NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1893 OF 2016
(Against the Order dated 21/03/2016 in Appeal No. 564/2015 of the State Commission Chhattisgarh)
1. CHOLAMANDALAM MS GENERAL INSURANCE
COMPANY LTD.
THROUGH CONSTITUENT ATTORNEY, BRANCH
OFFICE PLOT NO. 6, PUSA ROAD, KAROL BAGH,
NEW DELHI-110005 ...........Petitioner(s) Versus
1. ASHISH KUMAR WALECHA
S/O. SH. SEWAK RAM WALECHA, R/O. NAHAR PARA,
STATION ROAD,
RAIPUR
CHHATTISGARH ...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER For the Petitioner : Mr. N.K. Chauhan, Advocate For the Respondent : Mohd. Anis-Ur-Rehman, Advocate Dated : 20 Apr 2017
ORDER
The complainant who is petitioner in RP No.3198 of 2016 and respondent in RP No.1893 of 2016, owned a vehicle which he had got insured with the petitioner in RP No.1893 of 2016 which is respondent in RP No.3198 of 2016. On 20.10.2011, the complainant went to meet a friend residing in a rented house no. D-432, Garba Ground, Samta Colony, Raipur. The key of the vehicle was left in its ignition though he claims that another key of the vehicle was with him. When he returned from the house of his friend after about 30 minutes, the vehicle was found missing. The theft was later reported to the police and intimation was also given to the insurer. The claim lodged by the complainant was however, repudiated vide letter dated 09.07.2012 which to the extent it is relevant, reads as under:
"With reference to the claim documents submitted it has been observed that on 20.10.2011 as usual you have gone to your friend's residence and parked the vehicle opposite to his residence at Garba ground, Samata Colony. Leaving the key in the ignition itself you have gone to meet your friends. Upon returning after half an hour it was noticed that the vehicle was missing from the parked place. This has lead to your vehicle being stolen.
This constitutes breach of policy condition No.5 which is reproduced below for reference:
Condition No.5 -
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The insured shall take all reasonable steps to safeguard the vehicle from the 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 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 damages or loss and if the vehicle 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's own risk".
2. Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint.
3. The complaint was resisted by the insurer primarily on the same ground on which the claim had been repudiated.
4. The District Forum having dismissed the complaint, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 21.03.2016, the State Commission partly allowed the appeal filed by him and directed the insurer to pay the claim on non-standard basis. Being aggrieved from the order of the State Commission, both the parties are before this Commission.
5. The condition no.5 of the insurance policy as reproduced in the repudiation letter and extracted hereinabove, required the complainant to take reasonable steps to safeguard the vehicle from any loss and damage. A perusal of the statement of the complainant recorded by the investigator Mr. Om Prakash Joshi on 24.10.2011 clearly shows that the key of the car was left by him in the ignition, while going to the house of his friend. Since the key was left in the ignition, obviously the car was not locked. In fact, the complainant does not even claim in his averment recorded by the investigator that the vehicle was locked though he claimed that a second key of the vehicle was with him. Even otherwise, no one locks the vehicle taking out second key for the purpose, after leaving one key in the ignition of the vehicle. In the normal course of human conduct and behavior, it is the key used for driving the vehicle which is taken out while parking the vehicle and the vehicle is then locked using that key. Therefore, I am satisfied that the key of the vehicle having been left in the ignition, the vehicle was not locked by the complainant when he went to the house of his friend for about half an hour.
6. By leaving the key of the car in the ignition and not locking the vehicle, the complainant failed to take reasonable steps for safeguarding the vehicle from loss, since leaving the key in the ignition of the vehicle would tempt any thief to commit theft of the vehicle, when the vehicle is left unlocked. The complainant therefore, contravened condition no.5 of the insurance policy in the aforesaid manner. In view of the breach of the above referred condition, the insurer is not liable to reimburse the complainant for the loss suffered by him on account of his own negligence.
7. A similar issue came for consideration of this Commission in Reliance General Insurance Company Limited Vs. Vinod Kumar, RP No.157 of 2016 decided on 20.07.2016 where the ignition key was left inside the ignition switch of the vehicle and the door of the vehicle was also open. Dismissing the complaint, this Commission inter-alia held and observed as under:
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"5. ……..If the driver of the vehicle leaves the key in the ignition and also does not lock the door of the vehicle while going to a place from where the vehicle would not be visible to him, such an act in my opinion, amounts to a failure to safeguard the vehicle from loss or damage. The driver knew that if he left the key in the ignition and the door unlocked, anybody could commit theft of the vehicle taking advantage of his being away from the vehicle. Therefore, it would be difficult to dispute the negligence on the part of the driver of the vehicle.
6. In Arjun Lal Jat Vs. HDFC Irgo General Insurance Co. Ltd. & Anr., Revision petition No.3182 of 2014, decided on 28.8.2014, the driver of the truck left the truck in start condition near All India Institute of Medical Sciences and went out to ease himself. When he returned after 10-15 minutes, the vehicle was found missing. The claim having been rejected, the complainant approached the concerned District Forum by way of a complaint. The District Forum held in favour of the complainant but the State Commission ruled against him. The matter was then agitated by the complainant before this Commission. Dismissing the revision petition, it was interalia held that if the driver leaves the key in the ignition, he would be negligent and the theft taking place on account of his negligence, the insurer cannot be made liable to reimburse the insured."
8. For the reasons stated hereinabove, the impugned order is set aside and the complaint is dismissed with no order as to costs.
......................J
V.K. JAIN
PRESIDING MEMBER
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