
M/S. New India Assurance Co. Ltd. vs Ajit Kumar on 4 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1896 OF 2008 (From the order dated 10.03.2008 in First Appeal No. FA-07/849 of Delhi State Consumer Disputes Redressal Commission) 1. M/s. New India Assurance Co. Ltd. R.O. I, Jeevan Bharthi Building, Connaught Place, New Delhi. 2. The New India Assurance Co. Ltd. Through its Divisional Manager, CDU, 31700, C-2 Mahavir Bhawan, 4th F. Karampura Community Complex New Delhi ... Petitioner(s) Versus Sh. Ajit Kumar B-I, Suneja Tower-I, District Centre, Janakpuri, New Delhi 110058 Respondent(s) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Ms. Pankaj Bala Varma, Advocate For the Respondent Mr. M.C. Premi, Advocate With Respondent in person PRONOUNCED ON : 4th SEPT. 2013 O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner, New India Assurance Co. Ltd. (hereinafter referred to as Insurance Company) against the impugned order dated 10.03.2008 passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. FA-07/849, M/s. New India Assurance Co. Ltd. versus Ajit Kumar, vide which while allowing the appeal, the order passed by District Consumer Disputes Redressal Forum, Janakpuri allowing the complaint filed by the respondent was slightly modified and the awarded amount of Rs.2.65 lakh by the District Forum was reduced by 5% on account of depreciation of the value of the vehicle in question.
2. Brief facts of the case as contained in the complaint are that the respondent/complainant is doing trading business of communication accessories at Suneja Tower-I, District Centre Janakpuri, New Delhi. He got his Maruti Zen Car bearing registration number DL-09-CE-8578 insured with the petitioner/OP vide policy no. 311700/31/04/01/00001575 covering the period from 29.06.2004 to 28.06.2005 for a sum of Rs.2.65 lakh on payment of a premium amount of Rs.9,841/-. It has been stated by the complainant that on 18.02.05 at about 11:30 p.m., he was coming back from his office at District Centre Janakpuri by the above-said car to his residence at C Block, Janakpuri. When he reached near Bharti College, he felt a strong need for urination.
He stopped his car on the left side of the road, when there was no one in the vicinity at that time. The complainant switched off his car, took out the ignition key and went for urination. When he returned back, he did not find his car there. The briefcase of the complainant was kept in the car, which contained important documents, including a set of documents of the car as also the second key of the car. The complainant informed the local Police about the theft of the car and also the financing bank and the respondent insurance company. An FIR no. 85/05 was registered at Police Station Janakpuri, New Delhi. On 25.5.2005, he submitted the requisite claim papers vide claim No. 311700/31/04/0652 with the respondent after fulfilling all the requirements.
However, the claim was repudiated vide letter dated 24.08.2006 on the recommendations of the investigator. The complainant filed the consumer complaint in question, which was allowed by the District Forum vide order dated 24.09.2007 and a sum of Rs.2.65 lakh was allowed to be given to him, besides a sum of Rs.7,000/- as compensation for harassment.
An appeal against this order was allowed by the State Commission on 10.03.2008 and the said order was slightly amended and the State Commission reduced the awarded amount of Rs.2.65 lakh by 5% on account of depreciation and maintained the rest of the order. The present revision petition has been filed against this order of the State Commission.
3. At the time of arguments before us, learned counsel for the petitioner Insurance Company stated that the complainant/respondent, as per his own version had left the car unlocked on road and hence violated the terms and conditions of the insurance policy in question. It had been stated in the general conditions to the policy that, the insured shall take all reasonable steps to safeguard the vehicle from loss or damage.. In his statement recorded by Shri Sanjeev Nijhawan, investigator, appointed by the petitioner, the complainant stated that, at the time of incident, the key was in the car which has been taken away with car and duplicate key is with me. In the complaint, however, he stated that he had taken away the ignition key and went for urination and the second key of the car was there in the briefcase, kept inside the car. This was an apparent contradiction in the stand taken by the complainant. Learned counsel has drawn our attention to the order passed by this Commission in The New India Assurance Co. Ltd. versus T.V. Sarathi [RP No. 2555 of 2005 dated 19.03.2009], in which it has been stated that the insurance company would not be liable to loss/damage of the unattended property, if the insured was found negligent in safeguarding the said property.
Further, in another case, Jagdish Parshad versus ICICI Lombard General Insurance Co. Ltd. [II (2013)CPJ 578 (NC)], the National Commission had taken a similar view saying that negligence on the part of the complainant leaving the vehicle unattended and unlocked was sufficient to hold that there was violation of terms and conditions of the policy. The facts in this case were almost similar to the present case as the driver and cleaner had left the vehicle unattended on road, with keys within the said vehicle for urination and in the meanwhile, some unknown persons had taken away the said vehicle.
4. Learned counsel for the respondent stated that as mentioned in the complaint, it was very clear that he had taken the ignition key of the car, when he went for urination. In the statement recorded by the investigator, the version that duplicate key was with him had been added later. Learned counsel further stated that the complainant had lodged report with the nearest police station. He further stated that even if, there was violation of the terms and conditions of the policy, the claim should at least be settled on non-standard basis.
Learned counsel invited our attention to the case National Insurance Company versus Lajwanti [II (2007) CPJ 48 (NC)], saying that when the factum of theft was not doubtful, the order passed allowing the claim was not illegal. Further in case, National Insurance Co. versus Ajay Kanwar [II (2008) CPJ 381 NC], the National Commission has held that the appointment of an investigator was not backed by any statute and hence there report should not be given any credence. In National Insurance Co. Ltd. versus Sanjay Shivhare [Revision Petition No. 2393/2003 and 2/2004 decided on 13.09.2007], the National Commission laid down the guidelines for settlement of claims on non-standard basis.
5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him.
There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at C Block Janakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination.
The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim, sic utere tuo ut alienum loedas A person is held liable at law for the consequence of his negligence.
7. The citations quoted by the learned counsel for the petitioner at the time of arguments make it clear in categorical terms that when the complainant had left the vehicle unattended and unlocked, it amounted to violation of terms and conditions of the policy and the claimant was not liable to be paid for compensation. The citations cited by the respondent do not help him in any manner, because there is a clear violation of the terms and conditions of the policy in the present case.
8. Based on the discussion above, this revision petition is allowed and the orders passed by the District Forum and State Commission are set aside and the complaint is ordered to be dismissed. There shall be no order as to costs.
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(K.S. CHAUDHARI J.) PRESIDING MEMBER Sd/-
(DR. B.C. GUPTA) MEMBER RS/