National Consumer Disputes Redressal
New India Assurance Co. Ltd., vs Radhey Shyam on 11 December, 2014
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION
NO. 1652 OF 2012
(Against
the order dated 24-02-2012 in First Appeal No. 354/2010
of
the State Commission, Uttar Pradesh)
NEW INDIA ASSURANCE CO. LTD.,
Divisional Office,
133/242,T.P. Nagar,
District Kanpur Nagar
U.P
Through Manager,
New India Assurance Co. Ltd.,
Delhi Regional Office-I,
New Delhi
...........Petitioner(s)
Versus
RADHEY SHYAM
S/o Late Jagannath
R/o Purana Betwghat,
City Hamirpur,
Tehsil Hamirpur,
Uttar Pradesh.
...........Respondent(s)
BEFORE
:
HONBLE
MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For
the Petitioner : Mrs. Sakshi
Gupta, advocate
For
the Respondent : Mr. Anil Kumar Mishra, advocate
PRONOUNCED ON 11th
DECEMBER, 2014
O
R D E R
PER JUSTICE K.S.
CHAUDHARI, PRESIDING MEMBER
This revision petition has
been filed by the petitioner against order dated 24-02-2012 passed by the
learned State Consumer Disputes Redressal Commission, Uttar Pradesh (in short,
the State Commission) in Appeal No. 354/2010 New India Assurance Co. Ltd.
Vs. Radhey Shyam, by which
while dismissing appeal, order of the District Forum allowing complaint was
upheld.
2. Brief facts of the case are that
complainant/respondent got his truck UP-78-AN 5039 insured from opposite
party/petitioner from 19.04.2004 to 18.04.2005.
On 24.11.2004 Jai Prakash, who was earlier driver of the complainant but
not on the aforesaid date, stolen truck and either disposed of or
misappropriated and lodged false complaint on 27.11.2004. Complainant intimated to opposite party and
demanded assured sum. Claim was
repudiated vide letter dated 29.11.2005.
It was further submitted that complainant lodged another FIR which was registered
on 08.04.2007 on the complaint sent by Court under Section 156(3) CrPC. Alleging
deficiency on the part of opposite party, complainant filed complaint before
District Forum. Opposite party was
proceeded ex-parte. Learned District
Forum after hearing complainant allowed complaint and directed opposite party
to pay Rs.6 lakhs with 8% p.a. interest and further allowed Rs.1,000/- as cost.
Appeal filed by opposite party 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 as vehicle was handed over by driver to some
unauthorized persons, who took away the vehicle, it was violation of terms and
conditions of policy even then learned District Forum committed error in
allowing complaint and learned State Commission further committed error in
dismissing the appeal, hence revision petition be allowed and impugned order be
set aside. On the other hand, learned
counsel for the respondent submitted that order passed by learned State
Commission is in accordance with law, hence revision petition be dismissed.
5. As per
complainant Jai Prakash was earlier driver of this vehicle but on the date of
incident he was not driver and had stolen truck. He has not mentioned in the complaint that
who was driver of the truck on the day of incident who took away truck to Betwa River Mine, Hamipur for
loading Muram.
In such circumstances, it can be presumed that Jai Prakash was driver of
the truck on the day of incident particularly in the light of statement of Jai
Prakash, complainant and cleaner Pintoo recorded by
investigator and he lodged report to the Police Station on 27.11.2004.
6. In FIR it has
specifically been mentioned that he allowed two persons to sit in the vehicle
and on the way they all took their food in Hotel. It has further been mentioned that Jai
Prakash expressed that he was feeling sleepy and was not in a position to drive
the vehicle. Then one of those two
persons asked him to rest on back seat and he will drive the vehicle. After
some time, he expressed that he is in a position to drive the vehicle then
those persons asked him to check air in the tyres. He also got down for natural call and in the
meantime those persons took away the vehicle and could not be traced so
far. Further it has been mentioned that
he intimated to the complainant and searched truck with the complainant but
could not find truck.
7. This report
clearly reveals that he allowed two unauthorized persons to sit in the truck
and he himself handed over keys of the vehicle to third person who fled away
with the truck.
8. Learned counsel
for the petitioner submitted that as complainant failed to take appropriate
care of vehicle and his own driver handed over vehicle to third person,
insurance company rightly repudiated claim on account of violation of terms and
conditions of policy.
9. Condition No. 5
of the policy requires that insured shall take all reasonable steps to
safeguard vehicle from loss or damage.
10. As observed
earlier it becomes clear that driver of the vehicle Jai Prakash himself after
consuming liquor handed over vehicle to unauthorized persons who fled away with
the vehicle and in such circumstances, it was clear violation of terms and
conditions of policy and opposite party has not committed any error in repudiating
claim.
11. Learned counsel
for the respondent submitted that even if there was violation of some terms and
conditions of policy, respondent is entitled to claim on sub-standard basis. In support of his claim he has placed
reliance on judgment of Honble Apex Court in IV (2008) CPJ 1(SC) National Insurance Co. Ltd. Vs.
Nitin Khandelwal, in which vehicle was used as
taxi though vehicle was insured for personal use and passengers on the way
snatched the vehicle from the driver. In
the aforesaid case vehicle was snatched by unauthorized persons whereas in the
case in hand driver of the vehicle himself not only allowed unauthorized
persons to travel in the vehicle but also handed over keys of the vehicle and
in such circumstances, complainant is not entitled to claim on sub-standard
basis also. Learned counsel for the
respondent also placed reliance on judgment of Honble Apex Court in II (2007) CPJ 5 (SC) National Insurance
Co. Ltd. Vs. Ishar Das Madan
Lal, in which theft of jewellary was committed by
unknown customers and insurance co. was held liable. Aforesaid case is not applicable to the facts
and circumstances of the present case as in the case in hand vehicle was not stolen
by unauthorized occupants but driver of the vehicle voluntarily gave keys of
the vehicle to unauthorized persons who fled away with the vehicle.
12. Learned counsel
for the petitioner has also placed reliance on judgment of this Commission in II
(2007) CPJ 48 (NC) National Insurance Co. Ltd. Vs. Lajwanti and IV (2007) CPJ 32 (NC) United India Insurance
Co. Ltd. & Anr. Vs. Ravi Kant Gopalka,
in which repudiation of claim was not held proper as theft was not
doubtful. In the present case theft
itself is doubtful because as per averments in the complaint, driver of the
vehicle disposed of the vehicle or misappropriated it, which cannot be treated
at par with theft.
13. Perusal of record
further reveals that driver of the vehicle lodged report after three days of
the alleged theft and no explanation has been given for delayed information
whereas report was required to be lodged forthwith and intimation to opposite
party was also required to be given forthwith.
Complainant has not mentioned in the complaint date of intimation to
opposite party about the incident.
14. This Commission
in First
Appeal No. 321/2005 New India Insurance Co. Ltd. Vs.
Trilochan Jane decided on 09.12.2009
dismissed complaint as FIR was lodged after two days of theft and intimation to
insurance company was given after nine days.
On account of delayed FIR and delayed intimation to opposite party claim
was rightly repudiated and I do not find any deficiency on the part of the
opposite party in repudiating claim.
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.
15. Consequently,
revision petition filed by the petitioner is allowed and order dated 24-02-2012
passed by learned State Commission in Appeal No. 354/2010 New India Assurance
Co. Ltd. Vs. Radhey Shyam and
order of District Forum dated 24-07-2009 passed in Complaint No. 35/2007 Radhey Shyam Vs. New India Assurance Co. Ltd. are set aside and
complaint stands dismissed with no order as to costs. It is further observed that petitioner is
entitled to recover amount, if any, which has been received by respondent in
pursuance to order of Fora below.
Sd/-
..
(K.S. CHAUDHARI, J.) PRESIDING MEMBER aj/