Sukhwinder Singh v. Cholamandalam - Ms General Insurance Company Ltd.

could not be repudiated vide repudiation letter Ex. C10. We hold that there was deficiency in service on the part of the vehicle. Therefore, we direct the OP to make the payment of Rs.2,25,000/- to the complainant alongwith interest @ 9% per annum from the date of issuance of the repudiation letter i.e. 19.01.2010 till its actual utilization. The present complaint is accepted accordingly. The parties concerned be communicated of the order accordingly. File be consigned to record room.

2. Briefly put, facts relevant for the disposal of this revision petition are that the respondent / complainant had insured his car no. HR-05R-8713 with the petitioner / insurance company for the period 10^thMarch 2009 to 09^thMarch 2010 for Rs.2,25,000/-. On 15.03.2009, Joginder Singh, driver of the complainant while returning from Delhi to Karnal stopped the car at the road side at Pepsi Chowk, G.T.Karnal Road, Panipat, in order to answer the call of the nature and went to ease himself. He however, left the keys of the vehicle in the ignition switch. On return, Joginder Singh found the car missing. FIR regarding theft of car was lodged at PS Sadar, Panipat on 16.09.2009. The petitioner / opposite party was also informed on 17.09.2009. The petitioner / company deputed a surveyor for investigation and on the basis of the report of the Surveyor, the claim of the opposite party was repudiated vide letter dated 19.01.2010 on the ground that there was violation of terms and conditions of the insurance policy inasmuch as the complainant's driver did not take reasonable care to protect the interest of the opposite party and left the car unattended with keys in the ignition switch and also that there was delay of two days in informing the petitioner about the theft. Claiming this to be deficiency in service, the petitioner / complainant filed consumer complaint in District Consumer Forum Karnal seeking direction to the opposite party to settle the claim for Rs.2,25,000/- and also to pay compensation of Rs.50,000/- because of mental agony and trauma caused.

3. The insurance company contested the complaint and took the stand that claim was rightly repudiated because of violation of condition no. 1 & 5 of the insurance policy by the complainant.

4. On perusal of the pleadings of the parties and the evidence adduced on record, the District Forum allowed the complaint and issued above noted directions.

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5. Feeling aggrieved by the order of the District Forum, the opposite party preferred an appeal before the State Commission. The appeal, however, was filed after the expiry of period of limitation with a delay of 53 days. Thus application for condonation of delay was also moved. The State Commission condoned the delay and agreeing with the opposite party concluded that the claim was rightly repudiated in view of violation of condition no. 5 of the insurance policy which casts an obligation on the insured to take all reasonable steps to safeguard the insured vehicle from loss or damage. The State Commission thus accepted the appeal and set aside the order of the District Forum and dismissed the complaint.

6. Shri Ankur Bansal, learned counsel for the complainant / petitioner has contended that the impugned order is violative of principle of natural justice because the State Commission condoned the delay in filing of appeal without giving an opportunity to the petitioner to file reply to the application for condonation of delay. It is contended that the State Commission ignored the fact the petitioner was not supplied with the copy of the appeal paper-book and proceeded to allow the application for condonation of delay as also the appeal without giving an opportunity to the petitioner even to cite the case law. Learned counsel for the petitioner, however, contended that even on merits, the impugned order is based on wrong appreciation of the facts and law. It is contended that it is no longer res-integra that the driver of the vehicle is not expected to carry the keys of the vehicle with him while getting down from the vehicle to answer the call of nature. Learned counsel submitted that in the case of theft of vehicle, issue of breach of policy condition has no bearing on the insurance claim of the insured. In support of his contention, learned counsel for the petitioner has relied upon the judgement of the Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. II (2010) CPJ 9 (SC) & National Insurance Company Vs. Nitin Khandelwal IV (2008) CPJ 1 (SC) as also the judgment of National Commission in the matter of National Insurance Company Ltd. Vs. Kamal Singhal IV (2010) CPJ 297 (NC) and Khem Chand Sapra Vs. Oriental Insurance Co.Ltd. III (2002) CPJ 126 (NC) and judgment of the Hon'ble High Court of Punjab and Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour and Travels & Anr. 2011 (164) Pun

L.R. 290.

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7. Shri S.M.Tripathi, Advocate, learned counsel for the respondent on the contrary has argued in support of the impugned order and contended that learned State Commission has rightly dismissed the claim of the petitioner in view of the violation of the conditions of the insurance policy which casts an obligation on the insured to take due and reasonable car to protect the insured vehicle from any loss or damage.

8. We have considered the rival submissions and perused the record. As regards the first contention of the petitioner that the State Commission has decided the application for condonation of delay as also the revision petition without giving him proper opportunity to present his case, we find no merit in the contention for the reason that on perusal of the impugned order, we find that the order was passed in presence of counsel for the parties and it records that arguments were heard. However, on perusal of record, we find that above allegation is not supported by the affidavit of the counsel who represented the petitioner before the State Commission and a cryptic affidavit in support of the allegations in the revision petition has been filed by the petitioner. From the impugned order, it is clear that petitioner was not present in the State Commission on the relevant date i.e. 03^rdOctober, 2012. Therefore, he could not have first hand knowledge of the fact whether or not his counsel sought any adjournment for arguments or he was not given proper hearing.

9. Coming to the merits of the case. It is undisputed that the vehicle in question was stolen while the driver of the vehicle had gone to ease himself after parking the car on the road side and leaving the keys in the ignition. The question for determination is whether or not aforesaid act of the driver of the car amounts to violation of condition no.5 of the insurance policy?. In order to find answer to this question, it is necessary to have a look on the aforesaid condition which is reproduced thus:

"The insured shall take all reasonable steps to safeguard the vehicle from loss of 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

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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".

10. 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)

11. Similar question came up before the coordinate Bench of this Commission in the matter of

National Insurance Co. Ltd. Vs. Kamal Singhal IV (2010) CPJ 297 (NC) wherein National Commission while dealing with the issue of breach of condition for not taking reasonable car of not safeguarding the insured vehicle observed thus:

"True it is that, had there been such evidence, the discrepant statement made by passengers of the insured as quantum of hire and reward was not a significant issue. Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer nature's call, particularly, when the vehicle was within his sight".

12. In view of the discussion above, we find that the State Commission has fallen in error in upholding the repudiation of the claim by the insurance company in view of violation of condition no. 5 of the insurance policy. The impugned order of the State Commission is based upon the judgment of its Commission in the matter of Yeti Packers Pvt. Ltd. Vs. United Insurance Co.

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Ltd.1 (1997) CPJ 417. Aforesaid judgment is not applicable to the facts of the case because aforesaid case relate to loss of money which was left unattended by the claimant in van without locking the same whereas this is a case in which the driver left the vehicle for a short while in order to ease himself but forgot to remove the keys from the ignition.

13. The result of the above discussion is that impugned order cannot be sustained. Revision petition is, therefore, accepted. Impugned order is set aside and order of District Forum is restored. No order as to costs.

......................J

AJIT BHARIHOKE

PRESIDING MEMBER

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SURESH CHANDRA

MEMBER

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