New India Assurance Company Ltd. v. Girish Gupta

insurance claim/ amount on the basis of aforesaid insurance policy in favour of the respondent, but the petitioner no. 2 took irrelevant and ground less objections regarding some documents on the claim of the respondent and demanded the same and stated that the amount/ claim will be released only after providing these documents. The respondent cleared the objections raised by the petitioner no. 2 and provided those documents to the petitioner no. 2 with its letter dated 11.12.2007. 6. In order to harass and to cause mental agony to the respondent, the Administrative Officer of the petitioner no. 2 namely J S Kattal again raised some irrelevant objections against the documents regarding the said insurance claim. The respondent again provided those documents to the aforesaid Administrative Officer of the petitioner no. 2 vide letter dated 17.01.2008 for his satisfaction and for further action. 7. After harassing, giving mental agony and tension to the respondent,, the petitioner no. 2 after such a long time rejected the aforesaid insurance claim on the baseless ground that the respondent had violated the terms and conditions of the said insurance policy, which were never disclosed and supplied to the respondent. All the documents and duplicate key which were sent to the petitioner no. 2 on 17.01.2008 were retained by petitioner no. 2. The car, which the respondent purchased was hypothecated with the HDFC Bank Ltd., Ludhiana on a monthly installment of Rs.7,120/- and because of not releasing the insurance amount, the respondent was suffering the loss of utility of the insurance amount of the insured car and the loss of installments. 8. Under the facts and circumstances stated above, it was therefore, prayed that the following directions may kindly be issued to the petitioners: (i) Release of insurance amount, i.e., Rs.2,85,000/; (ii) Pay Rs.50,000/- as damages for harassment, mental torture and inconvenience; (iii) Cost of the complaint Rs.10,000/-; (iv) Any other additional or alternative relief to which the respondent may be found entitled under law and equity may also be granted in favour of the respondent. 9. In their reply before the District Consumer Disputes Redressal Forum, Ludhiana (he District Forum the petitioner/ opposite party had stated that the present complaint was not maintainable since immediately on the receipt of the claim it was duly registered, entertained and processed by M/s Gestapo, B 34/ 3151, New Tagore Nagar, Haibowal Kalan, Ludhiana and an investigator has been appointed to investigate the factum of theft of TATA Indica Case no. PB

10 BV 0701 insured in the name of Gupta Medi-Equipp.Co. The said investigator had made a thorough investigation and prepared his report no. 026/08/TNIACL and submitted the same to the petitioners. After the receipt of the report of M/s Gestapo Shri Kanwalpreet Singh, Surveyor and Loss Assessor, resident of House no. 4934, Street no. 7, New Simlapuri, Ludhiana was appointed to investigate and verify the Addum Pata report with the police authority. The said investigator visited the office of PS office Incharge, Division, Dugri Raod and their concerned office, Model Town, Ludhiana to verify the Addum pata report and, therefore, prepared his report dated 07.03.2008 and submitted the same to the petitioners. Even as per FIR no. 132 dated 22.06.2007 under section 379 IPC PS Model Town, Ludhiana recorded the statement of the respondent, the respondent had clearly stated that he had left the ignition key of the car while coming out of the car to urinate. After the receipt of the report of investigation, and after scrutinizing the documents placed in the claim file and after applying the mind the officials of the petitioners in terms of the insurance policy, the claim of the respondent was repudiated by the petitioners as o claimon the ground that since the respondent has failed to take reasonable care to avoid the loss rather there was negligence on the part of the respondent to got down from the car to urinate leaving the ignition key in the car and as such the respondent had violated the mandatory condition of the policy obtained by the respondent. The said letter of repudiation is reproduced as under: M/s Gupta Medi-Equip. Co 87-L Model Town, Ludhiana Reg. Claim no. 360300/31/07/01/90000132 Policy no.

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3603003103107010000404 Vehicle no. PD 10 BV 0701 Dear Sir, This has reference to your claim reported to us regarding theft of vehicle no. PB 10 BV 0701. Please note that s per the condition no. 4 of the policy, (the insurance shall take all reasonable steps to safe guard the vehicle from loss or damage). In the present case, you have failed to take reasonable care to avoid the loss, rather there is negligence on your part to get down from the car to urinate leaving the ignition key in the car. As such you have violated the mandatory conditions of the policy. We are not liable to pay the claim as you have violated the terms and conditions. Thanking you, Sr Divisional Manager There is as such no deficiency in service or negligence on the part of the respondents and the claim has rightly been repudiated. The complaint as such deserves dismissal 10. The District Forum vide order dated 03.08.2009, while dismissing the complaint held that equel to the above discussions, we have reached at the conclusions that the complainant has not taken reasonable steps to safe guard the vehicle from loss or damage, which occurred. As per policy, it is a vital carelessness and negligent contributed by the complainant that he came out of the car for urinating leaving ignition key in the car itself. It is also to mention here that nowhere in the statement of Smt Geetanjali wife of the complainant and nor the complainant himself has mentioned in his statement that the vehicle was stolen at gun pointy by two Sikh youths and also nowhere it has been mentioned in the FIR that the vehicle was stolen by two Sikh youths at gun point and it appears that this is only an after thought story made up by the complainant. In fact, the complainant left the vehicle and came out to urinate leaving the ignition key in the car and kept the car started for that act he himself is responsible for not taking care of his vehicle. As such, the car was stolen due to the mistake of complainant as he came out of the car to urinate leaving the ignition key in the car itself and care remained started and the repudiation letter vide which claim was repudiated is legal and genuine. Hence, we find no merit in the complaint and the same is dismissed 11. Aggrieved by the order of the District Forum the respondent filed an appeal before the State Commission. The State Commission vide its order dated 31.10.2013 that observed that he District Forum tried to take strength to its findings by the following two judgments: (i) III (2006) CPJ 1980 titled as Bajaj Alliance Insurance Company vs Manoj Aggarwal (ii) (I)2006 CPJ 531 titled as M C Chachpan vs United India Insurance Company Ltd., The District Forum did not discuss the facts of those cases nor recorded any reason as to how the ratio thereof was applicable to the facts of the present case. Before recording such a finding regarding the strengthening of the decision by those judgments, it was incumbent upon the District Forum to discuss the facts of those case and to hold that in the set up of those facts the decision recorded therein was applicable to the present case. In T V Sarathi case (supra) which has been cited by the counsel for the insurance company, the facts were different. In that case it was stated by the complainant in FIR that after keeping the suit case at place where the people were sitting in BMTC Bus-stand, he went to a city shop and when he came back he found the suit case containing the insured property had been stolen. It was in view of those facts that it was held by the National Commission that the complainant had failed to exercise reasonable care to protect the goods as a matter of ordinary prudence, as he left the camera unattended to go to a city shop and he was clearly negligence in leaving the same unattended in a busy place like bus-stand. The State Commission while allowing the appeal has set aside the order of the District Forum. The complaint of the complainant is allowed and the insurance company is directed to pay 75% of Rs.2,85,000/- as the insurance amount. For the deficiency on the part of the insurance company, which resulted in mental injury to the complainant, it is directed to pay Rs.15,000/- as compensation. It is also directed to pay Rs.5,000/- as litigation expenses. The appeal is disposed of accordingly 12. Hence, the present revision petition. 13. The main

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grounds for the revision petition are that: The State Commission failed to consider that the complainant had admittedly left the vehicle unlocked, unattended with the ignition key inside which tantamount to lack of reasonable care and gross negligence and resultantly breach of the insurance policy terms and conditions. It is pertinent to reproduce the relevant clause of the insurance policy, as under: Insured shall take all reasonable steps to safeguard the vehicle insured 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 insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are affected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured own risk The State Commission ignored the fact that in order to cover up his gross negligence in leaving the vehicle like that the respondent/ complainant concocted the story and thus did not approach the forum with clean hands and was thus guilt of mala fide intention. The State Commission failed to appreciate that there was no rationale in allowing the claim on on- standardbasis (75% of the admissible claim) as that was applicable only where the breach is insignificant and not material/ fundamental to the loss. Whereas in this case thee was complete lack of reasonable care, lack of diligence and besides gross negligence was also writ large on the face of it by leaving the vehicle unlocked, unattended and ignition key inside the vehicle with an open invitation to culprits to drive the vehicle away without any difficulty. 14. We have heard the learned counsel for the petitioner as well as the respondent in person and have carefully gone through the records of the case. 15. The counsel for the petitioner drew our attention to the FIR on record in which the respondent had lodged the complaint wherein it is recorded that hen I left to Dhandra Road after passing the PH II Dugri, then at PH 1 Opposite Cremation ground, I came down to urinate after parking the car on side and at the time my vehicle was started then from back, one Maruti Car, Colour White came from which two young come down whose wore plain clothes and they heave beards. They theft my vehicle and ran away with take advantage of opportunity. At that time is about 09.00 p m in the night. At that time, the traffic was nothing. In my car, my mobile phone make LG which no. 9316919575 was kept their which theft also 16. The fact that the vehicle was not stolen at gun point as claimed by the respondent was also supported by the statement made by the respondent and his wife before the investigator which are on the lines mentioned in the FIR to the effect that he had alighted from his vehicle to answer call of nature and suddenly two men came in a Maruti Car and stole his car. 17. On the other hand, the respondent maintained that the car had been stolen at gun point and he had been advised by the police not to mention it in the FIR. Similarly, he had been advised by the investigator to give a statement on the lines given in the FIR if he wanted the insurance company to pay the claim. 18. It is an undisputed fact that the respondents TATA Indica Car was stolen by two unknown Sikh persons on 21.06.2007 at Dugri, Phase III, Main Road, Ludhiana, an FIR bearing no. 132 dated 22.06.2007 had been registered against two unknown persons. The petitioner also did not dispute this fact. 19. Condition no. 4 of the policy reads as under: he 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 time free and full access to examine the vehicle or any part there of 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

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the insured own risk 20. The issue is whether the fact that the respondent alighted from the car to answer the call of nature left the key in the ignition tantamounts to violation of conditions no.4 of the insurance policy. This has been dealt with in length by this Commission in RP no. 375 of 2013 Shri Sukhwinder Singh vs Cholamandalam MS - decided on 30th August 2013, wherein it was held that t 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: he 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 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 own risk 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) 22. 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: rue 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 call, particularly, when the vehicle was within his sight 23. In the case of Bajaj Alianz General insurance Company Ltd., vs M/s Sagar Tour and Travels and Another, the High Court of Punjab and Haryana decided on 11.08.2011 has held that his clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. The

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permanent Lok Adalat had taken care to case some portion of liability on the insured and has denied to him the 25% of the sum insured under the policy. Thankfully for the insurance company, claimant himself has not come by means of any writ petition seeking for the entire amount 24. The facts of the above cases are squarely applicable to the case on hand. 25. The counsel for the petitioner in support of his contention has cited the following judgments of the coordinated Bench of this Commission; (i) Oriental Insurance Co. Ltd., vs K K Valsalan (RP no. 4521 of 2013 decided on 07.04.2014); (ii) M/s New India Assurance Co. Ltd., vs Shri Ajit Kumar (RP no. 1896 of 2008 decided on 04.09.2013); (iii) Kamaljit Kaur vs United India Insurance Co. Ltd. (RP no. 2444 of 2013 decided on 28.10.2013); and (iv) Devinder Kumar vs National Insurance Co. Ltd., (RP no. 3840 of 2011 decided on 02.04.2012). The facts of the cases are not applicable to the instant case. 26. In the instant case the respondent has accepted the order of the State Commission and has not filed any case for enhancement. 27. Honle Supreme Court in Mrs Rubi (Chandra) Dutta, vs M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed: lso, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. 28. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with no order as to cost.

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AJIT BHARIHOKE

PRESIDING MEMBER

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REKHA GUPTA

MEMBER

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