National Consumer Disputes Redressal
Mahabir Singh vs Reliance General Insurance Co. Ltd. on 16 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 735 OF 2013 (Against the Order dated 19/10/2012 in Appeal No. 1298/2010 of the State Commission Haryana) 1. MAHABIR SINGH S/O SH RAM SINGH, R/O VILLAGE MOKHRA ROHTAK HARYANA ...........Petitioner(s) Versus 1. RELIANCE GENERAL INSURANCE CO. LTD. Branch Office- Model Town, Above HDFC Bank Ltd. Haryana - 124 001 2. RELIANCE GENERAL INSURANCE CO. LTD. Division Office- SCO 145-146, 2nd Floor, Sector-90, Madhya Marg Chandigarh - 160 009 3. RELIANCE GENERAL INSURANCE CO. LTD. Central Office- 1308-1310, 13th Floor, Ansal Tower, 38, Nehru Place New Delhi - 110 019 ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER HON'BLE MR. PREM NARAIN,MEMBER For the Petitioner : Mr.J.K.Chawla , Advocate For the Respondent : Mr. D. Vardarajan, Advocate Dated : 16 Jan 2018 ORDER
1. This revision petition has been filed by the petitioner, Mahabir Singh, against the order dated 19.10.2012 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in First Appeal No.1298 of 2010.
2. Brief facts of the case are that petitioner/complainant got his truck No.HR-46B-7028 insured with the opposite parties/respondents by paying premium of Rs.31,516/-. The policy No.1305062314011162 was valid from 14.11.2006 to 13.11.2007. On 05.04.2007, the aforesaid truck of the petitioner was stolen when the driver Sh. Jai Kishan was returning from Shahdara to Rohtak and when he reached Bhalswa Chowk, Jahangir Puri, he went to ease himself but did not find his truck when he returned after some time. On 06.04.2007, an FIR No.247 of 2007, U/s 379 IPC was registered with P.S.JahangirPuri, North-West Distt., Delhi on the basis of the complaint made by the driver Sh. Jai Kishan. The petitioner/complainant lodged a claim with the Insurance Company/Opposite parties. The claim was repudiated vide letter dated 13.11.2007 on the ground that the investigation of theft by an independent investigator appointed by the Insurance Company revealed that the ignition key of the vehicle was left inside the truck itself and the door of the truck was open, which facilitated the theft. This negligence falls under Condition No.4of the terms and conditions of the policy, under which the complainant was under obligation to take all reasonable steps to safeguard his vehicle.
3. Aggrieved by therepudiation of his claim, the complainant filed a complaint No.451 of 2008 before the District Consumer Disputes Redressal Forum, Rohtak, (in short the 'District Forum'). The opposite parties/respondents herein resisted the complaint and filed written statement reiterating the facts given in the repudiation letter. The District Forum vide its order dated 02.06.2010 allowed the complaint and passed the following order:-
"Accordingly we hereby allow the complaint with direction to the opposite party to pay the IDV of the vehicle i.e. to pay Rs.12,00,000/- (Rupees twelve lacs only) along with interest @ 9% p.a. from the date of filing the present complaint till its realization and Rs.2000/- (Rupees two thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the amount of award shall carry interest @12% p.a. from dated 02.07.2010 onwards till its realization to the complainant. However, complainant is directed to complete the necessary formalities, if any, within a week."
4. Aggrieved by the order of the District Forum, the opposite parties preferred First Appeal No.1298 of 2010 before the State Commission, which was allowed vide its order dated 19.10.2012 and the order of the District Forum was set aside and complaint was also dismissed.
5. Hence the revision petition by the petitioner/complainant.
6. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner/complainant stated that the truck was stolen when the driver stopped the vehicle and went to ease himself. As soon as he returned, the truck was not there. FIR was immediately lodged and Insurance Company was also informed. Insurance claim was preferred with the Insurance Company. However, the same was repudiated on the basis of the investigation report given by the investigator appointed by the Insurance Company. It was alleged in the repudiation letter that certain new facts had come to the notice of the investigator that the ignition key was left inside the truck and even the door was not locked by the driver when he went for the call of the nature. The report of the investigator is based on alleged statement of owner of truck, Mr. Mahabir Singh and one Jai Prakash. The District Forum has not accepted the statement of the owner of Mr. Mahabir Singh as it was not accompanied by the affidavit and moreover the FIR does not mention the fact that the ignition key was left inside the vehicle. The District Forum has also relied upon the affidavit of the driver that he had the key. On the other hand, the State Commission has reversed the decision of the District Forum relying on the same statement of Mr. Mahabir Singh attached with the report of the investigator. The learned counsel argued that no such statement was given before the investigator. The investigator had discussed with the owner that the claim may be settled by the Insurance Company at some lesser amount. In this regard, he had signed only the statement stating that he is ready to settle the claim for Rs.10,80,000/-. As this statement is at the second page of the alleged whole statement, it was alleged by the learned counsel that the first page where the admission of the owner is recorded that the keys were left inside the vehicle, has been fraudulently added later on. Thus, this statement of the owner cannot be relied upon. The statement ofJai Prakash on which the investigator has relied cannot be taken into account because Jai Prakash is stranger to the whole case. He is neither the driver nor the cleaner or the owner of the vehicle. He was not even present on the spot, so how can he know that keys were left inside the vehicle. Thus the report of the investigator is based on forged/false/unconnected statements, which cannot be accepted as they have not been proved by concerned persons.
7. The learned counsel further stated that the theft of the vehicle took place within a short span of time and this does not necessarily means that the driver was negligent.To support his arguments, learned counsel for the petitioner has cited the following judgment:-
National Insurance Company Ltd.Vs.Sinitha and Ors,(2012)2SCC 356. It has been held that:-
"36. It is difficult to understand the true purport of the first issue framed by the Tribunal. A person may be "responsible" for an act, yet he may not be "negligent". Illustratively, a child who suddenly runs onto a road may be "responsible" for an accident. But was the child negligent? The answer to this question would emerge by unravelling the factual position. A child incapable of fending for him would certainly not be negligent, even if he suddenly runs onto a road. The person in whose care the child was, at the relevant juncture, would be negligent, in such an eventuality. The driver at the wheels at the time of the accident is responsible for the accident, just because he was driving the vehicle, which was involved in the accident. But considering the limited facts disclosed in the illustration can it be said that he was negligent? Applying the limited facts depicted in the illustration, it would emerge that he may not have been negligent. Negligence is a factual issue and can only be established through cogent evidence."
8. On the other hand, the learned counsel for the respondents stated that it was a clear case of breach of conditions of the policy as the ignition key of the truck was left inside the truck and the driver left the truck unattended. It is the violation of the condition No.4 of the terms and conditions of the policywhich reads as under:-
"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 the 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. The investigator has recorded the statement of the owner/complainant of the truck, who has clearly stated that the ignition key of the vehicle was left inside the vehicle when thedriver went away for the natural call. Once the owner himself accepts that the ignition key was left inside the vehicle, there is no other view that can be taken than to conclude the negligence on the part of the driver. It was also submitted that the allegation of the petitioner that the statement of the owner Mr. Mahabir Singh was only in respect of the settlement of the claim and another page has been added on that statement is totally false and the petitioner has never taken this plea either before the District Forum or before the State Commission. No new plea can be taken at the stage of revision petition. In fact the petitioner has never denied his statement given before the investigator. The learned counsel referred to the following judgments:-
Shakuntla Devi Vs. Reliance General Insurance & 2 Ors.
Revision Petition No. 2091 of 2012; decided on 05.06.2015 (NC). It has been held that:
"8. The above noted condition of the insurance contract requires the insured to take all reasonable steps to protect the insured vehicle from loss or damage. Undisputedly, the insured left the keys in the ignition of the unattended insured car. Thus, it is obvious that petitioner instead of taking steps to protect the insured car from loss or damage has facilitated the theft by leaving the keys in the ignition of unattended car. Thus, in our view, learned State Commission has rightly held that the repudiation of claim by the insurance company was justified and there is no deficiency in service. In our aforesaid view, we find support from the judgment of coordinate bench of this Commission in the matter of Arun Lal Jat Vs. HDFC ERGO General Insurance Co. Ltd (supra)."
Arjun Lal JatVs. HDFC IRGO General Insurance Co. Ltd. &Anr. RP No. 3182 of 2014, decided on 28.08.2014 (NC). It has been held that:-
"4. .......A vehicle cannot remain in start condition, once the key is taken out of the ignition. The vehicle, in case the key is taken out of the ignition, will immediately stop running. Therefore, it can hardly be disputed that the driver left the truck unattended with the key of the truck in the ignition. Had the driver not left the key in the ignition, it might not have been possible for the thief to commit theft of the vehicle. The driver of the vehicle was clearly negligent in leaving the truck unattended with the key inside the ignition. In our opinion, once it is shown that the theft took place solely on account of the driver, employed by the insured, the Insurance Company cannot be made liable for such negligent act on the part of the driver and cannot be directed to reimburse the insured. For this reason alone, the order passed by the State Commission is eminently justified. This is without our going into the question as to whether leaving keys in the ignition, and leaving the vehicle unattended amounts to breach of the terms and conditions of the policy."
10. We have carefully gone through the material on record and have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties. The theft of the vehicle in the period of insurance is admitted by both the parties. The only contention on the basis of which the insurance claim has been denied by the respondent Insurance Company is that the vehicle was stolen because proper care and precaution was not taken by the driver of the vehicle for safeguarding the vehicle as he left the key inside the vehicle while going away for easing himself on the way. The case of the respondent is based on the report dated 13.02.2008 of the investigator, wherein he has taken the statement of the petitioner/owner Mr. Mahabir Singh as well as of other person Mr. Jai Prakash of the village, who have allegedly given the statement that the ignition key was left inside the vehicle by the driver when he went for easing himself. The petitioner has disputed this by stating the following in the revision petition:-
"G. Because investigator has given a false report as there is no statement given by the petitioner Sh. Mahabir Singh, stating that driver Sh. Jai Kishan had left the ignition key in the truck. The investigator himself has concocted the story at the instance of his master- respondent/insurance company and has fabricated all these statements."
11. The District Forum has not relied on the statement given by the owner of the complainant as the same was not proved and the affidavit filed by the complainant/owner does not support the same. The District Forum has decided the case on the basis of affidavit dated 14.05.2009 filed by the complainant/owner and separate affidavit of same date filed by Jai Kishan driver of the vehicle. The District Forum has also relied on the fact that there is no mention of ignition key having been left in the vehicle in the FIR. On the other hand, the State Commission has mainly relied upon the statement allegedly given by the complainant/owner before the investigator. There was enough opportunity for the complainant before the District Forum and the State Commission for making this allegation, however, the same has not been done. Even in the revision petition or in any other document the complainant has not denied his signatures on the statement given before the investigator. Once the complainant has himself admitted that the key was left inside the vehicle and signatures on the statement are not denied, we are constrained to believe that the key was left in the vehicle.
12. In a similar case of key being left inside the vehicle, in New India Assurance Company Ltd Ns. Girish Gupta, RP No.590 of 2014, decided on 31.07.2014 (NC), this Commission has agreed with the order of the State Commission allowing the claim on non-standard basis, by observing the following:-
"21. This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5. In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV- (2011-4)"
13. As the facts are similar in the present case, the decision in New India Assurance Company Ltd. vs. Girish Gupta (supra) can safely be applied in the instant case.
14. Hon'ble Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) has opined that even in cases where there is any breach of warranty/conditions of policy, an amount upto 75% of the admissible claim can be agreed to. In the case of New India Assurance Company Ltd. vs. Girish Gupta (supra) the vehicle was an Indica car whereas in the present case a truck is involved which would have required more care and precaution as the value of IDV was much higher. In these circumstances, we deem it appropriate to partly allow the revision petition and to order that 60% (sixty percent) of the IDV along with interest at the rate of 6% p.a. from the date of order of the District Forum i.e. 02.06.2010 be paid as settlement of the claim by the Insurance Company. Accordingly, the order dated 19.10.2012 of the State Commission is set aside and the order dated 02.06.2010 of the District Forum stands modified accordingly. This order be complied within 45 days. No order as to costs.
...................... REKHA GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER