National Consumer Disputes Redressal
The New India Assurance vs T.V. Sarathi on 19 March, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2555 OF 2005 (From the Order dated 01.08.2005 in Appeal No. 1317 of 2003 of Karnataka State Consumer Disputes Redressal Commission, Bangalore) THE NEW INDIA ASSURANCE COMPANY LIMITED PETITIONER VERSUS T.V. SARATHI RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR THE PETITIONER: MRS. PANKAJ BALA VERMA, ADVOCATE. FOR THE RESPONDENT: NEMO. PRONOUNCED ON : 19.03.2009 O R D E R
ASHOK BHAN J., PRESIDENT New India Assurance Company Limited-petitioner herein, which was the Opposite Party before the District Consumer Disputes Redressal Forum, Bangalore Urban District (hereinafter referred to as the District Forum for short), has filed the present Revision Petition.
Shortly stated, the facts of the case are:-
The respondent/complainant is a professional photographer and he purchased a video camera with accessories on 23.11.1998 for a total sum of Rs.1,42,810/- by raising a loan. He insured the said video camera and said accessories with the petitioner for the period 26.03.2001to midnight of 25.03.2002. The case of the respondent is that the said camera was stolen on 18.02.2002 at 12.00 P.M. at BMTC bus stand, Kalasiaplyam, Bangalore. In this connection, he filed a complaint before the Police, a copy of which has been placed on record. The complainant also informed about the theft of the insured equipment to the petitioner on 20.02.2002. Petitioner repudiated the claim on 29.07.2002 on the ground that the complainant had not taken reasonable steps to safeguard the property insured. The respondent aggrieved by the repudiation of the claim by the petitioner, filed a complaint before the District Forum in which notice was issued.
The petitioner justified the repudiation by relying upon the all risk policy condition no.3 where it is stated that the insured had to take reasonable steps to safeguard the property insured and that it would not be responsible for loss/damage of the unattended property.
It was ascertained that the respondent had failed to take proper steps to safeguard the property and, consequently, there was no deficiency in service on the part of the petitioner. It was also contended that from the allegation made in the complaint, it is clear that respondent had left the equipment at the bus stand without any attendant while going to the sweet shop. That in the complaint lodged with the Police, the respondent has shown the value of equipment as Rs.45,000/- whereas in the complaint filed before District Forum, the respondent has claimed Rs.1,40,000/-.
Respondent, in support of the complaint, filed his own affidavit in evidence. The petitioner also filed affidavit of the Assistant Administrative Officer and that of one Shri K. Naga Bhushan Reddy, Investigator and also produced the report submitted by the investigator. Xerox copy of the insurance policy was also put on record.
District Forum allowed the complaint directing the petitioner to pay a sum of Rs.1,42,000/- with interest @ 6% p.a. from 29.07.2002 till payment along with cost of Rs.10,000/-. The petitioner being aggrieved filed an Appeal before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the State Commission for short) which has been dismissed by the impugned Order. It was held that the petitioner-insurance company has failed to produce any evidence to show that the complainant had left the camera unattended on the bus stand.
Counsel for the respondent, Shri A.C. Balraj, has not appeared in spite of a notice sent to him for todays hearing. Respondent is proceeded ex-parte.
We have heard the Counsel for the petitioner at length.
Petitioner had appointed M/s N.B. Associates, Bangalore to investigate the genuineness of the claim made. The Investigator valued the stolen items at Rs.45,000/-. It was also reported by him that respondent had left the suitcase containing the insured item unattended for a considerable time at a busy place. That the respondent had not taken proper steps to safeguard his property. Affidavit of Shri K. Naga Bhushan Reddy, Investigator was filed. The petitioner has repudiated the claim of the respondent on the basis of the report submitted by the Investigator.
All risk policy condition no.3, reads as follows:-
As pr risk clause: warranted that the insured shall take all reasonable steps to safeguard the property insured. Company is not liable for loss/damage of the unattended property.
In the F.I.R., the respondent had stated that after keeping the suitcase at a place where the people sit in the BMTC bus stand, he went to a sweet shop and when he came back, he found that the suitcase containing the insured property had been stolen. Allegations made by the respondent in the F.I.R. were reiterated. In the affidavit in the complaint, filed by way of evidence, the respondent reiterated that he went to the sweet shop leaving the insured goods unattended at the bus stand. The State Commission has clearly erred in putting the onus on the petitioner to prove that the respondent had left the camera unattended. Initial burden was on the respondent to show that he had taken due care to safeguard the insured goods. In the F.I.R., the complaint as well as in the Affidavit filed by way of evidence, the respondent has stated that after keeping the suitcase at a place where the people sit in the bus stand, he went to a sweet shop and when he came back, he found that the suitcase containing the suit property has been stolen. 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.
For the reasons stated above, the impugned Order passed by the State Commission as well as the District Forum cannot be sustained. The Revision Petition is accepted. The Orders passed by the Foras below are set aside and, accordingly, the complaint is ordered to be dismissed. No costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER REVISION PETITION NO.
2555 OF 2005 (From the Order dated 01.08.2005 in Appeal No. 1317 of 2003 of Karnataka State Consumer Disputes Redressal Commission, Bangalore) THE NEW INDIA ASSURANCE COMPANY LIMITED PETITIONER VERSUS T.V. SARATHI RESPONDENT Draft Order in the above matter is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement.
(ASHOK BHAN J.) President 17.03.2009 Honble Mr. B.K. Taimni, Member